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New Secretary of State to Keep City Council Seat? That Appears to be Prohibited by Law.

12/16/2015

New Secretary of State Brad Winter says he is going to hold his new office while simultaneously continuing to retain his seat on the Albuquerque city council.  

This may be a little surprising to some—to those who expected Mr. Winter's appointment would be non-controversial. Some may have presumed that his appointment would be designed to present a fresh face, free of any distractions – arriving to save an office mired in distraction.

However, this very first statement after swearing to uphold the constitution, may lead him to a direct violation of that constitution.  

 

Residency Requirements for State Officeholders

We may be wrong. Surely this question was researched during the several months in which the Office of the Secretary of State has been held in limbo.

However, here are the facts. You decide.

The New Mexico Constitution, Article  5, Section 1, addresses the composition of the executive department. It says:

§ 1. Executive department composition

"The executive department shall consist of a governor, lieutenant governor, secretary of state, state auditor, state treasurer, attorney general and commissioner of public lands...

"The officers of the executive department, except the lieutenant governor, shall during their terms of office, reside and keep the public records, books, papers and seals of office at the seat of government."

Some have opined that the word “reside” in this section doesn’t really mean that the Secretary of State has to live in Santa Fe.

They point out that Dianna Duran maintained a home in Tularosa, and that other executive officers, perhaps State Treasurer Tim Eichenberg, Attorney General Hector Balderas, and State Auditor Tim Keller, may actually live in Albuquerque.

However, just for the record, the New Mexico Supreme Court has affirmed that this provision means what the language suggests:

"All of the parties agree that Santa Fe is the capital of New Mexico and the seat of government; they also agree that the officers specifically named in § 1 of art. V of the Constitution must reside and keep the public records at the seat of government."

— State ex rel. Gomez v. Campbell, 1965- NMSC - 025

If you hold only one elected office, as the above-named officers do, one can perhaps plausibly maintain something that appears to be reasonably close to "residence" in the capital city, whether by means of an apartment or hotel room, or some other arrangement. Who knows?

But none of those four officeholders have held another elected office in Tularosa or Albuquerque at the same time they were "establishing residence" (some kind of residence at least) in Santa Fe.

The problem that arises for Mr. Winter—or for any other double officeholder for that matter—is that all offices by their very nature carry with them their own individual residence requirements.

In the case of an Albuquerque city councilor, the Municipal Election Code requires a councilor to reside in Albuquerque in order to be qualified to serve on the city council.  If he does not “reside” in Albuquerque, then he would not be a qualified elector, and therefore not eligible to be a candidate, let alone an officeholder.   

Section 1-1-7 contains a number of provisions about determining where a person’s actual residence is for the purpose of voting, but it contains this one particularly key phrase: 

"There can be only one residence.” 

Here is the Gist of the Problem

This is the problem that a dual officeholder has that a single officeholder will not confront: an officeholder cannot simultaneously satisfy statutory or constitutional requirements that require the individual to live in two separate cities simultaneously.

It does not appear that Mr. Winter can “reside” in Albuquerque for the purpose of serving on the City Council, and also “reside” in Santa Fe for the purpose of satisfying the constitutional requirement for the office of Secretary of State. 

The law states forthrightly "There can only be one residence."  

So that makes the whole thing appear to present a problem.  If an individual could hold multiple offices based on multiple “residences," a wide variety of imaginative office-holding exercises might be taking place all over the state. (Who knows, some legislators might even come clean about where they actually “reside.

But it May Get Worse:  "Optics"

We don't know how this will work out. But the ironic part is that swearing in a new Secretary, rather than relieving the perceived "tension" surrounding the Office, may very well do the opposite. It may have placed the office under special, and renewed, scrutiny.

Here's why:  The statutory sections described above, that have just been either violated or reinterpreted by the new Secretary, come under the New Mexico Election Code, which the Secretary of State is charged with interpreting and applying.

So Democratic Party critics could make the case that it took the new Secretary less than five minutes to adopt an interpretation of the Election Code that benefits him financially.  We are sure that many Republicans, as well as Democrats and independents were expecting something better.

We are worried there is ammunition here that needs to be detonated away from the office and disposed of as quickly as possible so as not to explode while the office is being redirected and refocused.

Two Immediately-generated Problems have Arisen 

First, as Secretary of State, Mr. Winter is responsible, under Section 1-2-1(A) NMSA 1978, for “maintaining uniformity in the application, operation and interpretation of the Election Code.”

Now, the de facto "ruling" he issued five minutes after he swore to uphold the state constitution, flies in the face of the residency provisions of the Election Code just referred to.   

Second, another responsibility of the Secretary of State is the interpretation, education and enforcement of the Governmental Conduct Act.  

Section 10-16-4 of that Act says the following:

  1. It is unlawful for a public officer or employee to take an official act for the primary purpose of directly enhancing the public officer’s or employee’s financial interest or financial position...
  2. A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer’s or employee’s financial interest, except a public officer or employee shall not be disqualified from engaging in an official act if the financial benefit to the public officer or employee is proportionately less than the benefit to the general public.

Mr. Winter has already been attacked (Tuesday afternoon in fact) by New Mexico media for drawing two salaries—$85,000 for being Secretary of State, and $30,000 for being a city councilor.

If Mr. Winter were holding any of the other executive offices mentioned above, such as State Treasurer, Attorney General, or State Auditor, he would of course be under immediate scrutiny regarding his decision to remain on the Albuquerque City Council—for the mutually exclusive residency requirements already discussed.

But because he is Secretary of State, his situation—optically at least—is much worse than any of the other three offices mentioned. Why? Because as Secretary of State he is actually responsible for interpreting and applying the very statutes in question.

That it took him less than five minutes to state he is going to set a precedent, break new ground as it were, and occupy two offices with two mutually exclusive residence requirements, is something that interested parties might notice.

He must keep in mind that his actions, as chief elections officer, set the rules for others. So, again, optically at the very least—and likely legally—this is a bad precedent he has embarked upon.

We would not be surprised to see this decision face a legal challenge from some entity—likely the Democrats on the Albuquerque City Council.

 

It is Possible to Hold more than One Office in Some Instances. But not These. 

By no means would we say that one cannot hold more than one office at the same time. It can be done. For example, you can be a legislator and a member of a municipal government—a mayor, city councilor, or village trustee—at the same time. It's allowed by law.

A mayor of Santa Rosa for example, would live in Santa Rosa and simultaneously be living in both a state house or state senate district. He or she could hold both the position of mayor as well as one of the legislative positions.

On the other hand, under the constitution, you cannot be a county official and a legislator at the same time. Those are just examples. 

But in no instance can you hold two elected positions that require you to live in different places.

Looking Ahead

The much more complex challenges of the Campaign Reporting Act are lurking in the wings, never addressed in all of 2015.

They are much more difficult to sort through than the judicious application of residency requirements. And yet, here we are with what looks like a start that inspires anything but confidence in the simple application of some of the most basic elements of the Election Code.

Over the past four years, the Office of the Secretary of State was called upon to address residency issues of candidates. How can an officeholder who is claiming to comply with two separate—and mutually exclusive—residence requirements do that? In a credible and serious way?


Email us with your feedback, comments, questions and ideas.

Intelligent Political Discourse—for the Thoughtful New Mexican

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Jeb Bush gets religion.

"They said he got religion at the end, and I'm glad that he did."  — Tom T. Hall. The Year Clayton Delaney died.

Well, it's official.  Jeb Bush has changed quite of few of his positions on illegal immigration.  The single most significant is that he no longer endorses the "path to citizenship" for those who came here illegally. 

This is, after all, the key portion of any proposal aimed at "reforming" our existing illegal immigration situation.

No sensible citizen can see any point in trying to deport between 12 and 16 million people currently living in America illegally.  And no candidate for any office that we know of supports that.  What the average American wants is for the country to "get a handle on it."  They want it stopped, our borders secured and future illegal immigration prevented.  It is a national security issue.

The Path to Legal Status

The only way to accomplish the above goals, is to identify current illegal immigrants, get them accounted for, have them documented, and placed on a path to legal status.  Neither they nor their children or spouses should live in a state of fear or anxiety.

But a path to "citizenship" is not the right course.  It is not morally or legally correct.  A merciful and compassionate nation can provide the safeguards of legal status without sending the message to the rest of the world that all you have to do is cross our border and you will eventually get to become a citizen, thus circumventing the legal framework scores of millions of Americans have followed, honored and respected.

If someone who is granted legal status eventually wants to become a citizen, that person should have to return to his or her country of origin and wait in line like 20 million people around the world are doing at any given time.  Failing that, America will forever send the signal that anyone in the world can "jump the line," and that there is no reason at all to obey our immigration and naturalization laws.

We Like Jeb Bush

We are glad Jeb Bush has learned this lesson.  He is a fine speaker, and can eloquently explain his positions on complex issue.  If he were not named "Bush" he would be an actual top tier candidate—in all that that title would entail, including likelihood of acceptance and support of and from the American people in the primaries, and in any theoretical general election.  

We also recognize that he already is a de facto top-tier candidate because of his fame and his fundraising.

If he were to be the nominee of the Republican Party we would heartily support him and endorse him.  We hope, however, that he is not, as he does not give the center-right coalition the best chance of winning.

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    Selma   ????? We have now seen the Oscar-nominated movie Selma.   Our earlier allusion to criticism that sounded as though it was in an Oliver Stone category for historical fabrication is some...

Sports

Sports

The Major League Baseball Playoffs are not realistic, and destroy the actual meaning of the sport. 

Major League Baseball is unique in this respect—its postseason is markedly different from the way the game is played normally.  No other major league sport suffers from this flaw.

Not that much is wrong with baseball. In some respects it's the most well thought-out sport there is.  The "perfect game" many aficionados say.

But the Major League Baseball postseason experience is unique in the world of professional sports, and not in a good way. 

In fact the playoffs are flawed in such a way as to detract from the sport itself and diminish the game and what it means to be the world champion of the sport. 

Among the Big Four team sports of North America: football, hockey, basketball and baseball—and all the 122 professional major league teams competing in the NFL, NHL, NBA and MLB respectively—it is in baseball alone that the postseason turns the sport itself on its head and makes it reflect something that it is not.  This article will explain why that happens and why it is wrong-headed.

 

Background on the The Frequency of Play

The 30 teams in both the National Hockey League and the National Basketball Association teams play a very similar schedule.  On average, each team has a day off between games, sometimes two days off.  Though there are back-to-back games, they are relatively infrequent.  NBA teams play between 14 and 22 back-to-back games a season, and for the NHL it usually ranges between 9 and 19. The NFL has a full week between games, the exception being the new Thursday games that each team plays once, leaving them only four days' rest once a year.

But baseball players play every single day.  Ten days straight, then a day off, then seven more games, then a day off, then ten more games.  Typically a baseball team plays 27 games every 30 days.  For the NHL and NBA it would be 14 per month, and for the NFL the number would be 4.

 

Getting to the Playoffs:  It's a grind

In all four sports, getting to the postseason requires a total team effort—in fact an all-out total organizational effort.  Teams must be deep, have bench strength and the capability of moving players in and out of the lineup, and on and off the roster, who can take the place of key players who go down for an injury, or who have to miss games for whatever reason.  While this is true of the other three major sports as well, it is most certainly even more of a concern for baseball teams because of the sheer volume of games in which a team must field a competitive lineup.

Each league's regular season* is a marathon, not a sprint.  NFL teams play for 17 weeks, 16 games.  The NHL has an 82-game season over six months, paralleled by an NBA season of 84 games over the same timeframe. Baseball is the biggest marathon of all—a true test of resilience and endurance—162 games usually starting around the beginning of April and finishing about the end of September.

NHL teams carry 23-man rosters, of which 20 can be active for any particular game.  The NBA is similar, with 15-man rosters of which 13 can be on the bench for a given game. In the NFL, the teams have 53 players on a roster, but only 46 can suit up on game day.  In Major League Baseball, teams have a 25-man active roster, and all 25 are at the park every day.

 

The Postseason Playoffs:  Sport by Sport

The National Football League:

Of the 32 teams, 12 qualify for the playoffs.  The playoffs are conducted in the exact same manner as the regular season.  Each team plays once a week, the exception being that the four top teams get the first week off.  For a typical qualifier to reach the Super Bowl, the team must play three consecutive weeks.  At that point both remaining teams have two weeks off before the Super Bowl.

In short, the playoffs, with a game each week, reflects the same means of advancement as is present in regular season grind.

The National Hockey League: 

16 of the 30 teams qualify for the postseason.  The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on.  Just as in the regular season, there are occasionally two days off.  But the playoffs require the same stamina, the same approach as that required to make the playoffs.

 

The National Basketball Association

16 of the 30 teams qualify for the postseason.  The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on.  Just as in the regular season, there are occasionally two days off.  But the playoffs require the same stamina, the same approach as that required to make the playoffs.

Major League Baseball

10 of the 30 teams qualify for the postseason.  (Although four of those teams qualify only for a one-game do-or-die play-in game.)

Here is where all similarity to baseball ends. 

Unlike the other three sports whose playoffs mirror the test of the regular season, and whose conditions are the same as the regular season, Major League Baseball playoffs in no way resemble the sport itself.  In hockey, basketball and football, the teams win playoff games and reach the pinacle of the sport in exactly the same way that they qualify to try to do so. 

Not so in baseball.  They are two entirely different concepts.  Teams make the playoffs only because they have depth, five-man pitching rotations and can play day-in and day-out at a high level.  But the baseball playoffs suddenly become a kind of "all-star" game within each team's roster.  MLB playoffs are conducted in a way that more closely follows the NBA and the NHL.  Teams have enormous numbers of days off. 

Here's the key point:  No Major League Baseball team could even qualify for the postseason if they played the same way during the regular season that they do in the playoffs.  None.

In the regular season Major League Baseball teams have to use a 5-man starting rotation, with pitchers pitching every 5th day.  There are not enough days off to have even a four-man rotation, let alone a team with three pitchers.  Even the best team in baseball using only a 4-man rotation, would wear them out, and most likely end up with a record of something like 66-96, or 70-92—and that would be if they were otherwise teh best team in the sport.

 

The 2014 Baseball Postseason is Typical

As examples, last year's World Series teams the Kansas City Royals played only 15 games in 30 days, and the San Francisco Giants played only 17 games in 30 days.  The 12 to 15 days off in the non-baseball fantasy world of the MLB postseason, means that teams can turn to three pitchers and give all of them plenty of rest.  But it isn't the way baseball really works.

At one point, the Royals had 5 consecutive days off, and the Giants had 4.  This never happens in the regular season.  Even the All-Star break is only three days.  Very rarely is there anything beyond a one-day break, and even that happens only a couple of times a month. 

What this means is that neither team used the team that got them to the playoffs.  (The NFL, NBA and NHL teams ALL used the very same teams that got them to the playoffs.) 

Baseball teams use a three-man pitching rotation in the playoffs.  Sometimes, they essentially opt for two pitchers only—conceding the likelihood that some of their games are going to be lost—when their third-, or rarely fourth-best pitcher has to face one of their opponents' two-man or three-man rotation members. 

Imagine an NFL team using only one running back and three wide receivers, instead of rotating through their roster in the course of a playoff game—or using only 4 defensive backs and 4 linebackers, instead of rotating 8 or 9 DBs and 6 or 7 linebackers?  In hockey, would a team use only two or three of their forward lines?  Would an NBA team use only the starting five?  They would never make the post season if they tried to present that product to their fans during the regular season.

Those are the equivalents of what Major League Baseball sets up every fall.  No other sport drags its playoffs out in such a way as to completely change the playing field—completely change the dynamics of its game.

Why Does Baseball Do This?

MLB does this because the TV networks want to drag out the games so that they can try to have one game each day  This requires an unnecessary staggering of games, and creates the phenomenon of 15 off-days in a month.

What about travel days?

What about them?  Baseball has travel days constantly.  A team may play in Chicago one day and in Miami the next, or in New York one day and Phoenix the very next day.  Travel days as a routine part of the game are again, a phenomenon of television, and stretching out the playoffs.

In years past, travel days were employed only when necessary. The famous "subway series" games were played on seven consecutive days.  Why?  Because there was no "travel day" required to go from Brooklyn to the Bronx.  Today, they would put in artificial travel days.

Even fairly long train trips didn't necessarily matter.  The 1948 World Series between the Cleveland Indians and the Boston Braves was played in six consecutive days, October 6 & 7 in Boston, October 8, 9 & 10 in Cleveland, and October 11 back in Boston.

This reflects actual baseball, the way the teams play day-in and day-out, and the kind of unique test that baseball presents to its athletes, its managers and management, and to its fans.

In the modern world of charter planes, teams fly from coast to coast to play games on consecutive days.  The artificial "travel day" should be eliminated so that teams can play in the playoffs in the same way that got them there in the first place.


*All these leagues also have pre-seasons and training camps, which add an additional 6-8 weeks to each player's year.


Email us with your feedback, comments, questions and ideas. 

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