Legislative Update

February 9, 2003

The Constitution and the Boards of Regents

"Have you already resigned?" I asked Mr. Steve Anaya, nominee for the Board of Regents at New Mexico State University.

"Yes," he said sheepishly.

"Why?" I asked.

"Because the resignation letter was in my packet," he replied.

"And if you didn't resign in advance of the nomination, you weren't going to get get the nomination?" I asked.

"That's right," he said.

"The Constitution forces me to vote no on your nomination," I said.

And so it went with regent nominee Bob Gallagher as well. Both men, to my knowledge, have excellent credentials, and I took pains to make it clear that my opposition to the process being followed by the governor has nothing to do with them personally. They are merely caught up in an embarrassing situation
through no fault of their own.

Here is what the New Mexico Constitution says about the boards of regents in Article XII, Section 13:

"Members of the board shall not be removed except for incompetence, neglect of duty or malfeasance in office."

Yet, Governor Richardson required each nominee for regent to sign a resignation letter, stating:

"I hereby submit my unqualified resignation, effective immediately."

All these letters were submitted in the first week of January this year. Upon receipt of these letters of resignation, Governor Richardson then issued letters appointing these individuals to the boards of regents at the various universities around the state. But if you didn't resign, you didn't get the job.

I asked the governor's staff member, present in the Rules Committee hearing, "Did we have anyone, any man, any woman in the state, who said that their principles, their own fiduciary duty, their own sense of individual responsiblity and independence of judgment and action, would not permit them to sign such a letter? Was there a single person on the governor's list of prospective regents who was willing to say, no, my personal integrity is more important than this?

"No," said the Richardson staffer, clearly not realizing the devastating indictment contained in his laconic reply, "not one, they all signed it."

The Constitution goes on to say in the same section:

"...no removal shall be made without notice of hearing and an opportunity to be heard having first been given such member." And then... "The supreme court of New Mexico is hereby given exclusive original jurisdiction over proceedings to remove members of the board..."

Then the nominees and their supporters told me "this is a tool the governor has in order to make his nominees accountable, and to assure effective performance."

Well maybe, but more likely it only makes them directly beholden to him personally. The problem is that regents (unlike cabinet officers and personal staff) do not serve the governor personally. Rather, their duty is to the people of New Mexico, not the governor. Later I asked, "When are the hearings going to be?"

No one knew what I was talking about. They had not read the Constitution. They believed that a member of a board of regents could be dismissed at will like any other member of the more than 225 boards and commissions appointed by the governor. Not only did they no know about the hearing requirement, they also did not know that the supreme court, not the governor, originates the proceedings to dismiss a regent.

I have written a letter to the governor asking him how the signed, undated letters of resignation he requires of regents can be consistent with the Constitutional provisions of Article XII. His office has indicated he intends to reply. Meanwhile, I also made a motion under Senate Rule 8-3, that the Senate formally request the same information. After initially winning the motion 18-17, two vote switches (before the Lt. Governor could announce the results) changed the result to 16 FOR and 19 AGAINST. It also made the vote strictly along party lines.

I plan to continue to fight for the Constitution.


Meanwhile, on Friday, February 7, Senator Ramsay Gorham, suddenly called a press conference and announced that she objected to the governor's firing of all 270 of the at-will employees and the hundreds of board and commission members he is dismissing.

That of course immediately clouded the entire issue of the Constitutionality questions that had been painstakingly laid out all week long. I, along with several other senators, had over and over, repeatedly and clearly stated that the governor is fully within his rights to dismiss so-called "exempt" employees (employees exempt from protections under the State Personnel Act), his own cabinet officers, and all members of boards and commissions who serve "at the pleasure of the governor."

Then Senator Gorham comes along and says, in effect, "the governor should not be able to fire anyone in the state." No one believes that to be true. Not only is that incorrect, those of us who are carefully defending the Constitution neither believe that should be the case, nor can we support such an idea either by citing a statute or a Constitutional provision.

Worse, however, Senator Gorham's remarks merely sound partisan-----like something a state chairman would try to say rather than a state senator. The cheerleading partisanship just doesn't work in a context where people are talking about clearly understandable Constitutional issues.

Instead, her pronouncement clouds the issue and fuzzes up the differences so many have worked so hard to make clear.

I was later told that she meant no particular harm, but that her advisors in her race (she is running hard for State GOP Chairman against incumbent John Dendahl) told her she needed to do something to show she can "take on" Governor Richardson. They, I am told, have been stung by the reaction to her vote in favor of Democrat Richard Romero for President Pro-tem, choosing him over Republican Stuart Ingle.

(Also, I heard a number of people wondering out loud how, if she is elected, she would be able to take off and be gone for a week during the session each February for the Republican National Committee meetings and leave the GOP without a vote and her district without representation. She can't resign because Richardson would appoint a Democrat to replace her. The anxiety caused by all these controversies apparently led to the snap decision to hold a press conference ---resulting in her not having enough time to nail the issue down correctly. Thus the botched message that came out.)

So she was successful in getting the press conference in front of TV cameras, but she had no idea what the actual issue is. Getting the issue completely wrong, however, seriously complicates the efforts of those who are fighting to protect the Constitution.

As an example, she was asked point blank:

"What basis do you have for maintaining that Richardson can't do this, isn't this within his right?"

Her answer was: "Well, I just think it's wrong."

That, folks, is not the answer, and that is not our message. We will see how badly this hurts the effort we are making on behalf of the Constitution.

Several print media people talked to me before and after the press conference. They were clearly aware of the fact that Senator Gorham did not "get" the issue we had discussed exhaustively in the senate.

"Those employees she is talking about are not protected are they?" one of them asked.

"No," I said.

"So the governor has a right to fire them, doesn't he"?

"Yes, I said, "they are not in the same category as the regents I am talking about."

"So what is Ramsay talking about---or is she just trying to get on TV?"

"I don't know," I said.

A senator has to be able to understand the issues much better than this. We have to be about the
work of ideas and principles, never self-promotion.