Analysis Of Law; Policy Governing Office Of Sheriff

Los Alamos Attorney

I will give you my best analysis of the law and policy considerations governing the existence and duties of the office of Sheriff of Los Alamos County and its relationship to the Police Department, and how these are affected by legislation pending in the New Mexico Legislature. 

I will make informal citations to the constitution and statutes of the State of New Mexico, The charter and a resolution of Los Alamos County, and two pending proposed constitutional amendments. The analysis is straightforward; however there are a number of authorities that must be considered to reach a conclusion.

NM state law 34-7-2 dating to 1852 requires each county to elect a Sheriff and a Probate Judge. But the effect of this law is limited by two constitutional provisions:

Los Alamos is an incorporated county, and NM Constitution Article X Sec. 5 allows incorporated counties to “provide for the form and organization of the incorporated county government and shall designate those officers which shall be elected, and those officers and employees which shall perform the duties assigned by law to county officers.”

Los Alamos also has a Home Rule Charter under NM Constitution Article X Sec. 6, and the relevant portion of state law implementing this section is 3-15-7: “The charter may provide for any system or form of government that may be deemed expedient and beneficial to the people of the municipality, including the manner of appointment or election of its officers.”

These provisions were in effect when the charter was written. The Charter Commission believed they were required by state law to have an elected Sheriff but they wanted to continue the existing Police Department, and they did not want to have redundant law enforcement authorities with the same territorial jurisdiction. 

So using their authority to decide “those officers and employees which shall perform the duties assigned by law to county officers,” and to “provide [the] form of government,” they gave the civil duties of the office to the elected Sheriff, and the law enforcement duties to the Police Department:

“The Council shall establish as a department of the County, a Police Department to be charged with conserving the peace and enforcing the laws of the State and the ordinances of the County. The Sheriff shall have those powers and duties assigned to sheriffs by state statutes, including the powers of a peace officer, but the Sheriff shall not duplicate or perform those duties in this Charter or by ordinance or resolution assigned or delegated to the County’s Police Department.”

A council resolution assigned and delegated duties to the County’s Police Department.  The current version (Resolution 9-20-8) reads: “The Police Department is established under the Los Alamos County Charter and its functions are conserving the peace and enforcing the laws of the State and the ordinances of the County; responding to calls for service; investigating crimes and accidents; emergency management; and animal control.”

The constitutionality of this part of the Charter was challenged by then-Sheriff Vaughn, and it was upheld by the district court in 1976.

Compare this with the traditional scheme: ordinary (not Home Rule or Incorporated Counties) municipalities may form Police Departments under state law, and under NM state law 3-13-2 these departments have the “… same powers and [are] subject to the same responsibilities as sheriffs in similar cases.”   

But Sheriffs still may exercise authority in those municipalities under NM state law 35-15-4: “Any constable or sheriff of the county may serve any process or make any arrests authorized to be made by any city or town officer.”

However by mutual agreement Sheriffs generally enforce the law in  the unincorporated parts of counties and Police Departments do so in municipalities, for the same reason the Charter Commission divided our Sheriff’s duties: to avoid redundant law enforcement authorities. 

In the case of Los Alamos or any incorporated county, in which by definition the Sheriff and Police would have the identical territorial jurisdiction, the power given to incorporated counties to decide which “officers and employees … shall perform the duties assigned by law to county officers” is necessary to eliminate such a redundancy.

The Sheriff’s duties are laid out in state law. The general duties are in NM state law 4-41-2 “The sheriff shall be conservator of the peace within his county; shall suppress assaults and batteries, and apprehend and commit to jail, all felons and traitors, and cause all offenders to keep the peace and to appear at the next term of the court and answer such charges as may be preferred against them,” and also in NM state law 29-1-1,which declares it to be “the duty of every Sheriff … to investigate all violations of the criminal laws … .” I refer to these as the law enforcement duties of the Sheriff. Compare these with the language in Resolution 9-20-8 and the charter above, and you’ll see there is nothing in the general, law enforcement Sheriff’s portfolio that has not been “assigned or delegated” to the Police Department, and that therefore may not be duplicated or performed by the Sheriff. 

There are specific allocations of duties to the Sheriff scattered throughout the statutes, all of which are of a civil nature. These include service of process, handling evictions, enforcing court orders, attending sessions of the court and county commissions. In addition the Sheriff is assigned the registration of sex offenders, which is technically civil but has a criminal aspect.

Could the Sheriff’s office be abolished by Los Alamos? Because Los Alamos in its charter assigned the duties of the treasurer and surveyor to the county manager, both of which at the time were established by law with the same language as was the Sheriff, it could do the same with the Sheriff. Also it appears that in 1993 when the offices of assessor, treasurer, and clerk were made discretionary, the legislature also intended to make discretionary the office of Sheriff – but a compiler’s error failed to remove the Sheriff from 34-7-2 as may have been intended.

Nonetheless, it is very clear that the authority to decide “those officers and employees which shall perform the duties assigned by law to county officers,” and to “provide for any system or form of government” allows for the assignment of all the duties of the county officer called the Sheriff to an appointed official or officials, maybe even an appointed Sheriff.

As you ponder this, bear in mind:  the Sheriff is established by statute. But the constitution trumps statutes, and Home Rule and Incorporated County authorities are in the constitution.

Currently the Sheriff’s association, including prominently our Sheriff, is lobbying the legislature for two constitutional amendments: one would require all candidates for Sheriff to have law enforcement certification and extensive experience, and the other would change the term limits imposed on all county officials from two terms to three terms – but only for Sheriffs. 

As originally proposed, there would have been no term limits for Sheriffs. These changes would effectively lock up the Los Alamos office for the current occupant, because there are very few persons in Los Alamos with these qualifications interested in running for an office that pays a little over $6,000 a year. 

Several persons including me have lobbied against both of these bills, but at a minimum we have asked for an exclusion for H-class counties (Los Alamos) from the requirement that a candidate for Sheriff have law enforcement certification and experience. With no law enforcement duties, there is clearly no need for law enforcement certification in a Los Alamos Sheriff. Basically our Sheriff is a process server on steroids, certainly a noble vocation but not one that requires such elaborate credentials.

A proponent of the Sheriff has pointed out that elimination of the office of Sheriff is not the only solution to the issue of redundancy that underlies much of this analysis.  Certainly Los Alamos could adopt a charter change that would make our Police Department a Sheriff’s Department. That idea was considered and rejected by the original Charter Commission, and I don’t like it either because it reduces the field from which we choose the head of our law enforcement agency from a national field to those resident in Los Alamos, or perhaps the state – depending on what qualifications may come out of the current proposals. I don’t know why we’d do that to ourselves. 

The argument made by the Sheriff’s advocates that eliminating the Sheriff is undemocratic rings hollow when you consider that the same folk are advocating for a set of qualifications that severely restricts who can be a candidate for this office – a rejection of the democratic principle enshrined in both the US and NM constitutions that any citizen above a certain age can hold any office. 

The sensible approach when technical qualifications are deemed necessary for any public position is to have elected officials judge their qualifications and appoint someone, and hold them accountable. There are four times as many Police Chiefs as Sheriffs in the U.S., chosen for their technical qualifications by elected officials who can range as far as they wish in their search for technically qualified applicants.

I have friends who put me in the class of those who, when asked for the time, tell how to make a watch. Carol (Clark) may now join this list. If you have made it this far, however, I hope to have given you a basis for understanding the nature of the controversy over the Sheriff’s office in Los Alamos. Let’s solve this problem ourselves, as our home rule charter suggests we believe we should, without recourse to the state legislature.