Otero County leaders ink new deal with ICE

In a 12-minute emergency session Friday in Alamogordo, Otero County commissioners quickly approved a new contract with Immigration and Customs Enforcement to continue holding detainees at the Otero County Processing Center, taking action before a new law preventing such contracts goes into effect.

In February, Gov. Michelle Lujan Grisham signed House Bill 9 into law, preventing local bodies from selling, leasing or otherwise transferring property for federal civil immigration detention after the statute takes effect on May 20.

While ICE facilities in Torrance and Cibola counties owned by CoreCivic, a private entity, could continue to operate, the law seemed certain to shutter the county-owned processing center in Chaparral.

County commissioners Vickie Marquardt, Amy Barela and Gerald Matherly convened the emergency meeting on Friday, just one day after a regular meeting, to approve a new 5-year agreement with ICE ahead of the current contract’s expiration on Sunday, despite HB 9.

County Attorney R.B. Nichols said approving the contract was urgent because the processing center provides the only source of revenue to repay revenue bonds approved in 2007 that funded the facility’s construction. Without a contract, Nichols said the county was on the hook for $19.3 million in outstanding debt service, with a $5.3 million payment coming due on April 1.

Lawmakers allocated $5.94 million to Otero County for the revenue bonds, but Nichols said the measure was insufficient.

“There’s a lot at stake here,” Nichols said during the meeting. “There’s the county’s credit rating, ability to borrow in the future, and then there are the jobs — 284 jobs — and the substantial amount of GRT revenues and other money that goes into the economy as a result of this facility. And there’s the fact that if we default, there will be a foreclosure and a $68 million facility that the county has put substantial maintenance and effort into would be lost.”

The emergency session took place without the 72-hour public notice and meeting agenda normally required under New Mexico’s Open Meetings Act.

Nichols cited a provision of the law that allows emergency sessions without three days’ notice to be convened under unforeseen circumstances that, as described in the statute, “will likely result in injury or damage to persons or property or substantial financial loss to the public body.”

“There are substantial financial consequences for us and the bondholders to our obligations with these bonds,” Nichols told the commissioners. He said ICE provided the new intergovernmental support agreement on Thursday evening, which left no opportunity to fulfill the 72-hour notice requirement.

The commissioners did not ask Nichols any questions in public, such as how the county would comply with HB 9’s requirement that existing agreements must be terminated “upon the earliest date permissible under the terms of the agreement.” Notably, the new agreement, obtained by the Journal, does not include an early termination clause and even states on page 15 that the county “shall not have the right to terminate this agreement.”

ICE, on the other hand, could terminate the agreement with no further financial obligation to the county.

The stated value of the contract over five years is $283,417,748.

The commissioners’ resolution also authorized Nichols to proceed with litigation pertaining to the revenue bonds and its rights under the new ICE agreement; and to procure the services of outside counsel, for up to $350,000, to assist in that effort, although procurement decisions are typically presented in regularly noticed meetings.

State Rep. Sarah Silva, a Democrat whose district includes Doña Ana and Otero counties, said approving spending on outside legal services, unlike the contractual emergency, should have been conducted in a regular meeting. “I believe that was a violation of the Open Meetings Act,” she told the Journal.

Further, she said, “I believe this circumvents the Legislature’s authority, and I have a concern about the process and how it happened,” she continued. “They put out an emergency meeting notice at 3 p.m., giving the public three hours’ notice that this was going to happen.”

Silva also thought it was notable the commissioners asked no questions about the contract or the procurement item, raising a question as to whether they received information outside of open session. That would be what is referred to as a “rolling quorum,” when elected members of a public body discuss or negotiate public business in private. 

The Journal reached out to Nichols, the three commissioners and County Manager Pamela Heltner on Monday but got no response other than an automatic message that Heltner was out of the office.

State Rep. Angelica Rubio, D-Las Cruces, was among HB 9’s sponsors and part of repeated efforts to enact such a law over the past decade — efforts, she said in a statement on Monday, that should have been a warning to county leaders that a new economic strategy might soon be necessary.

“New Mexico should not be in the business of detaining our friends and neighbors,” Rubio said. “Counties rushing to extend these contracts before the law takes effect are telling us exactly where their priorities are, and it’s not with the families being torn apart in their own communities.”

Algernon D’Ammassa is the Journal’s southern New Mexico correspondent. He can be reached at adammassa@abqjournal.com.