JEFF TUCKER NEWS-SUN
In a rare dissent of the desired direction of Mayor Sam Cobb, the Hobbs City Commission on Monday night voted to proceed in the direction of eliminating municipal runoff elections.
The City Commission voted 5-2 to take the issue to voters in the 2020 municipal election in March, when voters will decide whether to scrap runoffs and also decide other proposed changes to the city’s charter. March will be the second time in 10 years that voters will have decided the issue of local runoff elections.
Voting in favor of disposing of runoff elections were commissioners Joseph Calderon, Don Gerth, Christopher Mills, Dwayne Penick and Patricia Taylor.
Cobb and Commissioner Marshall Newman voted against the motion offered by Penick that would eliminate language from the city’s charter regarding runoff elections. Without a runoff provision, municipal elections would be decided simply by the candidate who receives the most votes. The city’s current city charter mandates runoff elections between the top two candidates if no candidate receives 40% of the votes cast in a particular race.
Cobb, a member of the charter commission that was appointed by city leaders in October, argued in favor of keeping runoff elections. While serving on the charter commission, Cobb said runoff elections help candidates achieve a mandate with a majority of votes.
Penick, who won a runoff election in 2018, emerged as a principle opponent of runoff elections.
“I do have a lot of respect for what our Charter Commission has gone through and the hard work they’ve put into this,” Penick said at Monday night’s City Commission meeting.
The Charter Commission, of which Penick was not a member, discussed runoff elections, but ultimately made no recommendations to change the runoff process.
“I respectfully disagree with the runoff elections,” Penick said. “I believe when the public votes, their votes should stand. I have spoken to a lot of people over these runoff elections. Unfortunately, it’s hard in our area to get people to come out and vote the first time. The second time is even harder because they feel they’ve already voted.”
Penick’s motion to remove runoffs was seconded by Mills.
“At some point, the voters decided they wanted a runoff. I don’t know how it was presented to them,” Mills said of the 2010 municipal election in which voters approved runoff elections by a 970-to-453 vote. Voters in 2010 also approved new language to the city charter providing for a recall process of elected leaders, while rejecting provisions for initiatives and referendums.
Since 2010, there has been only one runoff election in Hobbs — in April 2018 — which decided races for municipal judge and city commissioner District 5, currently held by Penick.
In the five-person race for District 5 in March 2018, Penick received the most votes — 186, but received only 30.1% of the 602 votes cast in the district. The second-place finisher, Scot Youngblood, received 22.9%, Oscar Gonzalez, who finished third, received 18.4%, fourth-place finisher Lance Wiseman received 15.4%, and fifth-place finisher Dennis Barcuch received 12.3%.
In the runoff race in April 2018, Penick beat Youngblood 272 votes to 254, with 51.7% of the votes cast. There were 76 fewer votes in the District 5 runoff race than the initial election.
Former Municipal Judge Ben Harrison received 39.1% of the votes in a five-candidate race for municipal judge in the March 2018 election, and won the runoff election with 55.2% of the votes. There were 557 fewer votes in the citywide runoff than the initial election’s 1,796 votes.
“These runoffs are relatively new,” Penick said. “You hear a lot of people that are participating in these runoffs where it extends the election for a month and folks don’t like that. A lot of people don’t like to have to vote two or three times. I don’t think it’s ever changed the outcome of an election, having a runoff.”
Penick told the Charter Commission at is initial meeting on Nov. 7 that runoff elections are unappreciated by voters, a burden on candidates, an unnecessary cost to the city, and result in lower voter turnout than the initial election.
Cobb said he favors runoff elections so the ultimate winner of a particular race has a majority of votes.
“So this basically puts it before the voter if they want to have a runoff or winner-take-all, correct?” Mills asked city attorney Efren Cortez.
“That is correct,” Cortez relied.
Cortez said without a runoff provision in the city charter, the candidate who receives the most votes in a race would be declared the winner.
Power to fire city attorney
The City Commission approved the four recommendations approved by the Charter Commission.
The City Commission by a 7-0 vote Monday approved the Charter Commission’s unanimous recommendation giving the city commission new advice and consent powers regarding the termination of the city attorney. Current city ordinance places the city’s Legal Department under the control and supervision of the city attorney, who is “appointed by and responsible to the City Manager.”
Brad Reimers, a member of the Charter Commission, proposed the recommendation regarding the firing of the city attorney. Reimers said he would like to see some separation between the city manager and city attorney positions to avoid any possible conflict of interest between them.
Cobb said changing the city charter language to make the city attorney responsible to the City Commission would be too broad.
“I don’t think the city attorney should answer to the City Commission,” Cobb said last month. “If there is a dispute related to the termination, I think that’s maybe where the (city) commission maybe should have some input. For the commission to be involved in the day-to-day, I think that is a direct violation of our charter and the wishes of our community to have that going on.”
Reimers noted the city attorney represents the city, not the city manager, yet the city attorney is subordinate to the city manager.
Cobb said last month he was opposed to giving the City Commission the power to hire a city attorney.
“I would not have a problem with termination because I think there should be a process with termination,” the mayor said. “I think it’s a slippery slope for us to start getting into us approving who our department heads are going to be.”
Recall elections
The City Commission on Monday unanimously approved the Charter Commission’s recommendation for new language regarding recall elections for city elected leaders.
The city charter currently calls for a special recall election if a petition to recall the mayor or city commissioner has at least 10% of the total number of registered voters in the district in the last municipal election.
Cortez said a new state law requires a petition from 33.3% of the voters from a particular district to initiate a recall election. He said state law also requires a district judge to determine if there was misfeasance or malfeasance by a public official in order to move forward with a recall election.
Cortez said the city’s current recall provision in the city charter lacks a judicial review.
“Therefore, it’s my understanding, or at least my analysis, that our recall provision likely does not provide greater due process,” Cortez said last month. “So, if challenged, it’s my estimation that the state statute, local election act recall provision, does provide greater due process and would have to be used.”
A proposed amendment striking all language from the current city charter regarding recall elections, except the part stating the mayor and city commissioners are subject to recall election as provided by state law, was unanimously recommended by the Charter Commission last month.
Residency requirement
The City Commission also unanimously approved the Charter Commission’s recommendation to remove a 180-day residency requirement for candidates from the city charter.
Cortez said a New Mexico Court of Appeals decision says a local government cannot add candidate eligibility requirements beyond those in state law.
“If challenged on it, this would likely be deemed unenforceable by a court,” Cortez said last month.
Cortez said the only allowed requirements under state law for municipal candidates are that they are 18 years old, a U.S. citizen and a resident of the municipality in which they are running.
The City Commission on Monday also unanimously approved a grammatical change in the candidate eligibility requirements.
Pronouns
The City Commission also unanimously approved the Charter Commission’s recommendation to add a new section to the city charter addressing gender-specific references. The new language states all references in the city charter to the masculine gender shall be construed to include the feminine.
The City Commission must still approve a resolution authorizing the five ballot questions for the March 3 election.
A New Mexico municipality that has a charter is known as a home rule municipality, with its charter as its highest form of local law.
Jeff Tucker may be reached at managingeditor@hobbsnews. com.