The definition of civil office is open to interpretation

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By Jay Miller

What a coincidence. On Nov. 2, New Mexico voters overwhelmingly rejected a constitutional amendment that would allow a governor to appoint a legislator to civil office.
On Nov, 24, Gov.-Elect Susana Martinez appointed Rep. Keith Gardner, the House Republican whip, as her chief of staff.
I wasn’t being sardonic when I called it a coincidence. New Mexico court decisions for years have given a very narrow interpretation to what constitutes a civil office.
It is highly likely that voters had a very different interpretation than the courts do about what constitutes a civil office. After all the uproar the past few years over Gov. Bill Richardson’s 500 political appointees, many of us assumed these were the people the amendment was talking about.
But the courts have defined civil office much more narrowly, to the point it only seems to include cabinet secretaries, judges and appointments to fill vacancies in  elected state wide offices.
It doesn’t include the governor’s chief of staff, who arguably is the second most powerful person in the state. Remember all the times I’ve told you lieutenant governors have just about no power — even when governors are out of state. In reality, it’s the chief of staff who takes over.
I also have said we should repeal the fulltime lieutenant governor option. Now I’ll add to that a repeal of the words “civil office” from the constitution.
Civil office surely had a definite meaning when our constitution was written 100 year ago. But take a look at your dictionary sometime for the word “civil.” There likely is an entire column of different meanings of the word.
Among the scores of meanings of “civil” is the definition: “created by law.” That’s likely what the courts were thinking about. Chiefs of staff probably aren’t mentioned in the law. Courts reportedly have ruled that the legislature must invest sovereign power in a position for it to be considered a civil office. I cannot ever envision a legislature ever giving anyone sovereign power. They call cabinet secretaries before committees to rake them over the coals and let them know who is boss.
The only offices I can think of that are supreme are that of the governor and the supreme court. And those positions are not created by the legislature but by the constitution.
An interpretation by one news organization was that civil office means what civil service does in the federal government. In New Mexico we call it the state personnel act. The governor definitely is prohibited from appointing anyone to positions covered by the state personnel act. Those people have to fill out applications, take tests and all that rigmarole to prove they are qualified for their job.
The employees appointed by the governor are exempt from the personnel act’s regulations and protections. Until 1962, when the state personnel act was passed, all state employees were appointed by the governor. So that original prohibition in our constitution may have referred to all state employees.  Voter sentiment at this point likely would favor the prohibition be extended to all gubernatorial appointees.
The joint resolution calling for the constitutional amendment passed the legislature earlier this year with only 12 of the 112 legislators voting against it. The public vote on that amendment last month was 77-23 in opposition.
The defeat of that amendment may keep some very talented legislators from serving as cabinet secretaries. But this isn’t a good time for lawmakers to be asking voters to trust them.
And in another bit of unfortunate timing, Gov.-Elect Susana Martinez, whose campaign was centered around eliminating corruption in government, was almost immediately faced with the reality of appearing to skirt a message voters had sent loudly and clearly about corruption.
I feel confident Keith Gardner can overcome this twist of fate.

Jay Miller insidethe