N.M. Const. art. IV, § 28
No member of the legislature shall, during the term for which he was elected, be appointed to any civil office in the state, nor shall he within one year thereafter be appointed to any civil office created, or the emoluments of which were increased during such term; nor shall any member of the legislature during the term for which he was elected nor within one year thereafter, be interested directly or indirectly in any contract with the state or any municipality thereof, which was authorized by any law passed during such term.
Compiler's notes. — An amendment to this section proposed by H.J.R. No. 3, § 1 (Laws 1961), which would have restricted appointment of members of the legislature to other civil offices and their interest in government contracts, was submitted to the people at the special election held on September 19, 1961. It was defeated by a vote of 17,874 for and 31,451 against.
An amendment to this section proposed by H.J.R. No. 3 (Laws 2010), which would have allowed members of the legislature to be appointed to civil office if they resigned from the legislature prior to appointment and if the civil office had not been created or the emoluments of the office increased during the member's term in the legislature, was submitted to the people at the general election held on November 2, 2010. It was defeated by a vote of 115,923 for and 394,574 against.
Cross references. — For provision making one holding office of profit or trust in state, local or national government at the time of qualifying ineligible to serve in the legislature, see N.M. Const., art. IV, § 3.
For prohibition against receipt by or payment to legislator of compensation for services rendered as state officer or employee other than that received as legislator, see 2-1-3, 2-1-4 NMSA 1978.
For Governmental Conduct Act, see Chapter 10, Article 16 NMSA 1978.
Comparable provisions. — Montana Const., art. V, § 9.
Utah Const., art. VI, § 7.
Wyoming Const., art. III, § 8.
A. IN GENERAL.
Section applies only to appointments and not to elections. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
"Civil office". — Requirements for a civil office are: (1) it must be created by the constitution, by the legislature or through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) its powers and duties must be directly or impliedly defined by the legislature or through legislative authority; (4) its duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior office created or authorized by the legislature and placed by it under the control of a superior officer or body; (5) it must have some permanency or continuity and not be only temporary or occasional. State ex rel. Gibson v. Fernandez, 1936-NMSC-027, 40 N.M. 288, 58 P.2d 1197.
B. PROHIBITED APPOINTMENTS.
Section applies to appointments to the judiciary. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
A legislator's appointment as a special assistant district attorney does not violate the separation of powers doctrine in Article III, Section 1 of the New Mexico Constitution. — The New Mexico Constitution prohibits a person charged with the exercise of the powers of one branch of government from exercising the powers of the other branches of government, prohibits service as a legislator by any person who, at the time of qualifying, holds any office of trust or profit with the state, county or national governments, and prohibits a legislator from being appointed to a civil office in the state during the legislator's term of office. A district attorney occupies an office of trust, is a quasi-judicial officer, and exercises core executive functions; as a result, a district attorney is constitutionally ineligible to serve as a member of the legislative branch. A private attorney appointed as a special assistant district attorney, however, is neither a public officer nor a public employee of the appointing district attorney and exercises the power and authority of the district attorney only in the specific case or matter for which they are appointed, and therefore a legislator's appointment to such a role does not unduly encroach upon or interfere with the authority of the executive or judicial branches. A private attorney's isolated exercise of district attorney authority while serving as a special assistant district attorney and a legislator does not violate the separation of powers doctrine of Article III, Section 1 of the New Mexico Constitution. 2024 Op. Att'y Gen. No. 24-04.
C. PERMITTED APPOINTMENTS.
Legislator may accept position as rural school supervisor under an act passed when he was not a member of the legislature. State ex rel. Baca v. Otero, 1928-NMSC-021, 33 N.M. 310, 267 P. 68.
School teacher and school administrator. — The prohibitive language of this section did not apply to a school teacher and a school administrator who were also members of the state legislature, since their respective contracts were not "with the state" and were not authorized by any law passed during their respective terms. State ex rel. Stratton v. Roswell Indep. Schools, 1991-NMCA-013, 111 N.M. 495, 806 P.2d 1085.
Position of special tax attorney is not a public office, and quo warranto is not the proper proceeding to test right of an individual to hold that position while serving as a legislator. State ex rel. Gibson v. Fernandez, 1936-NMSC-027, 40 N.M. 288, 58 P.2d 1197.
Disinterestedness sought. — The reasons for excluding persons from offices who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure the constituents some solemn pledge of his disinterestedness. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
"Emoluments". — Term "emoluments" does not refer merely to the fixed salary that is attached to an office, but includes such fees and compensation as the incumbent of the office is by law entitled to receive; in determining whether there has been an increase in the emoluments of a particular office, the various items of salary and other compensation which the incumbent was entitled to receive under the statute previously in effect must be taken together. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
Increase in judicial salaries. — Argument that prohibition against appointment of legislator during or for one year after term for which he was elected to civil office, the emoluments of which were increased during that term, did not apply to judicial appointments because at the time of this section's adoption the legislature lacked power to increase judicial salaries was without merit. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.
Consolidation of older statutes without material change. — Compensation policy covering state highway commission [state transportation commission] employees engaged in road building was not invalidated by fact that a legislator was interested in such a contract when the act was passed, in view of fact that statute was not new, but brought older statutes together with no material amendment. State ex rel. Maryland Cas. Co. v. State Hwy. Comm'n, 1934-NMSC-062, 38 N.M. 482, 35 P.2d 308.
Contract of employment with school district. — The contracts of employment made between the legislators and a local school district for positions as a school instructor and a school administrator were not made "with the state" and thus were not prohibited by this section. State ex rel. Stratton v. Roswell Indep. Schools, 1991-NMCA-013, 111 N.M. 495, 806 P.2d 1085.
A general appropriations bill increasing the salaries of public school employees did not authorize the legislators' employment contracts with a local school district as a school instructor and a school administrator as prohibited by this section. State ex rel. Stratton v. Roswell Indep. Schools, 1991-NMCA-013, 111 N.M. 495, 806 P.2d 1085.
Provision is concerned primarily with issue of conflict of interest involved in serving in the legislature while receiving other compensation. 1969 Op. Att'y Gen. No. 69-111.
"Member of legislature". — A person who has been elected to the legislature, but who has not qualified, is not a member of that body for purposes of the constitutional prohibition against being appointed to any other civil office. 1962 Op. Att'y Gen. No. 62-145.
A person who was elected to the New Mexico legislature for the first time at the general election in November of 1962 is not a member of the legislature prior to being seated at the session to be convened in January, 1963. 1962 Op. Att'y Gen. No. 62-145.
Lieutenant governor not member of legislative branch. — While the lieutenant governor presides over the senate, he is not a member of the legislative branch of government, but a member of the executive department; hence, he is not included within the scope of this section. 1965 Op. Att'y Gen. No. 65-229.
Term for which elected. — In this section the phrase "during the term for which he was elected" means the entire term, unaffected by a resignation from the legislative office. 1969 Op. Att'y Gen. No. 69-49.
Legislator cannot, by resigning office, remove himself from ban of this section, since the constitution phrased the restriction in the language during the term for which he was elected. 1972 Op. Att'y Gen. No. 72-10.
Resignation by a member of the legislature does not affect prohibition against holding appointive civil office during entire term for which he was elected; to hold otherwise would defeat the plain intention of this constitutional prohibition, and would render the section meaningless. 1960 Op. Att'y Gen. No. 60-139.
The prohibition of this section is applicable during the term for which the legislator was elected regardless of whether he resigns his office prior to the expiration of the term. A legislator may not, therefore, become eligible for an appointive civil office merely by resigning his position in the legislature. 1963 Op. Att'y Gen. No. 63-23.
"Appointment" is not restricted to appointment by the governor or any other individual. 1970 Op. Att'y Gen. No. 70-02.
Members of the mining safety board are appointed within the meaning of this section. 1969 Op. Att'y Gen. No. 69-05.
"Civil office" defined. 1963 Op. Att'y Gen. No. 63-23.
Section applies to any civil office in the state, be it state, county or municipal. 1972 Op. Att'y Gen. No. 72-61.
Requirement of taking oath does not define position as office. 1969 Op. Att'y Gen. No. 69-49.
Compensation or refusal of compensation has no bearing on question of whether or not a position is a civil office. 1969 Op. Att'y Gen. No. 69-49.
Constitutional ban applies only to civil office created by state and would not apply to one created by the federal government. 1967 Op. Att'y Gen. No. 67-46.
Prohibition of section would not reach "employee" of state as distinguished from one seeking to occupy a "civil office". 1957 Op. Att'y Gen. No. 57-40.
Elements distinguishing civil office from employment are: (1) the office must be created by law; (2) the office must have delegated to it a portion of the sovereign power; (3) the powers and duties of the office must be defined by law; (4) the duties must be performed independently of any superior control except as established by law; and (5) the office must have permanence and continuity. Of these elements, any or all may exist in the case of an ordinary employment except the distinctive one that the sovereign power must be vested in the position by the legislature. 1979 Op. Att'y Gen. No. 79-01.
Legislator was not qualified to serve as justice of peace (now replaced by magistrate courts) during his term in office. 1959 Op. Att'y Gen. No. 59-167.
Executive boards, agencies, institutions or departments. — It is not lawful for a legislator to serve on an executive board, agency, institution or department even though his appointment was made in the same manner as are appointments to standing committees in each house of the legislature. 1959 Op. Att'y Gen. No. 59-79.
Members of the legislature may not serve on the following boards and commissions: livestock board, state police board, capitol buildings improvement commission (functions of which have now been transferred to the director of the property control division of the department of finance and administration), board of regents of El Rito normal school (northern New Mexico state school), state fair commission and miners' hospital. 1959 Op. Att'y Gen. No. 59-140.
Position of department secretary is civil office within the meaning of this section. 1979 Op. Att'y Gen. No. 79-01.
Appointment of a former state legislator as secretary of the taxation and revenue department did not violate this section, even though the salary for that office was increased as a result of an appropriations bill which was intended to adjust salaries of state employees generally rather than to increase the salary for a particular office or class of offices. 1991 Op. Att'y Gen. No. 91-03.
Board of regents. — Membership on boards of regents of New Mexico state university and northern New Mexico normal school constitutes holding civil office, and legislators serving thereon are not legal members of these boards. 1959 Op. Att'y Gen. No. 59-93.
School board member. — A member of the state legislature is not precluded by state law from serving as an elected local school board member. 1991 Op. Att'y Gen. No. 91-02.
Administrative assistant. — A member of the state legislature is prohibited from accepting employment as an administrative assistant in one of the state educational institutions set forth in N.M. Const., art. XII, § 11. 1957 Op. Att'y Gen. No. 57-40.
Section prohibits appointment of legislator to mining safety advisory board. 1969 Op. Att'y Gen. No. 69-05.
Membership on board of educational finance constitutes civil office, and it is a violation of this section for a legislator to be a member of this board. 1959 Op. Att'y Gen. No. 59-93.
Office of highway commissioner is "civil office" within the meaning of this section. 1957 Op. Att'y Gen. No. 57-20.
River compact commission. — The position of the New Mexico commissioner on the Pecos river compact commission is a civil office within the terms of the New Mexico constitution and, therefore, a legislator may not be appointed to that office during the term of his legislative position. 1969 Op. Att'y Gen. No. 69-49.
County planning and zoning board. — A state representative cannot legally serve as a regularly appointed member of a county planning and zoning board. 1972 Op. Att'y Gen. No. 72-14.
Sovereign power must be vested in position by legislature else it is not a public office. 1979 Op. Att'y Gen. No. 79-28.
Member of state legislature may also serve as elected mayor of the city of Albuquerque, the prohibitions against dual office-holding being inapplicable, as the office of mayor is elective. 1977 Op. Att'y Gen. No. 77-26.
A person may serve both as mayor of a city and as state senator at the same time. 1960 Op. Att'y Gen. No. 60-24.
It is legal for legislator to serve on city council. 1959 Op. Att'y Gen. No. 59-196.
Legislator is not disqualified from membership on city school board. 1913 Op. Att'y Gen. No. 13-1143.
It is legal for a member of the New Mexico legislature to be a member of the municipal board of education and, if not on such a board now, he may be a candidate for election to such a municipal board of education. 1959 Op. Att'y Gen. No. 59-196.
Legislator may accept position as high school supervisor. — A member of the legislature may be employed as high school supervisor and is entitled to payment for such services for it is merely an employment and not an office, and she was not such member when power to employ in such capacity was granted. 1931 Op. Att'y Gen. No. 31-220.
School director. — There is a difference between the word "appointed" and the word "elected," and a member of the New Mexico legislature is eligible to hold office of school director by virtue of an election. 1916 Op. Att'y Gen. No. 16-1776.
Section does not prohibit legislator's employment as high school teacher, since it is not an appointment to a "civil office". 1939 Op. Att'y Gen. No. 39-3082.
University professors not civil officers. — Neither a teaching professor in a state university nor a retired person holding emeritus status is a civil officer, and such individuals would be eligible to run for the state legislature. 1958 Op. Att'y Gen. No. 58-39.
Member of legislature may be a notary public. 1929 Op. Att'y Gen. No. 29-105.
State legislator may serve as peanut commissioner. — As the position of peanut commissioner is elected rather than appointed, this section does not operate to prevent a state legislator from serving in that capacity during a term for which he was elected. 1979 Op. Att'y Gen. No. 79-34.
Office of city attorney does not qualify as "civil office" since the city attorney's position is created and the duties defined by the governing board of the municipality and he does not possess a delegation of a portion of the sovereign power of the government. 1970 Op. Att'y Gen. No. 70-64.
Senator may hold position of special investigator for district attorney. 1960 Op. Att'y Gen. No. 60-32.
Office of deputy county assessor is not civil office. 1956 Op. Att'y Gen. No. 56-6530.
Advisory council to agency. — The appointment of a state representative to serve on the advisory council to the department of hospitals and institutions (now replaced by the public health division of the department of health) does not violate this section which prohibits the appointment of a legislator to a civil office during the term to which he was elected as a legislator. 1977 Op. Att'y Gen. No. 77-03.
Commission for promotion of uniform law. — A member of the commissioners for the promotion of uniformity of legislation in the United States does not hold a civil office so as to disqualify him from being a member of the state senate. 1967 Op. Att'y Gen. No. 67-04.
Delegate to Western Interstate Nuclear Compact is not civil officer. 1970 Op. Att'y Gen. No. 70-37.
County manager is not a civil officer. — A legislator may serve as a county manager during the term for which the legislator was elected. 1977 Op. Att’y Gen. 77-02.
State representative may hold a county job. 1972 Op. Att'y Gen. No. 72-60.
This provision does not prohibit the appointment of a member of the legislature as an employee of a county or municipality as distinguished from a county or municipal officer. 1972 Op. Att'y Gen. No. 72-60.
Deputy county clerk is mere employee and not civil officer within the contemplation of this section. 1955 Op. Att'y Gen. No. 55-6235.
Selective service director. — Holding of position of state selective service director by a former legislator during the term of office to which he was elected is not barred. 1967 Op. Att'y Gen. No. 67-46.
Purpose. — This section is designed to prevent a member of the legislature from benefitting from an act of the legislature of which he is a member at the expense of the general welfare. 1965 Op. Att'y Gen. No. 65-208.
Disinterestedness sought. — This provision is designed to prevent a legislator from using his position as such to help create a civil office or increase the salary thereof with a view toward being appointed to the office as soon as his term expires. 1967 Op. Att'y Gen. No. 67-38.
Acceptance of prior salary insufficient to remove bar. — Appointment of a person who was a member of the legislature during 1965 to 1966 to an office, the salary of which was increased in 1965, even where the former legislator agreed to take the office at the salary which was provided for the office prior to his service in the legislature would probably be held illegal by the courts. 1967 Op. Att'y Gen. No. 67-38.
Office established by legislature. — The appointment of a member of the thirteenth legislature to be director of transportation (which office has now been replaced by secretary of transportation) violated this constitutional provision, as the thirteenth legislature had authorized this office. 1937 Op. Att'y Gen. No. 37-1744.
Section applied to appointment as department secretary. — A member of the legislature whose term expired on December 31, 1978, would have been elected for a term during which the civil offices of department secretaries were created under the Executive Reorganization Act (9-1-1 to 9-1-10 NMSA 1978), and under this section such a person cannot be appointed as a secretary of a cabinet department in 1979, the year following the term in which the position of secretary was created. 1979 Op. Att'y Gen. No. 79-01.
Employment on commission enforcing new tax law. — A member of the legislature which enacted former income tax law could not accept employment by former state tax commission which enforced it during his term as such member, nor within a year after his term expired. 1934 Op. Att'y Gen. No. 34-711.
Increase in judicial salary. — In view of the fact that a justice of the peace (now replaced by magistrate courts) was a civil officer, and that the emoluments of the office were increased during the 1913 legislature, a member of the legislature should not be appointed to such office. 1914 Op. Att'y Gen. No. 14-1334.
Establishment of indigent defense fee schedule. — The establishment of a fee schedule under the Indigent Defense Act (31-16-1 NMSA 1978 et seq.) for representation of indigent defendants does not preclude attorney-legislators who served when the act was enacted in 1965 from being appointed and paid under that schedule. 1968 Op. Att'y Gen. No. 68-32.
Legislators may serve as members of commissions created by legislature and are entitled to receive per diem and expenses as provided by the act at the existing rates. 1951 Op. Att'y Gen. No. 51-5364.
Illegally appointed director to recover salary and expenses. — Appointment of member of the legislature which created the position of director of the division of field administration was in violation of this section, and in addition, if the position was a civil office, he could not be legally appointed thereto. But since he rendered services and incurred expenses and was a de facto officer, no de jure director having been appointed, and the state received benefits therefrom, his claim for salary and expenses should be allowed. 1939 Op. Att'y Gen. No. 39-3119.
Applicability. — Prohibition in the latter part of this section appears to apply only to the state and municipalities and not to counties. 1956 Op. Att'y Gen. No. 56-6530.
Effect of Conflict of Interest Act. — The Conflict of Interest Act (now Governmental Conduct Act, Chapter 10, Article 16 NMSA 1978) does not disqualify or restrict a nonprofit organization's ability to enter into contracts with state agencies managed by a board of directors having as one of its members a state legislator. 1990 Op. Att'y Gen. No. 90-17.
Damages authorized against violators. — A legislator and other directors of a nonprofit organization may be found liable for damages for breach of fiduciary duty if they intentionally enter into a contract which is invalid under this section. 1990 Op. Att'y Gen. No. 90-17.
Authorization of alternative method of financing. — Where the power of the capitol buildings improvement commission (functions of which have now been transferred to the director of the property control division of the department of finance and administration) to furnish capitol buildings existed since 1945, while legislation in 1965 simply provided another method of financing for such purposes if the commission and the state board of finance decided to do so, a legislator who served in the 1965 session was not precluded from contracting with the state for capitol furnishings. 1965 Op. Att'y Gen. No. 65-208.
Fixing of publication rates. — This section is not violated by a member of the legislature who owns stock in a newspaper which publishes legal notices, because Laws 1912, ch. 49 (since repealed) fixed a maximum rate for the publication of delinquent tax lists and legal notices already required by law; the same is true with reference to the printing of forms and blanks required by Laws 1912, ch. 85, § 48 (17-3-7 NMSA 1978, relating to hunting and fishing licenses). 1912 Op. Att'y Gen. No. 12-916.
State legislator as employee of private contractor. — A private entity, either for-profit or nonprofit, that has a state legislator within its organization may enter into a contract with the state provided that the contracting process is conducted in accordance with constitutional and statutory requirements. 2003 Op. Att'y Gen. No. 03-01.
A legislator who complies with legislative rules is entitled to receive his legislative per diem. His private sector employ is free to determine whether it should also compensate him for that day’s work. 2003 Op. Att'y Gen. No. 03-01.
Contract of employment with school district. — A legislator is prohibited from entering into a contract of employment with a school district for one year after his term, if said contract was authorized by any law passed during his term. 1988 Op. Att'y Gen. No. 88-20.
Operation of school bus route. — A legislator is not barred by this section from contracting with a school bus district for the operation of a school bus route, authorization for which has been in our statutes for a great number of years. 1961 Op. Att'y Gen. No. 61-42.
Contracts under Indigent Defense Act. — The attorney-legislators who served in the second session of the twenty-eighth legislature may continue to be appointed to represent indigent defendants and may receive fees and expenses as authorized in the Indigent Defense Act (31-16-1 NMSA 1978 et seq.), but such attorneys would be precluded from entering into a contract authorized by 31-16-9 NMSA 1978 during the year after the term for which they had been elected. 1968 Op. Att'y Gen. No. 68-32.
Consulting services. — This section prohibits a water users association from contracting with a firm whose president and stockholder is a state legislator for consulting services in connection with a water installation project funded partly through a state contract authorized by the state legislature during the legislator's term in office. 1991 Op. Att'y Gen. No. 91-11.
Contract with community action agency. — A legislator contracting with a community action agency will have to ascertain how the agency is organized to determine whether the prohibitions of this section will apply. If it is a county, county agency or a private agency, the contract will not be covered by the provision, but if it is a municipality or municipal agency, the contract will be prohibited if it was authorized by law during the legislator's term. 1989 Op. Att'y Gen. No. 89-34.
Contract with municipal housing authority. — A municipal housing authority is designated by statute as an agency of a city, and this section applies to any interest a legislator may have in a contract with the housing authority authorized by law during his term. 1989 Op. Att'y Gen. No. 89-34.
Surety bond for new commission. — A member of the legislature which created the oil and gas accounting commission cannot write a surety bond for that commission. 1959 Op. Att'y Gen. No. 59-138.
Enactment of procedural purchasing act not determinative event. — This section prohibits a legislator, for the duration of his term or for one year thereafter, from entering into those contracts executed pursuant to the Public Purchases Act which were authorized by laws enacted while the legislator was a member of the legislature, the year in which the contract was authorized, and not the year in which the procedural Public Purchases Act was enacted, being determinative. 1967 Op. Att'y Gen. No. 67-133.
Violation of contract prohibition not criminal. — While this section prohibits any member of the legislature during the term for which he was elected and for one year thereafter from being interested directly or indirectly in any contract with the state or municipality which was authorized by any law passed during such term, such acts are not made a criminal offense. 1965 Op. Att'y Gen. No. 65-229.
Injunction or invalidation proceeding appropriate. — Execution of a contract prohibited by this section could be enjoined by any party having legal standing; if the contract had already been entered into, the appropriate procedure would be to bring a civil action to invalidate the contract. 1965 Op. Att'y Gen. No. 65-229.
Injunction could be brought against public officials authorized to execute contracts on behalf of the state or to disburse public funds for violation of this section by any person having standing to sue. 1967 Op. Att'y Gen. No. 67-133.
Prohibited contracts generally. — This section precludes a nonprofit organization from entering into a contract with the state or a state agency if the organization, within one year of entering the contract, had as a director a member of the legislature and the contract was authorized during that member's term. 1990 Op. Att'y Gen. No. 90-17.
Contracts between a corporation owned by a legislator and a state agency. —The Emoluments Clause generally prohibits a legislator from having a direct or indirect interest in a contract authorized by legislation passed during the term of the legislator’s office and for one year thereafter, and therefore a newly elected legislator who owns a corporation that currently provides services to the state pursuant to contracts and grant agreements is not in violation of the Emoluments Clause, because the corporation’s contracts with the state were made before the legislator assumed legislative office. If new legislation is passed during the legislator’s upcoming term that authorizes one or more state agencies to enter into other contracts with the corporation, the Emoluments Clause would operate to bar the corporation from being a party to such a contract by virtue of the legislator’s ownership interest in the corporation. 2023 Op. Ethics Comm’n No. 2023-01.
Contracts between a state agency and a legislator’s family. — The Emoluments Clause generally prohibits a legislator from having a direct or indirect interest in a contract authorized by legislation passed during the term of the legislator’s office and for one year thereafter, and therefore a legislator, whose children own and operate a company that has service contracts with state agencies, which were awarded through a competitive process, and whose only financial interest in his children’s company is a rental agreement for storage space, may be barred from having a direct or indirect interest in a contract between a state agency and their children’s company only if the legislation authorizing the state agency to enter the contract was enacted during the legislator’s current or future terms of office. 2023 Op. Ethics Comm’n No. 2023-02.
A New Mexico state legislator is not prohibited from serving on the board of a nonprofit organization that has received state contracts. — Although a legislator's unpaid membership on the board of directors of a nonprofit organization that has received state contracts is not prohibited by this section, this section may restrict the nonprofit's ability to enter into contracts if they are entered into during the legislator's term of office and for one year after the end of that term, if they are authorized by legislation passed during the legislator's term, and if the legislator has a direct or indirect interest in the contract. 2021 Op. Ethics Comm'n No. 2021-02.
Prohibition on a legislator's ability to contract with a state agency. — A legislator who was a member of the legislature when the Small Business Recovery Act of 2020 (SBRA) was passed cannot, during the term for which he or she was elected and for one year thereafter, have a direct or indirect interest in a small business recovery loan authorized by the SBRA, because the loans that the New Mexico finance authority issues under the SBRA are contracts, requiring the debtor qualifying business to repay the loan with interest under the terms of the loan agreement, and this section prohibits a legislator, during the term for which he or she was elected and for one year thereafter, from contracting with a state agency or political subdivision where the contract was authorized by a law passed during the legislator's term. 2021 Op. Ethics Comm'n No. 2021-08.
A business owned by a legislator may not receive a small business loan authorized by law during the legislator's term. — The Small Business Recovery Act of 2020 and the Small Business Recovery and Stimulus Act of 2021 authorize small business loan contracts; this section prohibits a legislator from being directly or indirectly interested in any small business loan authorized by the 2020 act or the 2021 act for the duration of the legislator's term and for one year after their term expires. 2021 Op. Ethics Comm'n No. 2021-09.
This section does not prohibit a business owned by a legislator or a legislator's family from applying for "recovery grant" funds. — This section does not prohibit a business owned by a legislator or a legislator's family from applying for or receiving a recovery grant authorized by the Local Economic Development Act (LEDA) to help New Mexico businesses weather the economic hardship due to the COVID-19 pandemic, because the limitations regarding a legislator's interest in contracts with state agencies do not apply to recovery grants authorized by the LEDA. Recovery grants under the LEDA are not loan contracts nor are they contracts for services, construction, or items of tangible personal property; rather, they are grant payments by a state agency of an allocation of an appropriation of general fund dollars to private businesses. 2021 Op. Ethics Comm'n No. 2021-08.
Law reviews. — For comment, "Legislative Bodies - Conflict of Interest - Legislators Prohibited From Contracting With State," see 7 Nat. Resources J. 296 (1967).
For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M. L. Rev. 407 (1985).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 64 to 86, 338 to 347.
Constitutional or statutory inhibition of change of compensation of public officer as applicable to one appointed or elected to fill vacancy, 166 A.L.R. 842.
67 C.J.S. Officers and Public Employees §§ 24, 27 to 33, 204.