Are the Sierra County Commissioners, all Republicans, retaliating against Sandy Jones, a Democrat and the Sierra County Flood Commissioner appointed by the Democratic Governor Michelle Lujan Grisham?
Or do Sierra County Commissioners Jim Paxon, Travis Day and Hank Hopkins really think it’s good for the people to have another layer of local government and taxes to address flood control, when it is already being addressed by Flood Commissioner Sandy Jones and a 1.5 mills tax is already being collected?
Do the county commissioners really believe five more locally elected officials are needed—flood control directors—with the authority to levy a second flood-control tax, to impose special tax assessments and to run up debt, all of which will increase property owners’ taxes?
If the county commissioners were interested in serving the people and not pulling the wool over their eyes they would have been far more open and transparent in how they went about putting this new flood-control taxing district on the November ballot. They would have thoroughly explained the current system (state laws 4-50-1, et seq.) and the proposed system (state laws 72-18-1, et seq.). They would have held town halls and public hearings.
Instead, the county commissioners passed a resolution at the April 16, 2024 meeting that minimized the implications and impact of this complex added-layer of local government. They didn’t compare and contrast what is proposed with the current system in any depth. They also lied about the district court’s part in putting the measure on the ballot.
The county commissioners said nothing at the April meeting beyond Chairperson Travis Day lobbing a few set-up questions to County Attorney Dave Pato. Pato did all the talking, acting as their cat’s paw, his legalese and quick speaking style adding obfuscation.
I didn’t attend that meeting, but have watched Pato for years when I covered the county, at times, for the Herald, the Sierra County Sun and the Sierra County Citizen. Jones recently asked for a copy of his presentation and Pato said it was extemporaneous and no such document exists. Jones had Pato’s words transcribed from the Facebook video and gave me a copy.
Pato’s opening argument for creating the Sierra County Arroyo Flood District planted a falsehood. “The office of the county flood commissioner [as laid out in state laws 4-50-1, et seq.] was created to address flooding rivers and streams. . . [and those laws] do not expressly provide for addressing flooding resulting from arroyos, which is an additional source of flooding here in Sierra County.”
Nothing in law prevents work on arroyos by the flood commissioner. That’s a made-up lawyer’s quibble meant to mislead the public into thinking arroyo flooding cannot and is not being addressed by the flood commissioner.
Pato’s second argument is also a lawyer’s quibble. “Additionally, the statutory scheme creating the office of the county flood commissioner imposes certain obstacles regarding the assessment and expenditure of county flood funds, requiring that each fund be maintained in a manner as to keep separate records of all flood control taxes collected from each stream or river drainage area,” Pato said.
Pato, the county commissioners and County Manager Amber Vaughn must have been aware that this part of the 1921 law has never been carried out or enforced. I emailed the three commissioners several questions on May 28, which included asking if county commission had set up drainage districts and if they were tracking and spending the tax revenue collected within those drainage districts on those drainage districts. None of the commissioners answered me. Vaughn responded to the email on June 5 after I phoned her and left a message requesting a call back.
“To the best of our knowledge,” Vaughn said, “Sierra County was not divided into emergency flood districts back in 1921, or since.”
Vaughn goes on to imply that this part of the 1921 law is unenforceable because it only contemplates setting up a fund to hold fines imposed on residents who ignore the call for emergency aid, as well as payments made by residents in lieu of their labor in times of emergency, which is allowed under the law.
In an email exchange with the Office of the State Engineer’s attorney, I learned that although state law requires the OSE to receive a yearly financial report from the flood commissioner detailing project and other expenditures, the OSE had no such reports from any of the counties. The OSE attorney also said she was unaware of any county having created drainage districts, as required by law.
I was trying to find out if flood tax money under the current system had been spread equally among incorporated and unincorporated areas. Truth or Consequences’ property owners probably comprise about 40 percent of the flood tax revenue, given the city’s population of about 6,000 and the county’s population of 11,000, which includes incorporated areas.
In response to my question whether incorporated areas had complained no projects happened in their areas, Vaughn said she hadn’t heard such complaints. “The Complaints with which I am familiar relate to the lack of construction and necessary maintenance of dikes, dams, embankments, ditches and other structures since August 2022, despite the availability of funds in the Flood Fund. The Office of the County Flood Commission has traditionally performed work in both the incorporated and unincorporated areas of the County.”
Jones was appointed as flood commissioner around August 2022.
I asked Truth or Consequences City Manager Angie Gonzales to check with long-time city employees if they remembered any flood-control projects being performed in the city and she said none recalled such work or any benefit from flood control projects. Gonzales and Village of Williamsburg Clerk Amanda Cordona confirmed that Jones was conferring with them about using flood tax money to pay for dam and other improvements. Jones said he has also identified an Elephant Butte project that will be funded from flood-tax revenue.
Pato misleads the public into thinking this drainage districts have been formed, that this part of the law has been enforced and, by extension, that spending flood tax proportionate to the drainage district’s collected tax within that district is hindering the flood commissioner from addressing flooding.
Pato misleads again with his next argument. “While the flood commissioner is appointed by the governor, the members of the flood control district are elected by the residents of the county . . .this ensures that the members of the flood control district board are directly accountable to the people they serve and represent the interests of the county.”
Pato, as their cat’s paw, knows the county commissioners are elected officials who avoid accountability and their constituents’ questions and input, as the current question of a flood control district demonstrates. The county commissioners have rarely returned my emails or phone calls over the years, avoiding accountability, as they did in my May 28 query. Why should five flood directors act differently? Nothing is ensured, as Pato claims.
Pato also falsely claims that when and if the voters approve forming a flood control district, “The creation of the flood control district will additionally allow the board of County Commissioners to cut the public’s taxes by suspending a levy that is imposed pursuant to section 4-50-2 . . .” Pato said.
Pato is referring to the suspension of the existing 1.5 mills tax that brings in about $500,000 a year, according to the county’s 2023 audit.
Law 4-50-2 states:
A board of county commissioners, upon certification of the need and estimated cost by the county flood commissioner, may contract to borrow funds through state or federal agencies or through the New Mexico finance authority for flood control purposes and may levy an annual tax at a rate not to exceed one dollar fifty cents ($1.50), or any lower maximum amount required by operation of the rate limitation provisions of Section 7-37-7.1. . .
The county commission, sometime in the past, imposed the maximum tax, 1.5 mills, on every property owner in the county. Pato claims the county commission can simply suspend this tax, which is doubtful, since 4-50-1, et seq. interweaves checks and balances among the governor, the flood commissioner, the county commission and the people. The law 4-50-2 implies the tax rate requires the flood commissioner’s certification. If Jones won’t certify a zero tax rate, it would appear to be a barrier to “suspending” the tax, whatever that means. Pato is claiming more authority than the county commission is given.
Pato’s claim also refutes Vaughn’s response to my question whether this would be a double tax for flood control. If voters approve the flood control district Nov. 5th, the five directors chosen by voters who will also be on the ballot can impose a .50 mills tax without voter approval. Would this be in addition to the 1.5 mills already being collected, I asked.
Vaughn cited law instead of giving me a yes or no answer. “The imposition of any such levy would be subject to the rate limitation provisions of Section 7-37-7.1 NMSA 1978, and subject to approval of the voters of Sierra County depending on the amount of the levy,” Vaughn wrote.
Law 7-37-7.1 is very complicated: https://nmonesource.com/nmos/nmsa/en/item/4340/index.do?iframe=true#
Reading 7-37-1 and 7-37-7, it means that yes, we will be double or even triple taxed. The county’s collective local taxes for general purposes cannot exceed 11.85 mills, but special-assessments or benefit-assessments taxes, as well as taxes to pay off debt can be levied in addition to general purposes taxes.
No wonder the county manager, county commissioners and Pato are being cagey about this flood control district. It provides taxing authority most voters will not understand until they get their tax bill, if then.
And how the question of a flood control district (state laws 72-18-1, et seq.) gets on the ballot is strange, at least to me. The county commission can petition the district court to put the question on the ballot or the people can petition the court. The people’s petition requires signatures from electors equal to 10 percent who voted in the last general election. The assigned judge must hear the petition within 60 days. Usually people’s petitions related to elections are submitted to the county clerk, not the court clerk. The court clerk doesn’t have the voters’ rolls to verify signatures are from qualified electors in the county.
The resolution the county commission approved on April 16 gave Pato the authority to draft the petition and to handle the court hearing. Pato falsely claimed that at the court hearing, “The public would have an opportunity to comment on that [the flood control district] at that time at the hearing.”
I read the laws before going to the June 21 court hearing held by Judge Roscoe Woods. I suspected it would be a pro forma court hearing and it was. The law required Woods to verify the county had included “flood control district” in the title of the Sierra County Arroyo Flood Control District, that the petition described the boundaries of the district (incorporated and unincorporated areas in the county) and described its intentions (to prevent arroyo flood damage) and possible capital projects (building levees, channels, retention basins and storm water management systems). This the county petition provided.
There was zero opportunity for the people to give “comment” or to be heard. One has to be a party to speak in court, as everyone knows. The general public is never allowed to speak in court hearings.
Woods signed off on Pato’s pre-drafted order at the bench after a 15-minute hearing. There was no other party besides the county.
During the April 16 meeting Pato also glossed over that the candidates for five directors’ seats would also be on the ballot, along with the question of whether to form a flood control district. “. . .if approved today [if the county commissioners approved the resolution in support of forming a flood control district], the court could set a hearing shortly after June 16th . . .then it will be on the November election for consideration, along with the slate of members who’ve submitted their name for consideration. They need to provide a nomination petition of five duly qualified electors to have their name considered and voted upon by the people.”
Pato neglected to say that the candidates would first have to know such a seat as flood director is up for election and that the nomination petition has to be submitted to the district court clerk. Since the county commission put the results of the June 21 court hearing on their executive, closed-session agenda June 25, how would anyone know the five directors’ seats will be on the November ballot? How would anyone know to run and how to run?
The county commissioners rubber-stamped the resolution in support of forming a flood control district after Chairperson Day asked Pato the likely pre-arranged questions: Would the Open Meetings Act and Inspection of Public Records Act apply to the new board of directors? Yep, Pato said, in a final fake assurance that democracy and its processes were being served.
With such secrecy, subterfuge and misleading statements sanctioned by the county commission, it’s much more likely the flood control district is about control over tax money and/or revenge against Sandy Jones.
An interview with Jones will soon follow.