On November 8, Democrat Bernalillo County District Attorney Raul Torrez was elected Attorney General of the State of New Mexico defeating Republican Jeremy Gay. Torrez was elected with 55% (381,339 votes) of the vote to Gay’s 45% (310,486 votes.) Torrez was first elected DA in 2016 in a contested race and then elected to a second 4-year term unopposed in 2020. Governor Michelle Lujan Grisham will appoint his successor to serve the remaining 2 years of his term and that person will have to run in 2024 if they decide to do so.
On November 16, it was reported that Governor Michelle Lujan Grisham’s office is accepting applications to fill the vacancy that will be created when Raúl Torrez is sworn in January 1 as the state’s next attorney general. According to Nora Myers Sackett, the governor’s press secretary, Lujan Grisham plans to appoint a replacement to fill out the remainder of Torrez’s term, which expires on January 1, 2024. Applications for the post are due by December 2. Application forms can be downloaded from the governor’s website at www.governor.state.nm.us. Applications may be submitted via email to donicia.herrera@state.nm.us.
Links to news sources are here:
https://www.abqjournal.com/2551258/governor-accepting-applications-for-bernalillo-county-da.html
ASSISTANT DISTRICT ATTORNEY’S SEND LETTER OF RECOMMENDATION
On November 18, a letter signed by 49 Assistant District Attorneys, Trial Attorneys, Senior Trial Lawyers and a Deputy District Attorney was sent to Governor Michelle Lujan Grisham asking her to appoint either Deputy District Attorney Diana Garcia, Deputy District Attorney Joshua Boone or Deputy District Attorney and former Metropolitan Court Judge John Duran as the Next Bernalillo County District Attorney. There are a total of 102 full time fully funded attorney positions within the office. Currently, 81 attorney positions are filled and 21 attorney positions are vacant and have been vacant since the July 1, the beginning of the fiscal year.
Following is the full, unedited letter sent to Governor Lujan Grisham by the 49 attorneys:
November 18, 2022
Dear Governor Michelle Lujan-Grisham,
Those of us signing this letter are line attorneys from various divisions within the Second Judicial District Attorney’s Office. We all want to do everything in our power to keep Bernalillo County safe, and we need a leader who will enable us to do exactly that. In light of Raul Torrez’s recent election as the Attorney General for the State of New Mexico, we are respectfully writing you to request that Joshua Boone, John Duran, or Diana Garcia be appointed as the next District Attorney of the Second Judicial District.
As you are well aware, Raul was a career prosecutor before becoming the District Attorney for the Second Judicial District, and worked as a prosecutor for the Thirteenth Judicial District, the New Mexico Attorney General, and as an Assistant United States Attorney. Under his leadership, our office cleared out an extensive back log of cases that had been neglected by the previous administration, and was modernized so we could focus our attention on the criminals causing the most harm in our community. Now, we are facing a backlog of cases that accumulated under the delays caused by the pandemic.
In the first half of 2023 alone, the next District Attorney will have to deal with over a thousand cases that have been set for trial in the District Court. It will be imperative to the success of this office, and therefore the safety and welfare of our community, to have a District Attorney that can hit the ground running, that already understands how this office has been run and the systems that are already in place. We will need a District Attorney who is already familiar with the challenges our district faces, from the complexities of the timelines mandated by LR2-308 (that has only recently gone back into effect with recently introduced nuances to account for COVID) to the multiple software platforms and legal agreements needed just to send and receive discovery from multiple law enforcement agencies (Albuquerque Police Department, Bernalillo County Sheriff’, s, New Mexico State Police, Isleta Police Department, Laguna Police Department, etc.) The days of showing up to court with paper files are over, our office has been technologically integrated directly with law enforcement. We have new systems (such as Case catcher) that have already been funded and developed that are just now being deployed and are already understood by our current managers. The herculean job of the next District Attorney will require someone who already has considerable, and recent experience managing the people of this office specifically.
As our caseloads continue to skyrocket and we struggle to fight the crime of the past and present simultaneously, we are asking for a leader who knows what we are up against, because they have been in the same position themselves. We are asking for someone who already knows the strengths and weaknesses of the individual employees, and already has a team in place that can immediately continue where DA Torrez left off. We believe that leader is already in our office. If we stumble and have to start over again with someone who has no experience running this office, the community is the one who will pay the price.
Sincerely,
Assistant District Attorneys of the Second Judicial District
The link to review the letter is here:
https://www.scribd.com/document/609067682/Letter-to-the-Governor-Final
ANALYSIS OF THE LETTER
The letter contains the signatures of 42 of the attorneys and 7 who electronically signed the letter. The signatures of those who signed the letter included 10 Assistant District Attorneys, 6 Assistant Trial Attorneys, 13 Trial Attorneys, and 12 Senior Trial Attorneys. The signatures of those attorneys who were unable to sign the letter in person and who electronically signed the letter include 1 Deputy District Attorney, 1 Assistant Trial Attorney, 2 Trial Attorneys and 3 Senior Trial Attorneys.
BERNALILLO COUNTY DISTRICT ATTORNEY’S OFFICE
As of November 21,2022, according to the New Mexico State Government Sunshine Portal, the Bernalillo County District Attorney’s Office has a $30,350,800 million operating budget with an adjusted operating budget of $36,680,800 which includes all sources of financing including federal grants.
The office is budgeted for 337 full time positions. The office employs 102 attorneys (81 filled, 21 vacant) who are “at will” and 255 other “classified” employees consisting of paralegals, administrative assistants, victim advocates, investigators, IT managers and personnel and finance division personnel who can only be terminated for cause under the state personnel rules and regulations. 276 of the positions are considered “active” meaning filled, and with the office having an alarming 61 vacancies. The number of vacancies in the office is larger than most other District Attorney’s offices in the state.
All attorneys within the office are “at will” and serve at the pleasure of the District Attorney and can be terminated without cause. The Bernalillo County District Attorney’s has the following attorney positions filled:
1 elected District Attorney paid $92,137
3 Chief Deputy District Attorneys, each paid $116,916 a year
29 Deputy District Attorneys, each paid $105,809 a year
25 Senior Trial Attorneys, each paid $81,923 a year
14 Trial Attorneys, each paid $69,347 a year
9 Assistant Trial Attorneys, each paid $67,891.210 a year
TOTAL FULL TIME ATTORNEYS CURRENLTY EMPLOYED: 81
There are an additional 21 “at will” attorney positions that are vacant with a resulting total of 102 full time fully funded attorney positions within the office.
According to the New Mexico State Government Sunshine Portal, there are 61 vacant a position within the DA’s Office of which 21 of those vacant positions are “at will” attorney positions. The 21 vacant attorney positions are:
1 Chief Deputy District Attorney position paying $116,916 a year
EDITORS NOTE: Chief Deputy District Attorney Chuck Barth passed away January 6, 2021, and DA Torrez has yet to fill the position.
3 Senior Trial Attorney positions paying $95,763 a year
3 Trial Attorney position paying $86,673 a year.
8 Trial Attorney positions paying $75,004 a year
6 Assistant Trial Attorney positions paying $67,891 a year
All remaining potions within the Bernalillo County District Attorney office are “classified” employees for a total of 255 classified positions with 121 at will attorney positions.
In addition to the vacant attorney positions, there are 23 vacant classified positions. Noteworthy positions fully funded with annual salaries but vacant are as follows:
1 Victim-Witness Administrator, $82,402
IT Application Developer: $74,682
Program Administrator: $74,672
3 Prosecution Specialists: $56,680
2 Program Specialists: $56,680
1 Senior Legal Assistant: $51,272
1 Prosecution Assistant: $42,016
1 Legal Assistant: $42,016
The link to the New Mexico State Government Portal to review all filled positions with names and salaries paid and all vacant positions is here:
https://ssp3.sunshineportalnm.com/#employees
Editor’s Note: On the above link, first click on “Judicial” branch and then click on “District Attorney, Second District” and a listing of all potions, filled and unfilled, with names and salaries paid are provided.
ADMINISTRATIVE OFFICE OF THE DISTRICT ATTORNEYS
The Administrative Office of the District Attorneys (AODA) was created in 1984. It is a state agency created to support and promote the work of all of New Mexico’s District Attorneys, including but not limited to support, training, and personnel rules and regulations. All elected District Attorney and their offices are required to be members of the agency and the office provides basic support services to all District Attorneys’ Offices statewide including personnel administration and enactment of personnel rules and regulations that apply to all District Attorney Offices in the State.
The Administrative Office of the District Attorneys has adopted a “District Attorneys’ Personnel & Compensation Plan” that outlines specific personnel rules and regulations that apply to virtually all attorneys that are appointed by any District Attorney to work as state appointed prosecutors. The personnel rules and regulations has provisions governing “at will employment” of attorneys and rules governing “political activities” and “prohibitions of conduct.” The link to review “THE NEW MEXICO DISTRICT ATTORNEYS’ PERSONNEL & COMPENSATION PLAN” is here:
Click to access 082020_DA_Pers_Plan.pdf
Following are the sections of the New Mexico District Attorneys’ Personnel & Compensation plan that governs “At Will” Employment, permitted “Political Activities”, “Prohibited Activities” and the holding of “Public Office” by attorneys within all District Attorney offices in the state:
9.2 “AT WILL” EMPLOYEES
“ 9.2.1 The positions of attorney … are “at will” positions that serve at the pleasure of the District Attorney.
9.2.2 Such “at will” employees shall have no property interest in the continued position, shall not obtain covered position status and may be dismissed with or without cause.
9.2.3 Upon acceptance of an “at will” position, a previously covered employee retains no protection afforded under this plan due to previous status in a covered position.”
EDITOR’S NOTE: Attorneys employed in the public sector including the offices of Attorney General, all City Attorney’s Offices, all County Attorney Offices, all District Attorney’s Offices, the Public Defender’s Office and the Governor’s Office and Cabinet Secretary’s Offices have always been all “at will”, and such is the case in the private sector. The justification for making attorneys at will is that they are a licensed professionals that require attorney client relationships and confidentiality and there is a need to terminate when such relationships cannot be sustained or when confidence in the attorney’s job performance is lost by the client and the the employer. It was in 1997 that the attorney’s employed by the Bernalillo County District Attorney’s attempted to unionized proclaiming they had vested property rights to the “at will” jobs they held and the attempt was successfully thwarted by then District Attorney Jeff Romero.
… .
POLITICAL ACTIVITIES
“17.1 Employees may engage in the following activities as long as it is while they are on approved leave or not on duty:
17.1.1 serve as convention delegates;
17.1.2 attend political rallies;
17.1.3 sign nominating petitions and make voluntary contributions to political organizations; and
17.1.4 serve as election officials or officers in political organization(s).
17.2 EMPLOYEES ARE PROHIBITED FROM:
“17.2.1 Engaging in political activity while on duty;
17.2.2 Distributing or displaying campaign materials (including buttons) and soliciting contributions for a political candidate or party while on duty;
17.2.3 Using official authority for the purpose of interfering with or affecting the result of an election or a nomination for office or for any other political purpose;
17.2.4 Using office supplies, equipment or facilities in connection with any political activities;
17.2.5 Directly or indirectly coercing, attempting to coerce, commanding or ordering any employee to pay, lend or contribute anything of value to a party, committee, organization or person for a political purpose; and
17.2.6 Threatening to deny promotions to any employee who does not vote for certain candidates or requiring employees to contribute a percentage of their pay to a political fund or ordering employees to buy tickets to political fund- raising events.
15 [10.4.1.16NMAC-N, 6/30/2010; Amending and moving to here former sections
10.4.11.8 and .9 NMAC-RpNMDAA91-1.12.0l, Repealed 6/30/2010”
PUBLIC OFFICE
18.1 Employees shall not hold any other public office during the employee’s duty hours in the service.
An employee may accept appointment to a state or local board or commission provided such participation does not create a conflict of interest, is consistent with existing statutes and court rules and does not interfere with an employee’s assigned duties.”
18.2 An employee may seek a full-time public office if the employee’s absence does not interfere with the function of the office and the District Attorney authorizes such absence. Otherwise, the employee shall resign to seek such public office.
18.3 The act of filing nomination papers or, where appropriate, the payment of a filing fee or the accepting of the nomination shall constitute the seeking of public office.
18.4 Being a local school board member or an elected or appointed member of any postsecondary educational institution shall not be construed to be holding political office.
NEW MEXICO LAW PROHIBITING STATE EMPLOYEES FROM HOLDING STATE POLITCAL OFFICE
10-9-21. Prohibited acts.
- … .
- No person in … employee in [state] service shall hold political office except for a non-partisan county or municipal office or be an officer of a political organization during his employment. … .
- Any employee who becomes a candidate for public office shall, upon filing or accepting the nomination and during the campaign, take a leave of absence. This subsection does not apply to those employees of a grant-in-aid agency whose political activities are governed by federal statute.
https://law.justia.com/codes/new-mexico/2020/chapter-10/article-9/section-10-9-21/
In 1972, the New Mexico Supreme Court ruled that Subsection B does not violate the first amendment guarantee of freedom of speech in requiring that state employees shall not hold public office, nor does it deny equal protection by exempting some state employees from its provisions. (State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, 87 N.M. 230, 531 P.2d 1203.) The New Mexico Supreme Court has also ruled that the legislature has the constitutional power under N.M. Const., art. VII, § 2B, to enact this section and to provide, as a qualification or standard for continued employment by the state in a position covered by the State Personnel Act, that the employee shall not hold “political office.” State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, 87 N.M. 230, 531 P.2d 1203. In 1992, the New Mexico Attorney General issued an opinion that any state employee may seek election to any county office anywhere in the state, and if the employee takes a leave of absence from the state job while a candidate and, if elected, the employee must resign from the state job. (1992 Op. Att’y Gen. No. 92-01.)
COMMENTARY AND ANALYSIS
The letter signed by the 49 attorneys within the Bernalillo County District Attorney Office falls squarely in the category of “what the hell” are any one of these attorneys thinking or if they were were coerced in any way into signing the letter, especially by those who have supervisory authority over other attorneys? All State prosecutors must be above politcal influence and approach. For them to exert themselves in the politcal process and attempt to sway Governor Lujan Grisham as to who she should appoint and have a say as to who should be their next boss, is a clear conflict of interest an abuse of their titles and authority creating an appearance of impropriety. The conduct is unacceptable and should be condemned in no uncertain terms by the elected District Attorney.
The letter of recommendation signed by 49 attorneys ranging from the positions of Assistant District Attorneys all the way up the chain of command to a Deputy District Attorney is so very, very wrong on so many levels. The letter can only be characterized as a very serious breach of personnel rules and regulations and serious lapse of professional conduct, judgement and ethics.
The letter contains the actual signatures of 42 for the attorneys and 7 who electronically signed the letter. The signatures of those who actually singed the letter included 10 Assistant District Attorneys, 6 Assistant Trial Attorneys, 13 Trial Attorneys, and 12 Senior Trial Attorneys. The signatures of those attorneys who were unable to sign the letter in person included 1 Deputy District Attorney, 1 Assistant Trial Attorney, 2 Trial Attorneys and 3 Senior Trial Attorneys who electronically signed the letter.
Ostensibly, the letter was sent to the Governor’ s Office on DA office stationery and with the office letter head which is very problematic. Another problem with the letter is that the original signatures are followed by the titles of the individuals with many of those titles printed in handwriting with the handwriting appearing to be from another person and not the person who signed the letter. This likely indicates that the person who collected the signatures added the titles and that person may have been a supervising attorney and perhaps even on of the 3 Deputies who have applied for the job.
VIOLATIONS OF DISTRICY ATTORNEY PERSONNEL & COMPENSATION PLAN
The letter of recommendation violates a number of the Administrative Office of the District Attorneys Personnel and Compensation Plan provisions. The violations are as follows:
All the attorneys are “AT WILL” employees, who serve at the pleasure of the District Attorney and can be terminated without cause. As such they have given up a degree of their first amendment rights of “free speech” while at work. As “at will employees,” they are strictly prohibited from engaging in political activities while on duty. Writing and/or signing letters of recommendation to the Governor to recommend who should be appointed District Attorney is clearly prohibited “politcal activity” while on duty. (Section 9.2 “AT WILL” EMPLOYEES, District Attorneys’ Personnel & Compensation Plan”.)
Use of DA office letter head and titles is use of official authority for the purpose of interfering with or to affect the result of the selection or a nomination for office of a person and for District Attorney as in this case. (Prohibited activity, Section 17.2.3 “District Attorneys’ Personnel & Compensation Plan”.)
If District Attorney office letter head, fax machines or DA office postage was used to send the letter to Governor Lujan Grisham it would be “using office supplies, equipment or facilities in connection with political activities” (Prohibited activity, Section 17.2.4, District Attorneys’ Personnel & Compensation Plan.)
If any attorney who was superior of another attorney solicited support and signatures on the letter, that would be “directly or indirectly coercing, attempting to coerce, commanding or ordering any employee to … contribute anything of value, in this case a recommendation to the Governor, to a party, committee, organization or person for a political purpose” which would be for the appointment of District Attorney. ” (Prohibited activity, 17.2.5 District Attorneys’ Personnel & Compensation Plan.)
All 3 of the Deputy District Attorneys mentioned in the letter are in fact seeking the appointment to a political elected position. However, they can do so as long as it does not interfere with the function of the office and the District Attorney, otherwise, they must resign to seek such public office. State law is also clear that full time state employees cannot run for any state office. (NMSA 10-9-21, 1978)
Now that all 3 Deputies are applying to fill the vacancy, they have become active candidates for the office of District Attorney and actively campaigning for the appointment on office time. Under state law, and in order to avoid the appearance of impropriety, all 3 should take a leave of absence until the Governor make the final appointment.
Confidential sources within the office have confirmed that at least one of the Deputy District Attorneys being recommended in the letter to replace Torrez actually solicited subordinates to sign the letter. If that is indeed the case, it can only be construed as undue influence of a supervisor over a subordinate. Another confidential source has confirmed that still another of the Deputies seeking the appointment has said he fears termination if another person outside the agency secures the appointment and that Torrez himself is doing all he can to stop an outsider from getting the Governor’s appointment.
It is not all likely given the “office gossip” reputation the agency has that any one of the 3 Deputies recommended did not know that the letter was being circulated on their behalf. It is believed that all 3 of the Deputy District Attorneys were aware the letter and that it was being circulated with at least one condoning it. If they did know, and they condoned it, they failed to excercise their supervisory authority. Ignorance on their part of the “District Attorneys’ Personnel & Compensation Plan” and its prohibition on political activities should be grounds for disqualification for the appointment.
GOVERNOR NEEDS TO APPOINT OUTSIDER DISTRICT ATTORNEY
The letter signed by Torrez appointed prosecutors has raised more than a few major concerns within the New Mexico Defense Bar and prominent members of the New Mexico Trial Lawyers Association who are known to be advocating for the appointment of an experienced attorney. Many within the bar have said the Governor needs to appoint an outsider to take over the job of DA and change the Torrez political agenda that is antagonistic to the courts and the criminal justice system itself with Torrez having politicized the job and the office prosecutions to promote his political ambitions.
As he ran for successfully for Attorney General this year, Torrez ran a commercial that falsely said his opponent was not qualified to be Attorney General because his opponent was a defense attorney while Torrez claimed to be a career prosecutor. It was the identical smear tactic Torrez used against his Democratic opponent State Auditor Brian Colon in the primary accusing Colon of being a politician and not a prosecutor and accused Colon of never prosecuting a case when in fact his office investigated criminal waste, fraud and abuse.
Throughout the last six years, Raul Torrez during his tenure as Bernalillo County District Attorney has been at odds with and has consistently criticized District Court Judges, and the New Mexico Supreme Court and the defense bar. He has gone so far as to accuse the courts for being responsible for our high crime rates. Torrez has accused defense attorneys in the past of “gaming the system” while they did their jobs to protect their client’s constitutional rights. Torrez also accused defense attorneys from prohibiting the DA’s office from getting convictions by refusing to talk their defendant clients into accepting plea agreements so that the DA’s office could secure convictions without going to trial and proving their cases.
Torrez has proclaimed that our criminal justice system is broken, yet he has refused to take any responsivity for his offices failure to prosecute serious violent crime preferring or authorizing prosecutors to dismiss cases. A District Court study revealed the Bernalillo County District Attorney’s Office under Raul Torrez has a 65% combined dismissal, acquittal and mistrial rate. The data presented showed in part how overcharging and a failure to screen cases by Assistant District Attorney’s was contributing to the high mistrial and acquittal rates. A common observation has been made that many of the prosecutors within the office are ill equipped within the office and are afraid of courtroom settings and prefer to simply plea out cases.
For the last 2 years, Raúl Torrez has advocated a change in law that would create a “rebutable presumption” that a defendant is a threat to the public when charged with a violent crime and that they should be jailed until pending trial without bond or conditions of release. The doctrine of rebuttable presumption mandating confinement pending trial is an affront to the constitutional right of the presumption of innocence until proven guilty. The presumption Torrez wants is to shift the burden of proving dangerousness from the prosecution to the defendants and require defendants accused of crimes to show and convince a judge that they should be released on bond or conditions of release pending their trial on the charges.
The November 18, 2022 makes it painfully clear that the attorneys appointed by Torrez, including the 3 Deputy District Attorney that are seeking to replace him, want to carry on with his policies and his political agenda. The 3 deputies are likely part of the problem within the office and who fail to prosecute cases.
The letter reflects an element of sure arrogance by the attorney’s signing it that only an insider can handle the job of District Attorney. The letter is also an expression of a level of personal entitlement to the job and the office itself. For these reasons, there is a clear need for the Governor to appoint an outsider to fill the position so that a new beginning for the office can happen without any influence over the office by Raul Torrez.
61 vacancies withing the DA’s office, which includes 21 attorney vacancies, has been a chronic problem the entire 6 years Raul Torrez has been District Attorney. He has never had a fully staffed office. The sure volume of vacancies is a sign of mismanagement of the office, this coming from a DA that constantly complained to the New Mexico legislature that he needed more funding and was short staff. The truth is Torrez could not attract attorneys to go to work for him given his reputation of politicizing the office.
DA AND ATTONEY GENERAL ELECT RAUL TORREZ
Sources have a confirmed that Attorney General- elect Raul Torrez is in support of any one of his 3 duly appointed Deputies to take over the office. If that is in fact the case, Torrez himself has some explaining to do to the general public and the Governor. It’s an obvious attempt for him to continue to have influence over the office once he leaves January 1. Sources have also confirmed that Torrez is openly hostile to at least one other applicant who is known to have applied for the job but who has yet to be disclosed by the Governor’s office.
Torrez needs to disclose the public and the Governor if he was aware of the letter and in particular if he authorized it. Torrez needs to demand the letter be withdrawn immediately and demand an apology be issued by the attorneys who signed it. Torrez should issue at a minimum an immediate letter of reprimand to the attorneys who have signed the letter and demote or suspend their employment for an appropriate period of time to make it clear that prohibited politcal activities while on the job will not be tolerated.
Torrez needs to keep his nose out of the Governor’s business as she accepts applications from qualified attorneys to fill the job he has abandoned at midterm.