{ "id": 4191891, "name": "AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, (AFSCME) COUNCIL 18, AFL-CIO, CLC, AFSCME LOCAL 1888, AFSCME LOCAL 3022, AFSCME LOCAL 624, and AFSCME LOCAL 2962, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee", "name_abbreviation": "American Federation of State v. City of Albuquerque", "decision_date": "2013-01-07", "docket_number": "No. 33,924; Docket No. 30,927", "first_page": "265", "last_page": "273", "citations": [ { "type": "official", "cite": "2013-NMCA-012" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2001-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183139 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 10-11" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0293-01" ] }, { "cite": "1998-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18391 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 16" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0640-01" ] }, { "cite": "2006-NMSC-052", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671382 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0746-01" ] }, { "cite": "2009-NMCA-097", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4245406 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 1, 16" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0006-01" ] }, { "cite": "2010-NMSC-048", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249625 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0174-01" ] }, { "cite": "274 P.3d 108", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4187930 ], "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0446-01" ] }, { "cite": "1998-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834209 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 34" }, { "page": "\u00b6\u00b6 23-28" }, { "page": "\u00b6 25" }, { "page": "\u00b6 35" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0401-01" ] }, { "cite": "113 N.M. 331", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723217 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "334" }, { "page": "1244" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0331-01" ] }, { "cite": "2003-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15599 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 57" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0373-01" ] }, { "cite": "2007-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670129 ], "weight": 10, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 9" }, { "page": "\u00b6 23" }, { "page": "\u00b6 22", "parenthetical": "repealed 1999" }, { "page": "\u00b6 3" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0686-01" ] }, { "cite": "1998-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834209 ], "pin_cites": [ { "page": "\u00b6\u00b6 23-28" } ], "opinion_index": 1, "case_paths": [ "/nm/125/0401-01" ] }, { "cite": "2007-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670129 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 22-24" }, { "page": "\u00b6\u00b6 20-22" }, { "page": "\u00b6 22" } ], "opinion_index": 1, "case_paths": [ "/nm/141/0686-01" ] } ], "analysis": { "cardinality": 871, "char_count": 25141, "ocr_confidence": 0.823, "pagerank": { "raw": 1.072972735148534e-07, "percentile": 0.5602048613645043 }, "sha256": "fed21f063aed4a5dc53dae21b8fe24ace4bd4625e3c62579a3061d4b37faf540", "simhash": "1:fb41a532a93aff02", "word_count": 3937 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JAMES J. WECHSLER, Judge", "JONATHAN B. SUTIN, Judge", "TIMOTHY L. GARCIA, Judge (specially concurring)", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, (AFSCME) COUNCIL 18, AFL-CIO, CLC, AFSCME LOCAL 1888, AFSCME LOCAL 3022, AFSCME LOCAL 624, and AFSCME LOCAL 2962, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} This appeal results from the breakdown in negotiations of collective bargaining agreements between Plaintiffs American Federation of State, County and Municipal Employees (AFSCME) Council 18, AFL-CIO, CLC, AFSCME Local 1888, AFSCME Local 3022, AFSCME Local 624, and AFSCME Local 2962 (the Unions) and Defendant City of Albuquerque (the City) to succeed ones that had expired. We hold that the failure of the City\u2019s Labor Management Relations Ordinance (LMRO), Albuquerque, N.M. Code of Ordinances, eh. 3, art. 2, \u00a7\u00a7 3-2-1 to -18 (2003, as amended through 2005) (Abq. Ord.) to include provisions for binding impasse arbitration does not preclude the LMRO from grandfather status under the Public Employee Bargaining Act (the PEBA), NMSA 1978, \u00a7\u00a7 10-7E-1 to -26 (2003, as amended through 2005). We also hold that in this case the PEBA enforcement of an existing collective bargaining agreement in the event of impasse (the PEBA evergreen clause) is subject to the requirements of appropriation and availability of funds under the PEBA and that the complaint was moot with respect to unions that had reached collective bargaining agreements with the City. We affirm.\nBACKGROUND\n{2} The Unions are the exclusive bargaining representatives for employees of the City. Because existing collective bargaining agreements were to expire on June 30, 2010, they engaged in negotiations with the City under the LMRO to replace the existing collective bargaining agreements. During the negotiations, the Unions brought suit, asking the district court to declare that the LMRO violates the PEBA because the LMRO does not contain impasse arbitration and evergreen provisions that are required by the PEBA. {3} On June 30, 2010, the Unions filed a motion for a temporary restraining order and preliminary injunction to continue the expiring collective bargaining agreements until new agreements were reached. The district court granted partial injunctive relief, continuing the agreements with certain exceptions until a full evidentiary hearing before the court.\n{4} The parties then filed cross-motions for summary judgment. The district court denied the Unions\u2019 motion and granted summary judgment in favor of the City. Following City of Deming v. Denting Firefighters Local 4521, 2007-NMCA-069, 141 N.M. 686, 160 P.3d 595, the district court concluded that the grandfather clause of the PEBA, Section 10-7E-26(A), applies to the LMRO\u2019s collective bargaining provisions. The district court also granted the City\u2019s motion to dismiss Local 1888 and Local 3022 because they reached new agreements with the City, and their claims in the complaint were therefore moot.\nGRANDFATHER STATUS OF LMRO IMPASSE PROCEDURES\n{5} On appeal, the Unions argue that the district court erred in not ruling that (1) the impasse procedure of the LMRO violates the PEBA and (2) the lack of an evergreen clause in the LMRO violates the PEBA. The City counters that the district court properly concluded that the PEBA requirements do not apply because the LMRO is entitled to grandfather status under the PEBA.\n{6} Generally, we review a district court\u2019s grant of summary judgment under de novo review. Vill. of Wagon Mound v. Mora Trust, 2003-NMCA-035, \u00b6 57, 133 N.M. 373, 62 P.3d 1255. Specifically, in this case, we review the district court\u2019s interpretation of the PEBA as a question of law subject to de novo review. See City of Deming, 2007-NMCA-069, \u00b6 6 (\u201cTo decide whether the grandfather clause applies, we must interpret the PEBA and make a determination of law.\u201d). \u201cSummary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.\u201d Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992).\n{7} The PEBA was designed \u201cto guarantee public employees the right to organize and bargain collectively with their employers, to promote harmonious and cooperative relationships between public employers and public employees and to protect the public interest by ensuring, at all times, the orderly operation and functioning of the state and its political subdivisions.\u201d Section 10-7E-2. It grants most public employees the right to \u201cform, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by public employees.\u201d Section 10-7E-5. It sets forth various provisions and procedures to comply with its collective bargaining requirement. As pertinent to this case, the PEBA requires public employers other than the State of New Mexico and exclusive representatives to follow impasse procedures that include mediation and binding arbitration, unless the public employers and the exclusive representatives agree in writing to an alternative procedure. Section 10-7E-18(B), (C). In addition, the PEBA requires, in the event of impasse, that the existing contract \u201ccontinue in full force and effect until it is replaced by a subsequent written agreement.\u201d Section 10-7E-18(D).\n{8} The PEBA\u2019s grandfather clause reads\nA public employer other than the state that prior to October 1, 1991 adopted by ordinance, resolution or charter amendment a system of provisions and procedures permitting employees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives may continue to operate under those provisions and procedures. Any substantial change after January 1, 2003 to any ordinance, resolution or charter amendment shall subject the public employer to full compliance with the provisions of Subsection B [.]\nSection 10-7E-26(A). Section 10-7E-26(B)(8) requires any such public employer making a substantial change to include within the change specific provisions and procedures, including \u201cimpasse resolution procedures equivalent to those set forth in\u201d Section 10-7E-18. Thus, the PEBA\u2019s grandfather clause has two requirements: (1) that a public employer have adopted \u201ca system of provisions and procedures permitting employees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives\u201d and (2) that the public employer has done so prior to October 1, 1991. Section 10-7E-26(A); Regents of Univ. of N.M. v. N.M. Fed\u2019n of Teachers, 1998-NMSC-020, \u00b6 34, 125 N.M. 401, 962 P.2d 1236; City of Denting, 2007-NMCA-069, \u00b6 9.\n{9} The City originally adopted the LMRO in 1977 and last amended it in 2002. The purposes of the LMRO are similar to those in the PEBA, including allowing employees of the City \u201cto organize and bargain collectively with\u201d the City. Abq. Ord. \u00a7 3-2-2(A). It contains various provisions and procedures that control the collective bargaining relationship of the City and the Unions. Abq. Ord. \u00a7\u00a7 3-2-1 to -18. It does not, however, contain binding arbitration or evergreen provisions.\n{10} Our Supreme Court discussed the purposes of grandfather clauses in Regents, 1998-NMSC-020, \u00b6\u00b6 23-28, a case involving the prior version of the PEBA. It observed that the effect of grandfather clauses is to \u201cnarrow, qualify, or otherwise restrain the scope of the statute\u201d or to \u201cremove from the statute\u2019s reach a class that would otherwise be encompassed by its language.\u201d Id. \u00b6 24. As the Court stated, \u201c[a] grandfather clause preserves something old, while the remainder of the law of which it is a part institutes something new.\u201d Id. \u00b6 25. It further noted that grandfather clauses should be construed strictly or narrowly and with the purpose of giving effect to the Legislature\u2019s intent. Id. \u00b6\u00b6 27, 48.\n{11} This Court acknowledged those purposes in addressing impasse procedures in City of Denting, 2007-NMCA-069, \u00b6 23. In that case, we held that the PEBA\u2019s grandfather clause applied to an ordinance provision that addressed impasse through advisory arbitration. Id. \u00b624. We reversed the district court that had denied grandfather status because \u201cthe advisory arbitration impasse procedure of the ordinance did not provide any more than the right to petition the government and thus was not a meaningful opportunity to engage in collective bargaining.\u201d Id. \u00b6 19 (internal quotation marks omitted).\n{12} The Unions make similar arguments in this case. The impasse provision of the LMRO calls for mediation at the request of a party, and, if the mediation fails, binding arbitration only upon voluntary agreement of the parties. Ahq. Ord. \u00a7 3-2-14(A), (B). The LMRO does not contain an evergreen provision. The Unions contend that, by failing to provide binding impasse resolution procedures and evergreen protection, the LMRO does not provide \u201ca system allowing employees to form, join or assist a Union in \u2018collective bargaining\u2019 as required by [the] PEBA.\u201d\n{13} We understand the Unions\u2019 position to be that because the provisions and procedures of the LMRO do not require binding arbitration and include evergreen provisions, the LMRO does not satisfy the \u201ccollective bargaining\u201d requirement for grandfather status. The Unions contend that without a procedure for finality in the event of impasse a collective bargaining process is meaningless. They reason that the Legislature did not intend to extend grandfather status to such a process.\n{14} However, the Unions\u2019 argument attaches an additional requirement to the PEBA\u2019s grandfather clause. For ordinances adopted before October 1, 1991, the PEBA\u2019s grandfather clause requires only that the system adopted permit \u201cemployees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives.\u201d Section 10-7E-26(A). The PEBA defines \u201ccollective bargaining\u201d as \u201cthe act of negotiating between a public employer and an exclusive representative for the purpose of entering into a written agreement regarding wages, hours and other terms and conditions of employment}.]\u201d Section 10-7E-4(F). The Unions\u2019 argument demands that we evaluate the effectiveness of the LMRO as an avenue for collective bargaining. The PEBA does not include this requirement. See City of Albuquerque v. Montoya, 2012-NMSC-007, \u00b6 21, 274 P.3d 108 (holding that the LMRO selection procedure for appointment of local board members \u201cdoes not violate the definition of collective bargaining under\u201d the PEBA).\n{15} The evolution of the PEBA assists in our analysis. It was originally enacted in 1992 and was effective until 1999. It was reenacted in 2003. The original version of the PEBA, effective from 1992 to 1999, included language that granted grandfather status to public employers other than the state or a municipality only if the public employer\u2019s \u201cordinance, resolution or charter amendment has resulted in the designation of appropriate bargaining units, the certification of exclusive bargaining agents and the negotiation of existing collective bargaining agreements.\u201d NMSA 1978, \u00a7 10-7D-26(B) (1992) (repealed 1999). This language, which contained an effectiveness component necessary for grandfather status for public employers other than the state and municipalities, was removed by the Legislature when it reenacted the PEBA in 2003. Section 10-7E-26. We glean from the removal of this language and the absence of any language concerning quality or effectiveness in the current PEBA that the Legislature intended that a public employer\u2019s system of provisions and procedures permitting collective bargaining would not be subject to that type of scrutiny to achieve grandfather status. See El Paso Elec. Co. v. N.M. Pub. Regulation Comm\u2019n, 2010-NMSC-048, \u00b6 16, 149 N.M. 174, 246 P.3d 443 (stating that when the Legislature expressly removed part of a definition in a statute, the removed portion is outside the scope of the statute).\n{16} In addition, as we discussed in City of Deming, the original version of the PEBA did not require binding arbitration; it required only advisory mediation. NMSA 1978, \u00a7 10-7D-18(B)(1) (1992) (repealed 1999); City of Deming, 2007-NMCA-069, \u00b6 22. Other than to eliminate the effectiveness component discussed above that did not relate to municipalities and to address substantial changes after January 1, 2003, the grandfather clause did not change on reenactment. Compare \u00a7 10-7E-26 and \u00a7 10-7D-26 (1992) (repealed 1999). Significantly, the Legislature did not add a requirement that binding arbitration to resolve impasse was necessary for grandfather status.\n{17} Also significant to our analysis is that the Legislature did include requirements for compliance with the PEBA in both versions of the PEBA but only if a public employer other than the state adopts a system of provisions and procedures permitting collective bargaining after October 1, 1991. In such instances, the grandfather clause does require for grandfather status, among other provisions and procedures consistent with the PEBA, that the newly adopted system include \u201cimpasse resolution procedures equivalent to those set forth in\u201d the PEBA. Section 10-7E-26(B)(8); Section 10-7D-26(C) (1992) (repealed 1999). The Unions\u2019 argument would extend this requirement to systems adopted by public employers other than the state prior to October 1, 1991. But the Legislature specifically did not include any such requirement for public employers adopting ordinances prior to October 1, 1991. Section 10-7E-26.\n{18} The Unions would limit City of Deming to its facts in which the city\u2019s labor relations ordinance, which, although it did not provide for binding arbitration, required arbitration in which the arbitrator issues an opinion to the city council, which then renders a final, binding decision. See City of Deming, 2007-NMCA-069, \u00b6 3. While we agree with the Unions that the impasse procedure considered in City of Deming may be more effective in resolving an impasse because there is a conclusion built into the procedure, the effectiveness of the procedure in City of Deming, or its closer compliance to the PEBA than the LMRO, was not part of the City of Deming analysis.\n{19} Rather, as we discussed in City of Deming, we interpret the PEBA\u2019s grandfather clause to effectuate legislative intent. City of Deming, 2007-NMCA-069, \u00b6 23. As fully discussed in Regents, the grandfather clause preserves \u201csomething old, while the remainder of the law of which it is a part institutes something new.\u201d Regents, 1998-NMSC-020, \u00b6 25; see City of Deming, 2007-NMCA-069, \u00b6 23. In reenacting the PEBA, the Legislature preserved efforts by public employers to adopt systems of provisions and procedures permitting collective bargaining while enacting a new law that applied when grandfather status did not apply. The Legislature did not limit grandfather status to public employers adopting ordinances prior to October 1, 1991 in the way it did for later actions. Although the procedures under the PEBA providing binding arbitration to resolve impasse are more effective in concluding disputes, the PEBA does not require that the LMRO, adopted prior to October 1, 1991, contain such procedures in order to receive grandfather status. The failure of the LMRO to provide for binding-impasse arbitration does notpreclude the LMRO from grandfather status under the PEBA.\nAPPLICATION OF THE EVERGREEN PROVISION\n{20} The PEBA evergreen clause requires expiring collective bargaining agreements to continue until replacement agreements are in place. Section 10-7E-18(D). The LMRO does not contain an evergreen provision. The Unions argue on appeal that the LMRO violates the PEBA because it does not have an evergreen provision and that \u201cthe LMRO should be deemed to contain\u201d an evergreen provision.\n{21} The district court held that the PEBA evergreen clause does not apply to the economic components of the existing agreements in part because the evergreen clause \u201cis subject to the requirements of appropriation and availability of funds under Section 10-7E-17(E)\u201d of the PEBA. That section, in pertinent part, provides that \u201c[a]n impasse resolution or an agreement provision [of a collective bargaining agreement] by a public employer other than the state or the public schools and an exclusive representative that requires the expenditure of funds shall be contingent upon the specific appropriation of funds by the appropriate governing body and the availability of funds.\u201d Section 10-7E-17(E).\n{22} Important to the Unions\u2019 appeal are the arguments that are not before us concerning the evergreen clause. In the district court, the City did not argue, as it does on appeal, that the grandfather clause of the PEBA applies to the LMRO with respect to the LMRO\u2019s silence concerning evergreen status. Indeed, the district court noted that the City agreed that the PEBA evergreen clause applied to it, subject to the City\u2019s arguments that the Bateman Act and the LMRO trump the requirements of the evergreen provision. Although the district court also relied upon the Bateman Act in its decision, we do not discuss this argument because Section 10-7E-17(E) sufficiently supports the district court\u2019s decision. We do not address the City\u2019s grandfather clause argument because the City did not raise it before the district court. Additionally, the Unions did not argue below, and do not argue on appeal, that the PEBA does not apply to the City in every respect. Significantly, no argument has been made that, even if the impasse resolution procedures of the LMRO are entitled to grandfather status, Section 10-7E-17(E) of the PEBA does not apply to the City. Regents, 1998-NMSC-020, \u00b6 35 (stating that grandfather clauses should be construed strictly or narrowly). Indeed, Regents instructs that the requirements for grandfather clause status be construed narrowly, analyzing portions of a public employer\u2019s policy separately. Id.\n{23} On the record before us, we thus conclude that Section 10-7E-17(E) applies to economic components of the extension of the expired collective bargaining agreements under the PEBA evergreen provision. Under Section 10-7E-17(E), agreement provisions that require the expenditure of funds are subject to \u201cthe specific appropriation of funds\u201d and \u201cthe availability of funds.\u201d See Int\u2019l Ass\u2019n of Firefighters v. City of Carlsbad, 2009-NMCA-097, \u00b6\u00b6 1, 16, 147 N.M. 6, 216 P.3d 256 (holding that Section 10-7E-17(E) prevails over a binding arbitration award issued pursuant to Section 10-7E-18(B)(2)). It is not an issue whether the City appropriated funds for or during the term of the agreements. No City appropriation has occurred to extend the agreements, and the City contends that it does not have available funds to fund the economic components of the extension. The PEBA leaves that determination to the legislative functions of the public employer. The PEBA does not require the extension of existing collective bargaining agreements in conflict with Section 10-7E-17(E).\nMOOTNESS WITH RESPECT TO AFSCME LOCAL 1888 AND AFSCME LOCAL 3022\n{24} While this lawsuit was pending, AFSCME Local 1888 and AFSCME Local 3022 entered into new contracts with the City. The Unions contend that the district court improperly granted the City\u2019s motion to dismiss the two unions as moot. We address the issue under de novo review. Garcia v. Dorsey, 2006-NMSC-052, \u00b6 13, 140 N.M. 746, 149 P.3d 62.\n{25} We test for mootness by determining whether an actual controversy exists. City of Las Cruces v. El Paso Elec. Co., 1998-NMSC-006, \u00b6 16, 124 N.M. 640, 954 P.2d 72. Our Supreme Court has stated \u201c[t]he prerequisites of actual controversy ... in a declaratory judgment action are: a controversy involving rights or other legal relations of the parties seeking declaratory relief; a claim of right or other legal interest asserted against one who has an interest in contesting the claim; interests of the parties must be real and adverse; and the issue . . . must be ripe for judicial determination.\u201d Id. (internal quotation marks and citation omitted).\n{26} The Unions argue that an actual controversy continues to exist despite the new agreements because the new agreements will expire in the next two years. Secondarily, they contend that, even assuming an actual controversy no longer exists, this case presents an issue of public interest that is likely to reoccur. They rely on Bradbury & Stamm Construction v. Board of County Commissioners of Bernalillo County, 2001-NMCA-106, \u00b6\u00b6 10-11, 131 N.M. 293, 35 P.3d 298. In that case, the plaintiff had claimed that the county had improperly declined to apply a statutory residential preference in the bidding on a construction project. Id. \u00b6\u00b6 2-4. The district court ruled for the plaintiff, and the county granted the plaintiff the bid because it disqualified the low bidder, notbecause of aresidential preference. Id. \u00b6\u00b6 5-6. This Court determined that, although there no longer appeared to be an actual controversy concerning the residential preference statute, it nevertheless denied the plaintiff\u2019s motion to dismiss the appeal as moot because the issue was of substantial public importance that \u201cmay well reoccur}.]\u201d Id. \u00b6 12.\n{27} Although Bradbury & Stamm does not indicate that an actual controversy continues to exist in this case, it does address the Unions\u2019 secondary position. However, in Bradbury & Stamm, the issue \u201cmay well\u201d have reoccurred if the Court did not decide the issue between the parties before it. In this case, the issues raised by AFSCME Local 1888 and AFSCME Local 3022 are the same issues raised by the other unions, and the Court is deciding the issues.\nCONCLUSION\n{28} The PEBA grandfather clause applies to the LMRO impasse resolution procedures notwithstanding the failure of the LMRO to require binding arbitration to resolve impasse. The PEBA evergreen clause does not apply to the economic components of the existing collective bargaining agreements, at least in the manner in which this case was argued, because of the PEBA\u2019s requirements that provisions of collectivebargaining agreements that require an expenditure of funds are subject to the \u201cspecific appropriation of funds\u201d and \u201cthe availability of funds\u201d in Section 10-7E-17(E). The complaint was moot with respect to AFSCME Local 1888 and AFSCME Local 3022. We affirm.\n{29} IT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nI CONCUR:\nJONATHAN B. SUTIN, Judge\nTIMOTHY L. GARCIA, Judge (specially concurring)", "type": "majority", "author": "WECHSLER, Judge." }, { "text": "GARCIA, Judge\n(specially concurring).\n{30} I agree that the language in City of Deming, 2007-NMCA-069, \u00b6\u00b6 22-24, appears to control our decision in this case. I write to specially concur because the broad language in City of Deming appears to extend the current version of the PEBA into situations where the resolution of an impasse in a collective bargaining agreement is never required. Id. Such a situation actually exists under the facts in this case. Unlike City of Deming, the LMRO has no provision to finally resolve the impasse that arose under the collective bargaining process between AFSCME and the City. Majority Opinion \u00b6 9.\n{31} The original version of the PEBA only required advisory mediation to resolve an impasse in collective bargaining negotiations. Section 10-7D-18(B) (1992) (repealed 1999). The current version does require a final resolution of any impasse hy binding arbitration. Section 10-7E-18. City of Deming continues to allow ordinances that are only consistent with the non-binding impasse resolution provisions of the original version of the PEBA rather than the current version of the PEBA that requires a binding resolution. 2007-NMCA-069, \u00b6\u00b6 20-22. If the ultimate resolution of an impasse is now required under the current version of the PEBA in order for its grandfather clause to also apply, then City of Deming needs to be appropriately addressed anew.\n{32} Presently, City of Deming allows the unchanged version of Section 10-7E-26(A) to continue to apply under either version of the PEBA statutory scheme. 2007-NMCA-069, \u00b6 22. If this Court has failed to properly construe the strict and narrow construction of the statutory grandfather clause in light of the overall purposes and intent set forth in the current version of the PEBA, then City of Deming needs to be narrowed accordingly. See Regents, 1998-NMSC-020, \u00b6\u00b6 23-28 (giving effect to the Legislative intent regarding grandfather clauses under the prior version of the PEBA that did not mandate a final impasse resolution procedure through binding arbitration). The Supreme Court has not yet addressed whether the purposes of the current version of the PEBA require a more strict and narrow construction of the grandfather clause in the PEBA.\nTIMOTHY L. GARCIA, Judge", "type": "concurrence", "author": "GARCIA, Judge" } ], "attorneys": [ "Youtz & Valdez, P.C. Shane C. Youtz Marianne Bowers Albuquerque, NM for Appellants", "Conklin, Woodcock & Ziegler, P.C. Robin A. Goble Albuquerque, NM", "David Tourek, City Attorney Rebecca E. Wardlaw, Assistant City Attorney Albuquerque, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Granted, January 7, 2013,\nNo. 33,924\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-012\nFiling Date: October 29, 2012\nDocket No. 30,927\nAMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, (AFSCME) COUNCIL 18, AFL-CIO, CLC, AFSCME LOCAL 1888, AFSCME LOCAL 3022, AFSCME LOCAL 624, and AFSCME LOCAL 2962, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee.\nYoutz & Valdez, P.C. Shane C. Youtz Marianne Bowers Albuquerque, NM for Appellants\nConklin, Woodcock & Ziegler, P.C. Robin A. Goble Albuquerque, NM\nDavid Tourek, City Attorney Rebecca E. Wardlaw, Assistant City Attorney Albuquerque, NM for Appellee" }, "file_name": "0265-01", "first_page_order": 281, "last_page_order": 289 }