Rick Wellborn
If a previous ruling in a similar case is any indication, a Hatch Act complaint against a Las Cruces prosecutor who’s running for district judge may be tossed out.
The Hatch Act bans partisan political activity by many public employees whose jobs involve federal funds. Last month, Las Cruces resident Ernie Bean filed a formal Hatch Act complaint against Republican Rick Wellborn, a prosecutor the 3rd Judicial District Attorney’s Office who is running for district judge.
Bean pointed in his compliant to previous Hatch Act opinions that state that employees are subject to the act if they perform any duties “in connection with the federally financed activities,” which isn’t dependent on whether their jobs are paid for by federal grants or whether they administer federal grants.
District Attorney Susana Martinez, Wellborn’s boss, countered by saying Wellborn’s job is paid “absolutely 100 percent” by state general fund money so the Hatch Act doesn’t apply.
The debate between Martinez and Bean may be irrelevant. The federal office that ensures compliance with the Hatch Act said in 2006 that the act doesn’t apply to district attorney employees in New Mexico because they’re part of the judicial, not executive, branch of government.
At the time, Sixth Judicial District Attorney Mary Lynne Newell inquired to the federal Office of Special Counsel, which oversees compliance with the Hatch Act, about whether a prosecutor whose job was funded entirely by federal money had to resign before running for magistrate judge.
The Office of Special Counsel’s Erica N. Stern wrote that the Hatch Act didn’t apply in an April 20, 2006 letter to Newell.
From the letter:
“You explained that in New Mexico, the DA’s Office is not in the executive branch of government; they are part of the judicial branch. Accordingly, because the Hatch Act applies only to employees in executive agencies, an attorney in the DA’s Office is not covered by the provisions of the Act. Therefore, the Act does not prohibit such an attorney from being a candidate in a partisan election, even if his salary is entirely funded by a federal grant. Consequently, the attorney does not have to resign from his position with the DA’s Office to be in compliance with the Hatch Act.”
It’s true that the New Mexico Constitution establishes district attorneys as part of the judicial branch, even though public defenders are part of the executive branch.
Wellborn referred to the 2006 advisory opinion in a posting on his campaign Web site.
“As for why his complaint is baseless, that’s easy: the Hatch Act does not apply to District Attorneys or Assistant District Attorneys in New Mexico,” he wrote. “The OSC decided that issue in 2006, when a prosecutor from another county in New Mexico ran for Magistrate Judge.”
“However, the OSC has to follow-up on every complaint, no matter how much merit they do or do not have, so they will provide me with an official decision,” Wellborn wrote. “But as their attorneys explained to me, every election season they are inundated with complaints just like Mr. Bean’s, so it may take a while.”
Reached by phone, Wellborn said he didn’t want to comment further until the Office of Special Counsel issues a formal ruling in his case.
Wellborn is running against incumbent District Judge Mannie Arrieta, a Democrat, in November.