A. It is unlawful for a public officer or employee to take an official act for the primary purpose of directly enhancing the public officer's or employee's financial interest or financial position. Any person who knowingly and willfully violates the provisions of this subsection is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

B. A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer's or employee's financial interest, except a public officer or employee shall not be disqualified from engaging in an official act if the financial benefit of the financial interest to the public officer or employee is proportionately less than the benefit to the general public.

C. No public officer during the term for which elected and no public employee during the period of employment shall acquire a financial interest when the public officer or employee believes or should have reason to believe that the new financial interest will be directly affected by the officer's or employee's official act.

History: 1953 Comp., § 5-12-4, enacted by Laws 1967, ch. 306, § 4; 1993, ch. 46, § 29; 2007, ch. 362, § 3; 2011, ch. 138, § 5.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, in Subsection B, permitted public officers and employees to engage in official acts if the financial benefit of their financial interest is proportionally less than the benefit to the general public; and added Subsection C to prohibit public officers and employees from acquiring a financial interest when the interest will affect the officer’s or employee’s official act.

The 2007 amendment, effective July 1, 2007, deleted Subsection C, which permitted the governor to make an exception to the requirement that a public officer or employee be disqualified from engaging in an official act.

The 1993 amendment, effective July 1, 1993, rewrote the catchline, which read "Disqualification"; added current Subsection A; redesignated Subsections A and B as Subsections B and C; rewrote Subsection B, which read "An employee shall disqualify himself from participating in any official act directly affecting a business in which he has a financial interest"; and, in, Subsection C, substituted "to Subsection B of this section" for "from this section", inserted "public officer or" in two places, and made minor stylistic changes.

Propriety of vote or abstention. — A legislator should follow Chapter 10, Article 16 NMSA 1978 and his legislative body’s code of ethics in deciding when it is proper to vote or abstain on a matter in front of the body. 2003 Op. Att'y Gen. No. 03-01.

A public official is prohibited from participating in an official act that would increase the wages paid to the official's spouse. — The Governmental Conduct Act prohibits a public official from taking an official action that directly benefits a financial interest held by the public official or the public official's family, and therefore, a public official employed by or serving on the governing board of a public post-secondary educational institution that is considering a decision to approve a contract that would increase wages paid to the institution's employees, one of whom is the public official's spouse, would be prohibited from participating in the review and approval of the contract. 2022 Op. Ethics Comm'n No. 2022-09.

The Governmental Conduct Act does not restrict a public officer from entering into a subcontract for a primary contract with the public agency in which they hold office. — The Governmental Conduct Act does not restrict a public officer from entering into a subcontract for a primary contract with the public agency in which they hold office. The public official should be aware, however, that should the primary contract come before the governmental entity for renewal, 10-16-4(A) NMSA 1978 and 10-16-4(B) NMSA 1978 prohibit the public officer from taking an official act that either directly enhances the officer's financial interest or financial position, and disqualifies the public officer from taking an official act that directly affects the public officer's financial interest. 2026 Op. Ethics Comm'n No. 2026-03.

The disqualification provision of this section does not apply to legislators. — Legislators are expressly excluded from the definition of a "public officer or employee" and therefore a legislator who is a respondent in administrative complaints pending in the state ethics commission is not prohibited by this section from voting on proposed legislation that affects the state ethics commission. 2021 Op. Ethics Comm'n No. 2021-07.

The Governmental Conduct Act does not require a legislator to refrain from voting on legislation that implicates a conflict of interest. — The Governmental Conduct Act provision that expressly requires recusal, including voting, on a conflicted matter does not apply to legislators, and therefore, while a legislator's vote on legislation in which the legislator has direct, personal or pecuniary interest might constitute a violation of a rule of procedure of the legislator's respective house, it does not make out a violation of the Governmental Conduct Act. 2026 Op. Ethics Comm'n No. 2026-01.

State transportation authority member should recuse himself when a conflict arises between the authority's official acts and his own financial interests. When the public interest requires the participation of a member who has a conflict of interest with the particular official act, the member should ask the governor for a specific exception. If the public interest so requires, the governor should grant the exception. 1987 Op. Att'y Gen. No. 87-71.

The Governmental Conduct Act does not generally prohibit a public employee from accepting another job. — The Governmental Conduct Act does not generally prohibit a public employee from having a second paying job as long as the employee discloses the job to the employee's employer, the employee is not being paid for work already performed as a public employee, and there is no conflict between the employee's public employment and secondary employment such that the positions are otherwise incompatible. 2025 Op. Ethics Comm'n No. 2025-02.

A district legislative aide may hold another state job that is not incompatible with the performance of the legislative aide's duties. — A district legislative aide is permitted to hold full time employment with another state agency so long as the legislative aide meets the requirements of each position, discloses the position in writing, and does not take any official acts in one position that would affect the other. 2025 Op. Ethics Comm'n No. 2025-03.

Am. Jur. 2d, A.L.R. and C.J.S. references. — What constitutes acts affecting personal financial interest within meaning of 18 USCS § 208(a), penalizing participation by government employees in matters in which they have personal financial interest, 59 A.L.R. Fed. 872.