Despite state Supreme Court ruling, Lujan Grisham's administration continues to spend federal funds

Dec. 3—Despite the New Mexico Supreme Court ordering a freeze on over $1 billion in federal pandemic aid until the Legislature has a say in how the money is spent, the administration of Gov. Michelle Lujan Grisham tapped the funds to make two payments totaling about $283,000.

Attorneys involved in the legal and political battle are alleging a violation of the justices' order, and a motion was filed Thursday to require the governor and Finance and Administration Secretary Debbie Romero to explain why they shouldn't be held in contempt.

"The Supreme Court's order entered on Nov. 18 ... made perfectly clear that the governor and no one under her control ... 'shall not transfer, encumber, commit, expend or appropriate any additional funds' out of the [American Rescue Plan Act] account in the state treasury, absent legislative appropriation," said Sen. Jacob Candelaria, D-Albuquerque.

"The Legislature did not appropriate the fund transfer ... so this to me is a pretty serious, clear and glaring violation of the Supreme Court's order and makes clear that despite the Supreme Court's order, this administration chose to spend ... out of this fund illegally and in direct violation of the court's order," he added.

Candelaria, an attorney, teamed up with a Republican senator who is also a lawyer, Greg Baca of Belen, to take the governor to court to settle a dispute over which branch of government, the executive or the legislative, had the authority to appropriate federal funds.

Last month, the court sided with the two legislators, who argued the governor had violated the state constitution by appropriating $600 million of the $1.73 billion the state received in federal pandemic aid without legislative approval.

The motion filed Thursday states Department of Finance and Administration employees approved a $269,059 invoice from Carahsoft Technology Corp. in Virginia on Nov. 29 and an additional $14,178 for "DFA Payroll" on Wednesday.

"This is possibly a sanctionable offense," Baca tweeted about the administration's spending.

The payments were discovered by the office of State Treasurer Tim Eichenberg, whose attorney also had opined that only the Legislature has appropriation authority under the state constitution.

"This appears to violate the New Mexico Supreme Court's Order and Writ," Linda Bennett, Eichenberg's attorney, wrote Tuesday in an email to Holly Agajanian, the governor's chief general counsel, after being notified of the first payment.

"By 3:00 tomorrow, I expect the money to be returned to the account or to receive an explanation as to why this is not a violation of the Supreme Court's clear and unambiguous Order and Writ," Bennett wrote.

In response, Agajanian wrote Wednesday "the money at issue had been obligated for administrative expenses" before the state's high court issued its order.

"However, [the Department of Finance and Administration] was able to stop the withdrawal with the exception of some payroll money that had already been removed," she wrote.

Candelaria, a critic of the governor's, called the spending "a level of blatant contempt" for the court's order.

"This administration governs in many ways like the prior administration," he said, referring to former Republican Gov. Susana Martinez. "They want their way. There is no room for debate or discussion, and they will engage in whatever scare, bully and intimidation tactics possible to just get their way."

The governor's press secretary, Nora Meyers Sackett, reiterated the money "was for services rendered and was obligated before the Supreme Court issued its stay."

She wrote in an email, "DFA informed the state treasurer yesterday that it would immediately redeposit the funds, which it has done."

Sackett added, "We will not be responding to the senator's gratuitous invective."

Bennett, the state treasurer's attorney, called the administration's actions "shocking."

"The Supreme Court didn't issue a stay," she said, refuting Sackett. "The Supreme Court issued an order and a writ, and the Supreme Court's order and writ are immediately effective."

"When I have a client and there's a Supreme Court order and a writ that says don't do something, my client is instructed to not do that thing," Bennett added. "We're not playing games here, guys. This is constitutional stuff. This is high level."

House Republican Minority Leader Jim Townsend of Artesia charged in a statement it was no surprise Lujan Grisham would "ignore" the Supreme Court's decision.

"It's similar to a child who doesn't get their way," he said. "This administration, as directed by her, has unilaterally grabbed power and ignored the Constitution, apparently caring little about the rule of law."

The Republican Party of New Mexico also chimed in with a news release, calling the administration's spending of federal funds after the high court's order "contemptible and shameful."

"This is another example of the Governor acting like a dictator and ignoring the other equal branches of government," GOP Chairman Steve Pearce said in a statement.

The federal funding is likely to be a hot topic of discussion and debate during the special legislative session on redistricting that begins Monday.

The governor announced Thursday the appropriation of "outstanding" American Rescue Plan Act funds will also be on the agenda.

"My administration's working relationship with the Legislature has been incredibly productive, for the benefit of New Mexicans, for several years now," Lujan Grisham said in a statement. "I am sure that lawmakers will meet this moment and deliver this massively important federal funding to New Mexicans in a strategic and meaningful way."

Candelaria called the governor's characterization of her relationship with lawmakers as "incredibly productive" a "fantasy."

"The reality is quite different," he said. "Sure, she has some sycophantic allies in the Legislature who will just sort of beat the party tambourine. But those aren't leaders. Those are followers."

Follow Daniel J. Chacón on Twitter @danieljchacon.