August 13, 2015

Why you won’t see an ABQ firefighter in the state legislature

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Active duty police officers or firefighters from Albuquerque won’t be sitting on the floor of the state House or Senate any time soon.

gavel on stack of documentsThis is because of a State Supreme Court ruling on Wednesday that the city of Albuquerque’s prohibition on employees holding elected office is constitutional.

This reverses a district court decision from 2012 that allowed a firefighter with the Albuquerque Fire Department to remain employed by the city of Albuquerque while in office.

The case was brought by former State Rep. Emily Kane, a Captain with AFD. When Kane was running, she said she was told to either withdraw her candidacy or resign from her job, since city regulations did not allow her to hold office while working for the city.

She opted to stay in the race, eventually winning. The district court decision allowed her to remain both in the State Legislature and as an employee of the city of Albuquerque.

The city appealed the decision.

“The City’s employment regulations do not violate the First Amendment of the United States Constitution,” the opinion by Judge Edward L. Chavez states. “Also, these restrictions do not violate Article VII, Section 2 of the New Mexico Constitution. Moreover, Section 10-7F-9 is not a general law preempting the City’s employment regulations as applied to hazardous duty officers.”

The court said, citing a 1975 decision, that the prohibition is a condition of employment, not a restriction on running for office.

The unanimous decision also reversed the district court’s decision to award attorney’s fees to Kane.

“It was clear from the beginning that the administration was simply upholding the law put into place by the voters of Albuquerque. This ruling verifies that loudly and clearly,” Albuquerque City Attorney Jessica Hernandez said in a statement. “Unfortunately, it cost the taxpayers a substantial amount of money to have this issue dragged through the courts for the political purposes of others.”

“We are disappointed with the ruling but respect the Court’s decision,” Michael Cadigan, the attorney who represented Kane, told New Mexico Political Report in a statement.

Kane is no longer in office, after losing in the 2014 general election to Sarah Maestas Barnes, a Republican.

Both the Albuquerque City Charter and City Personnel Rules bar employees from holding elected office. State employees subject to the State Personnel Act are barred by that same act from holding political office.

The right to do so comes from the state constitution, specifically Article VII, Section 2.

The section states, “The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive position by any public officer or employee.”

This section was successfully amended in 1961 to include the language.

While Justice Richard Bosson agreed that the New Mexico State Constitution allows such prohibitions on employment, he criticized the practice.

“We should be wary of eliminating whole areas of our society from the potential gene pool from which our best and brightest might be called to Santa Fe,” Bosson wrote. “There must be better ways, designed with greater precision, to protect civil service from the excesses of political intrigue than an across-the-board, absolute ban.”

New Mexico Political Report reached out to both the city of Albuquerque and Kane’s lawyer for a response on the decision.

Update: Added quotes from the city attorney and Kane’s attorney.

Update 2: Added a new statement from Hernandez, per city request. Original statement here:

“Today, the New Mexico Supreme Court confirmed that municipalities like the City of Albuquerque have the authority to establish appropriate qualifications and standards for their employees, which are important to regulating potential conflicts of interest and preventing the politicization of the public sector workforce.”

Supreme Court decision ABQ city employees office

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