Rick Wellborn

A Las Cruces resident has filed a federal Hatch Act complaint alleging that Republican Rick Wellborn’s candidacy for district judge violates the ban on partisan political activity by public employees whose jobs involve federal funds.

Wellborn is a prosecutor in the 3rd Judicial District Attorney’s Office. He and his boss, Doña Ana County District Attorney Susana Martinez, say though the office receives federal funds, Wellborn’s job isn’t funded with those dollars and none of his duties have anything to do with the federal grants.

Federal law prohibits federal employees, and other government employees whose jobs involve federal funds, from running in partisan political races.

Las Crucen Ernie Bean wrote in his complaint that the district attorney’s office receives federal funding through several programs and includes southwest border funds, crime victim funds and funds to combat drug trafficking.

“I am not aware of any mechanism by which the district attorney is able to fully segregate Mr. Wellborn’s salary and other office resources from federal grant money,” Bean wrote in his complaint. “As such, Mr. Wellborn is violating the Hatch Act by running for partisan office.”

Martinez said the funds are separated. Each source of funding that comes into the office – such as state general fund money and the various federal grants – is assigned its own accounting code. The state’s SHARE system, which handles accounting, employment, payroll and purchasing information for Martinez’s office, keeps track of how each position is funded.

Martinez said Wellborn’s job is paid “absolutely 100 percent” by state general fund money.

Bean pointed to previous Hatch Act opinions that state that “Employees are subject to the Act if, as a normal and foreseeable incident of their principal employment, they perform duties in connection with the federally financed activities.” The opinions state that coverage “is not dependent on the source of an employee’s salary, nor is it dependent upon whether the employee actually administers the funds or has policy duties with respect to them.”

Martinez said none of Wellborn’s duties involve federal funds either – because, in her office, duties are based on where the funding for an employee’s job comes from.

It’s not clear when the U.S. Office of Special Counsel, which oversees compliance with the Hatch Act, will respond to Bean’s complaint.