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F I S C A L I M P A C T R E P O R T
SPONSOR Campos
DATE TYPED 2/07/05
HB
SHORT TITLE PRC Commissioner Elections and Appointments
SJR 3
ANALYST Rosen
APPROPRIATION
Appropriation Contained Estimated Additional Impact Recurring
or Non-Rec
Fund
Affected
FY05
FY06
FY05
FY06
NFI
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates SJR4 and HJR8
Relates to HJR2
SOURCES OF INFORMATION
Responses Received From
Public Regulation Commission (PRC)
Secretary of State (SOS)
No Responses Received From
Attorney General’s Office (AGO)
SUMMARY
Synopsis of Bill
Senate Joint Resolution 3 submits to voters a proposal to amend Article 11, Section 1 of the Con-
stitution of New Mexico changing the membership of PRC as follows: the current system of five
commissioners elected by district will be replaced with a system in which three commissioners
are elected by district and two are appointed by the governor with the consent of the senate. The
five existing Commission districts are to be redistricted along the boundaries of the three con-
gressional districts. For commissioners appointed by the governor, removal from office will be
based on incompetence, neglect of duty, or malfeasance in office. The amendment does not pro-
vide for removal of elected commissioners. Members will serve staggered four-year terms, with
no more than two consecutive terms. Members will elect from amongst themselves a chairper-
son who will serve as chair for a term of two years.
pg_0002
Senate Joint Resolution 3 -- Page 2
If the proposed amendment is ratified by the voters, the appointed commissioners take office on
January 1, 2009 and the elected commissioners take office on or about January 1, 2011.
Significant Issues
According to PRC, the proposed amendment does not address qualifications for gubernatorial
appointees to the Commission. PRC questions whether mixing elected and appointed commis-
sioners would create greater PRC accountability. PRC notes the proposed amendment provides
for removal of appointed commissioners on particular grounds but does not subject elected
commissioners to removal on the same grounds. PRC reports the Commission routinely engages
in quasi-judicial administrative proceedings that affect the rights of parties and questions whether
candidates for gubernatorial appointment should be subject to restrictions based on actual or po-
tential conflict of interest or bias.
PERFORMANCE IMPLICATIONS
According to PRC, the two appointed commissioners would be politically accountable to the
governor, while the elected commissioners would be politically accountable to their constituents.
This might have performance implications in that it would create different lines of accountability
as between the two sets of commissioners, even though the Commission would still have a statu-
tory duty to exercise its overall authority in the public interest
FISCAL IMPLICATIONS
PRC reports this resolution may impact NMSA § 1-19A-10 (Public Election Fund: Creation and
Use). Placing this constitutional item on the ballot could also pose some unanticipated costs to
the SOS if it is done by special election.
SOS indicates this resolution will not affect the current provisions of the Voter Action Act for
Public Regulation Commission campaign financing as set forth in Sections 1-19A-1 through 1-
19A-17 NMSA 1978.
ADMINISTRATIVE IMPLICATIONS
According to PRC, having a mixture of elected and appointed commissioners could cause uncer-
tainty about the administrative placement of the Commission within the executive branch. For
example, would the Commission be subject to executive orders of the Governor.
CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP
This resolution duplicates HJR8 and SJR4, which also submit to the voters a proposed constitu-
tional amendment to replace the current system of five commissioners elected by district with a
system in which three commissioners would be elected by district and two would be appointed
by the governor. SJR4 includes a requirement that the two appointed commissioners be of dif-
ferent political parties.
This resolution relates to HJR2, which also would submit to the voters a proposed constitutional
pg_0003
Senate Joint Resolution 3 -- Page 3
amendment to make fundamental changes to the Commission, removing the existing constitu-
tional authority of the Commission and replacing it with such authority as might be conferred by
the legislature.
TECHNICAL ISSUES
PRC indicates several technical issues with this resolution:
The terms “incompetence,” “neglect of duty,” and “malfeasance in office” are not defined and
could be the subject of litigation.
The proposed amendment does not address issues of actual or potential bias, conflicts of inter-
ests, or the appearance of such bias or conflicts in the possible appointment of former employees
of regulated entities to the commission. Examples of “problem” appointments might include
persons currently or formerly affiliated with a regulated entity, such as attorneys, consultants, or
contractors for such an entity.
If the proposed amendment is approved by the voters, the legislature would have to conform the
Commission’s other organic statutes (such as the Public Regulation Commission Act, NMSA §
8-8-1, et seq.) and statutes relating to the Commission’s substantive authority (such as those re-
lating to public utilities, telecommunications, transportation, and insurance – see, e.g., NMSA §§
62-1-1, 63-1-1, 63-9A-1, 65-2-80, and 59A-1-1, [et seq.]).
ALTERNATIVES
Retain the current terms of Article 11, § 1 of the New Mexico Constitution.
Refine terms in the proposed amendment relating to the process, standards, and effect of guber-
natorial appointments.
WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.
Status quo
JR/sb