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NM Gov Didn't Violate Civil Rights When She Fired All The Democrats

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By Casey C. Sullivan, Esq. on April 30, 2015 3:05 PM

New Mexico Governor Susana Martinez, a Republican, didn't violate anyone's civil rights when she cleaned house after taking office, demanding the resignation of employees appointed by her Democratic predecessor. Glenn Smith, the former director of the state Workers' Compensation Administration sued after he was terminated, arguing that he had a right to finish out his five year term.

Unfortunately for Smith, the Tenth Circuit disagreed, finding that he served at the will of the Governor and could be let go before his term concluded. Martinez is considered by some to be a likely contender for the GOP's VP pick in 2016.

New Governor, New Appointees

Smith was appointed to a five year term as director of the Workers' Compensation Administration by Bill Richardson, a Democrat. When Richardson's term as governor concluded and Martinez took over, Smith still had several years left in his term.

Martinez, however, was determined to make the governorship her own. She asked for the resignation of all employees who served at the discretion of the Governor and then fired those, like Smith, who declined to resign. Smith sued, arguing that he was entitled to a full term and that the firing denied him due process and First Amendment rights to political association.

If The County Road Manager Requires Political Allegiance ...

Generally, government employees cannot be fired for their political affiliation or beliefs. There's a huge exception to this rule however, for when the position is one requiring political allegiance. In such cases, party affiliation can be an appropriate requirement for employment, without violating the First Amendment.

If the job allows for policy making authority, it is likely one which requires political allegiance, since it is through such appointments that officials carryout their policy goals. What kinds of positions have political dimensions? Well, county road supervisors, apparently, according to Tenth Circuit precedent. If the guy in charge of pouring the concrete is a policy maker, you can bet that the director of the workers' comp agency will be as well. The Tenth had no problem drawing that conclusion.

Directors Aren't Judges

Smith also argued that his role was a quasi-judicial one requiring independence from the state executive. That didn't sway the actual judges on the Tenth Circuit. Though workers' comp judges do adjudicate disputes, the director does not. His position is administrative, not judicial.

As for Smith's claims that his termination violated due process, the court refused to evaluate them, since they weren't properly briefed.

A word of caution to all the Governors reading this, however: don't start sending out the pink slips just yet. The Tenth's opinion has no precedential value.

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