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Transcript of WRIT FINAL Filing With Supreme Court of New Mexico. 03.16.11.
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IN THE NEW MEXICO SUPREME COURT
No. ______________________
AMERICAN FEDERATION OF STATE,COUNTY AND MUNICIPAL EMPLOYEES,COUNCIL 18, AFL-CIO, CLC,COMMUNICATIONS WORKERSOF AMERICA, LOCAL 7076,NEW MEXICO FEDERATION OF LABOR,AFL-CIO, AMERICAN FEDERATION OFTEACHERS, NM, INTERNATIONALUNION OF OPERATING ENGINEERS,LOCAL 953, and UNITED ASSOCIATON
OF PLUMBERS AND PIPEFITTERS,LOCAL UNION NO. 412,
Petitioners
v.
THE HONORABLE SUSANA MARTINEZ,Governor of the State of New Mexico,
Respondent.
VERIFIED PETITION FOR WRIT OF MANDAMUS/PROHIBITION
Submitted by:
Shane Youtz
YOUTZ & VALDEZ, P.C.900 Gold Avenue S.W.
Albuquerque, NM 87102(505) 244-1200 Telephone
Counsel for Petitioners
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TABLE OF CONTENTS
Page
Table of Authorities iii
Grounds upon which jurisdiction of the Supreme Court is based 1
Circumstances making it necessary and proper to see the writ 1In the Supreme Court
Parties 2
Relief Sought 3
Facts 3
Statutory Background 6
Legal Argument 7
A. The Governor‟s constitutional removal power does not include 7the power to remove members of the PELRB.
1.
The Governor‟s removal of members of the PELRB violates 7the doctrine of separation of powers.
2.
The Governor‟s constitutional removal powe rs should not be 13extended to the PELRB.
B. The Board, not the Governor, retains the exclusive right to hire 19an Executive Director.
Statement of Compliance with Rule 12-504(G)(3) NMRA 22
Certificate of Service 23
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TABLE OF AUTHORITIES
Page
New Mexico Cases
Las Cruces Professional Fire Fighters v. City of Las Cruces 191997-NMCA-031, 123 N.M. 239, 9398 P.2d 1384
New Mexico Board of Veterinary Medicine v. Riegger 18-192007-NMSC-044, 142 N.M. 248, 164 p.3d 947
New Mexico Judicial Standards Commission v. Espinosa 1, 12-14, 162003-NMSC-017, 134 N.M. 59, 73 P.3d 197
Reid v. New Mexico Board of Examiners of Optometry 1892 N.M. 414, 589 P.2d 198 (1979)
State ex rel. Bird v. Apodaca 891 N.M. 279, 573 P.2d 213 (1977)
State ex rel. Taylor v. Johnson 9-101998-NMSC-015, 125 N.M. 343, 961 P.2d 768
Cases in Other States
Bowers v. Pennsylvania Labor Relations Bd. 17402 Pa. 542 (1961)
Chumasero v. Potts 182 Mont. 242 (1875)
Gray v. State 17-1872 Ind. 567 (1880)
Middleton v. Low 1830 Cal. 596 (1866)
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State ex rel. White v. Dickerson 1733 Nev. 540 (1910)
State ex rel. Whiteman v. Chase 185 Ohio St. 528 (1856)
U.S. Cases
Humphrey’s Executor v. United States 10-11, 16295 U.S. 602 (1935)
Marbury v. Madison 105 U.S. 137 (1803)
Nixon v. Adm’r of General Servs. 11-12433 U.S. 425 (1977)
Other Authorities
N.M. AG Op. No. 58-10 (1958) 21
N.M. Const., Art. III, §1 8
N. M. Const., Art. V, §4 3, 7
N.M. Const., Art. V, §5 8
NMSA 1978 § 10-7E-1 et seq. (2003) 3, 7, 9-10,12-13, 17,20-21
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COME NOW Petitioners, by and through their counsel of record, Youtz &
Valdez, P.C. (Shane C. Youtz), pursuant to N.M. Const. art. VI, §3, and petition
this Court for a writ of mandamus/prohibition, and as grounds therefore state as
follows:
Grounds upon which jurisdiction of the Supreme Court is based: This petition
is filed in this Court pursuant to art. VI, §3, NM Const. and Rule 12-504 NMRA
2006. The Petition is necessarily and properly filed in this Court in the first
instance because Petitioners are seeking a Writ of Mandamus/Prohibition as
regards actions, as described below, taken by the Governor of the State of New
Mexico.
Circumstances making it necessary or proper to seek the writ in the Supreme
Court: Within the last forty-five days, Governor Susana Martinez has terminated
the Executive Director and the members of the New Mexico Public Employee
Labor Relations Board ( “PELRB ”). The Governor‟s actions have eliminated the
statutory enforce ment mechanisms of New Mexico‟s Public Employee Bargaining
Act (“PEBA”) and exceed the scope of her appointment and removal powers under
Article V,§ 5 of the New Mexico Constitution, given the Supreme Court‟s analysis
of that power in New Mexico Judicial Standards Commission v. Espinosa , 2003-
NMSC-017, 134 N.M. 59, 73 P.3d 197. The ongoing interruption of the functions
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of the quasi-judicial Labor Board creates immediate strife for thousands of public
sector workers in New Mexico.
Parties: Petitioners are labor unions and/or umbrella labor organizations who,
collectively, represent nearly all public sector employees in bargaining units
covered by PEBA. The American Federation of State, County and Municipal
Employees, Council 18, (“AFSCME”) is a labor organization (as defined in
Section 4(l) of PEBA) representing at least 10,000 public sector employees in the
State of New Mexico. The Communications Workers of America, Local 7076
(“CWA”) is a labor organization (as defined in Section 4(l) of PEBA) representing
at least 6,000 public sector employees in the State of New Mexico. The New
Mexico Federation of Labor, AFL-CIO, is an umbrella organization of signatory
labor organizations. Its members comprise nearly all labor organizations
representing public sector employees in New Mexico. The American Federation
of Teachers, NM, (“AFT”) is a labor organization (as defined in Section 4(l) of
PEBA) representing at least 15,000 public sector employees in the State of New
Mexico. The International Union of Operating Engineers, Local 953, is a labor
organization (as defined in Section 4(l) of PEBA) representing at least 300 public
sector employees in the State of New Mexico. The United Association of
Plumbers and Pipefitters, Local Union No. 412, is a labor organization (as defined
in Section 4(1) of PEBA) representing at least thirty public sector employees in the
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State of New Mexico. (Attached hereto as Exhibit 1 is a more thorough
identification of Petitioners‟ public sector bargaining units.) Respondent, Susana
Martinez, is Governor of New Mexico, and as such is required by the Constitution
of the State of New Mexico to “take care that the laws be faithfully executed.”
N.M. Const., art. V, § 4.
Relief Sought: Petitioners seek an Order directing the Governor to reinstate or
reappoint the current PELRB members (specifically John Boyd and Duff
Westbrook) to their positions on the Board and, additionally, an Order prohibiting
the Governor from interfering in the Board‟s decision to hire an Executive Director
of the PELRB.
There exists no plain, speedy or adequate remedy in the ordinary course of law.
The grounds upon which this application is made, and the facts and law
upon which it is based are as follows:
Facts
1.
The Governor of the State of New Mexico appoints members of the PELRB as
follows: “The Governor of the State of New Mexico shall appoint one member
of the board recommended by a representative of organized labor and one
member recommended by public employers. The Governor shall appoint a third
member jointly recommended by the other two. NMSA 1978 § 10-7E-8 (2003).
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2.
John Boyd was designated as labor‟s recommendation and was originally
appointed to the PELRB in May 2005. He was reappointed in November 2009
to a term which expires on July 1, 2011. (Mr. Bo yd‟s letter of appointment is
attached hereto as Exhibit 2.)
3.
Martin Dominguez was designated as the public employer recommendation and
his current term expires on June 30, 2012. (Mr. Dominguez‟ letter of
appointment is attached hereto as Exhibit 3.)
4. Duff Westbrook was designated as the member “jointly recommended by the
other two appointees.” Mr. Westbrook‟s term appears to have expired on June
30, 2010. It does not appear that Mr. Westbrook was reappointed, but at no time
did the other two Board members revoke his joint recommendation. Mr.
Westbrook continued to serve until he was terminated by the Governor on
March 1, 2011.
5.
On February 5, 2011, Respondent terminated the Public Employee Labor
Relations Director, Pam Gentry. The Governor ‟s office has interviewed persons
to replace Ms. Gentry as the Executive Director but has not, to date, attempted
to hire a replacement. (The Notice is attached hereto as Exhibit 4.)
6.
On February 28, 2011, AFSCME filed an emergency motion with the PELRB,
seeking an order that it hire an Executive Director consistent with its authority
extended by the Legislature under section 9(E) of the Act authorizing the Board
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to hire personnel “as it deems necessary to assist it in carrying out its functions.”
(The Emergency Motion is attached hereto as Exhibit 5.)
7.
On March 1, 2011, Respondent terminated the PELRB, effective immediately.
(The Notice is attached hereto as Exhibit 6.)
8.
Beginning on March 3, 2011, Lawrence Rodriguez, Executive Director of
AFSCME, informed the Gover nor‟s representative, Eugene Moser (Director of
the State Personnel Board), that AFSCME objected to the Governor ‟s
termination of the Board and that, in any event, its recommendation for labor‟s
replacement was John Boyd. The Governor, through her representative Eugene
Moser, refused to appoint John Boyd and instructed the Unions that she would
not voluntarily appoint Mr. Boyd. (Affidavit of Lawrence Rodriguez, Attached
hereto as Exhibit 8.)
9.
On March 8, 2011, the undersigned notified the Governor by letter, on behalf of
over 120 local Unions (the vast majority of the public sector labor organizations
in New Mexico), of labor‟s demand that Mr. Boyd and Mr. Westbrook be
reinstated. The Unions ‟ position was clarified as follows :
My clients do not agree that you were statutorily authorized to terminate Mr.
Boyd and insist upon his immediate reinstatement for the remainder of histerm;
To the extent that it is determined that your solicitation of a successorappointment is allowed, my clients‟ recommendation f or a successor boardmember is John Boyd;
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All other recommendations you previously received from any of the unionslisted in this letter are hereby withdrawn. John Boyd is the onlyrecommendation of the Unions identified herein. To the extent your officewishes to engage in further discussion regarding the recommendations of theunions listed, please contact me.
(Letter to Governor, March 8, 2011, attached hereto as Exhibit 7.)
10. As of the filing of this Petition, the Governor has maintained her refusal to
reinstate/appoint John Boyd to the Labor Board; the Board currently has no
members or an Executive Director. No statutory mechanism currently exists to
enforce PEBA.
11. Petitioner, AFSCME, has at least eight Prohibited Practice Complaints pending
before the Board, for which all pending hearings have been cancelled. Several
other Unions have matters pending before the Board, for which all pending
hearings or activities have been cancelled. (Rodriguez Aff.)
Statutory Background
PEBA guarantees the rights of public sector employees to: 1.) organize and
engage in other concerted activity, and; 2.) bargain collectively with their
employers. NMSA (1978) § 10-7E-2 (2003). The law‟s enforcement mechanism
is provided by the creation of a Labor Board. NMSA (1978) § 10-7E-9 (2003). In
order that it may enforce these guarantees, the PELRB promulgates rules, and
establishes procedures. NMSA (1978) § 10-7E-9 (2003).
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The choice of appointments to the PELRB are made by Unions and
employers in the State of New Mexico – not the Governor, who has only
ministerial appointment power for this particular board. PEBA directs the
Governor of New Mexico to appoint one person recommended by “organized labor
representatives actively involved in representing public employees,” and another
person recommended by “public employers actively involved in collective
bargaining.” The Governor appoints a third member as jointly recommended by
the two identified appointees. PEBA provides the Governor with no role or
discretionary authority in determining who the appointees shall be. NMSA (1978)
§ 10-7E-8 (2003).
The Legislature has also provided the PELRB, not the Governor, with
explicit authority to make the personnel decisions necessary to effectuate the
purposes of PEBA. NMSA (1978) § 10-7E-9 (2003).
Legal Argument
A. The Governor’s constitutional removal power does not include thepower to remove members of the PELRB.
1.
The Governor’s removal of members of the PELRB violates thedoctrine of separation of powers.
The Governor of New Mexico swears an oath upon entering office and is
required by the New Mexico Constitution to “take care that the laws be faithfully
executed.” N.M. Const., art. V, § 4. To that end, this Court is empowered to
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ensure the Governor carries out her duties by issuing a writ of mandamus, under
N.M. Const. art. VI, §3, which gives the Supreme Court original jurisdiction. This
Court has stated that such a writ, while an extraordinary remedy, is necessary and
proper “when issues of sufficient public importance a re presented which involve a
legal and not a factual determination.” State ex rel. Bird v. Apodaca , 91 N.M. 279,
282, 573 P.2d 213, 216 (1977). In those circumstances , this Court “will not
hesitate to accept the responsibility of rendering a just and spee dy disposition.” Id.
The Governor, as chief executive, has the power to appoint as well as the
power to remove those appointed by her, but those powers are not unlimited. The
power to nominate and appoint is subject to the consent of the state Senate, and the
Governor “may remove any officer appointed by [her] unless otherwise provided
by law. ” N.M. Const. art. V, § 5 (emphasis added). The governor‟s powers of
removal are further restricted by the New Mexico Constitution ‟s recognition of the
separation of powers. The Constitution sets out three “distinct departments,” and
“no person … charged with the exercise of powers properly belonging to one of
these departments, shall exercise any powers properly belonging to either of the
others, except as in this c onstitution otherwise expressly directed or permitted.”
N.M. Const. art. III, § 1. This Court has recognized its own responsibility that it
“must give effect to Article III, Section 1, and will not be reluctant to intervene
where one branch of government unduly encroaches or interferes with the authority
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of another branch.” State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 23, 125
N.M. 343, 961 P.2d 768. An infringement of separation of powers occurs “when
the action by one branch prevents another branch from accomplishing its
constitutionally assigned functions.” Id.
The New Mexico Legislature enacted the Public Employee Bargaining Act
in 2003 to “guarantee public employees the right to organize and bargain” and
ensure “the orderly operation and functioni ng of the state and its political
subdivisions.” NMSA (1978) § 10-7E-2 (2003). The statute created the Public
Employee Labor Relations Board to not only promulgate rules and establish
procedures but also to hold hearings in which it performs quasi-judicial functions
that include issuing subpoenas and rendering decisions brought before it in the
form of complaints of prohibited practices. NMSA (1978) § 10-7E-9 (2003). The
statute also empowers the board to “hire personnel or contract with third parties as
it deems necessary to assist it in carrying out its functions.” NMSA (1978) § 10-
7E-9(E) (2003).
The Governor‟s limited power of appointment of members to the PELRB is
delineated in PEBA:
The “public employee labor relations board” is created. The boardconsists of three members appointed by the governor. The governorshall appoint one member recommended by organized laborrepresentative actively involved in representing public employees, onemember recommended by public employers actively involved in
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collective bargaining and one member jointly recommended by theother two appointees. NMSA (1978) § 10-7E-8(A) (2003).
The Governor‟s power of appointment, in this instance, is legislatively
restricted in two respects: First, the Governor must appoint; she may not refuse to
appoint appropriately recommended members to the Board. Second, the Governor
has no role in choosing the appointments; she may only appoint those persons who
are “recommended” by third parties. The Governor‟s power to appoint in this
instance is non-discretionary; exercising a power of removal over non-
discretionary appointments violates the doctrine of separation of powers that is
foundational to the state of New Mexico‟s chosen form of governance.
As far back as Marbury v. Madison, 5 U.S. 137 (1803), the United States
Supreme Court recognized that certain acts of the executive branch are strictly
ministerial and do not allow for executive discretion: “[W]hen the legislature
proceeds to impose on that officer other duties; when he is directed peremptorily
to perform certain acts; when the rights of individuals are dependent on the
performance of those acts; he is so far the officer of the law; is amenable to the
laws for his conduct; and cannot at his discretion sport away the vested rights of
others .” Id. at 166. (emphasis added.) The U.S. Supreme Court has also asserted
that the “illimitable power of removal is not possessed by the President” in certain
situations. Humphrey's Executor v. United States , 295 U.S. 602, 629 (1935). The
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court recognized quasi-judicial and quasi-legislative positions created by Congress
and stated:
The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their dutiesindependently of executive control cannot well be doubted; and thatauthority includes, as an appropriate incident, power to fix the periodduring which they shall continue in office, and to forbid their removalexcept for cause in the meantime. For it is quite evident that one whoholds his office only during the pleasure of another, cannot bedepended upon to maintain an attitude of independence against thelatter's will. Id.
The court recognized the “fundamental necessity of maintaining each of the
three general departments of government entirely free from the control or coercive
influence, direct or indirect, of either of the others.” Id. The court rejected the
President‟s claim of the power to remove members of the Federal Trade
Commission because “its coercive influence th reatens the independence of a
commission, which is not only wholly disconnected from the executive
department, but which … was created by Congress as a means of carrying into
operation legislative and judicial powers, and as an agency of the legislative and
judicial departments.” Id. at 630. The Supreme Court, 42 years later,
acknowledged that the separation of the three branches need not be “airtight” to the
extent that it “prevents the Executive Branch from accomplishing its
constitutionally assigned fun ctions.” Nixon v. Adm'r of General Servs. , 433 U.S.
425, 443 (1977). However, the Supreme Court must step in “where the potential
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for disruption is present.” Id. As explained below, the potential for disruption is
clear and present as regards the PELRB, given that its primary relevant duty is to
determine whether the Governor has violated the guarantees provided by PEBA. 1
In New Mexico Judicial Standards Commission v. Espinosa , 2003-NMSC-
017, ¶ 7, 134 N.M. 59, 73 P.3d 197, petitioner made a separation of powers
argument, but the facts in that case lacked the crucial element present in this
instance – an express directive by the Legislature limiting the Governor‟s Article
V, Section 5 powers. In PEBA, the legislature made explicit its desire that the
Gove rnor‟s control of Board appointments would be ministerial, and for good
reason. The Governor‟s ability to exercise power over this legislatively created
board must be viewed in the context of the function of the Board, which is to
prevent violations of ri ghts held by public sector labor unions to “organize and
bargain collectively,” NMSA 1978 § 10 -7E-2 (2003), with, among others, the
Governor, who is the State‟s signatory on collective bargaining agreements and is
obliged to comply with the substantive provisions of PEBA, as determined by the
Board. The Board‟s functions include the duty to determine whether the Governor
1 The Governor of the State of New Mexico is the State‟s signatory on all
collective bargaining agreements between AFSCME and the State of NewMexico. (Rodriguez Aff.) Attached to the Petition for Writ, as Exhibit 9, isa true and correct copy of the cover page and signature page of the currentcollective bargaining agreement between AFSCME and the State of NewMexico.
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has committed prohibited practices by, for example, refusing to bargain
collectively in good faith. NMSA 1978 § 10-7E-19(F) (2003). Granting the
Governor with the power of removal, in this instance, provides the Governor with
the ability to circumvent PEBA by removing members who make findings contrary
to the Governor‟s interests in collective bargaining. Considering the
responsibilities of the Board, a broad reading of her Article V, Section 5 powers
provides her with abilities to control public sector bargaining in a manner which is
directly contrary to the design of PEBA.
2.
The Governor’s constitutional removal powers should not beextended to the PELRB.
In New Mexico, the Governor‟s Article V, Section 5 powers of removal are
not unlimited and may not be automatically inferred from a statute that confers no
such authority. “The Governor seems to argue that removal power is implied
becau se the appointing authorities can fill a position if it becomes vacant „for any
reason.‟ We do not agree.” New Mexico Judicial Standards Commission v.
Espinosa , 2003-NMSC-017, ¶ 7, 134 N.M. 59, 73 P.3d 197.
This Court, in Espinosa , analyzed the scope of the Governor‟s power of
removal in the context of Governor Richardson‟s removal of six lay members from
the New Mexico Judicial Standards Commission. Petitioners, challenging the
Governor‟s action, argued against extending the Governor‟s removal authority
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under Article V, Section 5. A deeply divided court rejected petitioner‟s claim,
finding that the Governor‟s appointment and removal of members was not an
encroachment on the judicial branch or an infringement of the judiciary‟s
performance of its functions. Id. at ¶¶ 12-13. The court also noted that the
Governor, by replacing board members, “will not be in a position to interfere with
an ongoing investigation.” Id. at ¶ 15. However, this Court warned, “an attempt to
control the judiciary” would raise separation of powers concerns and “would be a
different matter.” Id. at ¶ 16. Two justices in dissent warned of protecting the
commission‟s “essential need for independence” that “preclude s any wholesale
change of membership” because of the “quasi -judicial functions” of the board. Id.
at ¶ 42 (Bosson, J., dissenting). The Espinosa majority itself hypothesized about a
Governor abusing that power and making wholesale changes on a board to “either
halt or instigate an investigation,” and declared that such a turn of events “would
be unfortunate.” Id. at ¶¶ 14-15.
In the instant case, the Governor has no discretion to designate Board
members, and she cannot acquire that power by implication. The Governor‟s role
with regard to the PELRB is clearly and explicitly ministerial. Th e Governor‟s
Article V, § 5 powers for the PELRB are not substantive; they cannot be read to
provide her with removal powers which contradict her appointment powers and
infringe on the appointment powers of parties designated by the Legislature. The
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extension of unlimited removal power would, in practice, extend powers of
appointment denied to the Governor in the explicit language of the statute.
Specifically, granting the Governor unlimited removal power over the Union‟s
recommended designee and the jointly recommended designee would allow the
Governor to terminate members until the third parties recommended a designee to
her liking. The Governor would effectively gain the discretionary power of
appointment granted, by statute, to third parties. The specific legislative
limitations in PEBA on the Governor‟s power of appointment do not just limit the
Governor‟s constitutional powers – the restrictions can only be read to eliminate
any actual appointment powers extended to the Governor. The Governor may not
refuse to staff the Board; she is statutorily compelled to appoint members to the
Board. More significantly, the Governor has no ability whatsoever to identify
either the labor appointee or the neutral appointee; she may only appoint those
recommended by others. Under orders from the legislative mandate to perform a
ministerial act, the Governor may act only as the legal conduit for a process of
selection over which she has no power.
Further, any unauthorized removal of Board members or the Executive
Director of the PELRB by the Governor would dramatically infringe on the
independence of this quasi-judicial entity established by the legislature to certify
union elections and adjudicate complaints brought against public employers – of
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which Respondent is one. The PELRB‟s functions, as the dissent in Espinosa
points out, “are primarily investigative and quasi -judicial” and the Board is not
“integrated within the overall policy -implementing apparatus of any one branch of
government.” Espinosa, 2003-NMSC-017 at ¶ 52 (Bosson, J., dissenting). Like in
Humphrey’s Executor, the New Mexico Legislature created a clearly adjudicatory
commission, and a chief executive wielding vast removal powers represents a
“coercive influence” that “threatens the independence of a commission” created by
the Legislature “as a means of carrying into operation legislative and judicial
powers, and as an agency of the legislative and judicial departments.” Humphrey's
Executor at 628-29. In effect , Respondent‟s asse rtion of the powers of removal of
board members would give her the power to quash complaints brought by workers
against her and her agents. Such a statutory interpretation of PEBA leads to an
absurd result and would confer on the Governor the ability to unduly influence
actions to which she is a party.
In PEBA, t he Governor‟s ability to terminate Board members is limited by
the power given to third parties to control who will serve on the Board. Because
the Legislature explicitly precluded the right of the Governor to choose who may
serve on the Board, she may not take an action which infringes upon the rights of
those who do have the statutory right to determine who may serve on the Board.
Consequently, Respondent may not terminate the labor designee, John Boyd,
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because labor has at no time revoked its recommendation of Mr. Boyd. Similarly,
the Governor may not terminate the neutral designee, Duff Westbrook, because his
recommendation was secured by the joint agreement of the other two Board
members, and that recommendation has not been revoked. 2 Mr. Boyd and Mr.
Westbrook are still statutorily authorized to transact the business of the PELRB
and must be allowed to continue to do so “to protect the public interest” and to
ensure “the orderly operation and functioning of the state and its political
subdivisions. ” NMSA 1978 § 10 -7E-2 (2003).
The notion that certain functions of the executive branch may be clearly
ministerial and allow no discretion on the part of the chief executive is an accepted
legal premise. See Bowers v. Pennsylvania Labor Relations Bd., 402 Pa.
542 (1961) (Governor may not remove a member of the state Labor Relations
Board); State ex rel. White v. Dickerson, 33 Nev. 540, 560 (1910) (acceptance of
bonds: “The statute merely directs [th e Governor] to perform a ministerial act, and
the legislature could have directed equally as well that bonds as a gift to the state
2 It may be argued that the same limitation on the Governor‟s appointment power
applies to the member recommended by public sector employers, Mr. Martin
Dominguez; but Petitioners concede that the Governor, as the Employer of theState of New Mexico is certainly one of the third parties with the right torecommend the employer designee. Petitioners are, however, unaware of any factssuggesting that the Governor consulted with any other public employers beforeterminating Mr. Dominguez .
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should be accepted by the state treasurer or other officer or person”) ; Gray v.
State, 72 Ind. 567 (1880) (redeeming of bonds); Middleton v. Low, 30 Cal. 596
(1866) (no discretion in the duty to sign a patent for land); Chumasero v. Potts, 2
Mont. 242 (1875) (certification of a canvassing board); State ex rel. Whiteman v.
Chase, 5 Ohio St. 528 (1856) (authorizing the incorporation of a bank).
Finally, the Governor‟s attempt to control PELRB appointments is also
inconsistent with New Mexico case law emphasizing that the appearance of
impartiality is just as important for an adjudicating tribunal as actual impartiality.
The lead ing New Mexico authority on impartiality of a tribunal holds: “At a
minimum, a fair and impartial tribunal requires that the trier of fact be disinterested
and free from any form of bias and predisposition regarding the outcome of the
case. In addition, our system of justice requires that the appearance of complete
fairness be present.” Reid v. New Mexico Board of Examiners of Optometry , 92
N.M. 414, 416, 589 P.2d 198 (1979)(citations omitted)(emphasis added).
The appearance of fairness led this Court in New Mexico Board of
Veterinary Medicine v. Riegger , 2007-NMSC-044, ¶ 30, 142 N.M. 248, 164 P.3d
947, to conclude that even though there is a presumption that administrative
adjudicators will serve with honesty and integrity, the presumption is trumped
when there is a possibility that a hearing officer will be biased or, more
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significantly, when there is a possibility that future litigants before the
administrative board will objectively believe that the hearing officer is biased.
Riegger , 2007-NMSC-044, at ¶ 30. Although the court‟s ruling in Riegger was
based on constitutional due process rights, this Court has recognized that any bias
found to violate due process rights would also render a decision by a local labor
board arbitrary, capricious or an abuse of discretion within the meaning of the
PEBA. Las Cruces Professional Fire Fighters v. City of Las Cruces, 1997-
NMCA-031, ¶ 22, 123 N.M. 239, 938 P.2d 1384 (decided under the original
enactment of the PEBA (PEBA I)). The lack of an appearance of fairness is just as
critical in the analysis as actual impartiality. Granting the Governor with the
effective power to control appointments to the Labor Board destroys the delicate
balance of fairness created by the legislature in PEBA. It not only lacks the
appearance of fairness, but in fact provides the Governor with the ability to tilt the
Board in her favor on matters in which her actions must be reviewed.
B. The Board, not the Governor, retains the exclusive right to hire anExecutive Director.
The New Mexico State Regulations require the existence of an Executive
Director for the PELRB to carry out its most basic and essential functions. Part 2
of the Board‟s regulations require the existence of an Executive Director for the
filing and processing of an election petition. Part 3 of the Board‟s regulations
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require the existence of an Executive Director for the filing and processing of a
Prohibited Practice C omplaint. Part 5 of the Board‟s regulations require the
existence of an Executive Director for the filing and processing of an application
for approval of a local board. These three tasks alone represent the majority of the
Board‟s responsibilities and cannot be accomplished without the presence of a
permanent Executive Director.
The Public Employees Bargaining Act explicitly directs the Labor Board to
hire personnel “as it deems necessary to assist it in carrying out its functions.”
NMSA 1978 § 10-7E-9(E) (2003). The Labor Board performs a voluntary and
honorable service without remuneration and cannot practically satisfy the purpose
of PEBA without the assistance of an Executive Director. The Labor Board meets,
at most, once per month, and since its inception has delegated the processing of
petitions and complaints to an Executive Director (and until 2010 a full-time
hearing officer). Practical considerations are not the only impediment to operating
without an Executive Director. Because an Executive Director is “necessary” for
the Board to carry out its functions, the Board has a statutory duty to immediately
employ an Executive Director of its choosing.
The Governor has attempted to usurp the Board‟s authority as regards the
Executive Director. As previously stated, on February 5, 2011, the Governor
terminated the Public Employee Labor Relations Director, Pam Gentry. The
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Governor ‟s office has interviewed persons to replace Ms. Gentry as the Executive
Director but has not, to date, attempted to hire a replacement. The Governor‟s
attempt to usurp the Board‟s personnel decisions suffers from prec isely the same
defects as argued above. The Governor should be directed to refrain from
interfering in the Labor Board‟s selection of personnel “as it deems necessary to
assist it in carrying out its functions.” NMSA 1978 § 10 -7E-9(E) (2003).
The legal notion of allowing a legislatively created Board to have the power
of appointment has been reviewed and approved by New Mexico‟s Attorney
General: “In your third question, you ask whether the Legislature would have the
power to place appointment in someone other than the Governor and restrict the
Governor‟s removal power. It is our conclusion that the Legislature may do so.”
1958 N.M. AG Opinion No. 58-10. With its clear delineation of the appointment
process of members of the Public Employee Labor Relations Board, the
Legislature has restricted the Governor‟s appointment role as strictly a ministerial
one, and it has limited her powers to remove those members. The statute also
prohibits the Governor from interfering with the statutory authority given to this
Board to hire an Executive Director.
Wherefore , the Board is still legally operational. Board members Boyd and
Westbrook must be reinstated and should have their authority restored to hire an
Executive Director to carry out the essential functions of a Board tasked with
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guaranteeing the basic rights of workers and ensuring the continued promotion of
the public‟s interest in harmonious and cooperative relationships between public
employers and public employees in New Mexico.
Petitioner respectfully requests this court to order Respondent to reinstate
Board members Boyd and Westbrook and to recognize the Board‟s authority to
hire an Executive Director free from the Governor‟s influence.
Statement of Compliance with Rule 12-504(G)(3) NMRA
I hereby certify that the body of the foregoing Petition is 5,131 words
according to word count function of Microsoft Word 2007.
Dated: March 16, 2011 Respectfully Submitted,
Youtz & Valdez, P.C.
_____________________Shane C. Youtz900 Gold Ave. S.W.Albuquerque, NM 87102(505) 244-1200(505) 244-9700 FaxAttorney for Petitioners
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 16 th day of March, 2011, a true andcorrect copy of the foregoing VERIFIED PETITION FOR WRIT OFMANDAMUS/PROHIBITION was hand-delivered to the following:
Governor Susana MartinezState of New MexicoOffice of the Governor490 Old Santa Fe Trail, Room 400Santa Fe, New Mexico
Gary King, Attorney General
State of New MexicoAttor ney General‟s Office408 GalisteoSanta Fe, New Mexico
Shane Youtz