IN THE NEW MEXICO SUPREME COURT

No. ______________________

AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES,
COUNCIL 18, AFL-CIO, CLC,
COMMUNICATIONS WORKERS
OF AMERICA, LOCAL 7076,
NEW MEXICO FEDERATION OF LABOR,
AFL-CIO, AMERICAN FEDERATION OF
TEACHERS, NM, INTERNATIONAL
UNION 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 1

In 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 7

the power to remove members of the PELRB.

1. The Governor‟s removal of members of the PELRB violates 7

the doctrine of separation of powers.

2. The Governor‟s constitutional removal powers should not be 13

extended to the PELRB.

B. The Board, not the Governor, retains the exclusive right to hire 19
an Executive Director.

Statement of Compliance with Rule 12-504(G)(3) NMRA 22

Certificate of Service 23

ii
 TABLE OF AUTHORITIES

Page

New Mexico Cases

Las Cruces Professional Fire Fighters v. City of Las Cruces 19

1997-NMCA-031, 123 N.M. 239, 9398 P.2d 1384

New Mexico Board of Veterinary Medicine v. Riegger 18-19

2007-NMSC-044, 142 N.M. 248, 164 p.3d 947

New Mexico Judicial Standards Commission v. Espinosa 1, 12-14, 16

2003-NMSC-017, 134 N.M. 59, 73 P.3d 197

Reid v. New Mexico Board of Examiners of Optometry 18

92 N.M. 414, 589 P.2d 198 (1979)

State ex rel. Bird v. Apodaca 8

91 N.M. 279, 573 P.2d 213 (1977)

State ex rel. Taylor v. Johnson 9-10

1998-NMSC-015, 125 N.M. 343, 961 P.2d 768

Cases in Other States

Bowers v. Pennsylvania Labor Relations Bd. 17

402 Pa. 542 (1961)

Chumasero v. Potts 18
2 Mont. 242 (1875)

Gray v. State 17-18

72 Ind. 567 (1880)

Middleton v. Low 18
30 Cal. 596 (1866)

iii
State ex rel. White v. Dickerson 17
33 Nev. 540 (1910)

State ex rel. Whiteman v. Chase 18

5 Ohio St. 528 (1856)

U.S. Cases

Humphrey’s Executor v. United States 10-11, 16

295 U.S. 602 (1935)

Marbury v. Madison 10
5 U.S. 137 (1803)

Nixon v. Adm’r of General Servs. 11-12

433 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

iv
 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 enforcement 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

1
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
2
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).

3
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. Boyd‟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
4
 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 Governor‟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 his
term;

To the extent that it is determined that your solicitation of a successor

appointment is allowed, my clients‟ recommendation for a successor board
member is John Boyd;
5
 All other recommendations you previously received from any of the unions
listed in this letter are hereby withdrawn. John Boyd is the only
recommendation of the Unions identified herein. To the extent your office
wishes to engage in further discussion regarding the recommendations of the
unions 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).

6
 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 the

power to remove members of the PELRB.

1. The Governor’s removal of members of the PELRB violates the

doctrine 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

7
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 are 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 speedy 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 constitution 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
8
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 functioning 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 board

consists of three members appointed by the governor. The governor
shall appoint one member recommended by organized labor
representative actively involved in representing public employees, one
member recommended by public employers actively involved in
9
 collective bargaining and one member jointly recommended by the
other 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

10
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 duties
independently of executive control cannot well be doubted; and that
authority includes, as an appropriate incident, power to fix the period
during which they shall continue in office, and to forbid their removal
except for cause in the meantime. For it is quite evident that one who
holds his office only during the pleasure of another, cannot be
depended upon to maintain an attitude of independence against the
latter'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 threatens 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 functions.” Nixon v. Adm'r of General Servs., 433 U.S.

425, 443 (1977). However, the Supreme Court must step in “where the potential
11
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

Governor‟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 rights 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 New
Mexico. (Rodriguez Aff.) Attached to the Petition for Writ, as Exhibit 9, is
a true and correct copy of the cover page and signature page of the current
collective bargaining agreement between AFSCME and the State of New
Mexico.

12
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 be

extended 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

because 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

13
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 “precludes 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. The 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

14
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

15
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 assertion 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, the 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,
16
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 [the 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 the
State of New Mexico is certainly one of the third parties with the right to
recommend the employer designee. Petitioners are, however, unaware of any facts
suggesting that the Governor consulted with any other public employers before
terminating Mr. Dominguez.
17
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 leading 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

18
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 an
Executive 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

19
require the existence of an Executive Director for the filing and processing of a

Prohibited Practice Complaint. 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 precisely 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. Youtz
900 Gold Ave. S.W.
Albuquerque, NM 87102
(505) 244-1200
(505) 244-9700 Fax
Attorney for Petitioners

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 16th day of March, 2011, a true and
correct copy of the foregoing VERIFIED PETITION FOR WRIT OF
MANDAMUS/PROHIBITION was hand-delivered to the following:

Governor Susana Martinez

State of New Mexico
Office of the Governor
490 Old Santa Fe Trail, Room 400
Santa Fe, New Mexico

Gary King, Attorney General

State of New Mexico
Attorney General‟s Office
408 Galisteo
Santa Fe, New Mexico

Shane Youtz

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