The New Mexico House passed a bill Tuesday afternoon that would change the retirement fund for state workers who have been working for five years or less. The bill, which failed to pass the House this weekend, was brought back to life by Rep. Mimi Stewart, D-Albuquerque.

HB 644 would change the minimum age that PERA and ERB members who have been on the job for less than five years can begin drawing retirement funds and reduce the annual cost of living adjustment for PERA workers.

Stewart says the bill is necessary to save the retirement funds from insolvency. Critics of the bill said it’s not necessary and could perhaps even be a breach of contract for state workers who have not been on the job for at least five years.

Uniformed PERA members, such as firefighters and police officers, would be exempt from the legislation.

The Fiscal Impact Report explains the bill’s contents as follows:

Specifically, new eligibility requirements would apply to non-vested employees under the
following plans:

• State General Plan 3: minimum age of 55 with age and service equal to 80;
• Municipal General Plans 1-4: minimum age of 55 with age and service equal to 80; and
• Educational Retirement Act:
• - Tier 1b – non-vested members that entered ERB prior to June 30, 2010: minimum
  age of 55, Rule of 75; and
• - Tier 2 members – non-vested members who entered ERB after June 30, 2010:
  minimum age of 55 with age and service equal to 80.

The following PERA non-vested members are exempted from the new age 55 requirement:

• All uniform employees (public safety);
• Peace officers under State General Plan 3;
• Legislative members; and
• Judicial and magistrate plan members.

The bill faced some stiff opposition.

Rep. Sheryl Williams Stapleton, D-Albuquerque, called it a “bait-and-switch” on workers who had been in the job for less than five years and said she believed it was a “breach of contract.”

“I don’ think it’s fair that we change the rules in the middle of the game,” Rep. Debbie Rodella, D-Espanola, said.

Stewart’s bill obviously had some support as well.

Rep. Dennis Kintigh, R-Roswell, said that the legislation “one of those hard bills” that they “get the big bucks for” voting on. The legislature is a citizen legislature that only receives a per diem for their service during the legislative session.

Calls for the bill only to affect those who are hired after July 1 of this year, instead of all those who have less than five years of service, were made by Majority Leader Ken Martinez, D-Grants, and Rep. Al Park, D-Albuquerque.

Stewart said it would not do anything to save the PERA fund from insolvency.

The motion to reconsider the bill, and bring it back after being voted down by the House on a 38-28 vote previously, passed the House on a 39-29 vote.

The bill survived two close votes that would have sent the bill back to committees. A motion to send the bill to the House Labor and Human Resources Committee narrowly failed on a 35-34 vote. More than an hour later, a motion to send the bill to the House Judiciary Committee failed on a 34-34 vote.

The bill now heads to the Senate.

A bill that would cap the film subsidy program at $45 million cleared the House on a 53-17 vote despite three hours of debate and a number of amendments put forward by Democrats to alter the bill. The debate on the amendments took the full time allowed by House rules.

There was no repeat of the state budget process, during which Democrats limited amendments by “running out the clock” on the three-hour time limit on debate on a bill.

A number of amendments were put forward and voted down by the chamber. An amendment by Rep. Brian Egolf, D-Santa Fe, to increase the cap to $60 million failed on a 36-33 vote.

Egolf said that a $45 million dollar cap would make New Mexico lose “all of the major productions” and that films like The Avengers would not film in New Mexico.

Rep. Dennis Kintigh, R-Roswell, said that studies have shown that the state does not get a return on investment that would make the incentive good for New Mexico.

A controversial part of the debate came when Rep. Donald Bratton, R-Hobbs, accused some members in support of raising the film incentive to $60 million as going back on their word. He said that there was a deal in place in the House Taxation and Revenue Committee to cap the bill at $45 million.

“A liar’s a liar by any other word,” Bratton said.

Bratton was chastised by Speaker of the House Ben Lujan, D-Nambe, though not by name.

“Calling people liars on this floor is uncalled for,” Lujan said while on debate of a different amendment. “I will guarantee you that I will never call a member a liar.”

Bratton also said the oil and gas industry, which Democrats pointed out gets incentives from the state as well, doesn’t threaten to move operations out of state “all the time.”

Egolf pointed out that representatives of the oil and gas industry threaten to leave the state because of the pit rule and other environmental regulations.

Another amendment by Egolf would have limited incentives to the oil and gas industry at $45 million.

“We’ll give a cap here in this bill,” Egolf said. “But let’s make a cap on all the other giveaways, loopholes, subsidies, etcetera, that are in the oil and gas industry.”

“What’s good for the goose is good for the gander,” Egolf said.

That amendment was tabled on a 40-28 vote.

An amendment by Rep. Al Park, D-Albuquerque, to push the effective date of the cap to fiscal year 2013, was tabled after a 41-28 vote.

Gov. Susana Martinez has called for the state film incentive program to be reduced from a 25 percent rebate to a 15 percent rebate.

It’s a request that can come from any member, at any time, during any debate: A “call of the House.” All of a sudden the doors to the chamber are locked and state police are sent to round up missing lawmakers. The reasons for requesting a call can be many, but near the top is politics.

Members who are excused are not subject to a call of the House; state police are not sent to look for them. For example, Rep. Nora Espinoza was excused during the entire special session while she attended to family business in Panama. Rep. Dianne Miller Hamilton was at lunch when the call was issued; reached by phone, she was excused, staff said.

Rep. Andrew Barreras was returned to the House during the call and later voted in favor of the tax bill; Rep. Benjamin Rodefer later returned to vote against the tax bill;

Reps. Sandra Jeff, Antonio “Mo” Maestas and Nate Cote , who had been at the Roundhouse before the vote, were all excused and did not vote on the bill.

The Independent searched the capitol for the representatives; we also tried to reach them by e-mail (except Jeff, for whom we couldn’t find an address) to ask about the reasons for their absences. We were not successful.

A call of the House can be used to get representatives on record on hot button issues, Rep. Al Park, D-Albuquerque told The Independent.

“Calls of the House are used for political purposes, and that’s OK,” he said. “For me, it’s my job to vote.”

But sometimes, Park explained, ”a member doesn’t want to vote on an issue that would present a conflict between their constituents and their personal beliefs.”

One strategy to avoid that conflict is called “taking a walk.” That’s when a lawmaker leaves the floor–or a committee meeting–before a vote in order to purposefully avoid making the vote.

Of course not all absences from the floor–or from committee–mean a legislator is taking a walk. Meetings, negotiations, phone calls, bathroom breaks: any of a number of reasons can pull a member away.

But the fact that the Speaker pulled the bill from the Taxation and Revenue Committee–on which Rodefer, Jeff, Barreras and Cote sit made some watchers wonder if perhaps there weren’t enough votes to get the bill through committee.

And when the four were absent from the floor, Republicans asked for a call of the House.

“I believe there was a plan to allow people to leave,” rather than vote against the tax bill,  Rep. Keith Gardner, R-Roswell, said plainly.

In general, Gardner said, he wants to see every member vote when major tax incentives in the state are decided.

In the following video you’ll see a member of the House sergeant at arms search for representatives during the call, and you’ll see the parking spaces of the missing members, some with cars in them, others without:

The bill effectively reapplies local and county taxes on food, which average about 2 percent across the state, while clawing back annual state payments to local governments. Those payments are made to compensate for the annual loss of revenue caused by the repeal of the food tax in 2005.

The likely loss of revenue caused by the state tax bill  is due in part to the difference between the local gross receipts tax rate in Albuquerque now and the rate when the state computed how much compensating revenue to send to the city after the state tax was repealed on food.

Santa Fe, on the other hand, might gain some revenue next year because of the food tax provision, but lose up to $500,000 in the following year.

Those and other municipalities may choose to raise taxes or cut spending to balance their budgets, state officials have said when defending the tax bill that many view as central to helping the state address next year’s projected budget shortfall of several hundred million dollars.

The tax package the House passed early Wednesday evening also increases the state gross receipts and compensating tax rate by an eighth of a cent, to 5.125 percent.

The bill closes a deduction used by people who itemize their state income tax returns, referred to by advocates as the ‘PIT add-back,’ and expands the number of people who qualify for a low-income tax rebate. Those measures accompanied the gross receipts tax increases as a way to address concerns that the tax bill would disproportionately affect low-income people.

It also imposes a tax on out of state purchases by New Mexico businesses that aren’t currently subject to gross receipts tax.

Republicans unified in opposition

The House passed the tax bill despite vigorous opposition from Republicans, who stretched debate on the bill through the full three hours allowed.

“In state government we assume that the only way to solve problems is to raise taxes,” Rep. Tom Taylor, R-San Juan, said.  “We have a really good opportunity here to streamline state government, but we’re throwing it away.”

“We’re about to cross an economic desert, and everything we’re doing assumes there’s an oasis over the next hill,” Taylor continued.

The opposition was kicked off by controversy over the fact that the bill wasn’t heard by the House Taxation and Revenue Committee before being brought to the House floor for final passage.

Rep. Keith Gardner, R-Roswell, said the “sanctity of the committee process” was being damaged. “Our chambers are open to the public so that the public can come express their views,” protested Gardner. “…But we are denying them that right on this bill.”

These objections were brushed aside, however, as was an attempt to divide the measure into three separate bills.

Among a slew of amendments offered by Republicans, Rep. Larry Larrañaga, R-Bernalillo, offered one that would strip the food tax from the measure.

“Let’s not tax food, let’s leave that well enough alone,” he said.

But Speaker of the House Ben Lujan, D-Santa Fe, said the food tax was an important part of raising the revenue necessary to balance out the budget the House passed yesterday. And he clarified that the bill doesn’t impose a state tax on food—its only the local tax that’s being imposed.

“Nobody is in favor of taxing food, but we’re not imposing the state tax, this is only the local government gross receipts that’s been imposed,” Lujan said.

“It’s still a tax, any way you cut it,” Larrañaga replied, saying he has been getting droves of e-mails telling him emphatically to not tax food.

The amendment to strip out the food tax was tabled on a vote of 36 to 30, with six Democrats voting with the Republicans. Those Democrats were Rep. Giannini, Rep. Madalena, Rep. Rodefer, Saavedra, Stapleton, and Steinborn.

Democrats make hard compromises

Rep. Al Park offered a lengthy defense of the tax measure, saying the legislature finds itself in “difficult times, difficult days.”

The economy has been pounded by a global economic recession, leaving New Mexico reeling after years of excess revenues, he explained.

“These are not decisions I relish, but decisions I’m willing to make,” he said, explaining that in the package there are some items he likes and some he hates, but that the pain of the current economic moment needed to be spread across the board.

Some advocates who vigorously opposed the food tax initially say this was a necessary compromise so that deeper cuts to state programs and services weren’t made.

“We don’t’ like the food tax. We don’t like the GRT. We’re thrilled with the PIT add-back,” New Mexico Voices for Children Policy Director Bill Jordan told The Independent after the vote.  “But the reality is that this package is probably the best they can do. There are a lot of progressive who don’t like the food tax and a lot of conservative Democrats who don’t like the PIT add-back, but we need both to raise enough revenue to avoid deeper cuts.”

Jordan said that in an ideal world the legislature would repeal 2003 income tax cuts that primarily benefited wealthy residents of the state, but that it’s unrealistic to expect the governor wouldn’t veto such a measure.

The Senate passed the revenue package yesterday, while the House has already passed a $5.35 billion budget, plus a tax increase on cigarettes. The Senate must now pass the budget measure, in order for the constitutionally mandated work of the legislature to be complete. The Senate would also need to pass the cigarette tax increase in order for the budget bill to be balanced with enough revenue.

Many speculate that the revenue projections that underlie the budget crafted this week are already out of date, and that new revenue projections in April or May will show that further tax increases or budget cuts will be necessary.

Trip Jennings contributed to this report.

Rep. Sandra Jeff, D-Crownpoint, and another Democrat joined GOP lawmakers to table SB 182, a bill that reclaimed $130 million from more than 1,500 stalled projects around the state, to be used to shore up the state’s nearly depleted reserve account. The cash is needed to help New Mexico avert bouncing checks this fiscal year.

But a few hours later, Jeff and Rep. Andrew Barreras, D-Tome, voted for the bill and helped to pass it out of the House Taxation and Revenue Committee on a party-line 10-6 vote.

That move followed a series of high-level meetings between at least one of the legislators and Gov. Bill Richardson in the hours preceding the second vote. Word also came down, delivered by his representatives, that Richardson “was going to veto the tribal infrastructure fund if 182 doesn’t pass,” Rep. Ray Begaye, D-Shiprock, told The Independent earlier this week.

“[Rep. Jeff] wanted to get 182 tabled to negotiate with the governor and the House leadership,” according to Begaye. “What ended up happening, she being a freshman lawmaker, [was] the governor got really upset at her.”

Jeff didn’t respond to two phone messages left by The Independent; the governor’s office declined to comment for this story.

What happened between the two votes on Feb. 17, the next to last day of the regular session, offers a glimpse into how the New Mexico Legislature operates, especially when rank-and-file lawmakers buck a coalition of power brokers.

Jeff’s and Barreras’ rebellion was a rare public rebuff of House Speaker Ben Lujan, D-Santa Fe, the most powerful lawmaker in the Legislature and who has, until recently, ruled the House with an iron grip.

The rebellion was so unexpected that it occupied Richardson’s mind nearly 24 hours after the incident.

“They were making very good progress on the capital bills, but then unfortunately a couple of members in the House spent a lot of time, unnecessary time, that delayed action. And yesterday was a crucial day,” Richardson told media in his post-session news conference Feb. 18, less than an hour after the session’s end.

The bill in question – SB 182 — was important to Richardson and legislative leaders; so important that all had agreed in the waning days of the 30-day regular session that if there was a short list of bills that had to pass, SB 182 was on it.

That’s due to New Mexico’s perilous financial state. The Legislature’s budget arm, the Legislative Finance Committee, has projected that state revenues were $40 million below expectations as of earlier this month, a notion contested by Richardson’s budget team.

With about $100 million in the state’s reserves, anemic revenues this year could force New Mexico to draw down its reserves. Clawing back money from stalled projects gives the state a tool to help beef up the state’s reserves in case that happens, officials said.

But the bill’s path through the Legislature was torturous, partly due its very nature. SB 182 canceled funding for projects in virtually every legislator’s district across the state, funding, in many cases, that those lawmakers had gotten for the projects. That made SB 182 an unpopular bill.

Jeff, like other lawmakers representing tribal areas, was upset that several dozen tribal projects had wound up in SB 182, meaning they would lose funding. A letter had gone out in the fall from the governor’s office putting a freeze on hundreds of brick-and-mortar projects around the state, including the tribal projects.

So Jeff aligned with GOP lawmakers to bottle up the bill in the House Taxation and Revenue Committee in the early afternoon of Feb. 17, the next to last day of the session.

The vote led to unexpected drama. Visibly upset that the bill had not passed during the first vote Feb. 17, committee chairman, Rep. Edward Sandoval, D-Albuquerque, threw his pencil down on his desk.

Lujan, who also sits on the committee, leaned over to Sandoval and stage whispered to recess the House Taxation and Revenue meeting with the possibility of meeting again subject to the call of the chair.

Lujan then walked out.

With that vote, the Legislature appeared to grind to a halt. The House had expected to vote on the bill that day. The Senate also had to vote on the legislation.

Following that meeting the pressure rose on Jeff and Barreras.

Sometime during that day word came down from the fourth floor of the Capitol that Richardson would veto the tribal infrastructure fund if SB 182 didn’t pass, and Jeff met with Richardson, Begaye said.

The tribal infrastructure fund authorized the state to set aside $10.7 million for roads and other much-needed projects in tribal lands. Tribal leaders have consistently supported “a permanent funding source” and this year’s legislation did that, setting aside money from a fund the state uses to fund brick-and-mortar projects around the state.

“That alarmed all the pueblo governors,” Begaye said. “Everybody was upset at Sandra Jeff. It was mass confusion.”

Several hours later, Jeff changed her vote, siding with her Democratic colleagues to pass the legislation out of the Tax and Rev committee, as it’s informally known.

But Lujan wasn’t taking any chances on the legislation again. The muscle on hand prior to Feb. 17′s second Taxation and Revenue Committee hearing that night was apparent.

House Majority Leader, Ken Martinez, and several committee chairmen helped Lujan round up Democratic lawmakers to ensure that the bill passed out of the Taxation and Revenue Committee.

Rep. Luciano “Lucky” Varela, D-Santa Fe, was on hand, as was Rep. Al Park, D-Albuquerque.

Varela is the chairman of the Legislature’s budget arm, the Legislative Finance Committee. Park chairs the House Judiciary Committee.

After about an hour, the 10 Democratic members on the committee were in the committee room. Republican lawmakers until that point had stayed out of the committee room. But they wandered in, taking their seats.

Minutes later, the committee passed out SB 182 on a 10-6 vote.

Roughly nine hours later – around 4 a.m. Feb. 18, the last day of the session — the House of Representatives passed SB 182. Five hours later, with less than three hours to go in the regular legislative session, the Senate passed the bill too.

The bill passed the Legislature. So did the legislation authorizing millions of dollars for the tribal infrastructure fund. Both now await the governor’s signature.

“I was promised it would be heard last night, and then I was promised it would be heard this morning,” said Rep. Paul Bandy, R-Aztec, who has accused House Speaker Ben Lujan of trying to keep the House from voting on the veto override.

Sponsored by Sen. Tim Keller, D-Albuquerque, SB 531 passed unanimously through the Roundhouse last year, but was pocket-vetoed by Gov. Bill Richardson.

The federal Medicaid Integrity Group said recently that it plans to investigate allegations reported in The Independent that the HSD stonewalled Medicaid Fraud Division investigators during 2008 and 2009.

According to the Attorney General’s Medicaid Fraud & Elder Abuse Division, better compliance with Medicaid rules and regulations could have saved taxpayers up to $31 million.

Both Bandy and Rep. Dennis Kintigh, R-Roswell, asked Chairman Al Park, D-Albuquerque, on Wednesday why SB 531 wasn’t heard  Wednesday morning.

Park told them he wanted to make sure Keller was there to present the bill and that SB 531 is a “controversial” bill.

Keller was in his office about the time Park made those comments in the Judiciary Committee on Wednesday morning.

Bandy had his own theory why the bill wasn’t heard.

“I think the Speaker doesn’t want to embarrass the governor,” the GOP lawmaker told the Independent.

Park said he fully intends to hear the bill this afternoon.

“My intention is to hear all legislation and take action, whatever that may be,” Park said.

It’s still unclear why a House committee would even consider a veto override. And no one has an answer, including Park, who demurred from answering the question Wednesday morning.

House Judiciary stands between the bill and a full House vote. But with less than 24 hours before the session ends, time is running out.

During the Judiciary Committee meeting Wednesday morning, Park told members and the audience that Sen. Keller was notified SB 531 was coming up on the agenda. In fact, Rep. Bandy told The Independent he was supposed to call Keller when time grew near to present the bill. But since Bandy heard from the Chairman that Keller had already been notified, he didn’t make the call.

Those details would be important because the committee ran out of time to hear SB 531.

According to the legislation, a person filing a complaint and then speaking about it could have to pay a $26,000 fine and spend a year in jail. On the other hand, a censure or public reprimand would be the worst a public official would get from the ethics commission if found to have violated the public trust.

That seeming inconsistency has long-time good government groups speaking out against the proposal following years of lobbying state lawmakers for a commission that could investigate and punish ethical lapses by public officials.

The “extreme penalties” would discourage people from filing complaints with the proposed commission, the groups said in a joint statement issued Tuesday.

“It’s odd that the penalties for a complainant speaking publicly about a complaint would be astronomically harsher than any penalty the commission could dish out to a public official accused of misconduct,” Steven Robert Allen, executive director of Common Cause New Mexico.

Common Cause was one the groups listed in the joint statement Tuesday criticizing the Senate bill and similar legislation moving through the House.

The confidentiality provision that silences complainants seems to fly in the face of the “presumption that government must be open by default, with any secrecy provisions carved out as narrowly as possible,” added Sarah Welsh, executive director of the New Mexico Foundation for Open Government. “This bill takes the opposite approach. It starts from the presumption that all Commission documents, meetings and hearings related to ethics complaints must be secret, forever. It then carves out a narrow exception for one final report to be made public. I still haven’t heard a good explanation for why an ethics body needs such extraordinary secrecy privileges, and I don’t think the public will trust its pronouncements without more transparency.”

Terri Cole, president and CEO of the Greater Albuquerque Chamber of Commerce, another organization speaking out against the legislation, told The Independent on Tuesday that both the House and Senate bills are moving quickly. In previous years, similar bills languished in the Legislature.

Cole recounted events late Monday night in the House Judiciary Committee to make her point.

The House committee was hearing the state ethics commission bill when the chairman, Rep. Al Park, D-Albuquerque, introduced a substitute to the piece of legislation up for discussion. Usually during hearings supporters and opponents are allowed to testify.

But Park skipped over public testimony and took lawmakers’ questions.

“And they’re were only four of us in the room,” Cole said of the 11:15 p.m. hearing.

Lawmakers asked some questions, but “not the usually House Judiciary vetting,” Cole said, referring to the sometimes-tedious, line-by-line analysis House Judiciary members put a bill through.

Then members voted on the substitute bill, sending it to the House floor.

“It flew out,” Cole said. “It’s got to be part of a higher plan.”

State Rep. Al Park, the committee’s chairman, confirmed that in an e-mail that the bill will be heard when the committee meets Saturday morning in room 309 in the Roundhouse. The time of the meeting hasn’t yet been scheduled.

Senate Bill 195, sponsored by Republican Sen. Sander Rue and pushed heavily by Democratic Lt. Gov. Diane Denish, has already passed the Senate unanimously, but it has to pass the House Judiciary and Appropriations committees before it can be considered by the full House.

The bill would create a publicly accessible Web site database of detailed and up-to-date financial information including tax revenues, agency budgets and investment reports.

Lujan speaking to Giannini after the vote. (Photo by Patricia Sauthoff)

House Speaker Ben Lujan’s bill to implement a temporary half-cent hike in the state’s gross receipts tax would presumably not have passed earlier today if two Republican members hadn’t missed the vote.

Ultimately, following drama on the House floor, Lujan’s bill was approved on a vote of 34-32, with two Democrats and two Republicans missing the vote.

The excitement began when Republican Rep. James White asked for a call of the House and the doors were locked to ensure no members left the floor. Democratic Reps. Danice Picraux and Karen Giannini – who had previously been excused – were absent, as were Republican Reps. Jane Powdrell-Culbert and Dennis Roch.

Both Roch and Powdrell-Culbert were at doctors’ appointments, House Chief of Staff Matt Kennicott told reporters after the vote.

The sergeant-at-arms went searching for missing members. Though the two excused Democrats weren’t required to respond to a call of the House, both did return briefly to the House floor. Lujan got on the phone, and after a moment Picraux and Giannini quickly left again.

They weren’t required to return for the final vote, even following a debate between Minority Whip Keith Gardner and Rick Miera – the Democrat who was presiding over the chamber at the time – about whether they should be forced to come back and vote on the bill.

Meanwhile, the House did vote to excuse Powdrell-Culbert and Roch.

The House Republican caucus, minus Powdrell-Culbert and Roch, voted as a group against Lujan’s bill. They presumably would have been joined by the two missing Republicans if they had been present, and the vote would have been 34-34.

A tie vote kills a bill.

How Giannini and Picraux would have voted isn’t clear. Neither could be immediately reached for comment. Following the vote on the bill, Gardner put out a statement saying they “clearly… did not want to be on record as voting for the largest tax increase in recent New Mexico history.”

“These kinds of games are an outrageous abuse of democracy,” Gardner said.

Picraux and Ginannini returned to the House floor during debate on the next bill.

Nine Democrats did join the Republicans in voting against the bill. They were Elias Barela, Joseph Cervantes, John Heaton, Dona Irwin, Rhonda King, Andy Nuñez, Al Park, Ben Rodefer and Jeff Steinborn.

Here’s video of the debate between Gardner and Miera, taken by The Independent’s Larry Behrens:

This story has been updated to reflect information about absences of Reps. Roch and Powdrell-Culbert.