Lt. Gov. Diane Denish (Photo by Heath Haussamen)

Lt. Gov. Diane Denish says she and her office will comply in the future with a state regulation requiring three or more official passengers on a flight, or prior authorization to fly with fewer passengers, even though she’s been advised that the regulation doesn’t apply to her.

Denish’s use of state aircraft has been under scrutiny since KRQE-TV’s Larry Barker reported last month that the lieutenant governor had flown on state planes 39 times since 2006 in violation of the regulation requiring cost-efficient use of the aircraft. A spokesman was quoted by Barker as saying Denish was unaware of the regulation. Denish wouldn’t talk with Barker.

But her gubernatorial campaign provided a statement to NMPolitics.net about the situation.

“The Office of Lieutenant Governor only recently became aware that the occupancy provision existed,” campaign spokesman Chris Cervini said. “Upon learning of it, the lieutenant governor immediately directed her staff to obtain guidance from (the state’s General Services Department). Staff was informed by GSD that the provision did not apply to the office. Despite this GSD guidance, and upon learning of the provision, the lieutenant governor has directed staff that the office will comply with the occupancy provision in the future.”

According to Barker, Denish hasn’t flown on a state plane since January.

What the regulations say

According to Barker, it’s the position of Art Jaramillo, GSD secretary, that the lieutenant governor is exempt from the aircraft regulations.

“The lieutenant governor is not a governmental agency board or commission,” Barker quoted Jaramillo as saying. “We don’t have the authority to require her to comply with these requirements.”

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But not having the authority to require an official to comply with a regulation isn’t the same as an official being exempt from a regulation. So NMPolitics.net obtained a copy of the aviation regulations to see what they say.

The regulations don’t explicitly exempt the lieutenant governor or any other state elected officials. In fact, the definition of an “authorized passenger” includes “elected or appointed state government officials.” The regulations state that use of the state aircraft is for “authorized persons only.”

There’s even a provision that says “the governor and other state elected officials” – which would include the lieutenant governor – “shall have priority in the use of state aircraft.”

The regulation about occupancy states that “a minimum of three official passengers shall be on any flight unless appropriate written justification is submitted to and approved by the secretary.”

‘GSD does not have enforcement authority’

So I asked GSD spokesman Alex Cuellar to elaborate on Jaramillo’s comments. I told him in an e-mail that I didn’t see anything in the regulations that exempts the lieutenant governor but did see a provision that seemed to at least imply that state elected officials are subject to the regulations.

“The question has been asked of and answered by Secretary Jaramillo,” Cuellar wrote in response. “GSD does not have the authority to require the lieutenant governor to comply with the regulations.”

Does that mean the regulations do apply to the lieutenant governor, I asked? If so, does anyone have the authority to require the lieutenant governor to comply?

Cuellar responded by pointing me to a “directive” Gov. Bill Richardson issued in March 2009 on guidelines for using the state aircraft.

“Those guidelines are directed at ‘state agencies,’” Cuellar wrote. “It is Secretary Jaramillo’s opinion that the guidelines are not applicable to either the Governor’s Office or the Lieutenant Governor’s Office.”

But regulations trump guidelines. What about my second question: Does anyone have the authority to require the lieutenant governor to comply with the regulations?

“…all I can tell you is that GSD does not have enforcement authority,” Cuellar wrote.