Back in April, I wrote that the N.M. Supreme Court had ordered the Governor to reappoint several PELRB members. That decision was reduced to writing until May 13, and thereafter published in the N.M. Bar Bulletin on June 1. Now that some time has passed and the Board is back to functioning (well, sort of, but that's for another post), I'd like to look at that decision in a little more detail, as I think the decision's reasoning and background raises some serious questions about its fitness.
In AFSCME v. Martinez, 2011-NMSC-018, the Court phrased the question as being whether the Governor may use her broad removal authority under Article V. Section 5 of the State Constitution to remove members of the Public Employee Labor Relations Board (PELRB) who have the responsibility to adjudicate the merits of disputes involving the Governor. The Court concluded she did not, for three primary reasons:
(1) PELRB members do not serve at the Governor's pleasure because they are appointed upon recommendation of others, under the Public Employee Bargaining Act (PEBA);
(2) the Governor's responsibility to "take care that the laws be faithfully executed," under Article V, Section 4 of the Constitution, "clearly requires" the Governor to "respect [PEBA's] requirement for continuity and balance by not attempting to remove appointed members of the Board; and
(3) "constitutional due process requires a neutral tribunal whose members are free to deliberate without fear of removal by a frequent litigant in that forum, such as the Governor."
Although we are stuck with this decision for the foreseeable future, its reasoning and conclusions were not forgone by any means, and bear some consideration.
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First, the Court makes only a cursory, not compelling, case for the claim that PELRB members do not serve at the Governor's pleasure, solely because they are appointed upon recommendation of others.
Article V, Section 5 of the State Constitution provides that "[t]he governor ... may remove any officer appointed by him unless otherwise provided by law." Notably, PEBA--like the State Personnel Act, and unlike some other acts that create boards, such as the Accountancy Board and the Judicial Standards Commission--does not expressly provide guidance for when or under what circumstances a member may be removed. Thus, an "otherwise" is simply not provided in PEBA, which speaks only to appointment. Compare NMSA § 10-21E-8(A) (governor to appoint PEBA members upon recommendation of certain other persons or parties) to NMSA 10-9-8 (governor to appoint SPB members upon confirmation of the Senate); NMSA § 61-28B-4(A) (governor to appoint members of the Accountancy Board and "may remove a member .... for neglect of duty or other just cause); and NMSA § 34-10-11 (governor to appoint certain members of the Judicial Standards Commission).
Additionally, it must be emphasized that this and other legislatures know how to condition and limit the executive's removal authority if they desire to do so, as done under the Accountancy Board, and the National Labor Relations Act (NLRA) upon which PEBA is based. Compare NLRA, 29 USC § 153(a) (Board "successors ... shall be appointed for periods of five years each, excepting that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed," and "[a]ny member of the Board may be removed by the President upon notice and hearing, for neglect of duty or malfeasance in the office, but for not other cause"); see also State ex rel. New Mexico Judicial Standards Com'n v. Espinosa, 2003-NMSC-017, ¶ 28, 134 N.M. 59 (noting the Legislature could but did not choose to limit the Executive's removal authority).
For similar reasons, the Court's claim that the governor's appointment power to the PELRB is "merely ministerial" also strikes a "wrong" chord within the reader. On one hand, PEBA only states the members shall be "recommended" by particular constituencies. It does not state those constituencies shall in fact "appoint" their chosen ones, such as provided under the City of Albuquerque Labor-Management Relations Board, see Albuq. Ord. § 3-2-15, and it also does not state the executive must take any recommendation, only that it must take "one member recommended" by each constituent or interest group. Compare State of N.M. ex rel. Richardson v. 5th Judicial Nominating Commission, 2007-NMSC-023, 141 N.M. 657 (concluding Governor Richardson could reject a slate of recommendations from the Judicial Standards Commission, and require a new slate of recommendations). Further, am I the only one a little bit worried that the Court relied exclusively on a law review article, id. at ¶ 7, quoting Paisner & Haubert-Barela, "Correcting the Imbalance," rather than PEBA itself and/or similar statutes/ordinances by way of comparison, for its extraordinary claim that "[w]hen labor, management, or the two appointees insist on recommending only one person to the Governor for appointment, the Governor under the plain working of the Act, must appoint the person who was recommended"?
This otherwise unsupported assertion is actually quite a significant point in public sector labor circles. Many unions appearing before local labor boards have urged over the years that employers have violated PEBA by appointing members upon recommendations of a union other than them, or by requiring multiple union recommendation before finding one to be satisfactory. Later, the Court makes the even more direct and extraordinary claim—in light of PEBA’s “plain language”—that the union has a “right to designate a board member of their choice.” When the issue was raised before me as a hearing examiner with PELRB, I have tended to read the statute more literally to mean only that each interest group could “recommend” one or more persons and that one of their recommendations would eventually be found to be agreeable by the executive and appointed. I may be wrong, the Court may be inadvertently right, but I would have liked to have seen a bit more "intentionality," and thoughtfulness of all policy considerations, in addressing the issue.
Lastly on the issue of recommendation, the Court has previous rejected the absurd argument that the Constitutional executive power of removal is "abrogated by implication" where members' terms are staggered, and there is a precise method of appointment but the statute is silent as to removal. See Espinosa at ¶ 28, 134 N.M. 59. It's arguments as to why that reasoning no longer holds in this situation* also ring a bit hollow, as discussed below.
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As to the Court's second primary argument, the Court stretches common understanding of the English language when it asserts the Governor's Constitutional duty to faithfully execute the laws "clearly requires" the Governor to "respect [PEBA's] requirement for continuity and balance," as apparently represented by staggered terms and membership that reflects the constituents' interests, "by not attempting to remove appointed members of the Board."
"Clearly," to me, means the route of logic between points A and B should be palpably self-evident. However, there's nothing in the requirement of a tripartite board with staggered terms that inherently signifies the executive cannot ever remove members--or that it can only do so "thus," where the "thus" is not stated in the statute. Indeed, many if not most boards and commissions do utilize boards whose memberships are balanced to represent various interests or constituencies, see, e.g., Phelps Dodge Tyrone, Inc. v. New Mexico Water Quality Control Com'n, 2006-NMCA-115, ¶ 41, 140 N.M. 464 (Ct. App. 2006), and whose terms are staggered. Yet never before has the Court asserted these as grounds for which an executive cannot remove board members.
The Court's reasoning on this point raises only more questions as regards Member Dust Westbrook particularly, whose term had expired on June 30, 2010, and who was therefore a holdover appointment. As the Court correctly noted, under Article XX, Section 2 of the Constitution, "[e]very officer, unless removed, shall hold his office until his successor has duly qualified." In at least one prior case, New Mexico courts have permitted removal prior or preparatory to subsequent appointment by the new administration. See, e.g., Roberts v. Richardson,137 N.M. 226 (2005) (Accountancy Board). Although the result was admittedly different in another case, Denish v. Johnson, 1996-NMSC-005, 121 N.M. 280 (NM Tech. Board of Regents), where final "approval" was required from the Senate--versus "recommendation" from an interest group--there is still a bit of a "reasoning gap" between the two situations that the Court does not adequately explain in AFSMCE v. Martinez.
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As to the Court's third argument, it is--or should be--a good one. However, the reader cannot help but be made skeptical that it is raised last, comprises only about 1/4 of the total decision, and unabashedly relies on (or boot straps from?) the previous, unconvincing arguments about staggered terms and balanced membership.
The Court asserts that "constitutional due process requires a neutral tribunal whose members are free to deliberate without fear of removal by a frequent litigant in that forum, such as the Governor," and it is on this basis that it distinguishes such cases as Espinosa. But, there was nothing in the reasoning of Espinosa to suppose that it would be relevant whether or not the body was non-adjudicatory. That issue seems to be a bit of a non-sequitur, at least as it is tied to Espinosa. Here particularly, one is called to mind of the SPB, before which the State is always a party--has the issue of removal of SPB appointments ever been examined about before today?
The only new arguments the Court raised are in the final paragraph, concerning (a) the vague, generic and reflexive "interfering with a public employee's rights" argument that PELRB hearing examiners see day in and day out; and (b) the conflation of those employee PEBA rights with Union rights (also standard fare for PELRB PPCs). This line of reasoning too is of questionable value, though, since there is little evidence on the record that the Governor, by exercising her power of removal, did or would necessarily interfere with any union rights concerning recommendation. Maybe, but without proper analysis it seems that it could be a bit of a stretch.
Perhaps at worst it could be said that the Governor was premature, since she had not yet received names to the Union, and the Union and Management Representatives jointly. Or, then again, maybe labor's right to recommend does not, after all, rise to the level of the Senate's right to confirm under Denish. Either way, it just seems like the whole story was not examined very thoroughly.
Notably, all of this is not to say that there is no due process argument to be made in this case--just that the Court did not make a satisfactory due process argument here, if one is to be made.
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Ultimately, "[t]he fundamental flaw in the" Court's arguments in this case is "that they are attempting to use implied terms to negate the Governor's express removal authority." Espinosa at ¶ 25.
Well, what of it, you may ask--what is the use or purpose in analyzing this case since it is the decision of the State's highest court, not subject to reversal by me? At that, I can only shake my head sadly. It's true--I am a voice in the desert. But the matter nonetheless bears scrutiny to the extent that poorly crafted decisions are subject to attack as being goal-oriented and politically motivated. This in turn, puts our judiciary's integrity in question, and risks loss of public confidence in the judiciary when it is already struggling a bit in that department, as I've written elsewhere.
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As a complete aside from the policy issues raised by AFSCME v. Martinez, the decision also (probably unintentionally) raised an intriguing little gem that I predict will become quite a focal point of argument in local labor board circles.
Specifically, recall the Court's observation that under Article XX, Section 2 of the ... Constitution, PELRB members with expired terms serve until their successor is "duly qualified," unless "lawfully removed," id., Para. 2, and my discussion regarding recommendations etc.
The issue of hold-over appointments is raised in a number of pending cases between the Northern N.M. Federation of United School Employees-AFT and the Northern New Mexico College. There, the union is challenging the authority to act of one or more hold-over appointments to the College's local board, who the Union apparently does not like and wants to see replaced. As the Court noted in Smyers v. City of Albuquerque, 2006-NMCA-095, 140 N.M. 198 (Ct. App. 2006), which involved a statutory holdover provision similar to that of the State Constitution, "[t]he tenure may be shorter or longer than the term. In this case, the tenure of the office of those members with expired terms continued, notwithstanding the length of the terms." Id. at ¶ 11 (internal citations omitted).
Additionally, the Union there could be understood as asserting a "right to designate" a third, neutral member of its choice through it's labor representative. This, of course, is eerily similar to the Court's statements in AFSCME v. Martinez about recommendation powers...
What interesting times, huh? Well, as one fellow blogger has said recently on an entirely different but equally heated topic, 'And it ain't over. Not by a long shot." Unfortunately what makes for "interesting times" to neutral decision makers, makes for rather nerve-racking times to an advocate or practitioner.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, in labor/employment or other areas of the law, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
NOTES.
* There are some interesting relationships and connections there that, as an attorney and neutral, I'm ethically required to leave to real journalists to sort out.
