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.
PROBLEMS CAUSED BY THE REPUBLICAN PARTY CHAIRMAN ELECTION
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.