Can a New Mexico public university just promote its interim president into the permanent role, or does state law force the board of regents to run a formal search?

Plain-English summary

New Mexico Tech's Board of Regents asked whether it could move its current Interim President straight into the Permanent President role without running a formal search. The Attorney General said no.

The controlling statute, NMSA 1978, Section 21-1-16.1(B), requires the governing board of any New Mexico state institution of higher education to consider at least five finalists, give 21 days of public notice naming those finalists, and take the final hiring action in an open public meeting. The statute uses the word "selection" of a president, which covers both an outside hire and the promotion of an existing interim. The interim's existing service does not exempt the Board from the search requirement.

Two procedural cushions remain. The Board can deliberate in closed session under the Open Meetings Act's "limited personnel matters" exception, and Inspection of Public Records Act exceptions protect candidate confidentiality up to the public-notice point. But the final five-finalists rule and the open-meeting vote are mandatory, and an action taken without complying with the notice requirements is statutorily void.

What this means for you

If you are a New Mexico public university trustee or board chair

Treat any vote to install a permanent president as a Section 21-1-16.1 search, even when there is an obvious internal favorite. Skipping the search means the appointment is void by statute, which exposes the institution to litigation, accreditation review, and a likely do-over. The five-finalists requirement is not a soft target; it is the statutory floor.

Build the timeline backwards from the open-meeting vote. The 21-day public notice has to drop with all five finalists named and includes them publicly. Search committee work, presidential-prospect interviews, and outreach to confidential candidates have to be done by the time you publish the finalists list.

If you want the interim to win the role, fine. The statute does not block that outcome. It only blocks a no-search appointment.

If you are an Interim President weighing whether to stay or compete

Plan to be one of the five finalists, with a public notice listing your name 21 days before the board votes. The statute strips the privacy that an interim arrangement can otherwise carry. Coordinate communications with your own institution and any current employer about the timing.

If you are a higher-education general counsel

This opinion settles the "promotion versus selection" ambiguity in favor of "selection." Section 21-1-16.1 applies to any final action that places a person in the president's chair, regardless of whether the person was already in an acting capacity. Brief your board accordingly, and document the search process well enough to show compliance with the notice and finalists rules if a void-action challenge arrives.

The OMA "limited personnel matters" exception still allows closed deliberations on individual candidates throughout the search. The exception ends when the board takes its final action, which must occur in an open meeting.

If you are a journalist or member of the public

You are entitled to 21 days' notice of the finalists and a public meeting at which the final vote is taken. If a board moves to convert an interim to permanent without that public notice, you have a basis to ask whether the action complies with Section 21-1-16.1. The opinion's plain-language reading would treat any non-compliant appointment as void.

Common questions

Q: Why isn't the interim president just an internal promotion?
A: Section 21-1-16.1 talks about the board's "selection" of a person for the position of president. The AG reads "selection" broadly to cover both hiring and promotion. The OMA reinforces that final actions on hiring, promotion, or assignment must occur in open meetings.

Q: What happens if the board ignores the notice rule and votes anyway?
A: The statute says the action is void. Section 21-1-16.1(D): "Action taken by a governing body without compliance with the notice requirements of Subsections B and C of this section is void." The remedy would be a do-over with the proper notice and finalists.

Q: Can the board still meet in closed session?
A: Yes, for limited personnel matters under Section 10-15-1(H)(2). Closed-session deliberation about candidates is permitted up to the point of final action. Final action itself has to be at an open public meeting.

Q: Does the rule apply to community colleges or independent schools?
A: The statute applies to "state institutions of higher education" governed by a board of regents. Community colleges that are state institutions with a governing board fit. Private institutions do not.

Q: What if no five qualified candidates apply?
A: The opinion does not address an emergency or recruitment-failure exception, and the statute on its face does not provide one. A board in that position should consult counsel and prepare to extend the search rather than hold a vote with fewer than five finalists.

Q: How does this compare to other states?
A: The opinion contrasts New Mexico with Michigan, where Michigan State's board of regents is constitutional and can resist legislative regulation of its search process. New Mexico's regents draw their authority from statute rather than constitution, so the legislature can validly impose the search requirement.

Background and statutory framework

The New Mexico Constitution identifies New Mexico Tech as a state educational institution and assigns the legislature the duty to provide for control and management by a board of regents. The legislature did so through Chapter 21, Article 11 of the New Mexico Statutes Annotated. Article 11 gives the Board the power to enact bylaws, appoint and remove employees, and conduct general governance, but it is silent on the procedure for selecting a president.

That gap is filled by the general higher-education statutes. Section 21-1-16.1, enacted in 2011, sets a uniform presidential-search procedure: at least five finalists, 21 days' public notice naming the finalists, and an open public meeting for the final selection. The Open Meetings Act allows a "limited personnel matters" closed session for deliberations, but final action must occur in open session. The Inspection of Public Records Act has exceptions that protect candidate confidentiality during the deliberative phase.

The opinion grounds its conclusion in plain-language statutory interpretation under Regents of the Univ. of N.M. v. N.M. Fed'n of Tchrs., 1998-NMSC-020. The court will not depart from a statute's plain words absent ambiguity, mistake, absurdity, or irreconcilable conflict, none of which the AG found here.

The opinion also distinguishes the New Mexico framework from Michigan's, where the constitutional grant of power to public university regents has been held to limit legislative regulation of presidential searches (Fed. Publ'ns, Inc. v. Bd. of Trs. of Mich. State Univ., 594 N.W.2d 491). Because New Mexico's regents are statutory rather than constitutional bodies, the legislature can constrain their selection process.

Citations and references

Statutes:
- NMSA 1978, § 21-1-16.1 (Presidential searches)
- NMSA 1978, § 10-15-1 (Open Meetings Act)
- NMSA 1978, §§ 14-2-1 to -12 (Inspection of Public Records Act)
- NMSA 1978, §§ 21-11-1 to -28 (NMT enabling statutes)
- N.M. Const. art. XII, §§ 11, 13

Cases:
- Regents of the Univ. of N.M. v. N.M. Fed'n of Tchrs., 1998-NMSC-020, 125 N.M. 401
- Fed. Publ'ns, Inc. v. Bd. of Trs. of Mich. State Univ., 594 N.W.2d 491 (Mich. 1999)

Source

• Landing page: https://nmdoj.gov/publication/opinion/2026-02-opinion-promotion-of-interim-president-to-permanent-president/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2026-02-NM-Tech-Promotion-of-Interim-President-to-Permanent-President.pdf

Original opinion text

January 12, 2026
OPINION
OF
RAÚL TORREZ
Attorney General

Opinion No. 2026-02

To:

Dr. David Lepre, Board Chair, New Mexico Tech Board of Regents

Re:

Attorney General Opinion – Promotion of Interim President to Permanent President
Question

Is the New Mexico Tech Board of Regents ("the Board") required to conduct a formal search
before it may promote the institution's Interim President to Permanent President?
Short Answer
Yes. Under NMSA 1978, Section 21-1-16.1(B) (2011), the board of regents governing a state
institution of higher education "shall consider in the final selection process at least five finalists"
when selecting a person for the position of president of the institution. A board must give twenty-one days notice, id., and hold a public meeting upon its final action, NMSA 1978, § 10-15-1(H)(2)
(2013).
Background
The New Mexico Constitution identifies the New Mexico Institute of Mining and Technology
("NMT") as a state educational institution, N.M. Const. art. XII, § 11, and tasks the Legislature
with providing "for the control and management of [such institutions] by a board of regents," Id.
§ 13. This is in contrast to some other state constitutions that establish boards of regents as bodies
corporate and outline their powers within the articles of their constitutions. E.g., Mich. Const. art.
8, § 5 ("The regents . . . shall constitute a body corporate . . . [and] shall have general supervision
of its institution . . . . "). In such states, the Legislatures' ability to intervene in presidential searches
may be significantly limited. See, e.g., Fed. Publ'ns, Inc. v. Bd. of Trs. of Mich. State Univ., 594
N.W.2d 491, 497 (Mich. 1999) (holding that, given the state constitution's broad grant of power to
Michigan State University, "[l]egislative regulation that clearly infringes on the university's
educational or financial autonomy must . . . yield to the university's constitutional power").
New Mexico Department of Justice
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However, New Mexico tasks its legislature to "provide" the board's power. N.M. Const. art. XII,
§ 13.
It is within the statutes specific to NMT that the Legislature establishes the institution as a body
politic with the right "of contracting and being contracted with . . . and of causing all things to be
done necessary to carry out the provisions of [Chapter 21, Article 11 of the New Mexico Statutes
Annotated]." NMSA 1978, § 21-11-4 (1889). Additionally, legislation empowers the Board "to
enact bylaws, rules and regulations for the government of [NMT], not inconsistent with the laws
of the state . . . and do all and everything necessary in and about the premises with a view to
promoting the best interests of said institution." NMSA 1978, § 21-11-8 (1947). The Board has the
power to remove officers. NMSA 1978, § 21-11-11 (1889). The Board's Chair is empowered to
"direct the affairs generally of [NMT and] shall nominate and, by and with the advice of said board
of regents, appoint all professors, instructors, tutors and other employees necessary to the proper
conduct of [NMT]." NMSA 1978, § 21-11-6 (1889). Article 11 is, however, silent as to how this
process should operate with regard to the President of the institution. See generally NMSA 1978,
§§ 21-11-1 to -28 (1889, as amended through 2013).
Where Article 11 is silent, the general provisions relating to state educational institutions fill many
of these gaps. See NMSA 1978, §§ 21-1-1 to -53 (1889, as amended through 2025). Additionally,
with regard to hiring, the Board's process is governed to an extent by the requirements of the New
Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 2024), the
Inspection of Public Records Act, NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2025),
and the Open Meetings Act ("OMA"), NMSA 1978, §§ 10-15-1 to -4 (1974, as amended through
2013). While the general requirements of the OMA do not apply to "limited personnel matters,"
meaning "the discussion of hiring, promotion, demotion, dismissal, assignment or resignation of .
. . any individual public employee," this exception "is not to be construed as to exempt final actions
on personnel from being taken at open public meetings." Section 10-15-1(H)(2).
While other states' legislatures, limited by their constitutions, may simply codify a board's
constitutional power "to elect [and remove] a president," without prescribing the method for
election, this is not the case in New Mexico, as discussed below. Contrast Mich. Comp. Laws sec
390.5 (codifying this power), with § 21-1-16.1 (State Institutions of Higher Education; Presidential
Searches).
Analysis
Our analysis begins and ends with a plain language reading of Section 21-1-16.1. Regents of the
Univ. of N.M. v. N.M. Fed'n of Tchrs., 1998-NMSC-020, ¶ 28, 125 N.M. 401 ("We will not depart
from the plain wording of a statute, unless it is necessary to resolve an ambiguity, correct a mistake
or an absurdity that the Legislature could not have intended, or to deal with an irreconcilable
conflict among statutory provisions."). We could find no caselaw discussing nor other forms of
law interpreting or referencing this statute. However, the statute's provisions are clear-cut and do
not appear to offer much room for exception. Pursuant to Section 21-1-16.1:
At least twenty-one days before the date of the meeting of the governing board . . .
at which final action is taken on selection of the person for the position of president
of the institution, the governing board shall give public notice of the names of the
finalists being considered for the position. The board shall consider in the final
selection process at least five finalists.
[. . .].
Action taken by a governing body without compliance with the notice requirements
of Subsections B and C of this section is void.
Id. (B), (D).
These clear requirements are only qualified by the Board's ability under OMA to hold closed
meetings to discuss this process up until the meeting upon which it takes this final action. Section
10-15-1(H)(2). This allowance is one of the ways New Mexico is distinct from other states where
universities have successfully pushed back against legislative oversight of presidential searches.
See, e.g., Fed Publ'ns, 594 N.W.2d 491. Additionally, New Mexico's legislation carves out an
exception to the Public Records Act for this process, the Board is empowered by statute rather than
constitution, and the imposition is on the final action of this process, rather than the deliberations
that take place before. Cf. id. (holding legislature could not impose OMA on deliberation phase of
presidential search where board was empowered by state constitution).
Notably, Section 10-15-1(H)(2) requires an open public meeting for the final action to a "hiring,
promotion . . . [or] assignment," and Section 21-1-16.1 discusses the "selection" of a new
president, encapsulating both hiring and promoting. Thus, the situation is unchanged by the current
Interim President's status.
In the absence of any explicit exception to this requirement, the Board must engage with the formal
search proceedings described in the foregoing statutory provisions.
Conclusion
Given that the plain language of Section 21-1-16.1 requires a formal process to "select" a president,
and there is nothing in our laws to contradict or except this requirement for promotion of an Interim
President to the role of Permanent President, the Board is required to engage in the formal process
and identify five finalists for the position of Permanent President before making a decision.

Please note that this opinion is a public document and is not protected by the attorney-client
privilege. It will be published on our website and made available to the general public.

RAÚL TORREZ
ATTORNEY GENERAL
/s/ Henry Chynoweth
Henry Chynoweth
Assistant Solicitor General