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Month: July 2016

POST HEARING THOUGHTS

The following is commentary on the ‘State of the A.R.T. project’ – a BRT project underway since May 9th in Albuquerque, New Mexico.

The “Boyd Trial” got underway on Wednesday. It was billed as the “Stop A.R.T.” effort. Those that supported it saw it as the lawyer solution, based on the theory that the devolution of modern society has reached the point where only lawyers, guns, and money can carry the day in any situation.

Indeed, such may be the case.

The court action in question was for a preliminary injunction to stop construction on ART filed in federal court. The complaint alleged that the Federal Transit Administration (FTA) erred in granting a Categorical Exclusion (CE) regarding an otherwise required environmental assessment report.

At this point we are far beyond the sound-byte capacity of the average modern brain to effectively frame what is really at issue. Please let me explain.

In testimony, the City attorneys (the side supporting ART, and defending it), argued persuasively that the federal FTA funds were only an adjunct to the project, necessary perhaps, but not necessarily necessary. Even the opposition (the Boyd team, joined by the Maria Bautista team) submitted testimony and evidence that the City had other resources with which to ‘stay the course’, to continue building ART, to ‘carry on’.

Much of the hearing was like this – two ships, some might say giants, passing in the night – like the metaphor, or like the metaphor of the blind man and the elephant.

One side saw feet and inches, concrete and guideways, an old corridor often wracked by urban decay and ruin. The other side saw culture, history, historic places sometimes well worn, but well loved. This side spoke too, of the people – not concrete and steel, not artificial ART, but the art of the people.

For those that know, and care about, history it is a very old theme. When the modern technological wonder, the Titanic, went down, some mourned the loss of a ship – S.O.S. – Save Our Ship. Others, more wisely, mourned the loss of the souls – “1,500 Die in Disaster.”

The John Boyd motion was not aimed at saving souls, nor was it aimed at stopping the disaster. The motion, the action, was simply stated – to stop (temporarily) the federal funding, not the City financed ongoing A.R.T. construction.

So it is not surprising that Mayor Berry will officially break ground on Monday, August 1st, on a project actually started nearly three months earlier. It’s what happens when one losses control about following the facts. The actually apt metaphor is smoke and mirrors, or a fit description of what happens when smoke gets in your eyes.

In an Albuquerque Journal op-ed piece today an ex-Albuquerque resident advanced the cyborg theory of the ART project – the idea that part man / part machine creatures are the future of the earth. It is a point that most have missed, the idea that only with the advance of machines can human life carry on. The irony, of course, is that this is not a new idea. The car culture itself was a cyborg event – the wedding of people and machine – the advent of the family car, the personal car, the car culture.

So is the transit to a bus culture the answer, just a change of machines, or the size and scope of the machine component in the cyborg set?

Elon Musk, the electric car and bus guy, has a vision for the future. It supports the car culture, but embraces the bus culture too. He will soon release the next generation, the new generation, of electric bus vehicles. And Albuquerque just can’t let go of the past as Mayor Berry will stick us with buying the last of the last generation of electric battery buses for A.R.T.

The next-generation Elon Musk electric bus is not ancient A.R.T. made in China.

The next-generation Elon Musk electric bus is not ancient A.R.T. made in China.

Complexity is seemingly always a good excuse for not thinking.

Wrangling over paid sick leave in Albuquerque

The following newspaper report that appeared in the Sunday Albuquerque Journal clearly indicates that the recent City Council initiated resolution that changed the INITIATIVE PROCESS in Albuquerque is probably illegal.

This is an extremely important development regarding the Initiative Petition filed on June 28, 2016, to make Route 66 an historically protected right-of-way in Albuquerque.

Important updates to this developing news story will follow.

Sunday July 10, 2016 – Albuquerque Journal – Dan McKay

It’s a debate that’s rattled Colorado, New Jersey and Washington.

Now it’s Albuquerque’s turn.

Supporters of a proposal called the “Healthy Workforce Ordinance” say they hope this fall to make Albuquerque the first city in the state to require that employers offer paid sick leave to their workers.

They plan Monday to turn in the last batch of petition signatures needed to get the proposal before voters, though it isn’t clear yet whether the measure actually will end up on the Nov. 8 ballot or will have to wait until the next city election in October 2017.

A coalition of more than a dozen business groups – including NAIOP, the commercial real estate development association; the Greater Albuquerque Chamber of Commerce; the New Mexico Restaurant Association; and Associated Builders and Contractors – has come together to oppose the ordinance.

The business groups say that offering paid sick leave to every worker is a worthwhile goal, but the proposed ballot measure is far too burdensome.

It could force some businesses to leave the city, opponents contend, because of the paperwork it would require and the potential for litigation from workers who use the ordinance to sue their employers. They say the proposed ordinance’s description on the petition fails to point out many changes that would be required of employers.

“The four mom-and-pop questions on this petition are not what this ordinance is about,” said Lynne Andersen of NAIOP. “It will basically change the way almost every business pays their employees.”

Supporters say the proposal is a common-sense way to ensure that workers don’t have to choose between their paycheck and the health of a family member. Workers could use the sick leave for themselves or to care for a relative, or for absences related to domestic violence, rape or stalking.

They announced their campaign on Mother’s Day to highlight the potential benefit to working moms. But they say it also helps the community as a whole if a cook or child-care worker can stay home rather than spread their illness at work.

“Sometimes the debate is framed as, ‘This is just something we’re giving to workers,’” said Elizabeth Wagoner, an attorney at the New Mexico Center on Law and Poverty. “I think it’s important for people to remember that it impacts all of us when a worker has to go to work sick.”

Supporters say the need is especially critical in New Mexico, which has a higher share of private-sector workers without paid sick leave than any other state, according to data compiled by the Institute for Women’s Policy Research, based in Washington, D.C.

A recent New Mexico Voices for Children study said it would cost private-sector employers statewide $239 million a year to offer paid sick leave to those who don’t have it, or 0.35 percent of the private sector’s gross domestic product in New Mexico.

County has questions

The debate focuses on a seven-page ordinance crafted by supporters. They are attempting to get it before voters using the petition initiative process outlined in the Albuquerque City Charter.

It’s the same method that has been used to propose abortion restrictions, a tax for the BioPark and increases in the minimum wage. Voters approved the tax and minimum wage proposals.

The “Healthy Workforce ABQ” campaign has had 60 days to gather 14,218 signatures from people registered to vote in Albuquerque. Its deadline is Monday.

A variety of left-leaning groups is backing the campaign, including Organizers in the Land of Enchantment, or OLÉ; the SouthWest Organizing Project; El Centro de Igualdad y Derechos, an immigrant rights group; Strong Families New Mexico; and Early Educators United.

Supporters and opponents alike expect the proposal to reach the required signature threshold, though the city clerk, of course, is still verifying the petitions signed by voters.

After that, the proposed sick leave ordinance would go to the City Council, which can either approve the measure outright or send it to voters in the next general or municipal election. The council cannot amend it unless both the original and amended versions are put to voters.

Supporters hope the council will agree to put the proposal on the Nov. 8 ballot this year rather than wait for the 2017 city election.

Getting it on this year’s ballot would also require Bernalillo County’s approval.

County Commission Chairman Art De La Cruz said he’s usually open to adding any question suggested by the city if there’s room on the ballot. County Clerk Maggie Toulouse Oliver said it’s too early to say whether there will be room, in part, because the county is still formulating its own questions.

Employees can sue

As business leaders prepare to fight the ordinance, they’re focusing on the details of the proposal, not necessarily the concept of paid sick leave.

One concern is record-keeping. The ordinance requires employers to maintain payroll records for every employee, including the amount of sick time accrued and used, and to keep the records for four years.

That’s because city attorneys would have a right to inspect the records. Also, an employee who leaves and returns to an employer within a year is entitled to sick leave acquired during the person’s first stint.

Opponents say many small companies won’t be able to meet such requirements, especially in industries like construction that have a transient workforce where people come and go depending on the project.

Critics also fear that the ordinance will interfere with the practice of offering “paid time off,” or leave that doesn’t distinguish between whether a person is sick or taking vacation. They say that is a growing trend that many employees prefer.

“It just creates a rigid work environment,” Jason Espinoza of the New Mexico Association of Commerce and Industry told the Journal . “Each employer and employee relationship is unique.”

Wagoner said supporters intend for the ordinance to allow PTO and count it toward the sick time requirement. She cites a provision that says employers don’t have to provide additional sick leave if they already have a “paid leave policy that meets or exceeds the requirements of this ordinance.”

Opponents also say the ordinance makes employers vulnerable to litigation if they fire or demote an employee who – by coincidence – has called in sick within the past three months.

That’s because the bill would establish a “rebuttable presumption of a violation” if the employer takes action against someone who has exercised their rights under the ordinance or alleged a violation of their rights within the past 90 days.

“That’s dangerous,” said Carol Wight of the New Mexico Restaurant Association. “It’s one-sided the way it’s written.”

The goal, Wagoner said, is simply to prohibit retaliation against workers. The employer would just explain to the court why the action was taken.

If the explanation makes sense “and it really wasn’t retaliation, there shouldn’t be a problem,” she said.

Employers who violate the law would face financial penalties. Workers could win damages of three times the value of any unpaid sick time they’ve accrued.

Employers who break the law could also face civil fines based on how many employees were affected.

The city attorney’s office would be charged with enforcing the ordinance, and employees could also file their own lawsuits, including class actions.

Ordinance is ‘flawed’

About two dozen cities and five states require employers to provide paid sick time to their employees or have passed laws to do so. The states include California and Connecticut. The cities include Chicago; Jersey City, N.J.; Pittsburgh; and Tacoma, Wash. Voters in Denver rejected a sick leave bill in 2011.

In a policy paper issued in February, New Mexico Voices for Children, an advocacy group, estimated that it would cost about $239 million in New Mexico to provide one week of paid sick leave to people who don’t have it already. That’s a cost employers should be able to handle, New Mexico Voices for Children contends.

Mike Puelle, CEO of Associated General Contractors of New Mexico, disputes that businesses can afford the cost. In construction, for example, the margins are “razor thin,” he said.

Ken Carson Jr., owner of Nexus Brewery and the Nexus Silver Taproom, said he already offers paid leave that exceeds what’s proposed in the ordinance and he supports the ballot measure.

“I feel like it’s something that workers in this industry should have,” Carson said. “I come from a banking background and every bank I’ve ever worked at, every organization I’ve worked for, has had paid time off for its workers. … I think we end up reaping what we sow when we don’t take care of our staff.”

The opposing campaign, called the “Coalition for a Healthy Economy,” says the ordinance is simply flawed, no matter how well-intended. It’s an extra burden for businesses as New Mexico struggles to recover from the Great Recession, it said.

The coalition includes the Albuquerque Economic Forum, Apartment Association of New Mexico, Associated Builders and Contractors Inc., Associated General Contractors New Mexico, American Subcontractors Association of New Mexico, Commercial Association of Realtors New Mexico, Greater Albuquerque Association of Realtors, Greater Albuquerque Chamber of Commerce, Home Builders of Central New Mexico, NAIOP, New Mexico Association of Commerce and Industry, New Mexico Restaurant Association and New Mexico Utility Contractors Association.

If the debate over sick leave must happen, it should be at the state level to avoid a patchwork of rules, they said.

The proposal “is very scary, especially for small businesses,” Andersen, the NAOIP president, said.

How it would work
• All employers in Albuquerque would have to comply, no matter their size, if they have “physical premises” within the city. State government would be exempt.
• Any employee who works seven days or more in one year would be entitled to earn sick leave. That includes part-time, seasonal and temporary workers.
• An employee would earn at least one hour of sick leave for every 30 hours worked.
• Employees at large businesses – 40 or more workers – could use up to seven sick days a year, if they’ve earned that much. At smaller employers, they could get five days.
• The paid sick leave could be used by the employees to care for themselves or a sick family member, or for absences related to domestic violence, sexual assault or stalking.
• The employer could require the employee to provide documentation if the person uses three or more sick days in a row. The employer, however, would have to pay the worker’s out-of-pocket expenses if obtaining the documentation costs money. The employer would have to keep the documentation confidential.
• Employers could offer more generous benefits than those required.
• The ordinance would establish a “rebuttable presumption of a violation” if the employer takes action against someone who has exercised their rights under the ordinance or alleged a violation of their rights within the last 90 days.
• There is a debate over whether the ordinance would eliminate “paid time off” plans and require separate sick-leave accounting.
• The city attorney’s office would be charged with enforcing the law and employees could file their own lawsuits.
• Employers would need to keep track of earned sick time for every employee and keep the records for four years.

INITIATIVE PETITION ELECTION DATE CONFUSION

Note: Numerous questions, requiring answers, regarding the timing of the Initiative Petition to “Stop A.R.T.” by making Central Avenue an historic right-of-way, were asked by Donald Clayton before filing for the petition. The questions were directed to Natalie Howard (Albuquerque City Clerk) and her city attorney Eric Locher.

At no time did anyone suggest that the measure, if properly approved, being on the November 8, 2016, ballot was ‘optional’. The required ‘letter of intent’ for the petition was filed on June 28th. The Clerk’s Office delayed petition approval until July 1st – normally a petition is approved in 24 hours.

On July 7th a Press Conference was held in Civic Plaza officially announcing the beginning of the petition drive. On July 10th, just three days later, a huge front-page Sunday Journal article appeared that clearly stated that putting initiative petitions on the November ballot was ‘optional’, claiming the City Council could choose to delay a vote on the measure until October of 2017.

Such a delay would be “justice delayed is justice denied;” as to postpone the date for a vote until after the A.R.T. Project was substantially completed (in 2017) would obviate the entire intent of the otherwise timely petition.

Even if it was not the explicit intent of the pro-A.R.T. Albuquerque Journal to write an article aimed at defeating the public’s interest in stopping the A.R.T. project, the effect is the same. The Journal’s reach is enormous, reaching over one-half million readers on a Sunday. The article is suspect in that no attribution for the legal claim made was stated by Journal reporter Dan McKay, who wrote the article.

This important issue must be vigorously addressed:

July 11, 2016

Natalie Howard, MPA
City Clerk
Office of the City Clerk
City of Albuquerque
600 2nd Street – Room 720
Albuquerque, NM 87102

THIS IS A PUBLIC RECORD

Ms. Howard:

Reference is made to the lengthy discussion between you, Eric Locher, and myself, on July 1, 2016, regarding questions pertinent to when the Initiative submitted on June 28, 2016, might appear on the ballot.

It is herein stated, as a matter of record, that neither you, nor Mr. Locher, ever represented that, pursuant to law, the petition possibly would not appear at the November 8, 2016, general election – even if you (the City Clerk) were to “file(s) a certification with the Council” at least 90 days before the general election.

Purpose of communication:
This clarification is to document numerous concerns expressed by me at the above referenced meeting regarding the absence of clear law, and clear policy, regarding the Initiative Petition ballot and election process. I remind you that I did not receive either clear oral answers from either you, or the city attorney present, to my specific questions, nor have I received written answers.

New information:
I reference the front page article in the Sunday Albuquerque Journal dated yesterday, July 10, 2016. The article contained a long, and detailed description of the Initiative process under the changes created by the above referenced Bill. Noticeable among the provisions was the claim that the City Council can order the election of any petition measure to be delayed for a period in excess of one year.

Request for an immediate legal opinion:
My information and belief is that the purpose of the Council Bill was not to change the 90 day requirement from “90 days” to “365 days, or more.” Further, I do not believe that the purpose was to retain a “90 day” requirement before an Initiative petition could appear on the ballot.

Since a catastrophic news story has been released that has clearly suggested to a vast majority of Albuquerque voters that significant ballot delays are possible, I request an immediate and timely written legal opinion that either confirms or denies the legal issues implicit in the published information.

I remind you that this new, and I believe novel, interpretation of the law (as published in the Journal) is fraught with legal jeopardy and wholly compromises the entire petition submitted on June 28th.

Please inform me of your decision at your earliest opportunity, but in no event later than July 14, 2016.

Sincerely,
Donald Clayton

MONSTER MASH

Who was to know that there was a party going on?

It’s the Berry Party, or the Berry Bury Party, or the, “Watch us bury Central, and Route 66, and all of your Albuquerque history right in front of your eyes, party.” But, it’s not my party.

In “my generation,” probably like in every generation, we grew up doing everything to music. Music was the mantra, it was almost always there to reveal the meme. And the meme going on right now in Albuquerque, on the good old Route 66 right-of-way, all along Central (Avenue), is what might rightfully be called the Mayor Berry Monster Mash.

Like most things done in the dark, the BRT/ART Project began back in 2012, when Team Berry sent a team of rookies out to Cleveland, Ohio to explore the devastated canyons of downtown Cleveland, a ghost city only exceeded in rust belt dereliction by Detroit and Youngstown, and Buffalo, New York.

What Berry’s rookies failed to receive or perceive was that the “billions” of dollars invested in downtown Cleveland was not because of Bus Rapid Transit (BRT), but was because of bad banking decisions and massive federal dollars aimed at saving an historically important US city from the throes of unmitigated economic ruin. The only thing that the “Cleveland Billions” have bought is a Republican convention where Donald Trump will probably be put into power.

Make no mistake, downtown Cleveland, with its BRT ART-type, archetype project is a Zombie type neighborhood that is just short of dead.

But Mayor Berry wants to bring the Monster Mash party thing here, to Route 66, to ‘our‘ Central Avenue. It’s the death wish thing, the desire to bury (Berry), not build up; Berry wants to bury the water pipes, bury Route 66, bury the businesses and the shops and the restaurants of good old Central – and create a Disneyland, carnival land, new thing that is really just a wall, a crypt, more like a mausoleum. The flashing LED light displays beaming out from the “stations” are like the electrodes – flash and dash – a monster in waiting.

In the last several weeks the Berry Boys have been clear-cutting West Central. Most of the large caliper trees in the medians have been cut down, dug up, totally removed – roots and all. Berry says he will plant new ones, but not in the center of Central, that space is reserved, in his monstrous plan, for reinforced pastel cement bus-only guideways, and fast-moving, mostly empty, million dollar plus (each), diesel buses with traffic signal trip-wires to interfere with, and defeat, pedestrians.

Every condemned tree, condemned to death by Berry, should have the right to a last drink of water. That’s where Project Aquarius comes in. Team Berry, under the guise or guidance of the Albuquerque Solid Waste Department (No, I don’t make this stuff up) has been deleting the irrigation, the sprinklers, the water median system all along Central. Pipes are severed, cut, abandoned and buried (Berryed).  Of course the Department Head denies it. It’s not the first time they’ve lied. The deconstruction that was promised not to begin until mid July actually began on May 9th – just for starters.

Not everyone in Albuquerque gets out to West Central where the ‘reign of ruin’ is raining down. Not everyone has gone out to see it, to be a witness first hand. Not everyone has noticed the old retro lights of central Central as they are torn down, consigned to Berry’s “scrap heap of history.” Berry’s idea of “new” is not mid-Century modern, but old style crossarms tacked up tackily on old wooden PNM poles. The Monster Mash, clearly, is not a class act.

The bad news is that most people have to see something before they are willing to say something to stop it. The good news is that there is now a lot to see all along Central. Anyone can bear witness to the fact that Central and Route 66 through Albuquerque is dying.

I have filed, and obtained, an initiative petition to stop it – to stop the monster mash, the madness, the drive to death and to ruin – to Stop A.R.T.

All anyone needs to do, is to sign it. As soon as the required number of signatures, from the required number of Albuquerque registered voters, are obtained the issue goes to a vote by the City Council, and if the council fails to do the right thing, it goes on the ballot. We can say “No” before Congress even gets close to granting the funding.

And maybe, that’s where the party gets really fun, as the Berry contractors are hit with the all but inevitable clawbacks.