Senate Democrats want Attorney General to weigh in on capital outlay flap

By Rob Nikolewski on July 12, 2013
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The battle over capital outlay projects continues.

has learned that 11 Democrats in the state Senate have sent a letter to asking his office to offer an opinion on an executive order that Republican Gov. signed in early May.

In an attempt to get communities and entities that have been late turning in their state-required audits, the executive order decrees that capital outlay dollars won’t be disbursed until the (DFA) has received the audits and determines the entities don’t have any “significant deficiencies” or “material weaknesses” in their financial situations.

MONEY ON HOLD: NM Senate Democrats want the attorney general to offer a legal opinion on an executive order issued by Republican Gov. Susana Martinez.

In an e-mail, Sen. , D-Las Cruces, said he doubts whether the executive order is legal.

“The issue is whether the Governor can unilaterally refuse to release funds appropriated by the Legislature and which she has already signed without veto,” Sen. Cervantes said.

There are 91 projects — ranging from roadwork to construction/renovations to public facilities — across the state totaling about $24 million that have been suspended.

DFA Secretary says he thinks the executive order is “a legitimate exercise of executive authority” and the projects can still go forward by the end of the year, provided the entities show they’re on solid financial footing.  “We’re trying to make sure we’re meeting the minimum expectations of the public when it comes to spending their money,” Clifford said earlier this week.

But the senators say that since the capital outlay projects passed the Legislature and the governor signed them, Martinez doesn’t have the right to potentially withhold the cash.

“The capital outlay bills from 2013 do not include audit compliance requirements,” the letter to the attorney general says. “The Audit Act grants the state auditor, and not the governor, power to audit and to establish reasonable rules to conduct these audits.”

– a Democrat — said earlier this week, “If you violate our state law (by not having an up-to-date audit), you should not receive capital outlay. However, if DFA is attempting to withhold funds from a community, DFA should follow up very carefully.”

For years, New Mexico has been struggling with communities and entities receiving outlay packages even though they haven’t completed their annual audits.

When asked when the attorney general’s office might respond, spokesman Phil Sisneros said, “We don’t have a real timeline to give you. Every request is unique.”

It should be noted that an opinion from the attorney general’s office is just that — an opinion — and does not have the force of law.

Attorney General King is already investigating another controversy — involving the Human Services Department suspending Medicaid payments to 15 behavioral health providers across the state for alleged misspending — involving the Martinez administration.

King has announced he will seek the Democratic Party nomination for governor next year, challenging a re-election bid by Martinez.

The only other announced Democratic candidate for governor is Linda Lopez, D-Albuquerque, is one of the 11 senators who signed the letter to the attorney general.

Click here to read Watchdog’s original story on Democrats complaints about the executive order.

Here’s the letter:


Contact Rob Nikolewski at and follow him on Twitter @robnikolewski

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One Comment For This Post So Far

  1. Tom
    11:20 am on July 16th, 2013

    The legislature needs to be careful what they ask for, first the rampant incompetence of the Gary King administration could mean that the answer they come up with has nothing to do with the law. More likely they will take their time, as every position for Gary King is oriented towards his political hunger, rather than the interests of the citizenry.

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