County and city of Belen continue work on hospital joint powers agreement


County commissioners took action on the hospital joint powers agreement with the city of Belen earlier this month, but that action still doesn't seem to spell out a clear direction for the JPA or the project as a whole.

In January, the New Mexico Department of Finance and Administration finally issued its response to the JPA. The document was signed by commissioners last September.

The letter stated DFA could not approve the agreement at that time, saying the department's review had "raised several potential issues that require additional analysis by the parties and/or revisions to the JPA,"

The seven-page letter from DFA highlighted six areas of concern it had with the JPA, including failure to clearly identify the common power being exercised by the city and county, the possibility that the agreement authorizes the use of the mill levy for impermissible purposes, the issuance of revenue bonds for the project not allowed under the Hospital Funding Act, inconsistent termination provisions and potential issues with the disposition of property.

Attorneys for the city of Belen responded to DFA's concerns in February and the commissioners discussed the matter in executive session.

County Attorney Adren Nance said the agreement needed to be discussed in closed session due to a credible threat of litigation, an exception allowed under the New Mexico Open Meetings Act.

When the commissioners and attorneys returned from the closed session, there was awkward silence as Commission Chairman Charles Eaton announced no direction had been made to staff in the executive session.

Nance said if the commissioners wanted to proceed with any direction, they had to do it in open session.

"Otherwise, there is no direction," Nance said.

Commissioner Alicia Aguilar said there was a letter from DFA to the county she would like to discuss. Nance said it was actually a phone call from DFA, not a letter.

Aguilar seemed ready to initiate a discussion about the phone conversation, but Commissioner Donald Holliday spoke to her quietly and briefly, and she fell silent.

Commissioner Mary Andersen made a motion to direct staff to draft a questionnaire to go to both projects, in Belen and Los Lunas, and to direct the attorneys to see if they could identify a "competent medical consultant" to evaluate those questionnaires. Holliday seconded.

The final vote was a 3-2 split, with Eaton, Andersen and Holliday voting in favor, and Aguilar and Commissioner Lawrence Romero voting no.

After the vote, Aguilar said she thought the matter with DFA should have been addressed before the vote was taken.

In a phone interview following the meeting, Aguilar said she felt there should have been public discussion.

"There was direction given to the attorneys, but it was so brief I'm not sure anyone is sure what's happening," she said. "After the executive, there needed to be more discussion, transparency."

In an interview following the meeting, Nance said the phone call with DFA was a conference between himself, DFA and officials from the city of Belen shortly before the commission meeting.

"DFA gave us seven material changes it would like to see in order to approve the JPA," Nance said.

One of those changes involves the use of the mill levy.

"We all know the mill levy can only be used for operations and maintenance," Nance said. "In some parts of the agreement, there is reference to the funds being used to equip the hospital. The city's attorney from Rodey interpreted things to mean in order for the hospital to operate you need equipment."

DFA wants any references to "equipping" a hospital removed from the agreement, Nance said.

The department also asked that specific laws be cited in reference to the disposal of the property, and for the disposal of the property take into account any third-party contracts in place, Nance said.

Another change speaks to the obligation of the city and county under the JPA to issue a joint RFP, Nance said.

DFA wants the entities to identify where the funds will come from to pay for that process, or if the work will be provided free-of-charge via in-house staff.

At this point, Belen has gone on out on its own and issued a request for information and qualifications for the project and received one response from Ameris Acquisitions, a Tennessee corporation formed last spring and sister company to Ameris Health Systems and Ameris Management.

Ultimately, the DFA has jurisdiction over JPAs, Nance said.

"Any revisions will have to be approved by the commission and the city council," he said. "Basically at this point, DFA is telling us, 'If you don't make these changes, you don't have an agreement.'"

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