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Saturday, February 06, 2010
PRC's 'Independence' Self-Serving
By Thomas J. Cole
Journal Staff Writer
The state Public Regulation Commission declared this week that it isn't part of the executive branch.
Maybe its members think they are part of the judiciary, since they spend so much time in court as defendants.
You could argue that's a cheap shot, but you have to admit those folks lead with their chins.
One good thing you can say about the PRC is that it takes care of its own.
The commission made the declaration that it isn't part of the executive branch as part of an effort to make it possible for the PRC's chief of staff, Daniel Mayfield, to keep his job while running for the Democratic nomination for Santa Fe County Commission in the June primary election.
More specifically, the PRC declaration on Tuesday had to do with the federal Hatch Act and its application to Mayfield.
Under the Hatch Act, state "executive branch" employees who perform duties in connection with federally funded activities can't run in a partisan election like a primary.
The purpose of the act is to prevent employees from using their influence over the spending of federal funding for political gain.
The PRC receives some federal funding, and the Hatch Act applies not only to employees who work on federally funded programs, but also to their supervisors.
So, as you can see, Mayfield could be forced to choose between keeping his job and running for office if the PRC is found to be part of the "executive branch" for purposes of the Hatch Act.
The PRC could have asked the U.S. Office of Special Counsel, which enforces the Hatch Act, for an opinion on whether the commission is part of the executive branch, but it decided to make the decision itself even though the Office of Special Counsel isn't bound by the declaration.
The PRC vote, passed in the form of a resolution, was 3-0.
Voting yes were Commissioners Jason Marks, Jerome Block Jr. (awaiting trial on charges that he misused campaign funds) and David King (former defendant in a sexual harassment case that the state paid $850,000 to settle).
Commissioner Sandy Jones abstained from voting. Absent for the vote was Commissioner Carol Sloan (awaiting trial on charges that she beat up a woman she thought was having an affair with her husband).
The question
Whether the PRC, which regulates utilities, insurance companies and others, is part of the executive branch is an interesting legal question.
The commissioners are elected separately from the governor, or chief executive, but so are heads of other agencies who are clearly part of the executive branch, such as the attorney general and state treasurer.
As you learned in school, the legislative branch creates the law, the executive enforces it and the judiciary interprets it.
One could argue that the PRC performs the functions of all three branches, because it creates rules and regulations; enforces laws and its rules and regulations; and sometimes interprets their application in quasi-judicial proceedings.
But the functions performed by a state agency aren't the critical factor in determining whether it is part of the executive branch, according to a key 1994 ruling by the Merit Systems Protection Board, which hears appeals in Hatch Act cases.
The critical factors, the board said, are what branch of government controls the agency and how the state has perceived the agency's place in government.
The 1994 ruling came in a case involving the Tennessee Public Service Commission.
The board found that the Tennessee commission wasn't part of the executive branch — but that commission, while having similar duties, is a far different creature from the New Mexico PRC.
In its ruling, the board noted that the Tennessee commissioners were elected separately from the governor, that the commission set its own budget free from control of the executive branch and that the executive branch had no supervision over its personnel practices.
As for the New Mexico PRC, its authority to spend money comes from the state's general fund budget, and the commission's budget is subject to veto or partial veto by the governor.
Here are a couple other ways the PRC is different from its Tennessee counterpart:
• The PRC's classified, or rank-and-file, employees are covered under the state Personnel Act. The act is administered by the executive branch, and employees of the judicial and legislative branches are prohibited from coverage under the act.
• The governor is required to approve an annual salary plan for exempt employees in the "executive branch," and that plan covers exempt employees at the PRC, including Mayfield. Exempt employees are generally the political appointees in government.
Mayfield, who earns about $100,000 in his job, said he agreed with the PRC declaration that the commission isn't part of the executive branch. "We are an independent board," he said.
Mayfield and Robert Hirasuna, the PRC's general counsel, noted that the commission wasn't created by the provision of the state constitution that set up the "executive department," including the offices of governor, attorney general and others.
There is a problem with that argument. There are literally hundreds of boards, commissions and other state agencies that weren't created by that provision in the state constitution but are clearly part of the executive branch.
In another move to help Mayfield, the PRC rescinded a policy that required exempt employees to take leave without pay to run for public office.
The commission's classified employees must still take leave to run for public office because of a provision in the Personnel Act.
That's a double standard found elsewhere in government. Gov. Bill Richardson, for example, allows his political appointees to run for office without taking leave.
The question of whether the PRC is part of the executive branch and whether Mayfield is prohibited by the Hatch Act from keeping his job and running in the primary is far from settled.
Two days after declaring it wasn't part of the executive branch, the PRC asked the state Attorney General's Office for an opinion on whether Mayfield is subject to the Hatch Act.
The PRC could have posed that question to the Office of Special Counsel when Mayfield announced his candidacy nearly a month ago.
But that would have been too easy and made too much sense. And maybe it didn't want to hear the answer.
UpFront is a daily front-page news and opinion column. Thom Cole can be reached in Santa Fe at 505-992-6280 or at tcole@abqjournal.com.
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