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Goodman: Las Cruces City Council Bound By Law On The Minimum Wage

        

  Painstakingly, following the City Charter's requirements, CAFE and volunteers gathered thousands of valid signatures on a petition to increase the minimum wage.  The Charter gave the council only two choices: enact the ordinance as it stands or reject it and let the citizenry vote. 

In September, acknowledging that a popular vote would favor the ordinance, a 4-3 City Council majority enacted the ordinance immediately.

The same four had earlier enacted, when they realized CAFE would have the signatures, an ordinance calling for a much smaller hike in the minimum wage.  Now city government threw a red-herring into the path, asserting a need to “reconcile” the ordinance with the earlier contradictory one.  Under New Mexico law, the later ordinance effectively repealed the earlier.  City officials abandoned “reconciliation.”

Three of the four also spoke of quickly watering down the ordinance.  That's not what the City Charter contemplated.  It would be illegal.  It would be such vile chicanery that it would thoroughly destroy  citizens' trust in the Council.  It would also spark a lawsuit that would exacerbate tensions, cost the taxpayers unnecessary money, and probably result in a court order against the City.  City might have to pay plaintiffs' costs and/or legal fees, too – all for the convenience of the business community. 

Thus we hope those Councilors didn't mean it or will rethink taking any such action.

Watching the 6 October council meeting, I wasn't sure the message had quite gotten through yet.  There was again talk of using the Council's discretion and wisdom – which is exactly what  the Charter directed the Council not to do under present circumstances.

There was also a suggestion that one Councilor should recuse himself.  The law states: “A Legislator or public officer shall treat [his or her] government position as a public trust.  . . . A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer's or employee's financial interest.”  (full provision reprinted on my blog post today)

The Councilor – who's respected and who'd mentioned the problem himself at an earlier stage – is married to a lobbyist for the Restaurant Association, which has taken a strong position against the ordinance.  She's not an engineer or a secretary or a Human Resources Director.  Her job is to influence government officials to act in ways her employer approves of. 

No one questions his ethics or hers; and I believe that once the Councilor has studied the law more carefully, he'll insist on recusing himself.

Some of his allies replied by threatening to demand Councilors who'd gathered signatures for the ordinance recuse themselves.   With all due respect, that's a wholly different situation.

Having a strong view on something, even speaking publicly on it (as Councilors have do on many matters) is very different from having a personal individual financial interest in the result.

This is a legislative, not a judicial, decision.  Miguel Silva, acting in a quasi-judicial capacity at a recent zoning hearing, recused himself recently when he had no financial interest but shared the Tortugas Pueblo's distaste for commercial development near Tortugas Mountain.  That was proper.

A councilor or state legislator usually need not recuse when s/he has expressed an opinion or volunteered to help grow public support for something.  (A judge should, or at least offer to.)

The view some expressed from the dais is dead wrong, legally and logically.  It would mean that a candidate who got elected to the Legislature while demanding pension reform, better veterans' benefits, or a Campaign Finance Law would have to take no part in the discussion of the issue once s/he got elected.  That ain't the law.  Nor should it be.

Text of the laws mentioned in this column, as well as further background on the issue, is available at www.soledadcanyon.blogspot.com

Peter Goodman is a local writer, photographer, and sometime lawyer.   He initially moved to Las Cruces in 1969, holds two degrees from NMSU, and moved back here in 2011 with his wonderful wife.  This is his most recent Sunday column in the Las Cruces Sun-News.  His blog Views from Soledad Canyon contains further information on this subject, as well as other comments and photographs, and past newspaper columns.