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NNMC Regent Kevin Powers & RBC Capital Markets Possible Conflict of Interest in $16 Million Dorm Project

4/10/2015

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NNMC VP of Finance Domingo Sanchez, NNMC President Nancy "Rusty" Barcelo, Regent Kevin Powers, Director RBC Capital Markets Paul Cassidy at NM HED requesting dorm project approval (left to right). Click each pic to view larger.
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Director of RBC Capital Markets Paul Cassidy at NNMC Board of Regents meeting (May 2014) with former Regent Michael Branch, Regent Kevin Powers, NNMC President Nancy "Rusty" Barcelo, Regent Rosario "Chayo" Garcia, NNMC VP of Finance Domingo Sanchez, and Peter Franklin of Mondrall Sperling Law Firm (left to right).
As Northern New Mexico College continues litigation against Monument, LLC, their dorm developer, the NNMC Study Group felt it important to explore the history of failed dorm projects at NNMC.[i] In particular, we have uncovered the possible conflicts of interest in various phases of the project with NNMC Regent Kevin Powers. Regent Powers was the Director of RBC Capital Markets in Albuquerque, the bond underwriter for the dorm project in 2007 and again in 2013-2014.

The NNMC dorm project was first proposed during the administration of former NNMC President José Griego. The college issued a request for proposal (RFP) seeking a company to act as project manager for dorm development. One of the duties of the project manager would be to devise a financing scheme, i.e. handle the details of funding the project via the issuance of bonds by the college or some other entity of state government acting on the college’s behalf. The project manager would oversee all aspects of the project and would manage or sub-contract the various elements of work to other companies such as an architectural firm, a construction firm, or a bond underwriter.

An experienced company, well-qualified to be such a project manager, responded to the RFP. That company was Institutional Project Management (IPM) of the Chicago area. IPM’s proposal identified RBC Capital Markets as the bond underwriter. At that time Regent Kevin Powers was identified as the Director of RBC Capital Markets in Albuquerque.

Communications between the college and IPM show that IPM was to be selected as the dorm project manager. But on the eve of the anticipated formal action awarding the management contract to IPM, then NNMC Board President Michael Branch proposed a change in the proposal specifications regarding the materials to be used for the dorm buildings beams. Branch, CEO of Santa Fe’s Branch Realty Commercial Advisors [sic], wanted to substitute steel beams for wooden beams. IPM informed NNMC that such a change would mean a substantial increase in construction cost and thereby have an impact on the financing aspects of the project. Another development at this stage of the was IPM’s announcement that the company wished to amend its proposal to make a change it the architectural firm it had initially proposed as one of its sub-contractors in the project.  

Based on these two developments, NMCC cancelled the RFP and rejected the IPM proposal. The NNMC Board then stated that no other company had submitted a “second best” proposal and the entire dorm project was effectively cancelled/put on hold. 

IPM then sued the college appealing the Board’s cancelling of the RFP and alleging that the college had violated various legal requirements it was bound to observe (such as basic State procurement procedures).[ii] The case was settled via a stipulated dismissal, meaning an out-of-court settlement was reached between IPM and NMCC in 2010. IPM also sued NNMC in a related case, which was regarding the college’s refusal to release public records as required by the NM Inspection of Public Records Act.[iii]

Certainly Kevin Powers, per his role as a senior executive at RBC Capital Markets, was involved in the IPM submissions to NMCC that identified RBC as the underwriter of bond for the dorm project. And surely Powers was aware of the IPM/NMCC disputes leading to the aforementioned litigation. 

The dorm project effectively went into hibernation until sometime in 2012 or 2013 when the BOR resuscitated it.  

Meanwhile, Powers retired from RBC in November, 2012. Just two months later in January 2013 Governor Susana Martinez appointed Powers to the NMCC BOR. However, the state Senate failed to consider confirmation of that appointment and Powers became a “regent-in-waiting” for the duration of 2013, taking his seat only after the state Senate did confirm him in January, 2014.   

It is not known what, if any, continuing financial relationships/entanglements Powers may have with RBC Capital Markets as a retired executive of that securities firm. 

It was during his “regent-in-waiting” period that the NMCC Board of Regents (led by Michael Branch) revived the dorm project. The dorm project’s second incarnation involved a new company playing the role of project manager. That company was Indiana-based Monument, LLC. Regents Branch and Herrera, who led the new push for dorms, were intimately familiar with the IPM fiasco as they were both serving as Board members in 2008. 

In the minutes of the February 2014 NNMC Board of Regents meeting, Regent Herrera gave a report regarding Monument and the dorm project. That meeting was the first meeting attended by retired RBC Director Kevin Powers (immediately following his Senate confirmation). Herrera, according to the minutes, specifically mentioned that Monument’s services on behalf of the dorm project would involve the participation of RBC, newly-installed Regent Kevin Powers’ former employer. 

The Monument services being provided to the college vis-à-vis the dorm project and RBC’s role in that endeavor were remarkably similar to those proposed by IPM back in 2008.

Throughout its failed 2013-2014 attempt to build new dorms, NNMC Board of Regents meeting minutes and college-related documents demonstrate RBC assisted Monument in that company’s quest to obtain approval of bonds to be issued to fund the dorm project. That quest met with failure. 

NNMC entered into two contractual agreements with Monument, LLC, which total near one-million dollars. The college paid Monument in full for its services performed pursuant to the first contract. But the college has failed to make payments to Monument pursuant to the second contract. NNMC ceased additional payments to Monument coincidentally after to the college failed to obtain endorsement of the dorm project (and issuance of bonds) from the State Board of Finance. That failure effectively killed the dorm project in its second incarnation.

Subsequently Monument’s attorney, Jason Bowles, wrote the college regarding the payments Monument was owed under the second Monument/NMCC contract (roughly $600,000). Bowles suggested mediation (as required under the second contract) as a method for resolving any disputes regarding the unreceived payments. In response, the college filed a State District Court lawsuit against Monument seeking a declaratory judgment stating that the college was not liable for any additional payments to Monument. This action, filed by NMMC’s legal counsel, Basham & Basham of Santa Fe, was a preemptive strike by the college to forestall any debt-collection lawsuit against the college by Monument.

This new dorm-related litigation in which the college is now embroiled may or may not involve some review of the pleadings/evidence in the 2008 IPM lawsuit against NNMC regarding the dorm project.

Of particular interest is the relationship of NNMC Regent Kevin Powers (RBC Capital Markets, former Director) with the 2008-2009 IPM failed dorm project, and his involvement with the 2012-2014 Monument deal, which was assisted by RBC. What were the entanglements as during the resurrection of the dorm project?

What were the discussions between Regent Powers, the NMMC Administration/Board members, and RBC in the 2012-2013 period when Powers was about to retire from RBC? What were the discussions between when Regent Powers was newly retired from RBC, and was a regent-in-waiting as the Monument/NNMC dorm project relationship was initially flowering?

Of particular interest are Regent Powers’ conversations and interactions with his former colleagues at RBC as Monument and RBC efforts to secure bond approval were underway after he took office on NNMC Board in 2014.


We might also ask the propriety of Powers’ involvement with the proposed $16 million dollar dorm deal involving RBC when, according to his 990-T disclosure form to serve on the NNMC Board, Powers and his wife Marci listed annual income over $5,000 as “various stocks bonds & funds 401k & IRA.” What are the amounts Regent Powers and his wife have continued to draw from RBC?

Below is a small excerpt of the May 2014 NNMC Board of Regents meeting, we see Regent Kevin Powers pledging the direct and active support of the NNMC Board members to RBC's current Director Paul Cassidy (4:15).[iv] The intimacy of the continuing relationship between NNMC Regent Powers and RBC Capital Markets will continue to be probed.
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[i] For full story and court documents on the lawsuit filed by NNMC against Monument, LLC, see: http://www.nnmcstudygroup.org/blog/nnmcs-barcelo-administration-sues-its-dorm-developer-to-avoid-payment-of-650000-past-due The Rio Grande Sun has also reported on the lawsuit. See story at:
http://www.riograndesun.com/articles/2015/04/09/news/doc55259c88b4285872893446.txt

[ii] The case number for that lawsuit, filed in 2008, is D-117-CV-200800427. All of the case-file documents are domiciled at the Rio Arriba County Courthouse (First Judicial District Clerk’s Office) in Tierra Amarilla. All such documents (contained in two large file folders) are hard copies. The case file is not imaged and therefore inspection of those documents requires visit to T.A. These voluminous case file documents reflect/substantiate the narrative above. 

[iii] The IPC IPRA case number is D-117-2009-00265.

[iv] NNMC minutes of that Board meeting available online at: http://nnmc.edu/wordpress/wp-content/uploads/2014/08/BORMinutesMay222014.pdf The RBC Capital Markets presentation by Director Paul Cassidy begins at page 11.
Additional excerpts of the RBC and Mondrall Sperling presentation at the May 2014 Board of Regents meeting available on youtube at the NNMC Study Group Channel at:
https://www.youtube.com/channel/UChVQBq07UoeNxltoa7syzXw/videos  
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American Federation of Teachers Calls for Confirmation of Two New NNMC Regents

3/1/2015

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The American Federation of Teachers (AFT) Union has called for the appointment and confirmation of two new NNMC Regents, including the NNMC Student Regent approved by 67% of New Mexico voters.

The confirmation of two new NNMC Regents, replacing expired-term regents Michael Branch and Alfred Herrera, is now awaiting action in the New Mexico Senate Rules Committee.

Contact Senator Linda Lopez, Chair of the Rules Committee, to request confirmation vote scheduling at:


(505) 831-4148
linda.lopez@nmlegis.gov
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Click image above for larger document view
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NNMC Regent Branch Attempts Coup

2/27/2015

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Left to right: Regents Kevin Powers (Treasurer), Michael Branch, Rosario "Chayo" Garcia (President), Alfred Herrera, Donald Martinez (Secretary).
NNMC Board of Regents Member Michael Branch, whose term expired on December 21, 2015, opened the February 26, 2015 Board of Regents meeting by calling for the resignation of NNMC Board Secretary Donald Martinez, of El Rito, New Mexico.

Regent Donald Martinez was appointed by Governor Susana Martinez for a six year term. Regent Martinez's appointment on the NNMC Board of Regents is through 2020.[i]
 The NNMC Study Group and other members of the community have contacted Governor Susana Martinez and Lieutenant Governor John A. Sanchez in support of Regent Donald Martinez. Regent Martinez was raised in El Rito, is a long-time educator and farmer, and previously worked as the HEP Director at the NNMC-El Rito. More details are available below in letter to Governor Martinez.

We urge members of the community to contact Governor Martinez, Lieutenant Governor Sanchez, and NNMC Board President Rosario "Chayo" Garcia to voice support for Regent Donald Martinez.

Governor Susana Martinez

http://www.governor.state.nm.us/Contact_the_Governor.aspx

(505) 476-2200

Lieutenant Governor John A.Sanchez
http://www.ltgov.state.nm.us/Contact_the_Lieutenant_Governor_1.aspx
(505) 476-2250

NNMC Board of Regents President Rosario "Chayo" Garcia

garciachayo@yahoo.com 


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[i] See: “Northern Welcomes New Regents,” March 18, 2013. http://nnmc.edu/wordpress/?p=10590

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Board of regents meeting at Branch realty          tuesday, February 24th, 5pm

2/21/2015

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The NNMC Board of Regents will hold a Finance Committee Meeting in Santa Fe at Branch Realty Commercial Advisers on Tuesday, February 24th at 5pm. This meeting, held hidden away from Rio Arriba County and the Española Valley community at Regent Michael Branch's place of business, is subject to the NM Open Meetings Act. [1]

The public and reporters may attend, record, and document the meeting in full. On the agenda at Branch Realty Commercial Advisers are: 1) Fiscal Watch Reports, 2) Budget Adjustment Request, 3) Capital Projects Updates, and 4) Residence Hall Update.

The discussion at Branch Realty Commercial Advisers will set the financial decisions for the full Board of Regents Meeting on
Thursday, February 26th (see full agenda at top right), where the Regents will vote on a tuition hike and will unveil their Plan B (or is it Plan G) for building dormitories for out-of-state students as NNMC's enrollment continues to decline precipitously. Regent Michael Branch, whose term expired on December 31, 2014, tightly controls the Finance Committee and the Board of Regents. Branch's Commercial Real Estate company's ties to the multimillion dollar dorm development project (projected by NNMC Administration and no-bid consultants to cost over $16 million) is yet to be revealed.

Branch Realty Commercial Advisers is located at: 228 S. St. Francis Drive. Bldg E, Santa Fe, NM 87501. The meeting will be held in the Conference Room. Call (505) 984-8100 for directions, or call the NNMC main switchboard and request Assistant to the President, Amy Peña, who generates agendas and public notices. Ms. Peña fulfills requests for full public agendas and meeting details. NNMC main switchboard: (505) 747-2140.
Assistant to NNMC President Barcelo, Amy Peña email contact: amy.pena@nnmc.edu

February 24th UPDATE:
When contacted by at NNMC by phone, VP of Finance Assistant Brandi Cordova confirmed at 2:37pm that the Board of Regents Finance Committee Meeting at Branch Realty was not publicly announced, explaining: "Oh, that meeting was not announced so I am not at liberty to share that information."

In clear violation of the Open Meetings Act, the Board of Regents Finance meeting was held as scheduled at Branch Realty with NNMC Administrators and Board of Regents members in attendance. The public was barred from entry at 5pm by VP of Institutional Advancement, Ricky Serna. At left is the internally distributed meeting agenda
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[1] Download or view full text of New Mexico’s Open Meetings Act online at: http://www.nmag.gov/consumer/publications/openmeetingsactcomplianceguide 

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NNMC has NOt Attained University Status

2/20/2015

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At the January NNMC Board of Regents meeting, President Nancy "Rusty" Barcelo yielded her time for her "President’s report” to Regent Michael Branch. Branch’s term on the NNMC Board of Regents expired December 31, 2014. Branch introduced two key measures: 1) the introduction of a new Board of Regents “Academic Affairs Committee,” and 2) the “Academic Affairs Committee’s” recommendation for the name change from Northern New Mexico College to Northern New Mexico University. 

Regent Branch and Board President Rosario “Chayo” Garcia violated parliamentary procedure, moving for a vote to approve a name change for the institution. The name change recommendation, states the agenda, is to be made by the “Academic Affairs Committee” (President’s Report, III.2). The declared Chair of the “Academic Affairs Committee” is stated as Regent Michael Branch, whose term expired on December 31, 2014. Regent Branch introduced the motion for the institutional name change. This motion was then voted upon. This motion and vote were both before the approval of the “Academic Affairs Committee.” Indeed, the committee, which was stated to be the recommender of an institutional name change, has yet to be voted into existence.

In addition, the vote count to approve a name change for the educational institution from Northern New Mexico College to Northern New Mexico University included Regents Branch and Herrera, whose terms expired on December 21, 2014. The vote also excluded Regent Martinez who was confronted with a forced resignation before the meeting (Regent Martinez has not resigned). And Regent President Garcia did not cast a vote. Thus, the name change to University violated parliamentary procedure in at least three ways. The vote to approve the misleading name change for the educational institution from Northern New Mexico College to Northern New Mexico University was accomplished with only one vote of a non-expired Board member—that of Regent Kevin Powers.

The responsibility to push through the NNMC Regents’ invalid voting procedures to secure a misleading name change will soon be New Mexico Senator Carlos Cisneros’. Senator Cisneros is sponsoring SB-603 endorsing the name change “for common convenience.” Of course, the name change by Barcelo and Branch is designed for common misunderstanding. See SB-603 at
http://www.nmlegis.gov/Sessions/15%20Regular/bills/senate/SB0603.pdf

Comments and/or concerns regarding SB-603 can be communicated to Senator Carlos Cisneros by phone at: (505) 670-5610 or by email at: carlos.cisneros@nmlegis.gov


The NNMC name change is purposefully misleading, an act of false advertising that will jeopardize the college as an institution. Under the present leadership, NNMC has not attained a Status Change to University. While the NNMC President Barcelo and VP Serna have quietly admitted that the name change is not meant to indicate a Status Change to University, it is clear the NNMC Administration’s intention is to mislead students, parents, funders, and the public.   

In fact, the press release from the NNMC Administration regarding the name change is titled: “Northern New Mexico College becomes University” (January 27, 2015). [i] We note the deliberately misleading language: “Northern New Mexico College becomes a University,” versus the accurate: One non-expired Regent at Northern New Mexico College voted to rename the institution despite its not attaining or qualifying for University Status by any measure, according to the New Mexico Higher Education Department (NMHED), the North Central Higher Learning Committee, the official accreditation agency, or the NM Legislature. 

What is University Status? Several institutions in New Mexico have worked hard to serve students and communities to attain University Status: The NM Higher Education Department has oversight of all public universities and colleges—these include three research universities, four comprehensive universities, ten branch community colleges, seven independent community colleges, and three special schools.[ii] 

In order to attain University Status, institutions must offer graduate education (Northern does not), must employ a higher ratio of full-time PhD professors and Administrators (Northern’s faculty is 67-70% adjunct/part-time with a fraction holding PhDs, and several of the Northern “Executive Team” do not have degrees past Bachelor’s level, or commiserate with their responsibilities), and Northern must seek and obtain Status Change to University through the NMHED and the accreditation agency. There are several more criteria for an institutional Status Change and for this reason a proposal for Status Change to become a University is long-planned, long-sought, and long worked toward. Northern has not fulfilled any of the steps that would allow a Status Change to University and Northern does not qualify for a change to University Status by any measure. 

What has prompted Barcelo’s push for a name change?  After the Faculty Senate and the Student Senate voted “No Confidence” in Barcelo and her “Executive Team” last April, Barcelo went on attack, leading to the loss of over a quarter of the full-time faculty and the Directors of critical programs at both the El Rito campus and the Espanola campus. Some faculty and staffers were released via retaliatory non-renewals, others chose resignation.[iii] Local and national media covered the continued decline of Northern New Mexico College under Barcelo, and the college’s name became synonymous with incompetence, mismanagement, and practices of retaliation and favoritism.[iv] 

In addition to running from the reputation that Barcelo’s Administration has earned after four disastrous years, NNMC Administrators and Regents aim to capitalize on false advertising. In an article in The Rio Grande Sun (February 19, 2015), Regent Branch explained that “although the name change does not guarantee an easier accreditation process... it will make it easier ...to obtain ...grants …more legitimacy.” Changing the college’s name, explained regent Branch, “improves the status” and will make for “a more impactful [sic] diploma.”  

Thus, changing the name without attaining actual University Status is designed to create the misperception that the college is something it is not—Branch is clear that the effort is designed to deceive for the purpose of financial gain. The college will hike tuition—it’s now a University!—and the college will hope to mislead granting agencies and partners by trading on the “legitimacy” gained by claiming a fait accompli. As the NNMC press release reads, “Northern New Mexico College becomes University” (January 27, 2015). In an article published by The Journal North, Barcelo “added that it would help the institution be regarded with equal status as other state institutions, such as Western New Mexico and New Mexico Highlands.” 

Yet, NNMC is not equal in Status to these institutions—indeed under Barcelo’s leadership, several programs have been cut, course offerings have fallen drastically, once healthy certificate and A.A. programs have been reduced to “continuing education” non-degree granting courses, and enrollment has fallen precipitously. But Barcelo’s hope is that a change of name/brand will give the false impression that Northern has become a University.[v]  

In The Rio Grande Sun article, NNMC President Barcelo admits that “the move only changes the name of Northern and does not provide it university status,” adding “in the far future Northern administrators will strive to achieve university status.” Imagine, giving yourself credentials when you are certain you will not achieve those credentials until later… “in the far future.” Would NNMC students add the B.A. or R.N. to the end of their names if they thought they might strive to achieve those credentials later “in the far future?” Would we seek the expertise of an M.D., using those credentials, though they would not strive to complete education and training until sometime in “the far future?” What would we think of someone calling themselves "Sergeant" if they haven't earned the stripes? Will we allow Barcelo and Branch to disseminate complete falsehood, in the hopes no one is paying close attention? Do we want NNMC to be the only institution of higher education in New Mexico whose institutional name does not match its actual Status?  

Such misrepresentation opens NNMC and the State of New Mexico to costly lawsuits that have been filed across the country against colleges who use deceptive marketing schemes. Indeed, the U.S. Department of Education has increased penalties for higher education institutions that draw on federal financial aid while misrepresenting programming, accreditation, graduation rates, and the quality and reputation of academic programs. Further, such misrepresentation damages NNMC's legitimacy, reputation, and its relationships with peer institutions. 

With conscientious and careful leadership, perhaps NNMC could attain University Status. Under the Barcelo Administration, no such thing has occurred. NNMC President Barcelo herself predicts that only “in the far future Northern administrators will strive to achieve university status.”   

In the meantime, Barcelo and Branch are asking the NM Legislature to pass SB-603, a misleading and costly name change. Every cent of false advertising and meaningless re-branding will be borne by tax payers and students, who are subject to yet another tuition hike after the February NNMC Board of Regents meeting.

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[i] “Northern New Mexico College is now a university,” T.S. Last (January 28, 2015) http://www.abqjournal.com/532997/abqnewsseeker/northern-new-mexico-college-is-now-a-university.html [ii] New Mexico Higher Education Department Report, showing NNMC’s status as a two- and four-year college. http://www.cpec.ca.gov/CompleteReports/ExternalDocuments/New_Mexico_Condition_HE_2005-2006.pdf

[iii] See “Faces of Those We’ve Lost,” http://www.nnmcstudygroup.org/blog/faces-of-those-we-have-lost and “Rash of resignations Plagues Northern New Mexico College,” The Rio Grande Sun, Ralph Chapoco (July 10, 2014) http://thenorthernissue.org/2014/07/09/a-rash-of-resignations-at-northern-new-mexico-college/

[iv] See “The academic equivalent of a corporate campaign,” The AAUP Academe Blog, Jonathan Rees (January 14, 2015) http://academeblog.org/2015/01/14/the-academic-equivalent-of-a-corporate-campaign/
and the link to a sampling of the media coverage in AAUP’s Academe Blog, Inside Higher Ed, The Journal North, New Mexico Watchdog, The Rio Grande Sun, The Santa Fe New Mexican, and the University Herald: http://www.nnmcstudygroup.org/media.html [v] “Northern New Mexico College is now a university,” T.S. Last (January 28, 2015) http://www.abqjournal.com/532997/abqnewsseeker/northern-new-mexico-college-is-now-a-university.html

Below: The beginning of the cost of re-branding 

s.College Note that much of the Northern New Mexico College promotional merchandise (that would need to be destroyed and replaced) has been paid for with Federal and State grant dollars. For instance, tens of thousands of dollars of branded Northern New Mexico College jumpdrives, water-bottles, t-shirts, lanyards, literature, stationary, business cards, pamphlets, brochures, notebooks, etc. have been paid for with Federal grants (for instance the Title V-Exito Grant). Such grants are meant to provide direct services to aid in student success. The additional cost of building signage, canvas panels, and remodeling has yet to be calculated. This month, the NM Legislative Finance Committee has requested such calculations from Mr. Domingo Sanchez, NNMC VP of Finance.    
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    New Mexico Legislature on SB-603 NNMC Name Change Bill 

    Parts 1-8, featuring NNMC President Nancy "Rusty" Barcelo, VP Domingo Sanchez, VP Ricky Serna, and the Public Affairs Committee of the NM Senate.
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    NNMC Board of Regents Meeting, February 26th, 8:30am. NOTE: "Approval of Tuition Increase" on agenda. (Click image for full meeting agenda)

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