AGO IAL121506.

• Case Date: December 15, 2006
• Court: New Mexico

New Mexico Attorney General Opinions 2006. AGO IAL121506. December 15, 2006Senator Kent Cravens 10717 Richfield Avenue NEAlbuquerque, NM 87122 Dear Senator Cravens: You have requested, on behalf of yourself and other State Senators and State Representatives, that the Attorney General launch an investigation into Governor Richardson's allegedly unauthorized staff hirings. For the following reasons, we do not believe that such an investigation, based on the allegations asserted, is warranted. First, the request does not allege or present any evidence that any public servant is being paid for services not rendered. Cf. NMSA 1978, § 30-23-2 (1963) (prohibiting payment of public funds for services not rendered). Second, it is not alleged and no evidence is presented that payments exceed legislative appropriations. Third, it is not alleged that the Governor or the executive department generally lacks the requisite statutory authority to make "exempt" appointments; indeed, to the contrary, sufficient authority seems to be provided. Fourth, undertaking a general inquiry into the hiring authority of the Governor and the manner in which the Governor has exercised the state's supreme executive power in that respect is not consistent with applicable law that protects the executive branch from unwarranted intrusion with respect to the exercise of its executive managerial functions. Fifth, constitutionally and statutorily, "checks and balances" exist that enable the Legislature to control the expenditure of public funds associated with the executive branch's hiring of personnel. The executive branch makes the personnel decisions associated with selecting individuals to assist and to enable the executive branch to discharge its duties. Hiring employees is a necessary ancillary power to the discharge of duties by the executive branch. The Legislature, through its laws, recognizes and permits the hiring by the executive branch of "exempt" employees. The hiring of "exempt employees," sometimes termed "political appointees,"[1] is recognized at NMSA 1978, § 10-9-4 (1961, as amended through 1990) (excluding from Personnel Act coverage several categories of state positions; excluding, for example, positions that are policy-making or of a professional or scientific nature) and NMSA 1978, § 10-9-5 (1978, as amended through 1989) (providing for an "exempt salaries plan," prepared by the Department of Finance and Administration, for "exempt employees" of the executive branch; listing many of those same categories of positions that are excluded from Personnel Act coverage). The Executive Reorganization Act, NMSA 1978, §§ 9-1-1 to 9-1-10 (1977), provides for the executive branch's hiring of "exempt" officers and employees. The Act provides for "departments" within the executive branch and "secretaries" of departments who are appointed by the Governor with the consent of the Senate and who serve at the pleasure of the Governor. § 9-1-4. The Act provides that the secretary of the department manages all operations...