The job of city attorney is one of the most important positions in Albuquerque city government, which is why the City Charter mandates it be filled “through an open and competitive hiring process.”
Whether Mayor Tim Keller and his administration adhered to the spirit of that mandate is up for debate given how the selection process played out, and that’s unfortunate for the administration, the appointee and Albuquerque taxpayers.
Esteban Aguilar Jr., whom Keller selected and who still needs approval from the City Council, could prove to be an excellent city attorney. But for now, he has a cloud hanging over his selection – not good for anyone.
The Keller administration advertised the position of city attorney both online and in the Dec. 13 edition of the New Mexico Bar Bulletin. The postings said the opening date for submitting applications was Nov. 29 and listed a closing date of Dec. 20.
At least 19 people applied. Apparently unhappy with the pool, Keller’s office reached out to Aguilar in early February to see if he was interested in applying, and he ended up being selected for this high-profile post.
Alicia Manzano, the mayor’s spokeswoman, defends the process used, calling it open and competitive and adding that because the city attorney job is an “unclassified” position, “there is no prohibition on asking if individuals are interested in applying.” She went on to state that there is no violation of any Human Resources Department policy by accepting applications past the posted deadline for an unclassified position.
Manzano is correct in that Keller has broad discretion for most of his appointments. For most, he even has the ability to forego a search process. But the positions of city attorney and city clerk require an “open and competitive” search process, because they’re not like other political appointments.
A city clerk is responsible for running city elections and must be above partisan politics. Similarly, the city attorney provides legal representation for the administration and City Council and plays a crucial role in how city government operates through the interpretation of city rules and laws.
While the mayor can unilaterally fire most directors with or without cause, termination of the city attorney or clerk can only be done after the director of the Office of Internal Audit and Investigations determines cause, and then only if two-thirds of the City Council agree. It shows how critical – and apolitical – the roles of these two positions are supposed to be.
Given how pivotal the position of city attorney is in city government, Keller and his administration should have gone the extra mile to ensure there wasn’t even the appearance of any shenanigans in the filling of that position. Sadly, they weren’t able to accomplish that.
So what are the residents of Albuquerque left with?
They are left with a search process that yielded 19 applicants, and with a decision by the Mayor’s Office to ignore the application deadline and reach out to another local attorney to apply. And they’re left with the city’s decision to keep that information from the public quiet until the actual announcement was made.
It is worth noting that the Journal, which reported the 19 applicants the day before the selection was announced, was in contact with the city at that time – yet the city failed to mention any late applicant, or the fact that the new city attorney would not be among that list of 19. What does that say about an above-board, open selection process?
Applicants passed over for the job include Kimberly Bell, the senior deputy university counsel at UNM, who formerly worked at the Rodey Law Firm, and Michael Cadigan, who served as a city councilor from 2001 to 2009 and now runs his own law firm.
If Keller was unhappy with the applicants, he should have re-advertised the position. Sidestepping that process, encouraging Aguilar to apply, then naming him city attorney sends the message that the fix was already in.
One thing missing from Aguilar’s biography – released by the city – is any mention of government experience. He has worked in general civil practice for more than a decade at Aguilar & Aguilar, P.C., a firm he founded with his father.
And his time at the UNM School of Law, graduating in 2005, would have meant some overlap with Sarita Nair, the city’s chief administrative officer, who graduated in 2003.
Aguilar needs to be confirmed by two-thirds of the City Council; Councilor Brad Winter is questioning whether the selection process was truly “open and competitive.”
It’s unfortunate that the process to select Aguilar was fraught with irregularities, and it sets a high bar for him and the administration to overcome to restore public trust.
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.