AG: Guv’s secretaries can’t govern and work at schools

The Attorney General’s Office issued a long-awaited legal opinion today that finds major flaws in the Richardson Administration’s employing of a cabinet secretary and deputy secretary who are paid in part by universities they help govern.

The opinion, which you can read by clicking here, says it’s illegal for Health Secretary Alfredo Vigil and Deputy Higher Education Secretary Bill Flores to work both in those jobs and as employees of the institutions they help govern.

Earlier this year, the Richardson administration gave three new employees huge pay increases over what their predecessors were receiving. Higher Education Secretary Reed Dasenbrock was given $257,250 – the same amount he was paid as provost at the University of New Mexico. The university agreed to pay almost $100,000 of the cost for the Higher Education Department.

UNM also agreed to pay $60,000 of the $175,000 annual salary for Vigil, and New Mexico State University agreed to pay the entire $220,000 salary for Flores, who left his job as the school’s provost and executive vice president to take the state job.

Dasenbrock had to be fired by UNM to qualify for a sabbatical; then UNM agreed to chip in the money for his new job instead of granting the sabbatical. Vigil, for UNM’s part of his salary, became a faculty member at its medical school.

Flores remained on staff at NMSU as an assistant to the executive vice president and provost who deals with the Higher Education Department, but he holds the state title and reports to the department’s secretary in Santa Fe.

Because Dasenbrock isn’t currently working for UNM, his situation isn’t as concerning as the others, Assistant Attorney General Elizabeth Glenn wrote in the opinion. But because of changes the Legislature and governor made this year to the Governmental Conduct Act, a state officer can’t hold other employment if he or she has regulatory authority over the position, Glenn wrote.

“The Department of Health licenses and regulates health facilities, including UNM Hospital,” Glenn wrote. “… The Department of Higher Education has extensive review and approval authority over the finances, budgets and programs of state educational institutions, including NMSU.”

Glenn wrote that Vigil’s interest in his faculty position at UNM could conflict with his duties as secretary of health, and Flores’ position at NMSU could put him in a similar situation.

“This appearance of impropriety alone would lead us to encourage the secretary of health and deputy secretary of higher education to give up their university positions while they hold state office,” Glenn wrote.

In the opinion of the AG, however, giving up the university positions would preclude Vigil and Flores from being paid with money from the universities. According to Glenn’s opinion, using university money to help pay the employees may only be permissible if the Legislature appropriates it for that purpose or if they are being compensated “in return for the officers’ services to the universities.”

Since the AG says they can’t work for the universities and hold their executive-branch positions, that leaves legislative appropriations as the only option, and the Legislature has appropriated no money to the universities to help pay Vigil and Flores.

The governor’s office said a statement was forthcoming.

The opinion was sought by Sen. John Arthur Smith, D-Deming and chair of the Legislative Finance Committee, who expressed concern in July about the arrangements. He said today that his goal is “upholding the legislative process.”

“There’s a right way and a wrong way on that, and we are the appropriating body,” he said.

The legal opinion ends with a footnote stating that the AG understands “that the governor’s office and the universities have taken steps, consistent with this opinion, to address the constitutional and conflict-of-interest problems stemming from the cabinet officials’ compensation and employment arrangements.” It doesn’t provide details. I assume that’s what the statement from the governor’s office will address. I’ll have an update when it is released.

Update, 8:40 p.m.

Richardson spokesman Allan Oliver said the governor decided several weeks ago to terminate the agreements with UNM and NMSU regarding the funding for cabinet secretaries, and since then the salaries of Dasenbrock, Vigil and Flores have been paid entirely “from state government funds.” They are now classified as exempt employees.

“Both the issue of who paid their salary and dual employment made up the bulk of the attorney general’s analysis,” Oliver said in the statement released tonight by the governor’s office. “But the opinion relied on some inaccurate, outdated assumptions. None of the secretaries worked for the universities while serving as a state official.”

That contradicts what the Higher Education Department’s spokeswoman told me in June – that Flores, from May 1 to June 30, pulled double duty as NMSU provost and deputy higher education secretary, and that he would be paid during that time entirely by NMSU.

I’ve asked for clarification from the governor’s office, and will let you know if I receive it.

Oliver also stated that, several months ago, Richardson “directed his staff to examine the arrangements the state had with the cabinet secretaries in question and to address the concerns that had been raised. This review confirmed that there was no evidence of any unethical behavior or conflicts of interest.”

Nonetheless, “out of an exercise of caution and in order to remove any doubts regarding potential conflicts,” Richardson ordered an end to the arrangements with the universities, Oliver said.

“The bottom line – the people of New Mexico will continue to be served by highly qualified cabinet secretaries with extensive experience in their field,” Oliver said.