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Editorial: Court says commissioner should have stayed mum

In March 2015, the Bernalillo County Commission was considering a proposed master plan and zoning changes for Santolina, an enormous development planned for Albuquerque’s west mesa.

But before public hearings on the plan were held, then-County Commissioner Art De La Cruz submitted an op-ed to the Journal explaining his support for the project – and setting off a firestorm of criticism.

Opponents of the project questioned how they could expect a fair hearing when it was clear De La Cruz had not only decided he was going to support Santolina, but also he was trying to influence others to do the same.

“Is it procedurally and/or ethically correct for one of the Bernalillo County commissioners who sits as vice chair on the board to publicly disclose his position prior to the actual hearing process?” Virginia Necochea, director of the Center for Social Sustainable Systems, asked in a Journal op-ed at the time.

Opponents asked De La Cruz to recuse himself from Santolina votes and, if he refused, that the rest of the commissioners disqualify him from voting on the master plan and zone change. He, and they, did neither.

In the end, the commission voted 3-2 – with De La Cruz in favor – to approve both the master plan and related zone changes.

De La Cruz’s perceived bias triggered a lawsuit by opponents who claimed his premature support had deprived them “of their right to an impartial tribunal and therefore of their right to due process.” Plaintiffs included the SouthWest Organizing Project, the New Mexico Health Equity Working Group, the Pajarito Village Association, Javier Benavidez, James Santiago Maestas and Roberto Roibal.

On March 22, District Judge Nancy Franchini issued a ruling that let the Santolina master plan stand, but invalidated the commission’s zone changes. She ordered the county to restart the process for the requested change, which switched the zoning from rural agricultural to planned communities.

Elected officials speak out on issues every day. They often get elected based on positions they say they’re going to take. So what is different here?

Franchini ruled that the vote on the master plan is a “legislative decision,” meaning commissioners were free to discuss it publicly. In such cases, it’s acceptable for officials to make their opinions known.

But Franchini determined the zone change is a “quasi-judicial matter” that requires commissioners to adhere to ethical standards similar to those that govern a court.

“Appellants were entitled to a fair and impartial tribunal on approval of the (zone map amendment) and the concurrent denial of their (County Planning Commission) appeal,” Franchini said in her ruling.

De La Cruz’s op-ed, she said, “raises questions of partiality and prejudgment, or the appearance thereof, sufficient to warrant at the very least the board’s consideration of the recusal or disqualification of Commissioner De La Cruz.”

The same commission, it turns out, can sometimes have a legislative role and sometimes a quasi-judicial one. Even on the same project. A subtle difference to the lay person, but not to the courts.

So, the county and Santolina’s developers, Western Albuquerque Land Holdings, may have to restart the zoning change process all over. Meanwhile, the developers say they will appeal Franchini’s ruling. Both are expensive undertakings that will no doubt inflict some fiscal damage on the county.

At 22 square miles, Santolina is the largest master plan development ever considered by Bernalillo County. It’s a shame a commissioner’s pre-emptive cheerleading has, at least temporarily, hamstrung the project on something other than its merits. And it serves as a cautionary tale for other elected leaders.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.