NMAGO 04-02.

• Case Date: May 12, 2004
• Court: New Mexico

New Mexico Attorney General Opinions 2004. NMAGO 04-02. May 12, 2004OPINION OF PATRICIA A. MADRID Opinion No. 04-02By: Elizabeth A. Glenn Assistant Attorney General To: The Honorable Rod AdairState Senator P.O. Box 96 Roswell, New Mexico QUESTION:Does Governor Richardson's policy requiring potential appointees to the boards of regents of New Mexico state educational institutions to sign undated letters of resignation prior to their appointment and confirmation by the state senate violate Article XII, Section 13 of the New Mexico Constitution?CONCLUSION: An undated letter of resignation that the Governor may have secured from a prospective regent as a condition of appointment to the board of regents of a New Mexico state educational institution is not enforceable as matter of law. DISCUSSION: Under the state constitution, the members of a board of regents of a state educational institution are nominated and appointed by the governor, "by and with the consent of the senate." N.M. Const. art. XII, § 13. Once appointed and confirmed, a regent may not be removed "except for incompetence, neglect of duty or malfeasance in office," and no removal shall be made without notice of hearing and an opportunity to be heard having first been given such member. The supreme court of the state of New Mexico is hereby given exclusive original jurisdiction over proceedings to remove members of the board under such rules as it may promulgate, and its decision in connection with such matters shall be final. Id. Article XII, Section 13 thus limits the governor's authority to remove members of the boards of regents. As the New Mexico Supreme Court stated in connection with the previous governor's improper attempt to remove regents of a state university: The Governor may not remove regents for reasons outside the express bounds of the Constitution. The policies behind this limitation are apparent: the state's educational institutions must be free from the possibility of political manipulation; and the integrity and independence of the regents must be protected. Denish v. Johnson, 121 N.M. 280, 293, 910 P.2d 914 (1996). Article XII, Section 13 does not prohibit regents from voluntarily resigning their positions. However, as interpreted by the Supreme Court, the constitutional provision clearly is intended to maintain the independence of the boards...