2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 16 - Governmental Conduct › Section 10-16-9 - Contracts involving legislators; representation before state agencies.

A. A state agency shall not enter into a contract for services, construction or items of tangible personal property with a legislator, the legislator's family or with a business in which the legislator or the legislator's family has a substantial interest unless the legislator has disclosed the legislator's substantial interest and unless the contract is awarded in accordance with the provisions of the Procurement Code [13-1-28 to 13-1-199 NMSA 1978], except the potential contractor shall not be eligible for a sole source or small purchase contract. A person negotiating or executing a contract on behalf of a state agency shall exercise due diligence to ensure compliance with the provisions of this subsection.
B. Except as provided in Subsection C of this section, a legislator shall not appear for, represent or assist another person in a matter before a state agency, unless that appearance, representation or assistance is provided without compensation.
C. A legislator may appear for, represent or assist another person in a matter before a state agency when the legislator is an attorney or other professional who is making that appearance or providing that representation or assistance while engaged in the conduct of that legislator's profession. That legislator shall not:
(1) make references to the legislator's legislative capacity except as to matters of scheduling; or
(2) use legislative stationery, legislative email or any other indicia of the legislator's legislative capacity.
D. A legislator shall not make direct or indirect threats related to legislative actions in any instance in which the legislator appears for, represents or assists another person in a matter before a state agency.
History:
1953 Comp., § 5-12-9, enacted by Laws 1967, ch. 306, § 9; 1989, ch. 143, § 1; 1993, ch. 46, § 33; 2007, ch. 362, § 6; 2023, ch. 3, § 1.
ANNOTATIONS
The 2023 amendment,
effective February 20, 2023, provided an exception to existing law which prohibits a legislator from appearing for, representing or assisting another person in a matter before a state agency, and prohibited legislators from making direct or indirect threats related to legislative actions in any instance in which the legislator appears for, represents or assists another in a matter before a state agency; in Subsection B, added "Except as provided in Subsection C of this section", after "unless", added "that appearance, representation or assistance is provided"; after "without compensation", deleted "or for the benefit of a constituent, except for legislators who are attorneys or other professional persons engaged in the conduct of their professions and, in those instances, the"; in Subsection C, added "A legislator may appear for, represent or assist another person in a matter before a state agency when the legislator is an attorney or other professional who is making that appearance or providing that representation or assistance while engaged in the conduct of that legislator's profession. That", after "legislator shall", deleted "refrain from" and added "not", in Paragraph C(1), added "make", and after "scheduling", deleted "from communications on", in Paragraph C(2), added "use", and after "stationery", deleted "and from threats or implications relating to legislative actions" and added "legislative email or any other indicia of the legislator's legislative capacity."; and added Subsection D.
The 2007 amendment,
effective July 1, 2007, prohibited contracts with a legislator's family or a business in which the legislator's family has a substantial interest; provided that legislators and their families are not eligible for sole source or small purchase contracts; and required persons who negotiate contracts for a state agency to use due diligence to ensure compliance with this section.
The 1993 amendment,
effective July 1, 1993, inserted "Representation Before State Agencies" in the section heading; designated the undesignated provisions as Subsection A and added Subsection B; and, in Subsection A, substituted the language beginning "has a substantial interest" for "has controlling interest in excess of one thousand dollars ($1,000) where the legislator has disclosed his controlling interest unless the contract is made after public notice and competitive sealed bidding or competitive sealed proposal in accordance with the provisions of the Procurement Code."
School districts are "state agencies"
covered by the Conflict of Interest Act [now Governmental Conduct Act]. 1989 Op. Att'y Gen. No. 89-34.
Contracts with nonprofit organizations.
— The Conflict of Interest Act [now Governmental Conduct Act] 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.
Contracts with nonprofit organizations.
— New Mexico Const., art. IV, § 28 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.
Legislator is subject to restrictions when he sells products.
— A legislator can sell products to a state agency on an open account or collect-on-delivery basis only under contracts of less than $1,000.00. In addition, a legislator would remain subject to N.M. Const., art. IV, § 28, so that he could not make any sales during his term or one year afterwards if the sales were authorized by law during his term. 1989 Op. Att'y Gen. No. 89-34.
Legislator may bid on state contracts,
if there was public notice of the bid and the bidding was competitive. 1967 Op. Att'y Gen. No. 67-133.
Exceptions to provision prohibiting a state agency from entering into a contract with a legislator.
— Section 10-16-9(A) NMSA 1978 of the Governmental Conduct Act operates to prohibit a state agency from entering into a contract with a legislator or a business owned by a legislator unless the legislator's ownership interest is disclosed, the contract is awarded in accordance with the provisions of the Procurement Code, and the contract is not a sole source or small purchase contract, and therefore a newly elected legislator who owns, and was previously employed by, a corporation that currently provides services to the state pursuant to contracts and grant agreements would be prohibited from entering into any contract with a state agency unless the legislator discloses the ownership interest, the contract is awarded in accordance with the provisions of the Procurement Code, and the contract is not a sole source or small purchase contract. 2023 Op. Ethics Comm'n No. 2023-01.
Exceptions to provision prohibiting a legislator from appearing, representing or assisting another person in a matter before a state agency.
— Section 10-16-9(B) NMSA 1978 of the Governmental Conduct Act prohibits a legislator from appearing for, representing, or assisting another person in a matter before a state agency unless the legislator is not receiving compensation, the legislator is acting for the benefit of a constituent, or the legislator is an attorney or another professional person engaged in the conduct of his or her profession, and therefore a newly elected legislator who owns, and was previously employed by, a corporation that currently provides services to the state pursuant to contracts and grant agreements would be prohibited from appearing for, representing, or assisting the corporation before a state agency, because the corporation is not a constituent, any representation or assistance on behalf of the corporation would not be unpaid, and an appearance on behalf of the corporation in a matter before a state agency would not be in the capacity of a professional person engaged in the conduct of their profession. 2023 Op. Ethics Comm'n No. 2023-01.
Contracts between a state agency and a company owned by a legislator's family.
— Under Section 10-16-9(A) NMSA 1978 of the Governmental Conduct Act, a state agency can enter into a contract with a legislator's business or a business owned by a legislator's family so long as the legislator has disclosed his or her substantial interest, the state agency awards the contract in accordance with the provisions of the Procurement Code, and the state agency does not award the contract as either a sole source or small purchase contract, 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, does not have a disclosure requirement, because a rental agreement for storage space is not a "substantial interest" of which the Governmental Conduct Act requires disclosure before a state agency could enter a contract with the company. Additionally, the contracts between the state agencies and the company owned and operated by the legislator's children are not prohibited, because they were entered into pursuant to a competitive process and consistent with the Procurement Code's requirements. 2023 Op. Ethics Comm'n No. 2023-02.
Company owned by legislator may bid on state contracts.
— Unless otherwise prohibited by N.M. Const., art. IV, § 28, a company owned by a legislator may bid on contracts to supply state agencies with materials and supplies under the competitive bid process set forth in the Procurement Code. 1989 Op. Att'y Gen. No. 89-34.
A legislator's company can bid as general contractor on state construction projects
only if the project was not authorized during, or within one year of, his service in the legislature. If the contract on which the legislator's company bids is one authorized by statutes enacted more than one year before his service in the legislature and is worth more than $1,000, then he must give public notice of his bid, and the state agency must comply with the special procedures contained in the Conflict of Interest Act [now Governmental Conduct Act]. 1989 Op. Att'y Gen. No. 89-34.
When business owned by legislator acts as subcontractor.
— If a business owned by a legislator bids on a contract with the state as a subcontractor and is a party to the contract, then the business is subject to the same limitations that apply when it acts as general contractor. If, however, the business only contracts with the general contractor and does not enter into any contract with the state, then the restrictions of this section no longer control. However, even though a subcontractor may not be subject to the Conflict of Interest Act [now Governmental Conduct Act], it still may be indirectly interested in a state contract and subject to the prohibition contained in N.M. Const., art. IV, § 28. 1989 Op. Att'y Gen. No. 89-34.
A legislator must disclose ownership interest when contracting with state agencies under a purchase agreement.
— Under the Governmental Conduct Act, a state agency may procure services from a construction company that is owned by a legislator and that has been awarded a statewide purchase agreement by the state purchasing agent, provided the legislator discloses the legislator's ownership interest in the construction company. Likewise, the state purchasing agent may award a subsequent price agreement to the legislator's construction company, provided that the legislator discloses the legislator's ownership interest in the construction company to the state purchasing agent when the company submits its bid or proposal. 2021 Op. Ethics Comm'n No. 2021-01.
A legislator must disclose the legislator's interest when contracting with an independent subdivision of the state, even if the contract is federally funded.
— Subsection 10-16-9(A) NMSA 1978 of the Governmental Conduct Act prohibits state agencies from entering into a contract for services, construction or items of tangible personal property with a legislator, the legislator's family or with a business in which the legislator or the legislator's family has a substantial interest unless the legislator has disclosed the legislator's substantial interest and unless the contract is awarded in accordance with the provisions of the Procurement Code, except the potential contractor shall not be eligible for a sole source or small purchase contract, and therefore a member of the New Mexico house of representatives who has contracted to do federally funded project work through his local soil and water conservation district (SWCD), an independent subdivision of the state authorized by the Soil and Water Conservation District Act, §§ 73-20-25 to 73-20-48 NMSA 1978, and as such, a "state agency" under the Governmental Conduct Act, must disclose his interest in the contract to the SWCD, and the SWCD must award the contract pursuant to the requirements of the Procurement Code, without resorting to the Procurement Code provisions allowing for the award of sole-source or small-purchase contracts. This subsection's requirements apply even where the SWCD's contract is funded with federal dollars. 2022 Op. Ethics Comm'n No. 2022-01.
The department of transportation may contract with a legislator's family member as long as the legislator discloses the legislator's interest and otherwise complies with the Governmental Conduct Act.
— Subsection 10-16-9(A) NMSA 1978 of the Governmental Conduct Act prohibits state agencies from entering into contracts for services, construction or items of tangible personal property with a legislator, the legislator's family or with a business in which the legislator or the legislator's family has a substantial interest unless the legislator has disclosed the legislator's substantial interest, the contract is awarded in accordance with the provisions of the Procurement Code, and the contract is not a sole source or small purchase contract, and therefore the department of transportation may enter into a contract for right-of-way fencing with the son of a member of the New Mexico house of representatives, or a fencing and welding business in which the legislator's son has a substantial interest, as long as the legislator has disclosed any substantial interest that the legislator might have in the family member's business, the state agency awards the contract in accordance with the provisions of the Procurement Code, and the state agency does not award the contract to the legislator's son or the son's business as either a sole source or a small purchase contract. 2022 Op. Ethics Comm'n No. 2022-03.
The Governmental Conduct Act does not prohibit a legislator's family member from bidding on government projects offered by local government agencies.
— Subsection 10-16-9(A) NMSA 1978 of the Governmental Conduct Act imposes constraints on contracts between a legislator, the legislator's family or with a business in which the legislator or the legislator's family has a substantial interest, but does not impose constraints on contracts between a legislator or the legislator's family members and local government agencies, and therefore the son of a legislator's spouse may bid on projects issued by political subdivisions such as counties, school districts, or other local governments. 2022 Op. Ethics Comm'n No. 2022-03.
The Governmental Conduct Act does not prohibit a legislator from sitting on the board of a nonprofit organization that receives state contracts.
— Although a legislator's unpaid membership on the board of directors of a nonprofit organization is not a financial interest subject to disclosure or regulation under the Governmental Conduct Act, a legislator who serves as a volunteer member on the board of directors of a nonprofit organization that assists victims of sexual assault and advocates on their behalf may not use the powers and resources of public office to obtain personal benefits or pursue private interests, must make full disclosure of real or potential conflicts of interest, may be required to recuse from votes that might impact the nonprofit organization and, when dealing with state agencies on behalf of the nonprofit organization, should avoid making reference to the legislator's official status, except as to matters related to scheduling, avoid communications on legislative stationery, and avoid threats or implications relating to legislative actions. 2021 Op. Ethics Comm'n No. 2021-02.
The Governmental Conduct Act does not prohibit a business significantly owned by a legislator from applying for and receiving federal CARES relief funds.
— The Governmental Conduct Act does not prohibit a business significantly owned by a legislator from applying for and receiving federal Coronavirus Aid, Relief, and Economic Security Act (CARES) relief funds, because the limitations that this section imposes, does not apply to CARES relief grant awards; a CARES relief grant, a payment of an allocation of federal funds to New Mexico businesses to lessen the impact from the public health orders issued by the secretary of health and related to the coronavirus disease 2019 public health emergency, is not a contract for services, construction, or items of tangible personal property. Subsection B of this section, however, prohibits a legislator from appearing on behalf of a business or otherwise assisting a business in a matter before a state agency, and therefore the application for the CARES relief grant may not be accomplished by a legislator, but may be accomplished by someone other than the legislator who has an interest in the business. 2021 Op. Ethics Comm'n No. 2021-03.
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.
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 employer is free to determine whether it should also compensate him for that day's work. 2003 Op. Att'y Gen. No. 03-01.
Public defenders.
— New Mexico Const., art. IV, § 28 would prohibit contract between public defender department and legislator if the legislator was in office in 1968 when the original Indigent Defense Act was passed, regardless of whether public notice and competitive bidding are used. 1979 Op. Att'y Gen. No. 79-23.
Public defenders.
— The public defender's office may not award state representatives professional service contracts unless solicitation for competitive bids is done, in accordance with the Procurement Code. 1987 Op. Att'y Gen. No. 87-67.
Legislator is not prevented from serving as member of peanut commission
by this section. 1979 Op. Att'y Gen. No. 79-34.
Conflict of interest is not affected if bond proceeds involved.
— Any potential conflict of interest is not affected if a contract or project is funded with local bond proceeds rather than state money. 1989 Op. Att'y Gen. No. 89-34.
Damages.
— 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 N.M. Const., art. IV, § 28. 1990 Op. Att'y Gen. No. 90-17.
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.