A worker packs a bundle of red Chile at Grajeda’s Farm in Hatch, N.M., in December 2021. (Photo by Santana Ochoa for Source NM)
Some New Mexico farmers and their employees are bracing for a tough holiday season, many of them left on the hook after being promised a living wage to produce this winter’s red chile crop.
About $2.2 million in wage subsidies for thousands of workers is sitting unspent at the Department of Agriculture, the casualty of a billion-dollar dispute between Gov. Michelle Lujan Grisham and some legislators.
Charlie Marquez, a lobbyist for the New Mexico Chile Association, has spent the final days before Christmas trying to squeeze the money out of the agency. He cites previous assurances from lawmakers and a nonbinding analysis from the state Legislative Council Service as reasons that the money can legally be spent now.
The cash is sorely needed by those who perform the back-breaking work of harvesting and processing New Mexico’s beloved crop, he said.
“The state made a commitment to them, and these poor guys, these poor farmers, they bank their life on what they do every year,” Marquez said.
But the Governor’s Office, Agriculture Department and Legislature have all said not one more dime can be spent from the Chile Labor Incentive Program until the Legislature approves it. The earliest that could happen is late next month, when lawmakers meet for the regular legislative session.
The program — aimed at reducing a labor shortage — boosted wages for farmworkers by up to $4.50 an hour, helping people earn up to $19.50 an hour. For many workers who make minimum wage of $10.50 an hour, the program would boost their wage to $15 an hour.
The labor shortage was estimated to be about 45% of the typical number of workers, or about 1,450 people, according to the Governor’s Office.
The governor in August announced the $5 million program for the green chile season, then extended it in November to cover the red chile season. By that point, about $2.8 million had been spent toward wages for about 3,000 workers, and $2.2 million was left. The money came from about $1.7 billion provided to New Mexico via the federal American Rescue Plan Act
But on Dec. 3, N.M. Agriculture Secretary Jeffrey Witte posted a letter to the department’s website, announcing that the program would need to immediately stop, though farmers should still keep records for possible backpay. He cited a state Supreme Court ruling from Nov. 18, one that forbade the governor from spending any more money from the federal American Rescue Plan Act. That responsibility lies with the Legislature, the ruling states.
The Supreme Court issued its ruling in response to a lawsuit, initially filed by Sen. Jacob Candelaria (DTS- Albuquerque) and Sen. Greg Baca (R-Belen), over the governor’s authority to spend the federal money. In early December, Candelaria filed another motion, blasting the Governor’s Office for continuing to spend money out of the fund on to pay back a computer vendor. That money was quickly returned.
Farmers are people of their word, and they’re gonna do what they promised.
– Glen Duggins, president of NM Chile Association
Early December is about when the Legislative Finance Committee contacted the Agriculture Department, telling it to stop paying farmers, according to the department.
In the meantime, some farmers are left with their commitments to pay their employees more, said Glen Duggins, a chile farmer and president of the New Mexico Chile Association. They promised their workers better hourly wages, and some of them are honoring that promise even though the state isn’t reimbursing them.
“Farmers are people of their word, and they’re gonna do what they promised,” he said. “It’s just going to make it difficult for the farmer to come up with that extra money. But I suppose we will. We have no choice, really.”
No special session fix
Marquez said he had every expectation until earlier this week that the money would keep flowing to farmers and their employees. He said lawmakers seemed concerned in early December, when he spoke up about the problem at a House committee meeting, and it looked like they would find a fix before the end of the special session.
He said he was reassured that lawmakers were taking the matter seriously. And he spoke to Raul Burciaga, director of the Legislative Council Service, who told him the money was free to be spent now. The service does legal research for the Legislature and drafts legislation.
Burciaga, in an interview with Source New Mexico, stressed that the service did not issue binding legal opinions. He also said the New Mexico Supreme Court could clarify the issue when it issues a more detailed ruling on the matter. But he thinks there is nothing legally preventing the wage boosts to farmers this holiday season.
He said that because it’s his understanding that all $5 million was allocated before the lawsuit began, meaning it was already committed to be spent and not subject to the Supreme Court order. The funding is similar to the $600 million from the American Rescue Plan Act money that went to New Mexico unemployment insurance, Burciaga pointed out. That chunk of cash was never part of the case before the Supreme Court, he said, presumably because that money was also allocated before the lawsuit was initiated.
“My understanding was that those $5 million were allocated before the litigation. That’s all I can say on the record,” Burciaga said. “But we do not issue formal legal opinions.”
That left Marquez, the lobbyist, frustrated that an expert like Burciaga thought the money was free to be spent, but he couldn’t shake it loose. He could seek an opinion from the New Mexico Attorney General’s Office, he said, but that would just take more time.
To me, it's like, go ahead and pay it out and compensate (the farmers), as was committed to them, because they don't care about whether it was Legislature or governor. – Charlie Marquez, lobbyist for New Mexico Chile Association
To me, it's like, go ahead and pay it out and compensate (the farmers), as was committed to them, because they don't care about whether it was Legislature or governor.
– Charlie Marquez, lobbyist for New Mexico Chile Association
“To me, it’s like, go ahead and pay it out and compensate (the farmers), as was committed to them,” he said. “Because they don’t care about whether it was Legislature or governor.”
Patty Lundstrom, chair of the House Finance and Appropriations Committee, said in a statement that even though the Agriculture Department has all of the money for the program, it is still prohibited from spending it. The committee will have to authorize the release of that money when the 30-day session begins Jan. 18, she said.
Nora Sackett, a spokesperson for Gov. Lujan Grisham, said she hopes the Legislature saves the program, which she said was quite successful.
“More than anything we are disappointed that the burden of the Legislature’s request (to stop the spending) falls on the shoulders of New Mexicans already working tirelessly to ensure the world’s supply of our state’s signature crop,” she said. “We certainly hope that the Legislature acts to rectify the situation and follows in the governor’s footsteps to support New Mexico chile growers.”
Did you order your chile ‘Christmas’?
Kristie Garcia, a spokesperson for the Agriculture Department, said about 90% of the red chile harvest was completed in late November, but that the last of the harvest and chile processing — turning it into sauces, powders or other products — was still ramping up. About $1.6 million of the $2.8 million already spent went to employees of processors, she said.
“The chile harvest is coming to an end, so it would be nice to have that money to be able to distribute to growers and processors,” she said.
Despite the Supreme Court ruling, the Agriculture Department spent about $198,000 on farmerworker wages between Nov. 18 and Dec. 3, Garcia said.
Marquez said he believes the reason the Agriculture Department stopped paying out Dec. 3 and not Nov. 18 is because of the additional filing by Candelaria, one that he said had a chilling effect across the executive branch.
Candelaria, in an interview, said he does not believe the lawsuit he filed applies to the chile program.
“In the lawsuit, we did not ask the court to sort of enjoin or stop expenditure of any funds that had already been transferred out prior to Nov. 18,” he said. “So … on its face, it strikes me that this program falls under that kind of exemption to the lawsuit.”
He also said that the Legislature or the governor, if they cared about the program, should have tried to save it before the special session ended last week.
He also said he does not support the Chile Labor Incentive Program, so he’s not all that concerned that his litigation might have stalled it over the holiday season. It’s a failure of industry, he said, that farmworkers don’t make a living wage. It’s not up to the government to subsidize the farm industry for under-paying its workers.
“While I understand it was successful, I don’t think it’s the responsibility of the government to supplement low poverty wages in certain industries,” he said. “If the chile industry needs to get people out in the field, they should pay better wages and give better benefits to their workers.”
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