The Honorable Stuart Ingle
IAL 11212014
New Mexico Attorney General Opinion
Attorney General of New Mexico
November 21, 2014
GARY
K. KING, Attorney General
ELIZABETH A. GLENN, Chief Deputy Attorney General
The
Honorable Stuart Ingle
New
Mexico State Senator
2106
West University Dr.
Portales,
New Mexico 88130
Re:
Opinion Request - Curry County Detention Center
Consulting Agreement
Dear
Senator Ingle:
You
requested our opinion regarding the legality of a contract
between the Curry County Board of County Commissioners
("Commission") and Curry County Sheriff Matt Murray
("Sheriff") for the provision of security and
safety consulting services to the administrator of the Curry
County Detention Center. As discussed in detail below, we
conclude that the contract was not awarded in compliance with
the Governmental Conduct Act and raises questions under New
Mexico laws precluding a public officer from holding two
incompatible positions concurrently.
Background
At its
January 8, 2013 meeting, the Commission heard from County
Attorney Stephen Doerr regarding the employment contract of
Curry County Detention Center Administrator Gerry Billy, and
was informed that unless the Commission voted at this meeting
to alter the employment contract or issue a notice of
termination, Mr. Billy's contract would be extended for
two years. January 8, 2013 Commission meeting minutes
("January 8, 2013 minutes"), Book 9, Page 152,
lines 23-29. Commissioner Frank Blackburn moved to terminate
Mr. Billy's contract, which motion included: "Until
a new Detention Center Administrator can be hired, the County
Manager will work with the Sheriffs Office to handle the
administration of the Adult Detention Center and the Juvenile
Detention Center." Id., lines 35-38. The
Commission then voted to terminate Mr. Billy's employment
contract.[1] The minutes reflect no discussion
prior to the motion.
County
Manager Lance Pyle informed me that the Commission did not
again discuss the Sheriffs involvement in the Detention
Center's administration until its May 21, 2013 meeting.
At this meeting, Mr. Doerr stated that the Commission had
discussed the Detention Center at its January 8, 2013
meeting, specifically, "getting the acting Detention
Administrator, the Sheriff, and Manager Pyle working
together to run the Detention Center, and that has been
the arrangement since that time." May 21, 2013
Commission meeting minutes ("May 21, 2013
minutes"), Book 9, Page 237, lines 41-43 (emphasis
added).
Mr.
Doerr then presented to the Commission for its approval an
Agreement for Consulting Services ("Agreement"),
under which the Sheriff would provide "security and
safety consulting" to acting Detention Center
administrator Tori Sandoval and Mr. Pyle. Id., lines
39-46. While the Agreement stated that the Sheriff had been
assisting Ms. Sandoval with the Detention Center's
"security, policies and procedures" since January
8, 2013, the Agreement provided that the Sheriff would be
paid $3,000.00 per month as of April 1, 2013, the
Agreement's effective date. Agreement, p. 1. The
Agreement made no mention of any payment to the Sheriff for
the period between January 8 and April 1, 2013.
As part
of the May 21, 2013 discussion, Commissioner Wendell Bostwick
expressed his concern that the Agreement authorized the
Sheriff to be paid monies beyond his statutorily-prescribed
salary. May 21, 2013 minutes, Book 9, Page 237, lines 47-49.
Commissioner Bostwick further noted that among the Sheriffs
responsibilities included in the Agreement were his
coordination of inmate transportation and his consultation
and advice to the acting jail administrator on qualifying
inmates for the ankle bracelet program. Commissioner Bostwick
stated that the Commission had already appropriated funds to
allow the Sheriff and his employees to perform both of these
services. Following a brief discussion about the Sheriffs
deputies working overtime at the Detention Center,
Commissioner Bostwick questioned "whether [the
Commission] need[ed] to pay extra money to have the Sheriff
be a participant" in the operation and management of the
Detention Center. Id., lines 50-52, 56-64; Page 238,
lines 2-3.
When...
