According to Mayor Martin Chavez, a 4-4 vote by the City Council means a majority voted to pass a bill. That's what he told Jeff Deal, a reporter for KRQE-TV, who, in an honest to goodness example of investigative journalism, broke the news that the mayor had ordered the city clerk to fabricate a document saying the City Council passed the mayor's request to raise garbage collection rates, when, in fact, the bill failed to get the support of a Council majority required to make it law.
Deal deserves credit for some fine reporting. We don't see enough of it these days from our local troika of TV news channels. Deal not only asked hard questions, he didn't settle for simply taking dictation. When fed a line of crap from the mayor, he dug harder to come up with information that allowed him to report he had been fed a line of crap from the mayor. And what he uncovered could spell real trouble for Chavez.
Here's where the story has been, and where it's going: On May 2, 2005, the City Council considered the mayor's request to raise garbage collection rates. The mayor's request did not get the majority needed to become law. Four councilors (Brad Winter, Miguel Gómez, Tina Cummins and Craig Loy) voted for it. Four opposed it (Martin Heinrich, Michael Cadigan, Sally Mayer and Debbie O'Malley) and one, Eric Griego, was absent. Every page of the bill was then stamped, correctly, "Do Not Pass." The transmittal letter, by which Council notified the mayor of its action, said, "The bill failed at the Council meeting of May 2, 2005, by a vote of 4 FOR and 4 AGAINST."
Two weeks later, Mayor Chavez apparently ordered City Clerk Judy Chavez to manufacture a public record stating that his request to raise solid waste fees had been passed by the Council. Assistant City Attorney Mark Shoesmith e-mailed the city clerk the language for the false document. Shoesmith instructed her to sign the bill "in place of a signature by the Council president and the mayor." That alone should raise suspicions. City clerks don't sign legislation.
The city clerk followed instructions and signed and filed a record that the bill was "passed and adopted this 2nd day of May 2005 by a vote of 4 for and 4 against." This was followed by the statement that the rate increases "went into effect May 2, 2005, as shown by the transmittal of legislation received from the City Council ..." even though the original transmittal explicitly stated the bill had failed.
The mayor told Deal "a 4-4 vote is a pass." Deal checked with the city attorney, who told Deal that wasn't true under any interpretation of the City Charter. The mayor has since offered several shifting explanations, each of which has proven to be baseless. He has even tried blaming the city clerk.
Chavez' opponents in the mayoral election should be even more tenacious than Deal. Some are discussing joint action. Republicans have been using the Internet to spread word of what they call Chavez' "latest, and potentially most serious, abuse of power." Others are looking to the courts. The mayor will almost surely face civil litigation, but it may be the criminal law against tampering with public records that causes him the most concern.
The document prepared and filed by the city clerk is patently false. The garbage rate increases were not passed by the Council on May 2. They did not go into effect May 2, and the transmittal of legislation from the City Council, contrary to the fabricated record of the city clerk, did not show that the bill passed.
What Mayor Chavez ordered the city clerk to do could constitute a felony. Under New Mexico Statutes Section 30-26-4, it is against the law for any "public officer or public employee" to "knowingly" falsely make any public record or file any public record in a form other than the original as it appeared.
Chavez' actions also spell trouble for the city's finances. His budget depends on the garbage collection increase. But his administration has no legal authority to send out bills with higher rates, and no ratepayer is obligated to pay those higher rates. Chavez has guaranteed the city's finances can be easily toppled by a simple, straightforward lawsuit.
What was Chavez thinking when he told the city clerk to fabricate a public record? Did he think no one would ever find out, even after the higher garbage collection bills started appearing in mailboxes? Who knows? Who really cares? But years from now, it may be Marty Chavez asking himself that question, over and over and over.