Attorney General Opinions and Advisory Letters

Decision Information

Decision Content

Opinion No. 59-151

September 29, 1959

BY: HILTON A. DICKSON, JR., Attorney General

TO: Mr. Floyd Cross Personnel Director State Capitol Santa Fe, New Mexico

{*231} This is in response to your request for an opinion on the following:

What agencies in the list submitted by you are included under the Personnel Act, being Chapter 205, Laws of 1959?

1. Section "E" of the Act reads as follows:

"'Agency' means any agency of the state government except:

(1) the legislature and the judiciary and the personnel responsible to them;

(2) educational and eleemosynary institutions; and (3) the department of health, the department of welfare, and the employment security commission." (Emphasis supplied)

2. It is to be noted that many executive departments and agencies may engage in both legislating and adjudicating to a certain extent. The making and promulgating of rules and regulations might, in the strict sense be termed legislating. So also holding hearings before various commissions, taking evidence and making rulings might be held to be adjudicating in the strictest interpretation of the term. However, these are secondary functions of those agencies and are acts necessary to the carrying out of their executive duties which is their primary function.

Departments, offices, boards, commissions, bureaus or state institutions which act on behalf of the state as an agent thereof and in the furtherance of state business is a state "agency". Purely investigative bodies who make no final decisions, but limit their function to fact-finding are not included within the meaning of the term.

The Act further exempts:

"(2) educational and eleemosynary institutions; . . ."

"'Educational institution' is one which teaches and improves its pupils; a school, seminary, college, or educational establishment." Lois Grunow Memorial Clinic v. Oglesby, 22 P. 2d 1076, 42 Ariz. 98.

"' educational institutions,' contemplates schools in the usual sense, that is, institutions of learning which exist independently as such, and have a definite curriculum or course of study, and are designed to serve as the medium for imparting to students who attend them a knowledge of those things broadly covered within the field of education." State ex rel Kaegel v. Holekamp, Mo. App., 151 S.W. 2d 685.

Eleemosynary institutions are charitable institutions and include educational institutions.

" . . . 'eleemosynary' has come in the law to be interchangeable with the word 'charitable,' thus including educational institution." People v. Cogswell, 45 P. 270, 113 Cal. 129.

The exemption would therefore be only for the institutions of learning and charity. The Board of Education and Administrative offices of the education department would come under the Act.

As further strengthening this argument, we need only look at the third subsection under (E) to {*232} see that had the Legislature intended any particular department to be exempt, it would have expressly so declared. This subsection exempts from the operation of the Act, the Health Department, Welfare Department and the Employment Security Commission. These need no further explanation.

In view of the above, it is my opinion that the following are not included under the Personnel Act:

1. Legislature

2. Legislative Council

3. Legislative Fiscal Analyst

4. District Judges

5. Law Library

6. Supreme Court

7. Attorney General

8. Commission on Uniformity of State Laws

9. Employment Security Commission

10. Fish and Wildlife Service

11. Intertribal Indian Ceremonial

12. Department of Public Welfare

13. Department of Public Health

14. Carrie Tingley Hospital

15. Los Lunas Hospital

16. Tuberculosis Hospital

17. Miners' Hospital

18. State Hospital

19. Museum of New Mexico

20. New Mexico Historical Society

21. Old Lincoln County Memorial Commission

22. Museum of International Folk Art

23. New Mexico State University

24. Eastern New Mexico University

25. Highlands University

26. Institute of Mining and Technology

27. New Mexico Military Institute

28. New Mexico Western University

29. Northern New Mexico Normal

30. New Mexico School for Visually Handicapped

31. University of New Mexico

32. New Mexico School for Deaf

33. Criminal Code Study Committee

The following agencies, boards, commissions, departments and committees are included under the Personnel Act:

1. New Mexico Compilation Commission

2. Supreme Court Building Commission

3. Auditor

4. Bureau of Revenue

5. Capitol Building Improvement Commission

6. Capitol Custodian

7. Department of Courtesy and Information

8. Department of Finance and Administration

9. State Investment Council

10. State Planning Office

11. Educational Retirement Board

12. Governor's (Staff)

13. Lieutenant Governor

14. Merit System Council

15. Motor Vehicle Department

16. Public Employees' Retirement Board

17. Records Control Division

18. Secretary of State

19. State Board of Finance

20. State Purchasing Agent

21. State Tax Commission

22. State Treasurer

23. Accountancy Board

24. Architects Examiners Board

25. State Bank Examiner

26. Barber Examiners Board

27. Bar Commission

28. Bar Examiners Board

29. Basic Science Board

30. Chiropractic Examiners Board

31. Collection Agency Board

32. Contractors License Board

33. Corporation Commission

34. Cosmetology Board

35. Dental Examiners Board

36. Dry Cleaning Board

37. Electrical Administrative Board

38. Embalmers and Funeral Directors Board

39. Fair Employment Practices Commission

{*233} 40. Fire Marshal

41. Labor and Industrial Commission

42. Liquified Petroleum Gas Commission

43. Medical Examiners Board

44. Nursing Board

45. Optometry Examiners Board

46. Osteopathy Examiners Board

47. Pharmacy Board

48. Physical Therapists Licensing Board

49. Plumbing Administrative Board

50. Podiatry Board

51. Professional Engineering and Land Surveyors Board

52. Public Service Commission

53. Racing Commission

54. Real Estate Board

55. State Mine Inspector

56. Superintendent of Insurance and Insurance Board

57. Superintendent of Weights and Measures

58. Veterinary Examiners

59. Cattle Sanitary Board

60. Dairy Industry Indemnity Board

61. Department of Development

62. Department of Game and Fish

63. New Mexico Forest Conservation Commission

64. Grasshopper Control Board

65. Land Commissioner

66. Oil Conservation Commission

67. Oil and Gas Central Accounting Commission

68. Park Commission

69. Sheep Sanitary Board

70. Soil Conservation Committee

71. State Engineer

72. Interstate Stream Commission

73. State Fair Commission

74. Commission on Alcoholism

75. Commission on Indian Affairs

76. Veteran's Service Commission

77. Adjutant General

78. State Armory Board

79. Boys' Industrial School

80. Civil Air Patrol

81. Civil Defense Department

82. Girls' Welfare Home

83. Parole Board

84. Penitentiary

85. Probation Officers

86. State Police

87. Youth Commission

88. Highway Department

89. Governor's Approval Committee

90. State Library Commission

91. Superintendent of Public Instruction

92. Vocational Education

93. Vocational Rehabilitation

94. Board of Educational Finance

95. State Department of Agriculture

96. Bureau of Mines and Mineral Resources

Article V, Section 14 of the New Mexico Statutes prior to the 1955 amendment would have exempted the Highway Department from the operation of this Act. However, the 1955 amendment having deleted the sentence granting exclusive authority of the Highway Department in all matters pertaining to Highway employees, it is my opinion that the Highway Department is included.

The Attorney General would ordinarily be included under the Act. However, Section 4-3-5, N.M.S.A., 1953 Comp. PS., expressly provides that the Attorney General may appoint the necessary number of Assistants "together with stenographic clerical, and other necessary employees on a full or part time basis, at salaries to be fixed by him. . ." This, quite clearly, vests authority over his employees in the Attorney General exclusively. It is to be noted that all the employees, including the Assistant Attorneys General, serve at the pleasure of the Attorney General.

B.J. Baggett,

Assistant Attorney General

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.