N.M. Const. art. IV, § 27
No law shall be enacted giving any extra compensation to any public officer, servant, agent or contractor after services are rendered or contract made; nor shall the compensation of any officer be increased or diminished during his term of office, except as otherwise provided in this constitution.
Cross references. — For provision prohibiting appointment of legislators to civil office and acquisition of interest in certain contracts with state or municipality by legislator during or within one year after service of term, see N.M. Const., art. IV, § 28.
Comparable provisions. — Iowa Const., art. III, § 31.
Wyoming Const., art. III, § 30.
Purpose of this section was to secure official independence. Dorman v. Sargent, 1915-NMSC-049, 20 N.M. 413, 150 P. 1021.
"Officer" defined. — A person who is elected to public office for a fixed and definite term and whose functions and duties affect the public is an officer within meaning of this section, without regard to whether the office is one created by the constitution or by the legislature. State ex rel. Gilbert v. Board of Comm'rs, 1924-NMSC-001, 29 N.M. 209, 222 P. 654, 31 A.L.R. 1310.
The constitutional prohibition against diminishing an officer's compensation during his term in office does not apply to public employees who do not hold "terms of office". This precludes application of the provision to public employees such as juvenile probation officers who are not hired for a definite term nor particular period of time, but who are removable, consistent with applicable personnel rules, at the discretion of the appointing authority. Whitely v. New Mexico State Personnel Bd., 1993-NMSC-019, 115 N.M. 308, 850 P.2d 1011.
Increase in retirement benefits. — An act increasing benefits to public employees, and permitting those employees who had annuitant status under the 1947 act to participate therein provided they elected so to do by paying an additional lumpsum of money to the association does not violate New Mexico constitution as payment of extra compensation for services already performed. State ex rel. Hudgins v. Public Employees Retirement Bd., 1954-NMSC-084, 58 N.M. 543, 273 P.2d 743.
Pension law not to cover former employees. — This section precludes payment of pension to one who has left service of the state prior to enactment of pension law. State ex rel. Sena v. Trujillo, 1942-NMSC-044, 46 N.M. 361, 129 P.2d 329.
Payment for additional services proper. — This section does not prevent legislature from appropriating money to pay for services rendered state by a servant or contractor outside scope of his previous employment. Laws 1915, ch. 86, § 1, and Laws 1917, ch. 28, § 1, appropriating money to cover additional matter not included in the original appropriation, do not violate this section. State ex rel. Sedillo v. Sargent, 1918-NMSC-042, 24 N.M. 333, 171 P. 790.
Increasing or decreasing officers' compensation prohibited. — Laws 1923, ch. 49, § 2, was unconstitutional insofar as it operated to increase or diminish compensation of relators, who were a county clerk, a county assessor and a county treasurer. State ex rel. Gilbert v. Board of Comm'rs, 1924-NMSC-001, 29 N.M. 209, 222 P. 654, 31 A.L.R. 1310.
Salary increases granted by county commissions under 4-44-12.3 NMSA 1978, for elected officials who were in midterm on the date the increases took effect, violates this section. State ex rel. Haragan v. Harris, 1998-NMSC-043, 126 N.M. 310, 968 P.2d 1173.
Salary increase required by contract. — Where the state and the unions entered into collective bargaining agreements that covered salary increases for union employees in fiscal year 2009; the state determined that the legislature had not appropriated sufficient funds to cover the full salary increases for union employees and implemented salary increases for all employees that differed from those required by the agreements; after the end of the 2009 fiscal year, the arbitrator determined that the legislature had appropriated sufficient funds to cover the salary increases required by the agreements and that the state’s pay package violated the terms of the agreements; and the arbitrator directed the state to adjust the union employee’s salary levels for fiscal year 2010 to reflect the level they would have received had the salary increases been provided as required by the agreements, the arbitrator’s award did not require an unconstitutional retroactive salary increase because the payment was compensation that union employees were contractually entitled to receive under the agreements but had failed to receive because of the state’s breach of the agreements. State v. AFSCME Council 18, 2012-NMCA-114, 291 P.3d 600, cert. granted, 2012-NMCERT-011.
Requiring out of pocket expenditures as diminishment of compensation. — To require of officers the performance of duties requiring the expenditure of expense money out of the officer's own pocket, without reimbursement, would probably run afoul of constitutional provision against enacting a law diminishing the compensation of officers during their term of office. State ex rel. Peck v. Velarde, 1935-NMSC-033, 39 N.M. 179, 43 P.2d 377.
Compensation. — The salaries of the judges of constitutionally established courts are not subject to the constitutional prohibition against an increase in compensation during the term for which they were elected. 1979 Op. Att'y Gen. No. 79-27.
County school superintendent is county officer, whose salary may not constitutionally be changed during his term of office. 1957 Op. Att'y Gen. No. 57-67.
Police judge's salary cannot be increased during term of office. 1953 Op. Att'y Gen. No. 53-5683.
Salary of municipal judge may not ordinarily be increased during the term for which he was elected. 1979 Op. Att'y Gen. No. 79-27.
Compensation increase justifiable only with additional duties. — The governing body of a municipality may increase the compensation paid to a municipal judge during his term of office only if it also defines additional duties of the office. An increase in salary during the term for which a judge was elected would not be justified because of increased costs of living or an anticipated increase in the amount of work to be done by the judge pursuant to his ordinary duties. 1979 Op. Att'y Gen. No. 79-27.
Governing body may increase salary. — Subject to applicable law or charter, the governing body of a municipality may enact an ordinance to increase the salary of its members, but members serving during the term in which such an ordinance is enacted cannot benefit from the increase during that term. 1981 Op. Att'y Gen. No. 81-17.
Commissioners may not employ additional clerical assistance for county treasurer, as the payment of an assistant would be a violation of this provision. 1920 Op. Att'y Gen. No. 20-2571.
Imposition of income tax as diminishment of salary. — The imposition of state income tax upon salaries of all public officers of state, having a fixed and definite term of office by constitution or statute, would amount to a reduction of their compensation and was invalid, and such officials who were entitled to claim exemption were not required to make any return of such salary. 1934 Op. Att'y Gen. No. 34-741 and 1934 Op. Att'y Gen. No. 34-742.
Effect of repeal of salary provision. — Where statute setting a salary for district attorneys as ex officio juvenile court attorneys was repealed and replaced with a statute (part of the Children's Code) establishing the office of children's court attorney, which section contained no salary provision for a district attorney's service as children's court attorney, district attorneys should continue to receive their pre-Children's Code rate until expiration of their terms of office. 1972 Op. Att'y Gen. No. 72-45.
Deduction of juror's compensation not illegal diminishment. — There would be no illegality in a plan which required a deduction from an employee's ordinary compensation in the amount of the compensation received for jury duty as there would be no diminishment; the persons affected would continue to receive in salary an amount equal to their regular compensation. 1975 Op. Att'y Gen. No. 75-33.
Governing body of municipality may provide salary for themselves during their term of office if there was no salary provided when they took office. 1969 Op. Att'y Gen. No. 69-02.
This provision does not prohibit members of governing body from exercising the option, provided in 3-10-3 NMSA 1978, of receiving the statutory salary, by adopting an ordinance. 1969 Op. Att'y Gen. No. 69-02.
Governing body may increase salary. — Subject to applicable law or charter, the governing body of a municipality may enact an ordinance to increase the salary of its members, but members serving during the term in which such an ordinance is enacted cannot benefit from the increase during that term. 1981 Op. Att'y Gen. No. 81-17.
Salary increases during term of office. — An interpretation of 4-44-12.3B NMSA 1978, permitting an increase of county commissioner salaries during their terms of office, violates the restriction on salary changes during a public officer's term found under this section. 1994 Op. Att'y Gen. No. 94-09.
Legislature's provision of salary for members improper. — Proposed legislation providing for a $300 a month salary for each member of the legislature would probably be held unconstitutional by the courts. 1971 Op. Att'y Gen. No. 71-18.
Coinciding commencement of terms and operation of charter. — Where a county clerk, assessor and sheriff were elected to their respective offices in November of 1968, while the county charter setting the salaries for these offices did not become effective until January 1, 1969, there was no violation of this section, since the term of these officers did not commence until January 1, 1969, as provided by N.M. Const., art. XX, § 3. 1969 Op. Att'y Gen. No. 69-134.
Newly appointed probate judge may receive increased salary designated for that office by legislation enacted by the last legislature. 1960 Op. Att'y Gen. No. 60-60.
Reclassification of office. — Where a reclassification of a county office has been made, a reelected county officer may be paid the higher salary after his reelection, without doing violence to this provision; after the reclassification has been made the official is not getting additional compensation as he has new duties and is a new officer under the new classification. 1958 Op. Att'y Gen. No. 58-45.
Increase to statutory salary rate. — Where an elected county officer receives a budgeted salary less than the statutory salary, a subsequent increase in salary to the statutorily allowed salary does not violate the constitutional prohibition against salary increases because the officers would only be receiving what they were entitled to receive. 1968 Op. Att'y Gen. No. 68-60.
Social security modification permissible. — This section does not prohibit the modification of the federal-state agreement providing for social security coverage for state employees. 1957 Op. Att'y Gen. No. 57-61.
Use of subterfuge improper. — Constitution makers did not contemplate allowance of subterfuge whereby an incumbent would resign and be immediately reappointed, thus avoiding the constitutional prohibition against salary increase during his term. 1954 Op. Att'y Gen. No. 54-5995.
Salaries of county officers. — For discussion of statutory and constitutional provisions as to salaries of county officers, including jailer, under 1915 Salary Law, see 1915 Op. Att'y Gen. No. 15-1494.
Section to secure official independence. 1969 Op. Att'y Gen. No. 69-02.
"Except as otherwise provided". — When the constitution itself says that the salary for a particular office "shall be as prescribed by law," without any limiting phrase, such a provision must be construed as bringing the office within the "except as otherwise provided in this constitution" proviso of this article. 1973 Op. Att'y Gen. No. 73-08.
Word "officer" herein is broadly interpreted. 1967 Op. Att'y Gen. No. 67-02.
“Officer” defined. — An officer is a public officer if the office he holds is elective for a definite and certain tenure in the manner provided by law and his duties affect and are to be exercised for the benefit of the public for a stipulated compensation paid out of the public treasury. 1967 Op. Att'y Gen. No. 67-02.
This provision applies to all public officers, whether their offices be created by the constitution or by the legislature. 1969 Op. Att'y Gen. No. 69-02.
This section applies to municipal employees. 1988 Op. Att'y Gen. No. 88-40.
Municipal judge is public officer for purposes of this section. 1979 Op. Att'y Gen. No. 79-27.
Mayors and councilmen are public officers, being persons elected to public office for fixed and definite terms whose functions and duties affect the public. 1962 Op. Att'y Gen. No. 62-85, 1981 Op. Att'y Gen. No. 81-17.
Police judge was an "officer" under this constitutional section, and his salary could not be increased. 1967 Op. Att'y Gen. No. 67-02.
Deputy not an officer. — Since a deputy county official does not have a fixed term of office and serves at the pleasure of the appointing officer, the constitutional prohibition against increasing or decreasing a salary during the term of an officer does not apply to a deputy. 1959 Op. Att'y Gen. No. 59-100 and 1954 Op. Att'y Gen. No. 54-5985.
Section applicable to agencies. — As this constitutional provision precludes the legislature itself from granting retroactive salary increases, the agency, department or commission cannot grant them. 1971 Op. Att'y Gen. No. 71-44.
If the legislature itself is precluded from granting retroactive salary increases, it naturally follows that so too are all agencies, departments or institutions of state government. 1962 Op. Att'y Gen. No. 62-28.
"Trading" tax exemptions for health care. — Repeal of the state income tax exemptions for teacher pensions and public employee pensions does not remedy constitutional defects of the proposed retiree health care act under a theory that those exemptions would be "traded" for retiree health care. Those exemptions are not property rights, irrepealable contractual entitlements, or pension benefits. Hence, elimination of the favorable tax treatment for current retirees is not consideration for a multi-million dollar health care plan that the state proposes to provide them. 1990 Op. Att'y Gen. No. 90-03.
Retroactive pay increase prohibited. — The language and import of this section prohibits the giving of retroactive pay increases to state employees. 1957 Op. Att'y Gen. No. 57-17.
The legislature does not have the power, by an emergency appropriation, to give retroactive pay increases to state employees. 1957 Op. Att'y Gen. No. 57-17.
Retroactive salary increases violate this section of the constitution. 1957 Op. Att'y Gen. No. 57-308.
The former health and social services department could not make retroactive payment for salary increases in January of 1971 which were originally authorized during the last six months of 1970. 1971 Op. Att'y Gen. No. 71-07.
Administrative errors correctible. — Where salary increases for certain agency employees were required by state personnel board rules, but were not granted through a clerical or administrative error, backdating these salary increases to the proper date would not be the type of retroactivity prohibited by the constitution. 1971 Op. Att'y Gen. No. 71-44.
It is unlawful for county hospital to give employees discount on bills for services provided by that hospital. 1970 Op. Att'y Gen. No. 70-39.
Sick leave plan constitutional if contracted for. — A sick leave benefit plan established by contract as part of the compensation for services rendered would not violate this section. 1977 Op. Att'y Gen. No. 77-08.
Including payment of accumulated benefits on retirement. — The constitution would not prohibit legislation authorizing local school boards to devise a plan of compensation which would include the payment of benefits to retiring employees for accumulated unused sick leave. The various prohibitions contained in the New Mexico constitution would not be violated so long as the benefit was, in fact, bargained for consideration in the form of compensation for services rendered as defined by contract between the employee and the local school board. 1977 Op. Att'y Gen. No. 77-18.
Benefits not to be retroactive. — If a school board chooses to adopt, as part of a plan of compensation, benefits for unused accumulated sick leave, those benefits cannot be provided retroactively. This section provides that no law shall be enacted giving any extra compensation to public employees after services are rendered. 1977 Op. Att'y Gen. No. 77-18.
Increase in retirement benefits. — Payment of matching funds by an affiliated public employer under former 10-11-9 NMSA 1978 for contributing service credit for services rendered by an employee after August 1, 1947 and prior to the effective date of his membership in retirement association does not violate this section. 1966 Op. Att'y Gen. No. 66-87.
Retroactive application of benefit improvement. — The provisions of a municipal ordinance which allow retiring employees to convert to vacation leave any sick leave that has been accumulated prior to retirement may not be applied to employees who have retired prior to the enactment of the ordinance. 1988 Op. Att'y Gen. No. 88-40.
If the New Mexico school for the deaf established a sick leave buyback policy that permitted retiring employees to receive compensation for accrued sick leave, the policy could be applied to hours of sick leave accrued prior to the implementation of the policy. 1988 Op. Att'y Gen. No. 88-73.
Contribution to retirement system based on reclassification. — The proposal of the corrections department to pay the additional retirement system contribution of correctional officer specialists required as a result of their reclassification from "regular" to "state police" members under the public employees' retirement system is precluded by this section. 1981 Op. Att'y Gen. No. 81-16.
City council members assuming additional duties. — Incumbent Santa Fe city council members, unable to receive pay increases voted for new council members but who assume duties and responsibilities not assumed by all members, may not receive additional compensation for the performance of such duties. 1987 Op. Att'y Gen. No. 87-05.
Nature of per diem payments. — Whether the payment of per diem is additional compensation or merely reimbursed must be determined from the language accompanying the words "per diem" and the surrounding circumstances. 1969 Op. Att'y Gen. No. 69-134.
Grant in excess of contract price improper. — Where an appropriation was made to the university for building and installing a heating plant, and a contract was made for less than the appropriation, which amount was paid the contractor who defaulted leaving unsatisfied claims, the legislature may not grant a sum in excess of the contract price, and the balance of the appropriation will revert to the treasury. 1925 Op. Att'y Gen. No. 25-3800.
Recovery of improper increases. — If illegal retroactive salary increases have in fact been made, the public moneys so paid should be recovered back from the recipients thereof. 1962 Op. Att'y Gen. No. 62-28.
Increasing or decreasing officer's compensation prohibited. — By virtue of the provisions of this article, there is a definite prohibition against increasing or diminishing the compensation of any officer during his term of office. 1959 Op. Att'y Gen. No. 59-100.
This section would prohibit the legislature from either increasing or decreasing the compensation provided for in 3-10-3 NMSA 1978, relating to compensation of governing bodies of noncharter municipalities, during the term of office of those members of the governing body holding office at the time. 1969 Op. Att'y Gen. No. 69-02.
Laws which have been enacted subsequent to the adoption of N.M. Const., art. X, § 1 (relating to the classification of counties and the salaries of county officers) in 1923, 1927 and 1929 are unconstitutional to the extent that they increase or diminish the compensation of county officers who have a definite and fixed tenure of office. 1929 Op. Att'y Gen. No. 29-14.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 439, 455, 456, 464; 65 Am. Jur. 2d Public Works and Contracts § 171.
Per diem compensation of officers of legislature, 1 A.L.R. 286.
Extra compensation for past services, power of legislature to grant, 23 A.L.R. 612.
Operation of statute fixing public officer's salary on basis of population or of the valuation of the taxable property, as contravening a constitutional provision that the salary of a public officer shall not be increased or diminished during his term, 139 A.L.R. 737.
Validity of contract by officer with public for rendition of new or special services to be paid for in addition to regular compensation, 159 A.L.R. 606.
Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements, 5 A.L.R.2d 1182.
67 C.J.S. Officers and Public Employees §§ 229 to 236; 22 C.J.S. Supp. Public Contracts §§ 24, 27; 81A C.J.S. States §§ 168, 173.