May 14, 2019- Amy Landau v. New Mexico Attorney General Office, No. A-1-CA-36344

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ____ _
3 Filing Date: May 14, 2019
4 	No. A-1-CA-36344
5 	AMY LANDAU, JOYCE RODARTE n/k/a JOYCE
6 	SOLISZ, LA WREN CE OTERO, NICOLE BEDER,
7 JEFFREY R. BURKE, PAULA E. GANZ, JAMES	I
8 GRAYSON, YOLANDA J. HERRERA, ANTHONY
9 MANFREDI, SHANNON MURDOCK, FEMMA
10 M. OLVERA-SCOTT, MELINDA PATE, MARY
11 	H. SMITH, JESSICA L. SIERRA, GREGORY D.
12 	STOVER, HAMISH THOMSON, MICHAEL P.
13 	VALDEZ, MICHAEL SANCHEZ, and MARIA
14 SANCHEZ-GAGNE,
15 	Appellants-Appellants,
16 v.
17 NEW MEXICO ATTORNEY GENERAL OFFICE,
18 	Appellee-Appellee.
...:.
19 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
20 	Jennifer L. Attrep, District Judge
21 	Amy Landau
22 Albuquerque, NM
23 	Pro Se Appellant
Court of Appeals of New Mexico
Filed 5/14/2019 2:02 PM

24 Joyce Solisz
25 	f/k/a Joyce Rodarte
26 Castle Rock, CO
2 7 Pro Se Appellant
28 Lawrence Otero
29 Santa Fe; NM
3 0 Pro Se Appellant
31 	Nicole Beder
32 Santa Fe, NM
33 Pro Se Appellant
34 Jeffrey R. Burke
35 Cedar Crest, NM
36 Pro Se Appellant
3 7 Paula E. Ganz
38 Santa Fe, NM
39 Pro Se Appellant
40 James Grayson
41 	SantaFe, NM
42 Pro Se Appellant
43' Yolanda J. Herrera
44 	Albuquerque, NM
45 	Pro Se Appellant
46 Anthony Manfredi
47 Albuquerque, NM
48 Pro Se Appellant

49 Shannon Murdock
50 Moriarty, NM
51 	Pro Se Appellant
52 Femma M. Olvera-Scott
53 	Albuquerque, NM
54 	Pro Se Appellant
55 Melinda Pate
56 Austin, TX
57 Pro Se Appellant
58 Mary H. Smith
59 	Albuquerque, NM
60 	Pro Se Appellant
61 	Jessica L. Sierra
62 	Albuquerque, NM
63 	Pro Se Appellant
64 	Gregory D. Stover
65 	Corrales, NM
66 	Pro Se Appellant
67 Hamish Thomson
68 	Santa Fe, NM
69 Pro Se Appellant
70 	Michael P. Valdez
71 	Albuquerque, NM
72 Pro Se Appellant

73 	Michael Sanchez
74 Farmington, NM
75 Pro Se Appellant
76 Maria Sanchez-Gagne
77 Santa Fe, NM 	·
78 Pro Se Appellant
79 Hinkle Shanor LLP
80 Ellen S. Casey
81 	Jaclyn M. McLean
82 	Jaime R. Kennedy
83 	Santa Fe, NM
84 	for Appellee

1 	OPINION
2 CHAVEZ, Judge Pro Tempore.
3 	{t} 	Hector Balderas was elected Attorney General in 2014 to begin his term on
4 January 1, 2015. Attorney General Balderas' s transition team terminated Appellants,
5 who had been employees within the Office of the Attorney General (OAG), in most
')
6 cases for several years, before Balderas took office. Appellants appealed to the State
7 Personnel Board (the Board). The Board concluded it did not have subject matter
8 jurisdiction to hear Appellants' appeal because OAG employees are not entitled to
9 the protections of the Personnel Act, NMSA 1978, Sections 10-9-1 to -25 (1961, as
10 amended through 2014). Those protections include the right to dismissal only for
11 	just cause, as well as the right to appeal a dismissal. Selmeczki v. NM Dep 't. of
12 	Corr., 2006-NMCA-024, 115, 139 N.M. 122, 129 P.3d 158 ("Employees subject to
13 	the Personnel 	Act who 	have 	completed a probationary period may 	only be
14 disciplined for just cause."); § 10-9-18(A) (providing for an appeal); § 10-9-18(F)
15 	(providing for reinstatement if dismissal was not for just cause); 1.7.11.lO(A)
16 NMAC (stating that "just cause" is "any behavior relating to the employee's work
17 that is inconsistent with the employee's obligation to the agency").
18 	{2} 	The 	central 	issue 	in this 	case 	is 	whether Appellants were "classified"I
19 employees covered by the Personnel Act or "exempt" employees not entitled to the
20 procedural protections of the Personnel Act. Attorney General Balderas contends
\

1 that all employees of the OAG are exempt because they all serve at the pleasure of
2 the attorney general under NMSA 1978, Section 8-5-5 (1988) and therefore may be
3 terminated with or without cause. Appellants contend that Section 10-9-4 of the
4 Personnel Act, as amended in 1963, made all employees of the OAG, with a few
5 exceptions not relevant to them, classified employees who could not be demoted or
6 discharged without the procedural protections of the Act.
7 	{3} 	We conclude that the Personnel Act controls over Section 8-5-5 because the
8 history of the Personnel Act demonstrates that the Legislature intended it to be a
9 comprehensive revision 	of the 	law regarding 	state 	employment. 	As 	a . result,
10 Appellants are classified employees unless the Board finds that their positions satisfy
11 	an enumerated exception in Section 10-9-4(A)-(O). We reverse the Board 1 and
12 remand for a hearing consistent with this opinion.
1
Appellants appealed from the Board's decision to the First Judicial District
Court, pursuant to Section 10-9-18(G) ("A party aggrieved by the decision of the
board made pursuant to this section may appeal the decision to the district court
pursuant to the provisions of [NMSA 1978,] Section 39-3-1.1 [(1999)].") and Rule
1-074(A) NMRA (governing "appeals from administrative agencies to the district
courts when there is a statutory right of review to the district court"). Without
deciding the merits, the district court certified the appeals to this Court on the ground
that they "address an issue of substantial importance because they implicate t~e New
Mexico Attorney General's authority to· hire and fire at will, which affects npt only
[Appellants], but also all current and future employees of the NM[OAG]." See Rule
l-074(S) ("[T]he district court may, as a matter of judicial discretion, certify to the
Court of Appeals a.final decision appealed to the district court, but undecided by that
court, if the appeal involves an issue of substantial public interest that should be
decided by the Court of Appeals.").
2

1 DISCUSSION
2 I. 	The Personnel Act Supersedes Section 8-5-5 Because it Covers the Entire
3 	Subject Regarding State Personnel, Defines Which State Employees Are
4 	Classified or Exempt, and Creates a New and Comprehensive Procedure
5 	for the Discharge or Demotion of Classified Employees
6 	{4} 	The question before us is a legal question that we review de novo. See Rio
7 Grande Chapter of Sierra Club v. NM Mining Comm 'n, 2003-NMSC-005, 1116,
8 17, 133 N.M. 97, 61 P.3d 806. The Legislature anticipated the possibility that it
9 might enact competing statutes and therefore adopted legislation to explain how
10 irreconcilable statutes are to be interpreted. NMSA 1978, § 12-2A-10 (1997). The
11 	most relevant provision is Section 12-2A-10(C), which provides: "[i]f a statute is a
12 comprehensive revision of the law on a subject, it prevails over previous statutes on
13 	the 	subject, 	whether 	or 	not 	the 	revision 	and 	the 	previous 	statutes 	conflict
14 irreconcilably." (Emphasis added.) Section 12-2A-10(C) is consistent with case law
15 	holding that repeals by implication, while not favored, will be found where "the last
16 statute is so broad in its terms and so clear and explicit in its words as to show it was
17 	intended to cover the whole subject, and therefore[,] to displace the prior statute."
18 State ex. rel. Bd. of Comm 'rs v. Romero, 1914-NMSC-023, 16, 19 N.M. 1; 140 P.
19 	1069 (internal quotation marks and citation omitted); see also Stokes v. NM State
20 Bd. ofEduc., 1951-NMSC-031, 15, 55 N.M. 213,230 P.2d 243 (holding that a later
21 	act covering an entire subje_ct and furnishing a new and comprehensive system of
3

1 procedure evinces legislative intent to supersede prior legislation relating to the same
· 2 subject, even if inconsistent).
3 	{5} 	Section 8~5-5 was enacted before the Personnel Act. We must determine
4 whether the Legislature intended the Personnel Act to be a comprehensive revision
5 of state public employment law that governs whether OAG employees are classified
6 or exempt. State v. Natani, 2012:-NMCA-062, ~ 5,282 P.3d 769 ("Our ultimate goal
7 in 	statutory construction is 	to 	ascertain 	and 	give 	effect 	to 	the intent of 	the
8 Legislature."). When construing statutes, courts generally turn first to the plain
9 language of the· statutes as the primary indicator of legislative intent. See State v.
10 Davis, 2003-NMSC-022, ~ 6, 134 N.M. 172, 74 P.3d 1064. Here, however, the plain
11 	language of the statutes at issue is contradictory, as we discuss further below. We
12 therefore 	begin our analysis 	by 	describing the 	history 	of the 	enactment ·and
13 	amendments of both Section 8-5-5 and the Personnel Act. See Davis, 2003-NMSC-
14 022, 1 6 ("The legislative history of the statute, including historical amendments,
15 	and whether it is part of a more comprehensive act, is instructive when searching for
16 the spirit and reason the Legislature· utilized in enacting the statute" 	( citation
. 17 omitted).
18 A. 	History of Section 8-5-5.
19 	{6} 	In 1933, the Legislature created a Department of Justice, 1933 N.M: Laws,
20 ch. 21, § 1, defined the duties, rights and powers of the Attorney General, id. §§ 2-
4

1 4, and their assistants, id. § 5, and set the salaries for authorized assistants of the
2 Attorney General, id.§ 6. In 1955, the Legislature amended Section 5 and repealed
3 Section 6. See Chapter 21; 1955 N.M. Laws, ch. 119, §§ 1, 2. The amendment of
4 Section 5 cited as NMSA 1953, § 4-3-5 (1955) (current version at Section 8-5-5)-
5 is at the heart of the dispute before.us. This section in 1955 read:.
6
7
8
9
10
11
12
13
14
Assistant attorneys general-Appointment. The attorney general niay
appoint a first assistant attorney general, and as many other assistant
attorneys 	general 	together 	with 	stenographic, 	clerical 	and 	other
necessary employees on a full or part time basis, at salaries to be fixed
by him within budget allowances and appropriation limits, as the
business of the department shall require, and who shall hold office
during the pleasure of the attorney general. The assistant attorneys
general shall, subject to the direction of the attorney general, have the
same power and authority as the attorney general.
15 	(Emphasis added.) In 	1965, the title of the first assistant attorney general was
· 16 changed to deputy attorney general. 1965 N.M. Laws, ch. 214, § 1. In 1979, the
17 Legislature amended Section 8-5-5 by adding Subsection B to authorize the attorney
18 general to appoint "peace officers for the full-time investigation and enforcement of
19 violations of the Controlled Substances Act." 1979 N.M. Laws, ch. 356, § 1. The
20 last amendment of Section 8-5-5 occurred in 1988 when the Legis_lature enacted two
21 	changes. First, the Legislature amended Subsection B to expand the authority of
22 OAG peace officers to investigate and enforce all of the criminal laws of the state,
23 	limited only by legislative appropriations. Second, and material to the issue before
24 us, the Legislature made a stylistic change in Subsection A to the language "who
5

1 .shall hold office during the pleasure of the attorney general" by supplanting the word
2 "during" with the word "at." See NMSA 1978, § 8-·5-5 (1989) Legis. History N.M.
3 Comp. Comm'n {"The 1988 amendment, effective May 18, 1988, made a minor
· 4 stylistic change in Subsection A[.]")
5 B. 	History of the Personnel Act
6 {7} 	The Personnel Act was first enacted in 1959, 1959 N.M. Laws, ch. 205, §§ 1-
7 	11, but was repealed and replaced in 1961 by a much more comprehensive Personnel
8 Act, which was passed "to establish for New Mexico a system 	of personnel·
9 administration based solely on qualification and ability, which will provide greater
10 economy and efficiency in the management of state affairs." 1961 N.M. Laws, ch.
11 	240, § 2; see§ 10-9-2. This was the first Personnel Act to create a one-year period
12 	of probation ~uring which employees could be discharged or demoted without cause
13 	or the benefit of notice and a hearing. 1961 N.M. Laws, ch. 240, § 9(0). However,
14 once employees served their one-year probationary period, employees covered by
15 	the Act could not be· discharged or demoted without cause, notice, and a hear.ing. Id.
16 	§ 9(G).
17 {8} 	The 	1961 	Personnel 	Act 	also 	specified 	in 	greater 	detail 	which 	state
18 positions--defined as "any state office, job, or position 	of employment," ·id.
'
19 	§ 3 (D}-would be covered under the Personnel Act. Section 4 of the 1961 Petsonnel
20 Act specifjed that "all state positions except" those in twelve categories were
6

1 covered by the Personnel Act. Id. § 4 (emphasis added). Subsections A and I are the
2 exceptions relevant to the issue before us. Subsection A· excepted "officials elected
3 by popular vote or appointed to fill vacancies in elective offices, and, except for the
4 governor, their employees, unless the elected officials elect to have their employees
5 covered 	by 	the 	Personnel 	Act." 	Id. 	§ 	4(A). 	Thus, 	an 	elected 	official 	was
6 automatically excluded from the Personnel Act, as were his or her employees unless
7 the 	elected 	official 	chose 	otherwise. 	An 	elected 	official 	who 	chose 	to 	have
8 employees covered by the Personnel Act could exch~de a maximum of two assistants
9 from coverage. Id. § 4(1). The New Mexico Attorney General is an elected official
10 and therefore exempt from the Personnel Act. N.M. Const. art. V, § 1. There is no
11 	evidence in the record that the Attorney General in 1961 exercised discretion to bring
12 OAG employees under the Personnel Act.
13 	{9} 	The Legislature in 1961 	also passed Senate Joint Resolution Number 	1
14 proposing to amend Article VII, Section 2 of the New Mexico Constitution to "allow
15 	the [L]egislature to provide by law for the creation of a personnel system .and for the
16 establishment of necessary qualifications for employment of appointive officials and
17 employees." 	SJ. 	Res. 	1, 	25th Leg. 	(1961). 	The voters ,adopted the proposed
18 	amendment at the special election held on September 19, 1961. N.M. const. art. VII,
19 	§ 2(B) Ann. The amendment reads, "[t]he [L]egislature may provide by law for such
7

1 qualifications and standards as may be necessary for holding an appointive position
2 by any public officer or employee." N.M. Const. art. VII, § 2(B).
3 	{to} 	Armed with the approval of the voters, in 1963 the Legislature amended the
4 Personnel Act to specify that the Personnel Act was enacted pursuant to Article VII,
5 Section 2 and to broaden the scope of its application. 1963 N.M. Laws, ch. 200, § 1;
6 NMSA 1953, § 5-4-29 (1963) (current version at Section 10-9-2). The Legislature ·
7 broadened the Personnel Act's scope by amending Subsection 4(A) of the 1961
8 Personnel Act to delete the language that _excluded employees of elected officials
9 from coverage and to eliminate the discretion given to elected officials to bring their
10 employees under coverage of the Personnel Act. 1963 N.M. Laws, ch. 2QO, § 2;
11 	NMSA 1953, § 5-4-3 l(A) (1963) (current version at Section 10-9-4). T~e 1963
12 amendment of Section 4(A) changed the language of that subsection as follows:
13 	"cover all state positions except: A. officials elected by popular vote or appoipted to
14 fill vacancies in elective offices, and, except for the governor, their employees,
15 	unless the elected officials elect to have their employees covered by the Personnel
16 Act." Id. (deleted language from the 1961 Personnel Act added)
17 	{11} 	Elected officials remained excluded from the Personnel Act, NMSA 1953,
18 	§ 5-4-3 l(A), and the 1963 Personnel Act still allowed up to two assistants in the
19 office of an elected official to be excluded from coverage under the Personnel Act.
20 NMSA 1953, § 5-4-31(1); see§ 10-9-4(L). The 1963 Personnel Act also excluded
8

1 from coverage "heads of divisions of agencies and such other employees serving in
2 policy making capacities as may be determined by the personnel board." NMSA
3 	1953, § 5-4-31(M); see§ 10-9-4(0). In 1967, the Legislature added one secretary to
4 the list of elected official employees who could be excluded from coverage. 1967
5 N.M. Laws, ch. 181, § 1; see§ 10-9,A(L).
6 {12} 	The Legislature has revised Section 10-9-4 nine more times since 1967 to add
7 or remove groups of employees from coverage, or to redefine which employees are
8 excluded. See, e.g., 1969 N.M. Laws, ch. 126, § 1 (excluding disadvantaged youth);
9 	1975 N.M. Laws, ch. 182, § 1 (excluding certified school instructors); 1977 N.M.
10 Laws, ch. 24 7, § 45 (excluding directors of department divisions); 1981 N.M. Laws,
11 	ch. 339, § 5 (excluding corrections and criminal rehabilitation employees); 1990
12 N.M. Laws, ch. 20, § 1 (removing corrections employees from list of those excluded
13 	from coverage).
14 C. 	The Personnel Act Supersedes Section 8-5-5.
15 	{1_3} 	We conclude that the Legislature intended the Personnel Act to supersede
16 Section 8-5-5 based on the enactment and amendment history of these statutes. The
17 Legislature's intent in 1961 to supersede prior legislation addressing the status of
18 	state employees generally is evident from its stated purpose, which was to e~tablish
19 "for New Mexico a system of personnel administration based solely on qualification
20 and ability, which will provide greater economy and efficiency in the management
9

1 of state affairs." 1961 N.M. Laws, ch. 240, § 2. The Legislatqre's intent is also
2 reflected in the fact that it sought and obtained constitutional authority to create a
3 personnel system that would establish the qualifications for employment of state
4 employees. S.J. Res. 1, 25th Leg. (1961) The Legislature empowered the Personnel
5 Board to develop a comprehensive administrative procedure for classified public
6 employees covered by the Personnel Act. 	1961 N.M. Laws, ch. 240, § 9; see
7 Barreras v. N.M Corr. Dep 't, 2003-NMCA-027, ,-r 12, 133 N.M. 313, 62 P.3d 770
8 (acknowledging. the Personnel Board's comprehensive administrative scheme);
9 § 10-9-13 	(providing 	that 	the 	Personnel 	Board 	shall 	promulgate 	rules 	for 	a
10 classification plan, a pay plan, and procedures for dismissal_ and demotion, including
11 	notice and appeal procedures, for all positions unless exempted by Section 10~9-4 of
12 the Personnel Act).
13 	{14} 	The plain language of Section 10-9-4, specifically p~ovides that the Act
14 applies to "all· state positions" except those falling within specific categories. The
15 	amendments to the Personnel Act from 1963 to 1990 excluding certain employees
16 from the Act's coverage evinces legislative intent for_ all state employees to be
17 covered by· the ·Act 	unless 	they 	are 	specifically excluded from 	coverage 	by
18 provisions in the Act itself..
19 	{15} 	Moreover, the Legislature did not alter the Personnel Act in response to its
20 interpretation by the attorney general in office at the time. Former Attorney General
10

1 Earl E. 	Hartley issued official · opinions 	m ·1961 	and 	19(>3 	addressing which
2 employees were exempt from the Personnel Act. In 1961, the Director of Personnel .
3 asked Attorney General Hartley for an opinion identifying which public entities were
4 covered by the 	1961 	Personnel Act. Attorney General Hartley opined that the
5 Attorney General and his employees were exempt from the 1961 Personnel Act
6 unless he chose to have his employees covered by the Act. N.M. Att'y Gen. Op. 61-
7 28 (1961). Two years later, after the 1963 amendments to the Act, the Director of
8 Personnel sought another opinion as to which public bodies, formerly exempt under
9 the 1961 Personnel Act, would be subject to the 1963 Personnel Act. N.M. Att'y
10 Gen. Op. 63-27 (1963). In an opinion authored by Thomas A. Donnelly, later a judge
11 	on this 	Court, 	Attorney 	General 	Hartley 	opined that the 	Attorney 	General's
12 employees were no longer exempt from the coverage of the Personnel Act. Id.
13 	{16} 	The fact that the Legislature did not amend the Personnel Act to. specifically
14 exclude OAG employees from coverage after Attorney General Hartley's official
15 	opinion, which was in temporal proximity to the 1963 amendment to the Personnel
16 Act, is additional compelling evidence that the Legislature intended to supersede
17 	Section 8-5-5 and to cover OAG employees under the Act. See State ex. rel. State
18 Eng'r v. Lewis, 1996-NMCA-019, 1 13, 121 N.M. 323, 910 P.2d 957 ("Ap. early
19 interpretation and uniform administration of a statute by executive officers will not
. 20 be lightly overturned."); see also Five Corners Family Farmers v. State, 268 P.3d
11

1 892, 899 (Wash. 2011) (En Banc) (failure to amend a statute in response to an
2 attorney general's opinion interpreting legislation in temporal proximity to the
3 enactment may constitute legislative acquiescence in the interpretation).
4 {17} 	Importantly, the 1963 Per~onnel Act provided that employees of an elected
5 official who had been exempt because the official did not opt to bring them under
6 the 1961 Personnel Act were automatically covered by the 1963 Personnel Act if the
7 employee had served the elected official for at least one year. NMSA 1953, § 5-4-
8 38. Any employee who had not served for at least one year would have to complete
9 a year and pass a qualifying test before they could benefit from the protections of
10 the Act. Id. The automatic coverage of employees who had served out a probationary
11 	period further reveals the Legislature's intent to apply the Personnel Act to all
12 employees unless they fall within specified categories.
13 	{18} 	Finally, a 1~87 amendment to the Personnel Act to specifically except certain
14 OAG employees from coverage also persuades us that the Legislature intended the
15 	Personnel Act to supersede Section 8-5-5. Beginning in 1984, employees in the OAG
16 were assigned to.the Rocky Mountain Information Network, which was "a federally
17 funded 	regional 	information 	sharing 	systems 	program 	for 	law 	enforcement
18 	agencies." Hal Stratton, Office of the Attorney General, State of New Mexico:
19 History, 	Powers 	& 	Responsibilities, 	1846-1990, 	at 	108 	(1990). 	In 	1987, the
20 Legislature enacted Section 10-9-4.1 to address whether those employees were
12

1 covered 	by 	the 	Personnel 	Act. 	In 	Subsection 	A, 	the 	Legislature 	stated,
2 "[n]otwithstanding the provisions of Section 10-9-4 ... , all employees 	of the
3 [R]ocky [M]ountain [I]nformation [N]etwork who commence employment on or
4 after the effective date of this act are _exempt from coverage under the Personnel
5 Act." This language would not haye been necessary if, as argued by Attorney
6 General Balderas, all employees of the OAG were exempt from coverage under the
7 Personnel Act. As if to make clear that OAG employees are classified under the
8 Personnel Act, the Legislature in Section 10-9-14.l(B) allowed OAG employees
9 who were assigned to the Rocky Mountain Information Network before passage of
10 	Section 10-9-4.1 to elect to become exempt from coverage under the Personnel Act.
11 	The language authorizing these employees to elect to become exempt from coverage
12 would be superfluous if the Legislature had intended for OAG employees to be
13 	exempt in the first place. We refrain from reading statutes in a way that renders its
14 provisions superfluous. State v. Rivera, 2004-NMSC-001, ~ 18, 134 N.M. 768, 82
15 	P.3d 939. Therefore, we must conclude that the option to become exempt employees
16 was necessary because the Legislature intended for OAG employees to be classified
17 under Section 10-9-4.
18 II.
19
20 	{19}
Since the 1963 Enactment of the Personnel Act, OAG Employees ~ave at
Times Been Treated as Classified Employees
The parties each seek to support their arguments by pointing to evidence that
21 	OAG employees have historically been treated as classified or exempt. For example,
13

1 Appellants refer us to the Sunshine Portal, created pursuant to the Sunshine Portal
2 Transparency Act, NMSA 1978, Section 10-16D-1 to -6 (2010, as amended through
3 2015). The Department of Information Technology updates the portal monthly with
4 information 	it 	receives 	from 	agencies 	and 	the 	department 	of 	finance 	and
5 administration. Section 10-16D-3(E), (F). The portal lists classified employees by
6 state agency, position title, and salary but does not name the employees. Section 10-
7 16D-3D(l l). Exempt employees are named and are also listed by state agency,
8 position title, and salary. Section 10-16D-3D(12). All OA9" employees are currently
9 listed as classified employees, except one: the Attorney General himself. 	See
10 https://www.sunshineportalnm.com/ (last visited Apr. 29, 2019).
11 	{20} 	For his part, Attorney General Balderas points to evidence that he and other
12 attorneys general have required employees to sign a statement acknowledging that
13 	they are exempt employees. It is not clear from the record when this practice began.
I
14 However, because Attorney General Hartley in 1963 issued an official opinion
15 	concluding that the employees of the Attorney General were "no longer exempted
16 	from the coverage of the State Personnel Act," N.M. Att'y Gen. Op. 63-27 (1963),
17 it is reasonable to assume that Attorney General Hartley followed his own legal
18 	interpretation of the Personnel Act and, therefore, treated OAG emplorees as
19 classified employees covered by the Personnel Act until he left office in 1964. The
14

1 record does not reflect how many OAG employees were classified or exempt
2 between 1964 and 1984.
3 {21} 	Attorney General Hal Stratton's book-often cited by Attorney General
4 Balderas-provides some insight into how OAG employees were categorized from
5 1984 to 1990. Stratton, supra, at 62, 341. Figure 3 in Attorney General Stratton's
6 book depicts the total number of OAG employees and the number that were exempt
7 or classified from 1984 until 1990. Less than ten percent of the OAG employees
8 were exempt from 1984 until 1987, when Attorney General Stratton took office.
9 Stratton, supra, at 109.
10 {22} 	Attorney General Stratton disagreed with Attorney General Hartley's opinion
11 	and believed that Section ~-5-5(A) made all OAG employees at-will. Stratton, supra,
12 at 114. Yet even Attorney General Stratton did not treat all OAG staff as exempt
13 	employees. For example, Figure 3 shows that in 1987, there were approximately 137
14 OAG employees and only approximately 42 were exempt. When Attorney Qeneral
15 	Stratton left office in 1990 there were approximately 118 OAG employees, of which
16 approximately 62 were exempt, and 56 were classified. Stratton, supra, at 109.
17 	{23} 	The persuasive power of the fact that some attorney generals may have treated
18 their employees as exempt and/or required employees to sign an agreement: stating
19 they are exempt from the Personnel Act is virtually nil here. Such an agreement is
20 not enforceable given our conclusion that the Personnel Act applies to OAG
15

1 employees. See 1978 NMSA, §§ 8-5-1 to -18 (1933, as amended through 2019);
2 	Clarkv. N.M Children, Youth & Families Dep't, 1999-NMCA-114, 125, 128 N.M.
3 	18,988 P.2d 888 (stating that "[i]f [the employee] had been made to sign a document
4 that 	was 	contrary 	to 	the 	State 	Personnel 	Rules 	or 	case 	law, 	her 	written
5 acknowledgment would have no effect"); see also State v. Davidson, 1929-NMSC-
6 016, ,-r 9, 33 N.M. 664, 275 P. 373 (stating that the powers of the attorney general
7 are defined and limited by statute). Moreover, as we observed above, Attorney
8 General Hartley's opinion concluding that the Personnel Act covers OAG employees
9 is more persuasive because (1) it was contemporaneous with the 1963 amendment
10 of the Personnel Act, and (2) the Legislature, fresh from obtaining constitutional
11 	authority to create a personnel system and identify which state employees would be
12 covered by the Personnel Act, did not respond to Attorney General Hartley's opinion
13 	by amending the Personnel Act to exclude the OAG from its application.
14 	{24} 	Without question, the continued existence of the language in Section 8-5-5
15 that declares that OAG employees "hold office at the pleasure of the attorney
16 general" 	complicates 	matters. 	Such 	language 	typically 	connotes 	"at 	will"
17 employment, i.e., employment that may be terminated without cause or process as
18 provided in the Personnel Act. See Hartbarger v. Frank Paxton Co., 1993-NMSC-
19 029, ,-r 4, 115 N.M. 665, 668, 857 P.2d 776 ("An at-will employment relationship
20 can be terminated by either party at any time for any reason or no reason, withoμt
16

1 liability."). When the Legislature made a minor stylistic change to Section 8-5-5(A)
2 in 1988, it did not delete this language, a fact that might be construed to indicate that
3 the Legislature intended Section 8-5-5 to remain viable despite the Personnel Act.
4 However, when const_ruing statutes, we presume that the Legislature is aware of the
5 statutes and case law extant at the time. Hence, any amendments to Section 8-5-5
6 must be understood in light of the Personnel Act's comprehensive provisions. Santa
7 Fe Water Res. All., LLC v. D'Antonio, 2016-NMCA-035, 129, 369 P.3d 12 (stating
8 that "when the Legislature recompiles or amends ~ statute, it is presumed to be
9 aware of other relevant statutes and court holdings at the time of the recompilation
10 or amendment").
11 	{25} 	The Personnel Act is a comprehensive statute that addresses state public
12 employment; which employees are or are not covered by the Personnel Act; and. the
13 	procedural protections available to those state employees covered by the Personnel
14 Act. The Legislature has instructed courts that a comprehensive revision of the law
15 	on a subject prevails over previous statutes on the subject regardless of whether the
16 statutes are irreconcilable. If the attorney general wants his employees to be exempt
· 17 from the Personnel Act, he may pursue an amendment to the Personnel. Act. See,
18 	e.g., 	§ 	10-9-4(J). 	The only 	OAG 	employees 	exempt froni the Act are those
19 specifically excluded under Section 10-9-4(A)-(P):
17

1 III.
2
3 	{26}
Appellants Have the Burden of Establishing Sufficient Facts to Invoke
the Subject Matter Jurisdiction of the Board
The Board has subject matter jurisdiction to hear an appeal by a. state
4 employee who files an appeal within thirty days of being dismissed. Section 10-9-
5 lO(B); 	§ 10-9-18(A). After Appellants appealed their dismissals to the Board,
6 Attorney 	General Balderas challenged the Board's subject matter jurisdiction,
7 arguing that Appellants are not employees covered by the Personnel Act. Appellants
8 contend that Attorney General Balderas has the burden of demonstrating a lack of
9 subject matter jurisdiction because he challenged the· Board's jurisdiction and cite
· 10 State v. Begay, 1987-NMCA-025, 16, 105 N.M. 498, 734 P.2d 278 ("Demonstrating
11 	a lack of jurisdiction is [the] defendant's burden."). We disagree.
12 {27} 	In this case, Appellants have the burden of proving that they were employees
13 	as defined by the Personnel Act, Section 10-9-3(1), and held positions covered by .
14 the Act.2 Section 10-9-4; see Lopez v. Career Serv. Review Bd., 834 ·P.2d 568, 573
15 	(Utah Ct. App. 1992) (stating that a party who brings a case before a tribunal of
16 	limited 	jurisdiction 	must 	present 	sufficient 	facts 	to 	invoke 	the 	tribunal's
17 jurisdiction). Here Appellants had to present sufficient facts that they held a state job
18 that was not excluded under Section 1o~9-4(A)-(O). They have satisfied their burden
. 19 of proving that they were state employees. However, they also have the butden of
2
The parties do not dispute that Appellants timely appealed their dismissals
within thirty days. 	-
18

1 establishing that they were not, at the time they were dismissed, a director of a
2 department division excluded under Section 10-9-4(D); one of two assistants or one
3 secretary designated by Attorney General Balderas or the Legislature as exempt
4 under Section 10-9-4(L); or in a policy-making position as determined by the Board
5 under Section 10-9-4(0). Hence, on remand, the Board must determine whether one
6 or more of the A12pellants fall within one of the relevant enumerated exceptions in
7 Section 10-9-4, in which case they do not have the protections of the Personnel Act.
·g 	CONCLUSION
9 	{28} 	Appellants are covered under the Personnel Act unless the Board finds that
10 they are excluded under Section 10-9-4(D), (L), or (0). The Board's dismissal for
11 	lack of subject matter jurisdiction is reversed and this matter is remanded for· further
12 proceedings consistent with this opinion.
13 	{29} 	IT IS SO ORDERED.
14
15
16 WE CONCUR:
17~£__/(
18 MICHAEL D. BUSTAMANTE, Judge Pro Tempore
19 ~-l-~:=..i!l!~~,,a....r.-----=---=--=--=---=~----3'.-~~~~~
20 	LI
19