In a written statement released to the Journal, Berry said the law specifically “gave discretion to the City Attorney, not the Mayor, to enforce the ordinance.”
Berry added, in an interview, that the city attorney is concerned about stepping “into unprecedented territory involving employer-employee disputes” that could involve tens of thousands of businesses.
“I have to stand by what my city attorney is saying,” Berry said Tuesday.
But he suggested that if he were a worker not being paid the minimum, he would hire a lawyer and go to court.
The debate over carrying out the ordinance sharpened this week when the owner of the Route 66 Malt Shop in Nob Hill announced that his employees had signed paperwork agreeing to work at the old, lesser wage. Eric Szeman said he would be forced to go out of business if he had to comply with the wage hike.
About 60 protesters gathered outside his restaurant at lunchtime on Tuesday and urged people to boycott the business. They were led by ProgressNow New Mexico, a Democratic-leaning group.
Some protesters took aim at the mayor and city administration for not stepping in to force compliance.
The enforcement section of the wage ordinances includes language saying an employee can file civil litigation for back pay and other relief, or the city attorney can enforce the ordinance. That part of the ordinance wasn’t changed in the recent effort to raise the wage. It was in a council-approved wage ordinance from 2006.
City Attorney David Tourek said earlier this week that he wouldn’t step in unless the City Council provides authorization and resources to initiate civil lawsuits.
Asked whether he would support such authorization and resources, Berry said he would give it “serious consideration” if approved by councilors.
“That would be a City Council action, not a mayoral action,” he said.
Council President Dan Lewis said the administration is welcome to recommend an appropriation if it thinks one is needed.
“It’s just as much the administration’s responsibility as it would be the City Council’s,” he said.
Tourek is hired by the mayor and council and provides legal advice to both.
As mayor, Berry controls and directs the executive branch of city government. The City Charter says he shall “Faithfully execute and comply with all laws, ordinances, regulations and resolutions of the city,” among other duties.
Berry said Tuesday that although he hires the city attorney, with advice and consent of the council, it’s intended to be an independent office.
“I also hired the city clerk, but I don’t tell her how to run an election,” he said.
City Councilor Don Harris, who works as an attorney, said it’s within the administration’s discretion to allow enforcement to take place through private civil litigation, rather than city action.
And finding an attorney shouldn’t be difficult for employees, he said, because the ordinance allows the employee to get triple his or her back wages, plus attorney fees.
The mayor on Tuesday suggested that’s the option employees should choose if the law isn’t followed.
“In no way, shape or form do I condone the situation out there,” Berry said. “The voters voted. The law is clear.”
In the written statement, he added that, “If I were an employee and my employer was not adhering to the law I would be upset as well and I would find a lawyer and take legal action.”
The new minimum wage law made it onto the ballot in November after supporters gathered thousands of petition signatures. It was favored by 66 percent of voters.
The new wage law boosts the minimum for most employees from $7.50 an hour to $8.50 an hour, a 13 percent increase. Tipped employees go from $2.13 an hour to $3.83 an hour, an 80 percent increase. There would be future increases, too, based on changes in the Consumer Price Index.
Szeman, the owner of Route 66 Malt Shop, came out and confronted the protesters at one point Tuesday, telling them to get off the property. Most moved to the sidewalk but continued the protest.
“I just saved 12 jobs,” he told the protesters, arguing that he’d have to close if he complied with the ordinance.
Protesters, on the other hand, said Szeman is stealing his workers’ wages by not paying them what’s required under the law and that he can’t pick which laws to follow.
Pat Davis of ProgressNow New Mexico said the protesters were standing up “for the employees who can’t stand up for themselves.”
“Hard work deserves fair pay,” he said.
The restaurant itself was busy with customers during the protest. One was County Commissioner Wayne Johnson.
Szeman said he hadn’t seen a decline a business.
Meanwhile, Tom Willis, owner of the 66 Diner, wants the public to know that his restaurant is paying its employees the new minimum wage and shouldn’t be confused with the Route 66 Malt Shop.
— This article appeared on page A1 of the Albuquerque Journal