{"id":15410,"date":"2010-04-07T11:31:39","date_gmt":"2010-04-07T17:31:39","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=15410"},"modified":"2010-04-07T11:31:47","modified_gmt":"2010-04-07T17:31:47","slug":"hatch-act-may-not-apply-to-prosecutor%e2%80%99s-candidacy-for-judgeship","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2010\/04\/hatch-act-may-not-apply-to-prosecutor%e2%80%99s-candidacy-for-judgeship\/","title":{"rendered":"Hatch Act may not apply to prosecutor\u2019s candidacy for judgeship"},"content":{"rendered":"
\"\"<\/a>

Rick Wellborn<\/p><\/div>\n

If a previous ruling in a similar case is any indication, a Hatch Act<\/a> complaint against a Las Cruces prosecutor who\u2019s running for district judge may be tossed out.<\/p>\n

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<\/a> against Republican\u00a0Rick Wellborn<\/a>, a prosecutor the 3rd Judicial District Attorney\u2019s Office who is running for district judge.<\/p>\n

Bean pointed in his compliant to\u00a0previous Hatch Act opinions<\/a> that state that employees are subject to the act if they perform any duties \u201cin connection with the federally financed activities,\u201d which isn\u2019t dependent on whether their jobs are paid for by federal grants or whether they administer federal grants.<\/p>\n

District Attorney\u00a0Susana Martinez<\/a>, Wellborn\u2019s boss, countered by saying Wellborn\u2019s job is paid \u201cabsolutely 100 percent\u201d by state general fund money so the Hatch Act doesn\u2019t apply.<\/p>\n

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\u2019t apply to district attorney employees in New Mexico because they\u2019re part of the judicial, not executive, branch of government.<\/p>\n

At the time, Sixth Judicial District Attorney Mary Lynne Newell<\/a> 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.<\/p>\n

The Office of Special Counsel\u2019s Erica N. Stern wrote that the Hatch Act didn\u2019t apply in an April 20, 2006 letter<\/a> to Newell.<\/p>\n

From the letter:<\/p>\n

\u201cYou explained that in New Mexico, the DA\u2019s 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\u2019s 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\u2019s Office to be in compliance with the Hatch Act.\u201d<\/p><\/blockquote>\n

It\u2019s 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.<\/p>\n

Wellborn referred to the 2006 advisory opinion in a posting on his campaign Web site<\/a>.<\/p>\n

\u201cAs for why his complaint is baseless, that\u2019s easy:\u00a0 the Hatch Act does not apply to District Attorneys or Assistant District Attorneys in New Mexico,\u201d he wrote. \u201cThe OSC decided that issue in 2006, when a prosecutor from another county in New Mexico ran for Magistrate Judge.\u201d<\/p>\n

\u201cHowever, the OSC has to follow-up on every complaint, no matter how much merit they do or do not have, so\u00a0they\u00a0will\u00a0provide me with\u00a0an official decision,\u201d Wellborn wrote. \u201cBut as their attorneys\u00a0explained to me, every election season they are inundated with complaints just like Mr. Bean\u2019s, so it may take a while.\u201d<\/p>\n

Reached by phone, Wellborn said he didn\u2019t want to comment further until the Office of Special Counsel issues a formal ruling in his case.<\/p>\n

Wellborn is running against incumbent District Judge Mannie Arrieta, a Democrat, in November.<\/p>\n","protected":false},"excerpt":{"rendered":"

If a previous ruling in a similar case is any indication, a Hatch Act complaint against a Las Cruces prosecutor who\u2019s running for district judge may be tossed out.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,1],"tags":[108,115,161],"class_list":["post-15410","post","type-post","status-publish","format-standard","hentry","category-news-and-analysis","category-uncategorized","tag-2010-election","tag-dona-ana-county","tag-judiciary"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/15410","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=15410"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/15410\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=15410"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=15410"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=15410"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}