[Music] Thank you. [Music] [Music] of the U Intergovernmental Conference Committee. Um, oh wait, sorry. There we go. Now I'll call it to order. um the meeting of the u uh intragovernmental conference committee um on uh today's date, June 3, 2025 at 100 p.m. Um first of all um I would like uh a motion uh from one of my colleagues to approve the agenda which you have before you. So move second. Okay. The agenda is approved. Um we have um uh let's also I'd like a uh motion to approve the minutes from um the meeting of the conference committee meeting of Monday, March 31st, 2025. So move second. Okay. Approved. Um and next I'd like a U approval of the minutes uh of the uh in governmental conference committee for from Thursday the meeting of Thursday April 24. So move. Okay. And so now we move to the main uh topic of today's uh meeting, the hearing on the um ICC complaint number 01-2025 in the matter of Keller versus Albuquerque City Council. Um just a couple matters, a couple of points before that and I'll give my um colleagues here an opportunity to Well, let me ask Morning your honor. This is Brian Nichols with model Sperling for Mayor Tim Kelly. Thank you. Good afternoon, Mr. Chair, members of the committee. Justin Miller for the city council. Thank you. Um, let me also say that uh in in conferring before the hearing with my colleagues, um, Judge Fanzy and Mr. White, uh, this is an administrative hearing. to the extent that there's any evidence that will be presented, which I suspect there may not be, but to the extent that there's evidence that will be argued, um the rules of evidence do not apply in light of the fact that it's an administrative hearing. and uh my my colleagues on the intergovernmental conference committee and I agree that all exhibits to the extent that there are any exhibits that are evidentiary in nature some of them I know are statutes etc but all exhibits are admitted exhibits from both sides okay so we've dealt with that issue um we we have also conferred among ourselves here on the U conference committee And we agree that each party can have up to 45 minutes uh for their argument. We think that's ample time. Uh if anybody disagrees, let me know. I know the judge is going to admonish me not to say if anybody disagrees, let me know. But uh um we all three of us have talked and feel that that's uh s sufficient time. Um and for petitioner if petitioner wants rebuttal the rebuttal will count towards the 45 minutes. Okay. And um time is being kept by our fabulous timekeeper here. So um let's proceed. Um if there aren't any other issues that you that my colleagues believe we need to decide before we go right into the presentations. Uh let's go first to uh petitioner Mayor Kelly. Mr. Nichols. Thank you, Chair. Good afternoon, Mr. White. Judge Banty. Thanks for taking the time to hear this important issue. Uh I'll just jump right in and you interrupt me, of course, at any time. I'd rather answer your question than talk. Let me ask you one one question to begin with, and this applies to both council. This is coming from me. I would like both of you to address the issue of waiver in your argument. You may have already planned to do that. I know you did in your waivers, but just want to be sure that you do address that issue. Thank you. Yes, chair. I'll go straight to it. So the issue of waiver I as I understand the argument made by the city council is that the mayor waved the right to bring this proceeding by not vetoing the resolution R25122. Uh it's failure to veto is not a waiver. uh waiver as I found it under New Mexico law is the following and this was from Ed Black's Chevrolet Center Incorporated versus Melar 1970 New Mexico Supreme Court 91 paragraph 6 an actual intention to relinquish it or such conduct as warrants an inference of the relinquishment. It is a voluntary act and implies an abandonment of a right or privilege. In no case will a waiver be presumed or implied. In no case will a waiver be presumed or implied. contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct the opposite party has been misled to his prejudice into the honest belief that such a wa that such waiver was intended or consented to. That's from the New Mexico Supreme Court. That basic language has been picked up in a few cases, a lot of which involve u child custody and child welfare proceedings, but I think the most applicable is from the court of appeals in Stargo versus Presbyterian Health Plan 2012 New Mexico Court of Appeals 053 paragraphs 21- 24 where the Court of Appeals held quote entering contracts for an amount less in the requirements of a section 27-2-16B end quote reimbursement for Medicaid is not a waiver. So in that particular case, the pres the pharmacists were suing for money to them they alleged under the statute and they contracted for a lower amount. they contracted for a reimbursement lower than the statutory amount and the court of appeals held that is not a waiver of the right to the the statutory amount of reimbursement under uh Medicaid. Now that opinion was overturned or reversed by the New Mexico Supreme Court on statutory interpretation grounds in 2014 New Mexico Supreme Court 33. But the Supreme Court did not address the waiver issue. So the waiver ruling in the court of appeals stands the waiver ruling again there and since it's of interest to you I'll run through it again by contracting for a reimbursement rate lower than the statute the pharmacist did not wave the right to the reimbursement rate in the statute. So going back to what occurred here first of all I appreciate sorry I appreciate that you brought up a case that I was reversed on as a district court judge. Um, lost on most people, but you get it. Um, I just wanted to ask you about that though. There's a difference when when you have a contract and it's statutoily established versus a situation here, um, where the waiver argument is the mayor didn't act at all. Yes. But that there's still a uh a charter right to this proceeding. There's a charter, I believe it's a charter right to not sign a piece of legislation and allow it to pass into law. And there is a charter right to appear in this forum. So, does that mean that the mayor could have gone along with this ordinance, say, for a year and a half, and then brought this action? That's a fair question. I don't know. I I am not aware of a statute of limitations. That's not what we did. But I'm not aware of a statute of limitations. Uh and I think it is uh it it it goes to the al also to the question about resolution [Music] 2016 41 I believe. Uh and that resolution was not challenged. Uh to be honest, I'm not 100% sure this forum was available. I don't know why the other administration didn't do it. I know why the fire department was okay with it. I can make a representation about that. Yeah. The question and and that goes to the waiver issue. So, if the 2016 um was okay with the prior administration, can any future administration then come in and challenge an ordinance as being contrary to the powers of the mayor's office, for example? Well, there's no statute of limitation that I'm aware of in the charter or in the uh or in any law express law regarding when to bring a separation of powers claim. That said, it was amended and then we challenged it. Okay. So, the 2016 is not an issue today. The mayor is not taking any issue with the changes that were made there with respect to staffing. There's two answers to that question that we are for operational public safety and employment reasons. We are primarily concerned with the requirement that the that the city council passed for two paramedics on each rescue. And that was the change by adding the word paramedic in front of firefighter. It changed not only uh it changed it changed the qual this goes to a point that the city council has raised. They said they did not affect qualifications. They did affect qualifications. A paramedic is different than a firefighter. Every firefighter who goes through the academy is a basic EMT. Some firefighters become intermediate EMTs, emergency medical technician, and some become a paramedic EMT. So when the city council said change from two firefighters on a rescue to two paramedics on a rescue, that changed the qualifications of who's on the rescue. That's in the collective bargaining agreement which is a public document on the web on the website of the city uh of the city and it's section two. The pay provisions are 2.10 and the qualifications are very briefly set out in 2.2 But to go back to your question, I'm glad we're not facing the question whether or not this administration could challenge the 2016 statute ordinance standing alone. Resolution standing alone, but we are challenging the entire resolution at least so far as sections one and four. Section one sets forth by its own terms minimum staffing requirements and uh that is an executive function that is organizing the city government that is supervising the city administration which are executive functions dedicated to the charter and those are also quote determining staffing requirements which the city council confirmed as executive functions. in the merit system ordinance and in the labor management rights ordinance. So we're challenging the entirety of section one were this body to only strike the change that occurred in 2000 in uh in resolution 25122 just to be candid that's what's most important to us. Okay. Section two and three set out policy requirements. I don't have any we don't have any objection to them. I will say this though as a functional matter why we didn't why the fire department I can always speak for the fire department not the Barry administration. The fire department was comfortable with the requirements, the minimum staffing requirements, same basic problem set out in 2016 because it complied with the National Fire Protection something 1710. Okay, the National Fire Protection Association recommendations 1710. And to be perfectly honest, the fire department, as far as I know, AFR will put the same people on the different vehicles that are set forth in the resolution except for the issue of the paramedic paramedics. And the reason the paramedics are different is because what the AFR wants to do and what for some reason the city councilors didn't want at the behest of the union is to put two paramedics on one rescue. What the department wants to do is one paramedic on a rescue, one paramedic on an engine. Two different vehicles, two different paramedics, same number of paramedics. You can send out both paramedics on two different vehicles to one call. You can send them to different calls. You can send them outside the district. And there will be basic or intermediate EMTs riding along with the paramedic in the rescue and the paramedic in the fire engine. It's a better service to the city. It's better for morale and it's better for operations in terms of responding to dispatch. So going and then going back to the the basic issue with 2016 and the waiver Nine years is a long time, you know. I don't I'm not going to fart around about it. It's a long time. Let Let me ask you, um, the charter is an organic document, as is the New Mexico State Constitution and the United States Constitution. It seems to me that whatever rules apply toward waiver of a constitutional right would be applicable here. Do you have any comment or any thoughts on that? Well, it's a it's a knowing volunt it's a voluntary relinquishment of a known legal right. And by ex by exercising an option that's provided to him under the charter, we would submit that the mayor cannot relinquish another right provided by the charter. At the very least, the charter should you know the uh the charter establishing this body could have said you can bring a claim if you oppose that claim all the way through the political process, but that's not what it said. It was a 7 to2 vote. You know, unless somebody changed their mind, the veto would be overridden. I would assume that's why the mayor made the decision he did. I don't know. That was a decision made by the administration. So it's not a it's not a knowing and voluntary relinquishment of a legal right to exercise one charter power and thereby give up another. So let me jump though to section four of the resolution and this is the same language in the 201641 and the 2025122. Section 4 is also objectionable as exercising an executive function. Section four requires the fire chief if she departs only upward from the staffing requirements, the minimum staffing requirements that the city council has uh imposed upon her, then she must negotiate with the union. There's two problems with that position. The first is it is in and of itself an executive function. The charter provides that the mayor oversees this fire chief. The mayor, the CEO, somebody in the executive branch oversees the fire chief, supervises her, may give her direction. When the city council gives her a direct order in a resolution, that is an executive function. That is supervising and directing an executive official how to do their job. In addition, that provision requiring negotiations to determine to determine staffing requirements is an intrusion on the executive function for the same reasons. staffing requirements are organizing the city and supervising the administration which are powers one and two I believe dedicated to the mayor and the charter and they are uh not conferred upon the city council anywhere in the charter or in state law and they have been confirmed as management rights exercised by the administration the executive branch in the labor management rights ordinance So with that, I do want to go a little bit into separation of powers just a bit. Before I do that, can I just ask about the staffing question? Um the respondent has raised the issue of the housing authority, that ordinance, and um that the city council actually required the hiring um of an inspector. How do you square that with your argument? Well, that's a good question, and I think it's I'm also glad we're on here on that issue. Okay. So, the question as I would frame it is may the city council create a position, an executive policy level position. And I think there's no question the city council can do a few things. It can set policy. It can require programs. And it can uh fund. It can exercise the power of a purse. But can it create a position? I think it's a close call. I think that creating a position such as the uh the housing inspector is probably a policy essentially a policy decision. Uh we're not here arguing. It could be different at a different time. Don't know. But I think it's essentially a policy decision. This is what we want. This is what we have. This is what this is what we want. This is how we want you to do it. This is the policy. This is the program. Did they take a shortcut? Yes. Now, where it stops is they cannot tell that official how many inspectors to have in that chair or that vehicle. They cannot tell that that inspector how many people to send out to that house or to uh that apartment building. It cannot tell the housing the zone the code enforcement officer. That's the phrase I kept trying to pull up. it cannot tell the code enforcement officer, here's the qualifications for those people that are going to sit in that chair. We want two people in those two chairs over there. Uh, and so that's what it can't do. And that's what resol that's what the resolution issue here does is it goes much farther into it and it goes straight to Justice Minsner's language in Cole versus Kathers. If you're if you're okay. So, interestingly, this body is required to determine separation of powers issues. And interestingly, the New Mexico Supreme Court has held that article 3 of the Constitution does not apply to municipalities, which Let me ask real quick here. Mau versus Rusk in 1980 seemed to have said that. Has that case been overruled? Not that I am aware of, Mr. White. Okay. because that that case as I recall it said that uh for the city of Albuquerque charter that separation of powers applied to the judiciary and it basically said that you read together article three and what is judiciary? Article four, four is six is judiciary, but it left out legislative. Uh it did not go to that point in in in in uh and so uh but it and the reason they said that is that it was the inherent powers of the judiciary that were uh read together with this article 3 to create the separation of powers in the situation of Albuquerque. As a matter of fact, it it distinguished I think the case that council relied on coming out of Hobs of Klie case um and um and and said that for the purposes of Albuquerque separation of powers applied and it and it does at least for the legislature and here's why. So the the Trud and the Padilla case stand for the general proposition that article three anyway. Article three does not apply to cities. Now maybe separation of powers does in other fashions, but of course many municipalities in New Mexico are essentially parliamentary. If you're not a home rule city, your legislature is going to be performing executive tasks. city manager, you know, the council president, these kind of things. Like in the city of Farmington, which I'm quite familiar with, the council president performs executive tasks and oversees the city manager. So, it's a functional thing, at least at that very much. But it goes on and it says in the municipal code, if you form a charter, then your legislature may not perform executive functions, shall not perform any executive functions except those functions assigned to it by law. That is a rock solid separation of powers, much stronger than in article 3 of the New Mexico constitution. Much more forceful the case law because what I'm going to do when we get to Cole versus Kurthers is take out all the adverbs. Okay. So, Justice Mensner says you can't uh dictate terms that are too specific because at the state level there's interplay between the branches. That is not true under our charter and under the municipal code. The legislature shall not perform any executive functions except those functions assigned to it by law. And therefore, under the Cole versus Kather's case, which is where Justice Minsner annunciated the principles for an overstep of legislative action on the executive because it's totally well, you don't have to apply it, but it's totally applicable. It's still separation of powers. She wrote taking out the adverbs. Okay, so this is more paraphrasing than quoting. The city council may not make it man may not make executive management decisions. The city council in legislative action must leave the executive discretion. The city council may not dictate specific terms. The city council may not place restraints on functions such as the location of employees. paragraphs 10, 24, 31, 36, and 34 from Cole versus corrupt. That's precisely what the city council did in this case. It violated every single one of those paragraphs, taking out the adverbs, again, paraphrasing Justice Minsner's annunciation of when the legislature oversteps into the executive. And we I'll go to another of the arguments made by u the city council. They quoted uh the charter article 4 section 10H. Well, one of them's 10H. The mayor and the city council each shall faithfully execute and comply with all laws. Okay, guess what? The legislative branch, the city council has some executive functions, those assigned to it by the charter. Okay? So, faithfully execute the executive functions assigned to you by the charter, which is your staff, and then comply with the rest of the charter, which is you may not commit any other executive function. So, that takes care of the argument they raised there. I think it's useful to say uh because initially uh you know there's quite a bit of emphasis in the uh city council's brief about safety intent is irrelevant has no role whatsoever. Okay. And the New Mexico Supreme Court uh issued a case May 5th Stuart versus Ramseack. May not be saying the judge's name right. I apologize. Quote, "It is a firmly established principle that whether an act is legislative turns on the nature of the act rather than the motive or intent of the official performing it." So it's a completely different situation though in that case. I mean that that that had to do with moving somebody's seat in the in the legislature. Absolutely. It had to do with immunity and totally different circumstances. But it is a it's a it's an enunciation of what matters in determining the n what matters is the nature of the act not the purpose or the motive or the intent of what was performed and the uh and that is consistent with how the New Mexico Supreme Court and the United States Supreme Court have addressed this issue. So the issue of is it safety has nothing to do with it. The charter doesn't say you can perform executive functions if your purpose is good. Charter says you can you cannot perform executive functions period unless it's assigned by law. You can have the greatest purpose in the world. We disagree with their purpose but it doesn't matter for purposes of this decision. Uh I'll run through a few things. I don't know how are you allowed to tell me how much time I'm burning. Sure. How much time does he have? You have uh 20 22 minutes. Good lord. Okay. Anyway, uh we will say a couple things about um the the the resol the resolution uses the phrase staffing with a minimum of five times and then it sets forth the number. That's clearly an executive function. That is clearly organizing the city and administering the city. That's deciding who sits in what vehicle and and their qualifications. There's other qualifications in the ordinance also. It talks about I believe it's higher inspectors and other those are all specialty pays under the collective bar agreement. It's all the the city council is determining not only who sits where, but what their qualification. And so the uh the city ordinances each of them say that it's the mayor's task to determine staffing requirements whereas the resolution says you will staff with them a minimum of x five times in the uh city council shall not perform any executive functions except those assigned to it by law. make the following arguments irrelevant. They argue that the city council has historically legislated the executive's structure and staffing. Page seven, there's I didn't see examples. Uh maybe they just meant things like the uh the zoning and the zoning officer, but uh I'm not aware of any. And in any case, if other administrations let it go by, okay, fair enough. But we're here on a new act and we, you know, quite timely came into this body. R25122 does not reach into minuscule, inconsequential decision-making. That's verbiage from some of the Supreme Court cases that's irrelevant now that there's a stronger separation of powers between the city council and the mayor at the Albuquerque level than the overlap between the powers at the state level. It's merely a guideline for the executive's exercise of its staffing right. Merely a guideline. Minimum. Minimum of two, minimum of four. And here's their qualification. You'll put paramedics in there. That is not a guideline. Elsewhere in their brief, they say that the that R, this is a page 11, R2122 is intended to bind the city. It's not a guideline. It's a requirement. There's a couple of uh other things I'll just note in case they're of importance to the to the commission. Uh the council warned against execut the executive possessing unrestricted staffing power. Well, that's a charter issue, whatever that is. And in addition, they have the power of the purse warning that it would upset collective bargaining. I mean, what happened here is what upset collective bargaining. I mean, the AFR was in bargaining was exchanging with the union when the union encouraged the city council to pass this resolution. That's what interrupted bargaining. But the problem with what with the citation that the uh the counselors cited to it is it regards pay and yes city collective bargaining agreements state that pay will be either as set by the council or must be as appropriated by the council. Well, that's required in the PEA, the state act, and in the labor management relations ordinance. Section 107E17H in PIBA and the labor management relations ordinance at the city level 3219 each require that any part of a collective bargain agreement which requires the expenditure of funds requires an appropriation that meets the expenditure of the funds. I negotiated those collective partner agreements. I know that language very well. I wrote it. I wrote the language that's in there saying that it has to be. And you know where it came from? It came from the Barry administration and the firefighter and police cases where the Barry administration uh promised wages down the road and then didn't deliver. And so we built in language that says year to year every year it has to be appropriated. So that's why that um great that that's why that argument fails. Excuse me, council. Mr. Rocher, please advise council when he has 5 minutes left. You got it. Thank you. Uh the city council cites the Aguilar case 1997 New Mexico Court of Appeals 45. And then that was a case where the city council uh set some standards for rem a vacancy filling a vacancy of a municipal judge. Well, that's perfectly allowed. And the reason that's perfectly allowed is because state law allows it. New Mexico statute 3514C the governing body of any municipality may fill vacancies by appointment of a municipal judge to serve until the next regular municipal election. I don't know why they didn't tell you the statute because they cited this case with the proposition that all over the state cities are reaching into uh filling in uh legislature city councils are reaching into how to fill vacancies and that's why it's allowed in this particular case. The difference is state law says you can do it and therefore even if you have a city even if you're a home rule charter that says you cannot uh commit you not cannot perform executive functions except those assigned by law. This is assigned by law. Cities have the right, the governing body of any municipality, which is its legislature, has the right to determine how to fill vacancies. And uh I'll just note that the I think that the the code enforcement officer the code enforcement officer issue and the medical health service officer issue that I cited the medical health service officer council cited the code enforcement officer issue. It goes to Judge Bansy's question which is frankly a good one. Can the council create a position? they fund the positions you know so I don't know you know if I were forced to take a a stand on it I would say creating a position is an executive function you know you you can create a department you can say this is what we want you to do this is the policy we want you to enforce just like in sections two and three of uh or of resolution 25122 you can tell somebody this is how we want you this is the program we want you to do but it's up to the mayor about how to do It's not up to the city council. The budget ordinance, as I recall, uh requires that it be a programmatic budget as opposed to a line item budget. Do you can you address that? Are you aware of that or I'm sorry, Mr. White. I don't think I can say anything helpful about that. Okay. I would assume you're correct. I think unless there's questions. So, I I have one just one question. Well, I should never say that. I should better response. Um, it's short, but it goes to your separation of powers. I mean, it's not as clear um under the city charter as I don't think that as you want to make it. And one of the the points I want to make or questions I have is that the city charter says that it is for that this the council has the broad power to legislate for the welfare of the people which is probably why it could kb created this code enforcement position right it's for the welfare of the people that's why that whole department got got set up I mean how does that fit into uh the council's ability um to take into consideration the welfare of the people. That's almost a policy argument. Yes. So, I don't know. It's a fair point that um the way I would frame it, judge, is there's a firm separation between executive power and legislative function. I mean, executive functions and legislative functions in the charter and in the municipal code, but there's some close calls. So uh in creating in legislating for the welfare of the people certainly they can appropriate as they wish. They can appropriate 777 paramedics if they want to because there's 777 firefighters. Uh so they can they can legislate they can provide for the welfare in that way. They can certainly set policy requirements and exercise oversight. You know, we have we passed resolution uh 251-22 and sections two and three held provide that you shall provide a safety and so forth and and in the u in the in the section that we cited to other than the code enforcement with the emergency medical service ordinance, it set up a 911 call system. this is the program we want you to do and if they don't do it then you call them in and you say how come you haven't done this uh but we have checks and balances and there has to be you know it's a better idea if the legislature acting independently decides this is a good idea and the mayor says hey that's true and that's what actually happened with the code enforcement officer that resolution did not get challenged because everyone agreed to it this is a good idea let's do it. You know, did the mayor think that maybe it should have been uh the resolution should have gone about it a little differently? Yes. Be honest. That's what the mayor thinks. That's what his staff thinks anyway. And uh but you know, we don't come here with fights over nothing. We're here because requiring two paramedics on every rescue vehicle is detrimental to the public safety of Albuquerque because they're using both on one vehicle for one call instead of one paramedic on two different vehicles for two different calls. And it's detrimental to the morale of the AFR because people get because paramedics have to work on the rescue for their entire career. they have secondary trauma and they have other issues and because the operations can't be executed as as fluidly and well when there are two paramedics on the rescue now so that's why we're here that's why we came forward with this particular issue for for a separation of powers there's I so I think there's a variety of ways that the the city council can legislate for welfare funding positions requiring a program setting policy oversight. Is there probably some room at the top of the heap to create a code enforcement officer and to create a medical services administrator and a board to oversee the medical services administrator? Probably. Okay. But to say two people over there, two people over there and make sure they're paramedics, that moves way into the executive function. That is carrying out the policies that the legislature has. Excuse me. Mr. Roachcha, how are we doing on time? We're still doing okay on time. I can't hear you. 10 minutes left. Okay. Do you want to reserve time for rebuttal or do you have more? I'll take more questions or I'll reserve the 10. Okay. You only had one question, but I was not sure. But I stuck to my one question. Okay, Mr. Miller. Thank Thank you, Mr. Chair, members of the committee. Fundamentally, this case is about preserving the city council's ability to legislate on matters of public welfare. That's squarely within the power of the council is set forth in the city charter, article 4, section 8. The council has the power to adopt all legislation conducive to the welfare of the people of the city and the council shall not perform an executive function. And the mayor's view as presented in the statement is here today is that is an executive function that must be left exclusively within the power of the executive. But this claim that staffing is exclusively executive is far too narrow. It doesn't recognize the history of interactions between the council and the mayor. The executive and the legislature. It doesn't recognize that the city council in legislating for the welfare of the people has the power to address staffing at a policy level. And we cited several examples of how the legislature has done that. Addresses staffing at a policy level. That's what the council did when it enacted resolution 25-122. It was proper within the council within the council's authority and did not infringe the executives power infringe on executive power. Now, the mayor started by claiming this was an issue of separation of powers. Mr. Miller, can I interrupt you? Sorry. I clearly have too many questions. Um th this phrase of for the welfare of the people I mean, you could extend it to mean anything. It's sort of like the safety and happiness clause, right, in the Bill of Rights. It could mean anything. Where does it end? I mean, at what point does it actually start to encroach on the mayor's um executive powers? That is a very good question and and I'm wrestling that if if the council can legislate on matters of for the welfare of the people, where does that end? What is not in in the interest of welfare of the people? For one, it would be um legislation ordinances of that are not of the general application. They're specific for certain people or certain uh certain parties. That's that's not permitted. But the the the takeaway from the difficulty of finding that line is that there there really is no line. count the city charter does not say or put any limits on what is the welfare of the people. The city charter also does not define the executive function and there's considerable overlap between what the legislature is able to do in its legislation for the welfare of the people that also overlaps with the function of the executive and that's been recognized in cases around the country that address separation of powers at the municipal level. the you I think you're right that the charter does not define executive power. So I think you we have to look to other things that might help us decide that. But the labor management ordinance says that staffing patterns is reserved as a management right. That's one area where I think uh where I think it's it kind of gives an indication about what the charter and the ordinances think executive power is. The other the other section is in the CAO ordinance where it says that the uh uh CAO has the uh duty to determine staffing requirements. So do you have any comment on that on those two provisions and how how they how they allow the council to fulfill its obligation to provide for the welfare of the community? Uh yes, I I think the the distinction that makes most sense to me is that there's staffing at policy level and staffing at an individual level of this is a you know a particular hiring or firing decision related to an individual. However, when it comes to um what is a policy decision about a certain uh office or position or or or uh board, those are staffing questions. Those are those are um the filling of those positions may be left to the CEO as you mentioned. Um staffing and filling and hiring and pay specific pay for those individuals is left to management. But in throughout the code or in in several places in the ordinance, there are provisions that in which the legislature has set out a particular office or board or um who need what what qualifications need to be met to fill a certain position and what the job duties are. What the qualifications and job duties are and the position. That's staffing at a policy level and that's within refer to the council. Going back to the separation of powers issue just to to um to address that but and we've talked about it. The federal and state constitutions mandate a strict separation of powers, but that is not found at the municipal level that specifically at the as expressed in the state constitution in article 3 section one which is distribution of powers and it says no member of one branch may exercise any power properly belonging to another. charter has no express separation of powers provision like that. And for at least as far back as 1930, New Mexico courts have recognized. Note that the the separation powers identified in article three of the state constitution applies to state offices only and not to mun municipal offices. And that has been consistently held by New Mexico course throughout the years. Uh more recently uh the court of appeals addressed it again in in Bo County Commissioners versus Padilla in 1990 and stated there again that traditional notion of separation of powers does not apply to the distribution of power within local governments. Now, those court findings have rested on really the the realities of what it means to run a government at the municipal level. And that the separation of powers concerns such as the harm of consolidating power in one branch versus another does not apply at the same way at the municipal level because um the municipal government is subject to a higher authority in the in the state or federal governments. It recognizes there's a practical consideration that official functions of local governments frequently overlap because of the specificity of the legislation, the specificity of which local ordinances are written. Um this isn't just in New Mexico. This we cite cases uh for the committee from New York, uh Pennsylvania, and West Virginia. In the West Virginia case, um the court said that there must necessarily be an overlapping of functions and responsible officials lest the cost of government become too burdensome to bear. So these concerns um that at state and federal level call for a strict separation of powers are not found at the municipal level. the the West Virginia case that you cited did find that there the separation of powers did not apply in a strong mayor form of government. The New Mexico cases are split around most of them apply to the the commission manager or the weak mayor form of government. But the Mau versus Rusk is a strong mayor form of government case where it did say that the again it was limited to the judiciary but it did say separation of powers applied to the judiciary. Can you can you know can you take your West Virginia case and and tell me how it might apply here? Well, I think the Mau v Rust case as as as you said is instructive in that it derived from the legisl or the judicial power under the state government and not the article 3 executive power. Um the West Virginia case, um it was a a pract a a statement that the government functions at the municipal level are overlapping and that in many cases a city or a municipality of a smaller size won't have the ability to um for cost reasons or efficiency or economy separate the different branches of government and operate an apparatus as significant as Canada is at the state or federal level. So it's it's it's I think uh that point is just in support of the um the ways in which the strict separation of powers does not apply at the city level in the same way as the state. Um this I think sets the context in which we should look at resolution 25 uh-122. Um and in that context context becomes clear that the city has not exceeded its power. The city council has not exceeded its power. Um the city charter distinguishes between the branches but recognizes that there is a practical overlap. the same overlap that I was talking about with respect to the West Virginia case here. The city charter in uh article four dealing with the council and article five dealing with the mayor, the executive's office says that the gives the identical duties to each branch saying that it must faithfully execute and comply with laws. Now that's in contrast with separation powers at the state and federal level. It says that the execution of laws is the exclusive responsibility of the president at the federal level or the governor at the state level. Um and there also is an is an express recognition of that overlap when it comes to staffing and that's found that both branches are responsible for protecting the labor merit system and that also is found in article 4 section 10 E and article 5 section 4 C. you know, protecting the labor merit system and preserving a system by which employees are are hired by for merit and and receive appropriate pay and other rights and responsibilities. That's that's staffing. It might not be at those level specificities. Let me ask about that. You know, with with regard to the merit system, the the charter says the council shall preserve the merit system and then the mayor shall administer and protect. Can you talk about the distinction in that language? What what what that language might mean? Well, um I think it it's it recognizes that that the executive has more of a role in the day-to-day hiring, firing of of personnel, managing managing personnel in an operational level on a day-to-day basis. But it doesn't mean that the council is without authority in terms of staffing and describing how the system will work. And that's what the that's what council is charged with doing when it is instructed to preserve the labor system. [Music] So you don't like that. That was me. I left mine on. Oh, good. So it is your contention then that what the city what the what the council was doing here was staffing. I just want to make clear about that because you you've said that there's overlapping responsibilities with respect to staffing. So I just want to be clear whether you're characterizing this ordinance as a staffing issue. Not not precisely. and the and the distinction the the reason we're talking about staffing is because that is what the mayor the mayor's position is that this is all staffing and there is no role for the legislature to play in staffing the distinction is that there are policy decisions to be made that affect staff and that's what has happened here in in the resolution that's a policy decision have uh made in the interest of safety and health and security in the community to have paramedics on the rescue vehicles. So staffing includes a lot of things. Um are you suggesting then that the that the council can start to dictate what qualifications are um and that sort of thing as well? Start adding to what the staffing requirements are. The council already does has passed there are several ordinances that do deal with qualifications for positions and accepted by the executive over those for years and in fact um touted and celebrated by this mayor. Those are the um jump to that that those issues because I think they're important um and they were um I think sort of glossed over by by the mayor and his position today. one and this was a this was an ordinance that was cited by the mayor in his statement of issues as an example of appropriate legislation and that is the emergency medical services ordinance um which is 9-4-4-1 to99 and that was passed in 1989. Now, that ordinance goes much further than the resolution of issue before the committee today, but the mayor says that that is an example of how the council has appropriately exercised its legislative power in the arena of public safety. So if we look more closely what that ordinance did, it set new standards of care and it expressly created new positions within the executive branch including medical director and a medical control board. So the legislation accepted by the mayor for both and this is this again is back in 1989. This is 36 years ago now. um created it. It dictated the composition of the medical control board by saying that one emergency department doctor from each hospital that offers emergency services in the city should be on it. So the legislation establishes the number of positions and the qualifications and what somebody needs to do to be able to fill that position. So that's not so different from the resolution that issue here, which merely says that two of the people on the rescue vehicle needs. Um that ordinance goes even further than the resolution does here that issue here does because that ordinance creates and imposes 11 enumerated job duties for the medical director setting out explicitly what the medical director needs to do. So then it creates a position, finds qualifications, and opposes duties. The mayor says that's okay because it deals with safety of public safety. And I would posit to the committee that legislation related to emergency fire response is just as clearly in the arena of public safety as medical service standards would be. So that was 1989 and and an ordinance that still is in effect. But there are other much more recent examples. We cited this and this this came up in this discussion earlier. On March 17th, in the midst of this very dispute, March 17th of this year, the council passed resolution 25-120, which provides for enhanced enforcement of rental housing codes. So that resolution established an office the the new full-time code enforcement officer who must specialize in housing codes. So it creates a position dictates qualifications and it also goes on to set out job duties including to address tenant complaints about safety, provide training, develop a streamlined complaint process, track and report progress complaints and investigations. Again, it's um um one in addition to that, the the administration is mandated to include this position, the permanent full-time position in the city's budget until the council. So again, it creates the position, finds qualifications, defines the job duties. The mayor signed that resolution into law on April 3rd, 2025, again in the midst of this dispute. and he issued a statement um celebrating it when he did where he said by adding more code enforcement staff legislation adding staff uh renters will be able to get the help they need and hold their property managers accountable. So it's the policy of the council to help renters get what they need, hold property managers accountable and implemented by or put into effect by enacting a resolution that has policy staffing implications and the mayor signed it and um celebrated it. So at a practical level, city government is involved in the affairs of the city. The city council and government in all of its areas are involved at such a granular level that it's not practical to have a clear separation between the executive and the legislature. Um the facts, as we've said, bear this out. Despite the mayor's protest, he mayors before him have accepted legislative input on staffing. Cited those two examples above with the the uh medical board and the enhanced code code enforcement officer. The resolution it is issued today has been in place since 2016 and with the addition of one word paramedics um that's the only change and that um is a policy decision and it's a difference between mayor and city council what needs to be done but the whole resolution the resolution is titled minimum staffing requirements in the fire fire department it's been about staffing since 2016. So that's the first line of the resolution. It's minimum staffing. So one word did not tip the scales on this resolution to make it impal. Um this resolution doesn't control the executive in intrusive or minuscule way. It's not making uh it's not giving to council um day-to-day hiring and firing decisions. It's policy of broad application and going forward forward looking on matters of public welfare which is principal legislative. So, is it your position then that the council can staff, they can create positions, they can eliminate positions, I assume, and that the mayor only gets to act in a ministerial capacity to hire and fire and decide who gets to work a 9 to5 shift or an 11 to 4 shift or something like that. I mean, where where does the mayor's authority come in in all of this? Not that's the only not that that's the limitation of the mayor's authority but I but it is the position of the council that it is within the council's authority to establish a position and define qualifications um at at a policy level. It's policy decision but that that doesn't mean that it's not the council doesn't do that for all positions. because we do that for departments where there I would like to address uh the question of waiver. Um, now the way the the method to challenge legislation uh in the um charter is the is the veto power. That's the primary tool that the executive has to challenge the legislation when he believes that the legislature has Mr. Bill, excuse me. Could you speak up a little bit? hearing aids are I'm sorry if I slipping on me here. I should have more. Thank you. Thank you for for saying that. Uh the veto power is the primary tool of the mayor to challenge legislation that he feels is overstepping the legislative authority. Now the uh council argued earlier that there is no waiver here because there was no knowledgeable action taken. There was no conscious decision to wave that uh ability to veto legislation. In fact that that what happened on the ground is is the exact opposite. the even back in 2016 when this resolution was passed the issue of whether it in infringed on the executives's authority was raised and it was acknowledged that there could be a difference of opinion on either side and was signed into law by Mayor Barry at the time. The same issue came up again when it was discussed in front of the council in 2025. And so it's not correct to say that the mayor did not make a conscious knowing decision not to veto this act. It was a conscious decision to take no action. He knew the method to challenge the legislation. He has a charter right not to sign proposed legislation. But the result of exercising that right not to sign is that the legislation becomes full in full force and effect as if the mayor had approved the same. So by not signing effectively deciding to approve it was an active decision of his not to sign it. But you disagree that he's got the right to be here today challenging that ordinance. I don't disagree with that. So this this committee and is here to decide differences of opinion between the mayor and the council about their rights and obligations and authorities and that's squarely. Let me ask a question. I'll make it a little bit exaggerated, but suppose the council passed an ordinance that said we are going to change the number of counselors to five and the mayor signed that. Uh would would you know would that be a waiver by the mayor and the council? Would that be unchallengeable because the council passed it and the mayor signed it? Um someone else might have the right to challenge it. I'm not sure I'm not sure who. Um but I I think that would be a a charter a change of the charter I believe. Um, well, it would be a violation of the charter and and and so I think my question is is, you know, if if it's a violation of the charter and and and it's not vetoed or ignored or it goes into law, does that how does that how does that change it from uh being a violation of the charter to not being in violation of the charter? I guess that's my question. Well, it I might address it this way that it may be a violation of the charter. Uh but the mayor by agreeing to it and signing it would not be a position taken that decision and accepted and allowed it to be. That's uh the end of what I have to say. If I'd be happy to answer any further questions of the committee, any further questions, any further questions? Um, do we have rebuttal or not? Not no I don't think for the council for for Mr. Miller. No, but can I ask one question? Absolutely. Thank you. So, how do you square the whole staffing issue with the um CBA merit system ordinance and all of that that give staffing to the mayor's office? Well, the yes, the mayor it gives gives the mayor a role in staffing and a role in in administering and protecting the system and I don't think that is ex it's not enough to say it's exclusive and prohibits the legislature from having any impact on that at all. In fact, as we discussed earlier, the the the ordinance does say that the the uh council has a role in preserving that system. And so I don't I don't think it's mutually exclusive. And that's that's the point. I think the main point here is that there The mayor's the mayor asks for a clear bright line between legislative activity or legislative function on one side and executive function on another. And there is not such a clear line. And the history shows that either both branches don't know exactly where and and aren't haven't even really tried to draw that line before because there's overlap. And so we're we're we're in a position today where there there's one line and a resolution that's been in effect for um almost uh almost 10 years is alleged to cross that line. That's where it that's where it breaks down is that there is no crossing of that line here that is so extreme that this committee should find that the legislature will respect it. Any other questions for councel? Thank you, Mr. Miller. My notes indicate that Mr. Nichols has 10 minutes for rebuttal. Is that correct, Mr. Roachcha? That's correct. Go ahead, Mr. Nichols. Thank you, Chair. I'll tell you what's mutually exclusive to preserving. Violating it. The charter says that the city council shall preserve the merit system ordinance. I think it's not preserving to violate the terms of the merit system ordinance and determine staffing requirements. That's what's not preserving. So, let's just take a quick look from the top down. Okay. The mayor's authority. This is the charter section three. Shall control and direct the executive branch. Control and direct. Sounds like that would include staffing determining how many people to put at fire stations how many people to put into fire vehicles. Section four of the charter. The mayor shall organize the executive branch of the city. The fire chief is part of the executive branch of the city. organizing sounds like it includes staffing. Section four, the mayor shall exercise administrative control and supervision. Administrative control sounds like that would include staffing. I would call it controlling a fire department to say how many firefighters will be at each station and how many firefighters will be in each vehicle. Then we get into the more specific items. The merit system ordinance where it says that the mayor shall uh determine staffing requirements and it also says that the mayor shall direct the work of city employees and that includes fire chief. That's the problem with section four. Section four of the resolution directs the work of the fire chief. If you're going to do this, go bargain first. That is directing the work of the fire chief. Let's go to the mer the labor management relations ordinance. Again, determine staffing requirements. It also says direct the work hire promote evaluate transfer and assign, and take other actions necessary. So, yeah, all the other stuff's in there, too. But it says determine staffing requirements. And in the uh powers of the CAO, as uh Mr. White noted, it says determine staffing requirements. I believe get to it. Yes, determine staffing requirements. Those are all executive functions. How many times do they have to say determining staffing requirements is an executive function before it's binding on themselves? The mayor didn't even pass those ordinances. So that's that is why it's a violation of preserving the merit system ordinance. I'll go to the code enfor the uh the uh the uh medical services ordinance. The problem with the argument that Mr. Miller made is that the medical director is an independent contractor, not an employee. says right here ordinance 9445 B O B there's no subsection the medical director of the AHJ shall be an independent contractor okay that's not an employee so it's not with it's that's that that's that takes care of that issue now the resolution but the code enforcement officer I don't see it in the book of authorities that be prepared. So, I apologize, but again, we've talked about that that and here's here's where I got to the answer to your question judge about welfare. The city council could say the mayor should put two paramedics on every rescue if it's non-binding and it's guidance. They've said it's binding. Okay, that's what makes it a violation. But the city council can, you know, here's what we think you should do. There should be two paramedics on every rescue and then if something goes wrong call in call them in and do legislative oversight. That's what legislators do. Legislators do that is the pulpit. That is the bully pulpit they have. And they and they also have the power of the purse. They have every right to be intermixed intermingled with the staffing requirements but they can't determine staffing requirements. It's their own ordinances. So, I've addressed the hiring and fire. I mean, for some reason, you know, Mr. Miller's argument is that the city council can do staffing, but it can't do hiring and firing. In other words, it can violate part of the charter, but not the other part. It can violate part of the merit system ordinance and the labor management relations ordinance, but not the other part. In any case, they've done all of it. I've explained that to you. By requiring Thank you, sir. by requiring two paramedics on every rescue. That's determining qualifications. That's determining pay. They have stepped into that entire authority. They get paramedics get between, let's see, intermediate paramedics get plus 5% and firefighter paramedics get between 9.5 and 13% above the base hourly wage. It's right in the CBA on the website. uh paramedics at higher ranks get less of a bump up from the base hourly wage is to be candid but firefighters which is the entry level position for uh uh firefighters into the AFR get between 9 and a half and 13% if I'm remembering right to say something about other state cases including West Virginia. The reason we didn't cite to them and the reason I think they're irrelevant is because I did not find, yes, there's strong mayor, weak mayor setups, but I did not find anything that I could find analogous that said that the legislative branch may not perform executive functions. So to the executive functions the charter commits to the mayor are controlling the executive, supervising it, organizing it, overseeing it, supervising it. They have to argue that staffing is none of those things because those are executive functions committed to the mayor's office in the charter. And then they have to somehow say that determining minimum staffing is not determining staffing requirements, which they three times have committed to the executive branch in ordinances. If they want to change some ordinances, then put it up on public notice and say you're going to do it. If the if the city council wants to determine staffing requirements, then put it up. Let's have the debate. Let's see if they're so good at it. Or maybe the fire chief is a little better at determining staffing requirements than the city council. Maybe she knows how many paramedics are best on each vehicle in order to best serve the people of the city. Or maybe it's seven city councils. That's why executive functions are excluded from the legislative from the city council because the fire chief knows firefighting and she's I don't remember if she's a paramedic or not, but she's an EMT. I don't believe any of the city councils are EMTs. She probably has a better idea of how to do this and that's why it's in there. Mr. Ro, how much time does council have left? Two minutes. A little less little more than I I think that's enough. Thank you. Okay. Thank you. Thank you, council. Um, is there a a room right over here where we could convene? Okay, then uh I'll I'll declare this meeting. What's that? Oh, what do we have? You have to do it. You have You have to read that top part. Oh, okay. All right. I can actually make the motion. You want me to make the M? Make the motion. I move to go into close session pursuant to NMSA1 1978 section 10151H3 in connection with this administrative adjudicatory proceeding to deliberate on the on the briefing and argument presented today. Second. Okay. Um and I'll I'll vote for that motion. We need to do a roll call vote. Yep. I'm sorry. What's that? Uh if we could do a roll call vote for the record. Okay. Member White. I agree. I vote yes. Mr. White. Yes. And I vote yes. Perfect. We have a due pass. Okay. There's a room right here that we could convene there. Okay. Great. Let's just take a short break and then we'll convene in that room. Where's [Music] [Music] Heat. Heat. [Music] [Music] [Music] [Music] [Music] Are you [Music] [Applause] [Music] [Music] [Applause] Are you [Music] [Music] [Music] [Music] [Music] I feel like a fire. Heat. Heat. N. [Music] [Applause] I know. I ahoo. I know. I ah [Music] [Applause] [Music] [Applause] [Music] Heat. Heat. [Music] Happyoo. [Music] [Applause] [Music] [Applause] [Music] [Applause] [Music] Woo! Hey! Hey! Heat. Heat. N. [Music] [Music] [Music] Push me clean. [Music] things. When you go [Music] Love you. Push me. No more. [Music] Push [Music] me. When you going to call the same [Music] No more. [Music] [Music] I love you. [Music] It [Music] all it [Music] mov Hallelujah. [Music] [Music] for you. You are It [Music] all [Music] it all. [Music] [Laughter] [Music] [Music] Heat. Heat. [Music] [Applause] [Music] [Music] [Music] [Music] [Music] over. [Music] [Music] [Music] [Music] Heat. Hey, Heat. [Music] [Music] Heat. Heat. [Music] [Music] Heat. [Music] Heat. up. [Music] [Music] Heat. Heat. [Music] [Music] Heat. Heat. [Music] [Music] I need [Music] I [Music] [Music] need I [Music] need I need [Music] I need you. Helpless. [Music] [Music] I want to feel close. I want to feel love. I want to feel love. [Music] Oh. Oh. Oh. [Music] Oh, oh yeah. Oh. [Music] I want [Music] you. I want you. [Music] Oh. [Music] Oh. Oh. I want you feel cold. [Music] [Music] Hello. Hey. Heat. [Music] Heat. Heat. Heat. [Music] [Music] [Music] [Music] up. Moo. Hold on. [Music] [Music] I feel [Music] like you clear. [Music] [Music] [Music] [Music] I'm done. [Music] Hallelujah. Hallelujah. [Music] Hallelujah. [Music] Heat. Heat. [Music] [Music] [Music] [Music] Hallelujah. Heat. Heat. [Music] [Music] [Music] Hey. [Music] [Music] Hey hey hey. [Music] [Music] Heat. Heat. [Music] [Music] Wow. Wow. [Music] [Music] 31 Heat. [Music] Heat. Heat. Heat. [Music] [Music] Heat. Heat. [Music] [Music] [Music] Fascinating. [Applause] [Music] Heat. Heat. [Music] [Music] [Music] [Music] Hallelujah. [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] Heat. Heat. [Music] [Music] party. He [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] Heat. Heat. [Music] [Music] [Music] [Music] Why? Why? [Music] Imagine marin Louise. [Music] [Music] [Music] Why? Why? [Music] [Music] [Music] All right. [Music] [Music] [Music] [Music] [Music] [Applause] [Music] Yeah. Hey. Hey. [Music] And we need to vote on that. Yep. So I I'm in favor. Yes. Yes. Okay. Any further motions, Mr. White? Um Mr. Chairman, I move that we um defer our meeting until a future date to be determined. um um within a reasonable period of time for further deliberation. I second. Okay. U vote yes. Vote yes. And I vote yes as well. Mr. White, any other motions? I move that we adjourn. Second. I support that motion. Yes. Yes. Good. So, we're done for today, gentlemen. Thank you. And thank you again for your argument. It was very helpful. Thank you. And staff will be in touch on Yes. [Music] [Music]