Rio Grande Foundation Files Public Records Lawsuit Against City of Albuquerque

(Albuquerque, NM) – The voters of Albuquerque voted against Democracy Dollars in November of 2019, and the Rio Grande Foundation played a pivotal part in the defeat of the ballot measure. Furthermore, the Rio Grande Foundation won an ethics complaint against the Mayor for his use of the City’s website (CABQ.gov) in which he specifically called for voters to approve Democracy Dollars and other bond measures.

Almost six months later, the Foundation has filed suit over a lack of transparency and openness associated with Mayor Tim Keller’s decision to violate the law.

Specifically, the Rio Grande Foundation requested a reasonable collection of text messages and emails sent to and from specific City employees leading up to the posting of Mayor Keller’s pleas on the City’s website to vote “YES”.

According to the Rio Grande Foundation, the public records request was filed under New Mexico’s Inspection of Public Records law and accepted by the City in December of 2019. After dutifully paying the invoice to receive the first portion of these records, the City of Albuquerque has failed to produce any records in response to the request from over five months ago.

Patrick Brenner, a Policy Analyst with the Foundation, filed the original request. Mr. Brenner has left no less than six voicemails and has sent dozens of emails and messages through the City’s open government portal imploring the City to fulfil its duty to provide public records.

On May 12, 2020, after exhausting all other avenues to obtain these public records, which includes receiving assistance from the New Mexico Foundation for Open Government when Director Melanie Majors sent a letter of complaint to no avail, the Rio Grande Foundation filed a legal complaint in District Court against the City.

In the lawsuit the Foundation alleges that Ethan Watson, City Clerk, and the Custodian of Records, Yvette Gurule, are creating artificial delays in order to delay production of these public records. Early in the process, the Foundation emphatically requested confirmation from Mr. Watson and Ms. Gurule that these documents were not being destroyed. To date, no such confirmation has been received.

The Foundation recognizes that the ongoing response to the Coronavirus pandemic may have caused delays later in the request process. However, the Coronavirus does not excuse any governmental body from its obligation to timely respond and provide public records requested in accordance with the New Mexico Inspection of Public Records Act.

Click here to see a copy of the lawsuit that was filed.

Here are the candidates that have not signed the Taxpayer Protection Pledge

Taxpayer Protection Pledge Non-Signers

Taxpayer Protection Pledge Signers

The leftist groups and politicians that control New Mexico want to raise your taxes to deal with the Virus and shutdown economic disaster. The Tweet below from Rep. Moe Maestas (with a follow-up from the lobbyist for NM Voices for Children), reflects the party line on the left. They don’t say “raise taxes,” rather they put nearly every major facet of government off limits and they refuse to even consider that some government programs or spending in their “sacred” areas might be ineffective.

The tax hike situation is a real threat as New Mexico’s economic recovery begins. These are the same people who brought you a tax increase (HB 6 in 2019) when the State had a surplus of over $1 billion. Now that the surplus has evaporated due both to the Virus-induced economic shutdown imposed by Gov. Lujan Grisham and the massive drop in oil prices, we have a major budget deficit.

At the Rio Grande Foundation we are attempting to get legislators across our state to sign our pledge NOT to raise taxes (the overall burden) through at least the end of the 2021 Session which will end in March of next year.

Despite our best efforts it has quite frankly been a challenge to get legislators to sign the pledge. I’m not just talking about Democrats, but many Republicans have been unwilling to sign.

Just to be clear, I don’t believe many of these legislators will vote to raise taxes, but many (including Republicans) have voted to raise taxes in the past. We don’t want them to do it again.

Below is the list of legislators who have NOT signed the Rio Grande Foundation’s taxpayer pledge along with their emails and phone numbers if available. If you don’t know who your legislators are, you can find out by clicking here.

Please take a moment and send your representative and senator a note (or give them a call) and ask them politely to sign the Rio Grande Foundation pledge NOT to raise taxes as a result of the Virus-induced shutdown. They (and you) can find the pledge at: www.riograndefoundation.org/pledge.

If your legislator IS NOT listed it means they HAVE signed the pledge. Please feel free to thank them for standing against higher taxes.

The State of Open Government Amidst the Crisis

Whether it’s projected tax revenues or emails from constituents to County Commissioners, the Rio Grande Foundation is passionate about open government and regularly files public records requests. New Mexico has solid sunshine laws on the books and good case law to support our right to know: “Recognizing that a representative government is dependent upon an informed electorate, the intent of the […] Inspection of Public Records Act is to ensure […] that all persons are entitled to the greatest possible information regarding the affairs of government.”

The Coronavirus Pandemic has us all acclimating to abnormal working conditions and different environments. That includes both public records custodians and the team here at the Foundation. However, the state of open government and transparency in government is troubling. Normally, public records requests are responded to in a lethargic fashion regardless of the public body the records are sought from. 

This pandemic has added remarkable delays to already delayed requests, directly impacting our ability to seek and obtain public records related to our work here at the Foundation. Public officers and employees of our government have either forgotten the importance of our sunshine or are using the Virus to circumvent transparency. 

The Rio Grande Foundation has numerous open public records requests, to put it mildly:

  • City of Albuquerque, a request filed in December 2019, requesting emails and text messages of some City employees. Zero responsive records have been received so far. This request has been fraught with unnecessary delays, and then in April 2020, they asked for additional time suddenly able to cite the ongoing Coronavirus pandemic.
  • County of Bernalillo, a request filed in June 2019, requesting constituent responses regarding the Paid Time Off ordinance being considered at that time. Some responsive records were finally received in February 2020, but have been improperly redacted.
  • New Mexico Department of Taxation and Revenue, filed in May 2020, requesting Gross Receipts Tax revenues and oil and gas tax revenues for 2019 and 2020-to-date. No response even acknowledging the request has been received.
  • New Department of Health, a request filed in April 2020, requesting “statistical model equations and supporting model assumptions referenced by Dr. Scrase at the governor’s April 22nd press conference to present projections of future COVID-19 cases, hospitalizations, and deaths in New Mexico”. The Human Services Department was not the custodian of these records and forwarded the request to the Department of Health, which promptly marked the request as “unnecessarily broad and burdensome” citing the ongoing Coronavirus pandemic and has not responded with any responsive documents.

The Foundation can’t even obtain the Gross Receipts Tax revenue figures without jumping over bureaucratic red tape. Simple requests for public records are being met with “extensions” because our requests for emails are “unnecessarily broad and burdensome”. This ongoing Coronavirus pandemic is a real and serious public health and economic crisis, which is now creating a transparency crisis, enabling our government to cite the health crisis as the reason for not providing properly requested emails and text messages.

If a government employee is working from home, why does the Coronavirus give them an excuse to not provide public records? What is the actual cause for the delay? I am frustrated, and it seems that the only path forward in obtaining public records is litigation. Is this the “new normal”? 

Tipping Point New Mexico makes “Top Podcasts of 2020” list

Feedspot.com names Tipping Point New Mexico one of the “Top 20 Public Policy Podcasts You Must Follow in 2020”

Tipping Point New Mexico is the official podcast of the Rio Grande Foundation that addresses public policy issues facing New Mexico, hosted by Paul Gessing, President of the Rio Grande Foundation, and Wally Drangmeister.

Launched in 2018, the podcast features two episodes weekly and is nearing its 200th episode (we’re at 188 now). With special guests and topics ranging from the Railrunner to real estate and from optometry to printing, we do more on the podcast than just talk politics.

Some of our recent guests include Ken Starr (former independent counsel during the Whitewater controversy of the Clinton Administration), Grover Norquist (tax reduction advocate and President of Americans for Tax Reform), and John Boyd (New Jersey-based corporate site selector).

Feedspot.com has recently listed the Rio Grande Foundation’s public policy podcast on their list of the top 20 public policy podcasts to follow in 2020. Whoop!

Check out our latest episodes at tippingpointnm.com and join us live on Monday afternoon as we stream Tipping Point New Mexico: LIVE! on Facebook.

Rio Grande Foundation offers partnership with Governor Lujan Grisham to combat Coronavirus aftermath

*FOR IMMEDIATE RELEASE*

April 2, 2020

Governor Lujan Grisham,

New Mexico faces an unprecedented crisis on multiple fronts. With the rapid spread of the outbreak, the state-wide call for social distancing is proper. These life-saving measures are necessary and we appreciate your leadership. We value life and must work diligently to preserve it. However, these mitigation efforts will undoubtedly result in an economic crisis. Combining that with the collapse in crude oil prices which fund 40% of New Mexico’s economy and our State faces unprecedented economic and budget challenges for the foreseeable future.

One thing is definite: New Mexico remains united in defeating coronavirus. I have never witnessed a coming together of the entirety of the state in the way that I’ve seen in the last three weeks. But some of our greatest challenges lie ahead.

We must also unite in defeating the economic scourge that will plague us long after the coronavirus threat has been eliminated. We want you to know that the entire team at Rio Grande Foundation stands ready and willing to help our state on the road to recovery.

At the Rio Grande Foundation, our economic policy experts have the experience to help New Mexico overcome this challenge and emerge stronger than ever before. We are capable, we are ready, and we are willing. Already we have made some detailed suggestions at our blog site: www.errorsofenchantment.com. Consider sending your team there for details but you and your staff can also reach us directly at 505-264-6090.

Please, let us help develop solutions now so that we are prepared to act as soon as we are free to do so. We are together, New Mexico.

Sincerely,

Paul Gessing
President

Launching the 1912 Society

Our country is facing an unprecedented crisis. We are fighting an invisible enemy that has challenged us deeply, but has also brought out the best in people as we come together in community. Indeed, the best of America has been showcased over the last several weeks as we fight through this.

The Territory of New Mexico was first organized as an incorporated territory of the United States that existed from 1850 until 1912, when the remaining extent of the territory was admitted to the Union as the State of New Mexico, making it the longest-lived organized incorporated territory of the United States, lasting approximately 62 years.

For over 108 years now, New Mexico has been a part of the American community, united by the common values we share. On January 6th in 1912, New Mexico was admitted to the union of the United States as the 47th state, setting it on a historic path.

In so doing, we recognized our belief in a fundamental set of principles founded on liberty, freedom, and personal responsibility. We joined a society governed by the Constitution, a document that empowered the people instead of a king and wrote into law an unprecedented form of republican governance.

We are proud to announce the creation of the 1912 Society, an association aimed at honoring the time-tested principles that we share, which we can trace back to the date when New Mexicans became Americans. This membership society is brought together to honor and connect those donors who support the work of the Rio Grande Foundation at a certain annual level.

Through this exclusive giving club, members will get special updates from the president, an auto decal to showcase their membership, and advanced notice and reserved seating for events.

Click here to join the new 1912 Society

Thank you to the many individuals who have continued to give their generous support to our organization. It is only through your investment that we’re able to continue our work and in so doing fight for liberty, opportunity, and prosperity in the Land of Enchantment through public policy advocacy, thought leadership, and litigation.

Rio Grande Foundation sues City of Albuquerque for Open Meetings Act Violations

(Albuquerque, NM) – On Friday, March 13, 2020, the City Council of the City of Albuquerque announced that it would be holding a closed meeting the following Monday, March 16, 2020. At that meeting which occurred this past Monday, the Council amended its Emergency Powers Ordinance which has been on the books for several decades.

Click Here to Donate Now

The Emergency Powers Ordinance contains numerous controversial provisions which, under New Mexico’s Open Meetings Act, residents of Albuquerque have a right to participate in with their members of the City Council.

The language of the Open Meetings Act is very simple. It states in part that, “…all meetings of any committee or policy-making body of the legislature held for the purpose of discussing public business or for the purpose of taking any action within the authority of or the delegated authority of the committee or body are declared to be public meetings open to the public at all times.”

The Rio Grande Foundation asserts in the lawsuit which has been filed in New Mexico district court that the City has violated the New Mexico Open Meetings Act by holding a City Council meeting March 16, 2020 without proper notice and without conducting such according to the provisions of the Open Meetings Act therein violating the Due Process owing to the citizens of Albuquerque.

Furthermore, the decades-old Emergency Powers Ordinance to which several amendments were made is itself unconstitutional. The Ordinance gave the Mayor power to restrict sales of firearms and ammunition. These provisions which were not amended on Monday violate New Mexico’s Constitution, which states:

“No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.”

Said Rio Grande Foundation President Paul Gessing, “The Rio Grande Foundation understands that we are in a crisis situation right now, but laws like the Open Meetings Act and our State and Federal protections on the right to self defense were intended for crises.”

The Foundation’s lawsuit states that both the Open Meetings Act and the long-existing firearms restrictions violate New Mexico Law and should be considered void.

Click Here to View the Complaint as Filed

HB 364 is a massive union power grab

We’ve christened HB 364 as the “Union Empowerment Bill version 2”

The Union Empowerment Bill version 1 was SB 110.

HB 364 is a massive union power grab coming to the Senate floor soon. The Democrats have used “dummy bills” and other tricks to avoid a fair hearing on the issue.

This bill is designed to tilt the collective bargaining process and representation proceedings heavily against the interests of public employers—and thus of taxpayers and the citizens served by government entities subject to collective bargaining.

Even more, the bill compromises the privacy of public employees who want a fair process free of intimidation.

In addition, the bill would take power over labor issues away from local boards and jurisdictions and centralize it in the hands of the New Mexico Public Employees Labor Relations Board—an entity that is less likely to understand the particular circumstances of local employers and employees than the local boards and jurisdictions.

Problems for employee rights:

  • It allows the union to elect to have a card check certification instead of an election, and do so without the employer’s consent. Card check is not only more vulnerable to fraud; it also violates the employee’s right to privacy in making a choice to support the union or not, which opens them up to coercion and intimidation. If private elections are appropriate for government representation, why is it not appropriate for union representation?
  • The bill allows local labor boards to continue to exist only if every union (and the employer) under its jurisdiction petitions for its continuance. The petitions have to be unanimous. Thus, if four out of five unions under a labor board want to continue under the local board but a fifth does not, then the wishes of the majority of employees are ignored and the local board is abolished.
  • Under this process, only boards that are sufficiently favorable to union interests can survive. Also, this process is a one-way ratchet toward centralization. There is no process for reviving local boards that do not receive sufficient petitions to continue. The bill specifically says “whenever a local board ceases to exist for any reason, it may not be revived.” According to the Attorney General, this language does not seem to contemplate the possibility of an error in determining whether a local board may continue, and thus provides no remedy for such an error. An inconsistency in the bill is that while it allows for local labor boards to continue, it removes all of the language in the law that governs the nature, make-up, term limits, and jurisdiction of local boards.
  • Public employees are given only a 10-day window for revoking their authorization for dues deduction. The bill also provides that no such revocations can occur before July 10, 2020. These provisions are suspect under the Supreme Court’s Janus v. AFSCME decision, issued on June 27, 2018. In Janus, the Court held that forced dues are a violation of employee First Amendment rights. Further, Janus elaborates that respecting the employee’s First Amendment rights requires an opt-in procedure not an opt-out procedure. Under this bill, an employee can opt-in at any time, but once he has opted-in, he has no right to opt-out except under a procedure that is designed to make it easier for unions to retain members and then only after July 10, 2020. The constitutional question is: What conditions are unions permitted to place on employees exercising their constitutional rights?
  • The bill also denies to public employees the right to pursue legal action regarding “fair share” dues collected prior to the Court’s Janus decision. It preemptively resolves such litigation by holding the issue moot.
  • The bill compromises the privacy rights of public employees. It requires employers to provide names, job titles, work locations, home addresses, personal email addresses, and home or cellular telephone numbers of public employees in the proposed bargaining unit.
  • The bill expands the definition of public employee to any job funded by a grant—even if just partly by a grant. Under that provision, for example, employees of any private non-profit receiving grants would be subject to unionization.

Problems for employer rights:

  • The bill requires employers to allow public employee unions to conduct union work during work hours, use public employer email accounts for conducting union business, and use public facilities for meetings without compensation for that use. These provisions requiring public resources to be used for union business may violate the New Mexico constitution’s Anti-Donation Clause.
  • The bill creates uncertainty about what collective actions are allowed. It says: “Public employees have the right to engage in other concerted activities for mutual aid or benefit.” Other than stipulating that “other concerted activities” do not include strikes, the term is undefined. Do “other concerted activities” include walking off the job, refusal to perform job duties, refusal to work overtime, engaging in work slowdowns, sick-outs, sit-ins, name calling and use of profanity?
  • The bill creates an obligation on public employers to continue bargaining even while a collective bargaining agreement is in force. The threat of perpetual bargaining will create uncertainty in labor relations.
  • The bill changes the definition of management employee to require that such an employee must devote a majority of time to management or executive functions. This attempt to expand the number of employees subject to membership in a collective bargaining unit will especially affect smaller entities where management personnel must perform multiple functions.
  • The bill prohibits a public employer from using public funds to influence employees regarding supporting or opposing a labor organization or whether to become a member of any labor organization. The State Personnel Office writes: “[T]he term ‘influence’ could be used out of context and has the potential to be used out of context in potential grievances against the state.”
  • The bill gives labor boards the authority to go beyond the administrative remedies traditionally allowed and impose any remedies deemed appropriate including compensatory damages and injunctive relief. That type of power is normally given to courts, not administrative bodies.

Problems for democratic accountability:

  • The bill authorizes arbitrators to ignore local government appropriations in awarding monetary judgements, thereby transferring from elected officials the power of the purse to out-of-state arbitrators.
  • The bill states “a collective bargaining agreement that provides greater rights, remedies and procedures to public employees than contained in a state statute shall not be considered to be in conflict with that state statute.” Such a provision allows a collective bargaining agreement to amend state law. It hands the legislative power to a non-legislative body.
  • The bill reduces the power of local jurisdictions by eliminating their option to have a local ordinance or resolution governing collective bargaining.

Process problems:

  • Central New Mexico Community College writes:
    “The proposed changes to the law are so broad and overarching that passing such a bill in the limited time available during this session is a matter of grave concern because it does not provide an adequate opportunity to assess the impact. The substitute raises questions of constitutionality as it relates to recent Supreme Court decisions and the New Mexico Constitution’s anti-donation clause.”
  • About SB 110, which is identical to HB 364, the New Mexico Council of University Presidents writes:
    “Proponents say it took them a year to communicate with unions and develop SB 110(the original bill), but no public employers were ever consulted or notified of the proposed changes during the course of its development. […] [The bill] proposes significant and numerous changes to existing law that cannot be addressed in a few days’ time—and although some amendments have been discussed, it is unreasonable to expect public employers to reach consensus on a bill so quickly after its proponents had a year to do so. We ask that public employers be given a similar amount of time to communicate among the counties, cities, school districts, colleges and universities in order to review the legislation and work with the unions to address issues they have with current law. “

The Rio Grande Foundation remains committed to meaningful reform and opposes HB 364 in its entirety.

Freedom Index 2020

The Rio Grande Foundation’s Freedom Index is back for the 2020 legislation session. Keep track of your legislators and how they vote on key legislation.

Visit the Freedom Index anytime at: rgfnm.com/score.

Here’s how it works:

Basically, legislation is scored on a scale of -8 (very bad) to +8 (very good). When a legislator votes on legislation, how they vote gets added into their score.

Example: if a bill is ranked as -2, and a legislator votes no, their score goes up by +2. Similarly, if a bill is ranked as +2, and a legislator votes yes, their score goes up by +2.

We’ll continue to track key legislation until the end of the session, February 20. Stay informed!