Leading New Mexico lawmakers are clashing with the governor over $30 million in coronavirus funding that she appropriated on an emergency basis earlier this year. 

Leadership from both the state’s House and Senate signed a July 16 letter seeking a formal response from Gov. Michelle Lujan Grisham regarding their concerns about the funding, which they contend exceeded the governor’s authorized limit. Legislators are not disputing the intended purpose for the money (protective gear in the middle of a pandemic); rather, they claim that the way in which it was seized crosses the line into one of the legislature’s biggest responsibilities: the allocation of state funds. 

The governor’s office, however, disputes lawmakers’ take on the situation, arguing that the appropriations were within her purview. 

This fight extends a tussle over how much authority each branch had to allocate federal coronavirus relief funding, which totals about $1.25 billion so far. 

Orders issued 

The debate surrounding emergency funding stems from two executive orders issued by Lujan Grisham. One, dated March 27, freed up $20 million in state dollars for spending on personal protective equipment (PPE), testing equipment and other related materials, according to the order. A second order, dated April 8, made available another $10 million for the same purpose. 

The emergency orders freed up money from the state’s financial reserves for spending on coronavirus response efforts. 

The Legislative Council, which consists of leaders from both the House and Senate, voted in early July to send the letter questioning Lujan Grisham and to seek a legal review of her actions. The matter could end up in court, yet this is still up in the air.

Sen. Mary Kay Papen, D-Las Cruces, the co-chair of the Legislative Council and president pro tempore of the Senate, said each branch of government has its duties, and financial appropriations fall within the bounds of the legislature. By failing to question the $30 million, “we’re giving up our power,” she said.

“Any time we abdicate any of our power, we’re never going to get it back,” Papen said. “What we have is checks and balances. Our feeling is that some of the checks and balances were taken advantage of.” 

‘Two bites out of the apple’ 

New Mexico has battled the pandemic since March, when the state confirmed its first COVID-19 cases. The state scrambled to implement mass testing of residents and find protective gear in a 

PPE market swamped by worldwide demand. Through July 28, more than a half million tests were administered across the state, with positive cases approaching 20,000. 

Most state spending must first be approved by the legislature, which usually meets only in 30-day or 60-day sessions at the start of each year. Occasionally, a special legislative session convenes, as happened in mid-June this year, to deal with coronavirus-related budget issues. 

But the governor has power to allocate some funds without prior legislative approval in the event of emergencies, such as fires and floods — or a pandemic. 

Sen. John Arthur Smith, D-Deming, the chair of the Senate Finance Committee, said the amount that can be unilaterally allocated by the governor sits at $750,000 for multiple days for a particular emergency, a sum much less than $30 million. 

“She took two bites out of the apple and said ‘it’s an emergency’ and never recognized the $750,000 limitation,” Smith said. “And that’s where I spoke up and said, ‘Hey, that’s appropriation.’ At least she should have given the courtesy to the legislature.” 

Governor’s office responds 

A counter argument is that Lujan Grisham could have issued a number of emergency orders for $750,000 each and still arrived at the $30 million amount. 

“The governor's reasoning is very simple — she is authorized under state statute to spend that amount in the case of an emergency,” said Tripp Stelnicki, Lujan Grisham’s director of communications, in an email. “That is an oversimplification of an issue the legislature has decided to complicate, but it is the reality. The legislature's argument amounts to a simple question of technical effect, asserting that the governor must authorize that spending in tedious identical different orders rather than in one fell swoop. We reject that argument.” 

Stelnicki declined to comment further because the matter could be headed to court. 

House Speaker Brian Egolf, D-Santa Fe, and the co-chair of the Legislative Council, also signed the letter. But he said he thinks the issue boils down to “a technicality of how the governor’s order was formulated.” 

“I think she had the authority to spend the money,” he said. “I think the money was spent on a very necessary purchase.” 

Legal basis questioned 

The New Mexico statute allowing governors to issue emergency funding does raise questions whose answers may come down to a legal analysis. It states that up to $750,000 can be issued “for each eligible and qualified applicant or so much thereof as the governor may from time to time designate from the surplus unappropriated money in the general fund.” 

New Mexico lawmakers assert in their letter that the $30 million allocation was not in line with the statute. They also take issue with Lujan Grisham’s reliance on a law that applies to allocations for the New Mexico National Guard, which wasn’t a focus of the coronavirus emergency, as well as her office’s citation of a section of the state constitution, which lawmakers contend does not give the governor a basis for the appropriations. 

That segment of the state constitution “does not appear to provide any authority for the executive to make broad emergency funding designations that exceed the appropriation levels set by the legislature,” according to the letter. 

Smith, in an interview, questioned the need for $30 million on an emergency basis because, even though it was freed up, it hasn’t all been spent yet. In a crisis situation, he said, it would have been. He challenged Egolf’s characterization of the matter as a technicality. 

“It seems when he classifies it as a technicality, he’s not holding up his branch of government, as far as I’m concerned,” he said. “In my 32 years in the legislature, I’ve never seen a governor dig in [to emergency funding] that aggressively.” 

Deadline set for governor’s response 

The letter seeks a response from Lujan Grisham no later than Aug. 5 to explain the $30 million in appropriations. Lawmakers had not yet received a response as of July 29.

The letter states: “We would appreciate receiving a response no later than August 5, 2020, so that we may further analyze the separation of powers concerns that have been raised with respect to the executive orders and decide on any appropriate course of action at the next council meeting, tentatively scheduled for the week of August 10, 2020.”

Papen said it is possible that lawmakers’ concerns could be addressed through dialogue with the governor. But if that cannot be done, Papen is not ruling out a court case. She insisted it is not a personal attack against Lujan Grisham. 

“This is against any governor that wants to usurp the powers delegated to the legislature,” she said. “If we had to go to court on something, we certainly would.” 

Egolf doesn’t think it is necessary for lawmakers to file a lawsuit. 

“I don’t see anything like that happening,” he said. 

Smith: ‘You set a precedent’ 

Both Smith and Papen are longtime Senate leaders. But, having lost to more politically progressive challengers in their respective Democratic primaries in June, they are serving their final months in office.

Smith said he believes that the legislature, if it chose, could amend state law to further restrict the governor’s ability to allocate money during emergencies. That would mean allocations higher than a certain amount would require the convening of a special legislative session. But, acknowledging his term is approaching a close, he said that would be the purview of future lawmakers. 

In spite of his own concerns, Smith said he’s not expecting a strong outcry by fellow Democrats over the governor’s appropriations. But if former Gov. Susana Martinez, a Republican, had done the same thing, it would have generated a harsh response from them, he said. 

Absent a challenge from lawmakers, he said, “the only problem is: You set a precedent in the future.”

The Legislative Council will likely consider its next steps during the upcoming meeting, Papen said. 

Under review 

The New Mexico Office of the State Auditor confirmed it is reviewing the governor’s $30 million coronavirus-related appropriations. It is also keeping a close eye on state and local governments’ handling of a massive pool of federal money heading to New Mexico as part of coronavirus economic relief. 

Earlier this summer, lawmakers and Lujan Grisham had also differed in their take on federal relief funding coming to New Mexico. Smith said there was a question about whether the governor could directly administer funding that comes in the form of grants without legislative involvement. But he believes the major differences have been ironed out. 

“There’s not a lot of argument going on on that,” Smith said.