A 54-page brief has been filed by Los Alamos County attorneys in the ongoing litigation in First Judicial District Court between Sheriff Marco Lucero and the County involving the Sheriff’s duties.
The County’s brief filed by County Attorney Alvin Leaphart and Assistant County Attorneys Kevin Powers and Kathryn Thwaits states that the fundamental problem with Lucero’s position is his failure to accept that the State Constitution “says what it means and means what it says” regarding the charter making authority of the County.
The County maintains in its brief that Section 5 of the Constitution means an Incorporated County Charter can lawfully designate officers and employees of a County to perform the specific duties normally assigned by state statute, including the duties of the assessor, treasurer, clerk, surveyor and sheriff.
The brief also states that if the sheriff engages in law enforcement duties, which he has admitted to doing and will continue to do, he is “engaging in an unlawful act” because that statutory duty has been lawfully assigned by the County Charter to the Los Alamos Police Department. It claims the citizens of a Home Rule Incorporated County are vested with the authority to adopt a charter that gives them jurisdiction over law enforcement duties in the police department as provided for in the State Constitution.
The County believes that in a case filed in 1976 by then Sheriff Larry Vaughn, the Court found that the amendment to the County Charter turning over law enforcement duties to LAPD was valid. The County also believes that any attempt by Lucero to relitigate the issues raised by Sheriff Vaughn is invalid because those issues have already been adjudicated.
The brief says there is “privity” between Sheriff Vaughn and Sheriff Lucero as Lucero “succeeded to the same rights and duties enjoyed by Sheriff Vaughn. It states that it is worth noting that for the past 42 years, the County has relied on the decision in the First Judicial Circuit on the Vaughn case despite many changes on the County Council and the availability of initiative process to change the Charter to restore law enforcement powers to the Office of the Sheriff.
“In addition to a declaratory judgment, the sheriff seeks an injunction to disgorge taxpayer money from the County treasury against the will of the majority of the citizens’ elected representatives to fund the Office of the Sheriff in an amount the sheriff has self-determined and assumed is appropriate for the function of his office,” the County brief states.
It states that the County set salary of the sheriff at the maximum allowed for part-time sheriffs of H Class Counties at $6,689 and that the County has “created, robustly funded and adequately staffed” its police dpartment staff. It called the sheriff’s belief that his office shares concurrent jurisdiction over the Incorporated County’s law enforcement duties despite the plain meaning of the Charter Amendment and legal authority to the contrary, “erroneous”.
The County maintains there is no way the Council is mandated by law to fund two fully-functional law enforcement agencies in “this small incorporated town” and that how much the sheriff’s office and LAPD get is “within sound discretion of the County Council and not within the discretion of the sheriff”.
The brief concludes by addressing allegations by Lucero that the Council began a campaign to extinguish the Office of the Sheriff through improper means contrary to law by allegedly firing all his personnel and transferring his executive secretary. It says that in June 2016, the County lawfully terminated the deputy sheriffs employed as part-time, casual employees and that no undersheriff was fired as alleged by Lucero.
The County claims a deputy sheriff was “questionably” promoted to undersheriff in April 2016 and sworn into office in March 2017 after the casual deputies had been terminated and that no notice was filed with the First Judicial Circuit as required. It claims Lucero has not provided evidence to the County that he appointed an executive secretary exempt from the County’s merit system and that the Office of the Sheriff shares an administrative assistant with the police department as both departments share the same space in the Los Alamos Justice Center.
A six-page brief filed by Lucero’s attorney Blair Dunn the same day states the County has “gone too far and acted with professed intent to subjugate state law to their own municipal ordinances”. Dunn said the Constitution and the interpretating or clarifying provisions of New Mexico statutes are a limitation on the County’s ability to remove “all but the morst menial duties” of the sheriiff.
“The law is unclouded; the State’s edict is that the sheriff shall be the conservator of the peace in his county,” his brief states.
A hearing on the issue is scheduled for 10 a.m., Thursday before Judge Francis J. Mathew at the Los Alamos Justice Center.