2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 16 - Governmental Conduct › Section 10-16-3 - Ethical principles of public service; certain official acts prohibited; penalty.

A. A legislator or public officer or employee shall treat the legislator's or public officer's or employee's government position as a public trust. The legislator or public officer or employee shall use the powers and resources of public office only to advance the public interest and not to obtain personal benefits or pursue private interests.
B. Legislators and public officers and employees shall conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.
C. Full disclosure of real or potential conflicts of interest shall be a guiding principle for determining appropriate conduct. At all times, reasonable efforts shall be made to avoid undue influence and abuse of office in public service.
D. No legislator or public officer or employee may request or receive, and no person may offer a legislator or public officer or employee, any money, thing of value or promise thereof that is conditioned upon or given in exchange for promised performance of an official act. 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.
History:
1978 Comp., § 10-16-3, enacted by Laws 1993, ch. 46, § 28; 2007, ch. 362, § 2; 2011, ch. 138, § 3.
ANNOTATIONS
Repeals and reenactments.
— Laws 1993, ch. 46, § 28 repealed former 10-16-3 NMSA 1978, as enacted by Laws 1967, ch. 306, § 3, relating to gifts, and enacted a new section, effective July 1, 1993.
The 2011 amendment,
effective July 1, 2011, in Subsection A, eliminated the qualification that prohibited personal benefits and private interests must be incompatible with the public interest.
The 2007 amendment,
effective July 1, 2007, made grammatical changes.
Judge's conviction invalid.
— The legislature expressly chose to exclude judges from application of the Governmental Conduct Act. Therefore, a judge could not be convicted of violating official acts prohibited under 10-16-3(D) NMSA 1978, and violating official acts prohibited by that section could not be used as the predicate felony to support the defendant's conviction of criminal sexual penetration during the commission of a felony.
State v. Maestas
, 2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.
The New Mexico legislature intended Subsections A through C of this section be applied as ethical principles rather than as criminal statutes.
— In consolidated cases, where petitioners were each charged under two or three subsections of the Governmental Conduct Act, and where the district court dismissed the charges in all four cases on different grounds, the district courts did not err in dismissing charges under 10-16-3(A) through 10-16-3(C) NMSA 1978, because the plain language of Subsections (A) through (C) demonstrate a legislative intent that these subsections be applied as ethical principles rather than as criminal statutes within the scope of 10-16-17 NMSA 1978. Each relevant subjection communicates a general goal or proscription without specifying a wrongful deed or forbidden act.
State v. Gutierrez
, 2023-NMSC-002,
rev'g
2020-NMCA-045, 472 P.3d 1260.
Legislative intent for willful and knowing violations.
— The plain meaning of § 10-16-3 NMSA 1978 and § 10-16-17 NMSA 1978 indicates a legislative intent to provide for a misdemeanor penalty for a knowing and willful violation of the provisions of §§ 10-16-3(A) through § 10-16-3(C) NMSA 1978.
State v. Gutierrez
, 2020-NMCA-045, cert. granted.
Void for vagueness analysis of Subsection A.
— Section 10-16-3(A) NMSA 1978 mandates the use of the powers and resources of a legislator's, public officer's, or public employee's public office only for the benefit of the people of New Mexico, and prohibits legislators, public officers, and public employees from exploiting their powers and resources for private gain, and to the extent the application of Subsection A requires a qualitative determination of what constitutes a public versus private interest, as a general rule, the application of a qualitative standard to real-world conduct does not render a statute unconstitutionally vague. Subsection A provides a fair opportunity for persons of ordinary intelligence to determine whether his or her conduct is prohibited, as well as sufficient guidance for enforcement of the law such that it neither permits nor encourages subjective or ad hoc application.
State v. Gutierrez
, 2020-NMCA-045, cert. granted.
Subsection B is unconstitutionally vague.
— Although § 10-16-3(B) NMSA 1978 describes behavior to which the listed officials should aspire, it does not follow with a definition or clarification of the conduct that is required to comply. To the extent the phrases "conduct themselves in a manner that justifies the confidence placed in them by the people," "maintaining the integrity," and discharging ethically" were intended to require or prohibit certain conduct, the court is unable to ascertain with any reasonable degree of certainty the conduct the legislature intended to prohibit. Subsection B not only fails to provide persons of ordinary intelligence a fair opportunity to determine whether their conduct is prohibited, but also fails to provide minimum guidance that would preclude subjective and ad hoc application of the law; Subsection B is vague and cannot form the basis for criminal charges under § 10-16-17 NMSA 1978.
State v. Gutierrez
, 2020-NMCA-045, cert. granted.
Subsection C is unconstitutionally vague.
— Section 10-16-3(C) NMSA 1978 does not provide adequate guidance as to whom its requirements apply. The lack of any minimum guidance with regard to the class of persons whose conduct is governed by Subsection C renders it unconstitutionally vague because it fails to give people of ordinary intelligence a reasonable opportunity to know whether their conduct is prohibited because they have no notice as to whether they are a member of the class of persons contemplated under Subsection C, and it invites subjective and ad hoc application of the law because law enforcement officials have no guidance as to the class of persons subject to the requirements of the subsection.
State v. Gutierrez
, 2020-NMCA-045, cert. granted.
In four separate cases, consolidated for appeal, where each case arose from an allegation of misconduct by a government official, and where the district court in each case dismissed the charges against the defendants, finding that violations of §§ 10-16-3(A) through § 10-16-3(C) NMSA 1978 were not crimes but ethical considerations and therefore the indictments failed to allege the commission of a criminal offense, or that even if Subsections A through C provided for criminal offenses, they were nevertheless void for vagueness, the district courts' dismissals of the counts charging defendants under Subsection A were improper because the plain meaning of § 10-16-3 NMSA 1978 and § 10-16-17 NMSA 1978 indicates a legislative intent to provide for a misdemeanor penalty for a knowing and willful violation of Subsection A, but the dismissals of the counts charging defendants under Subsections B through C were proper because those subsections fail to provide persons of ordinary intelligence a fair opportunity to determine whether their conduct is prohibited.
State v. Gutierrez
, 2020-NMCA-045, cert. granted.
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 a legislator is not directly responsible for the New Mexico department of finance and administration's and the New Mexico finance authority's distribution of CARES relief grants; the decision to award grant money to a business owned by the legislator has no direct connection with an exercise of the powers and responsibilities of the legislator's public office. 2021 Op. Ethics Comm'n No. 2021-03.
An oversight agency does not violate the public trust by publicizing concerns about the operation of a state agency.
— The New Mexico state auditor, in releasing to the public his concerns about the operation of the Martin Luther King, Jr. commission, does not violate the Governmental Conduct Act, because it is not a violation of the public trust to publicize the findings of an audit that contained numerous findings of material weaknesses and material noncompliance. 2021 Op. Ethics Comm'n No. 2021-04.
A legislator or public officer does not violate the Governmental Conduct Act by submitting records requests to other state agencies.
— The New Mexico state treasurer, who is a statutorily designated member of the Martin Luther King, Jr. commission (MLK commission), did not violate the Governmental Conduct Act in submitting numerous records requests to the MLK commission pursuant to the Inspection of Public Records Act, 14-2-1 to 14-2-12 NMSA 1978, given that the New Mexico legislature has declared that it is the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees, and that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees. 2021 Op. Ethics Comm'n No. 2021-04.
This section does not require recusal on any vote affecting a legislator's interests.
— Under this section, a legislator may not use the powers and resources of their legislative office to obtain personal benefits or pursue private interests, but this section does not require recusal on any vote affecting a legislator's interests, 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.
A legislator's official acts affecting a financial interest are prohibited.
— Section 10-16-3(A) NMSA 1978 of the Governmental Conduct Act provides that a legislator may not use the powers and resources of their legislative office to obtain personal benefits or pursue private interests, 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 taking any official act for the purpose of benefitting either the legislator's ownership or employment interests in the corporation. A legislator may voluntarily recuse from participation in a matter that affects, or has the appearance of affecting, their interest. 2023 Op. Ethics Comm'n No. 2023-01.
Duty to disclose real or potential conflicts of interest.
— Section 10-16-3(C) NMSA 1978 of the Governmental Conduct Act requires a legislator to disclose real or potential conflicts of interest, 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 has a duty to disclose the legislator's interest in the corporation. If the legislator has disclosed ownership of and employment by the corporation on an annual financial disclosure statement, that statement would be sufficient to meet the disclosure required by Section 10-16-3(C) NMSA 1978. 2023 Op. Ethics Comm'n No. 2023-01.
A legislator's duty to disclose potential conflicts of interest and duty to treat position as a public trust.
— Under the Governmental Conduct Act, a legislator may not use the powers and resources of their legislative office to obtain personal benefits or pursue private interests, and must disclose any real or potential conflicts of interest, 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, would be prohibited from taking any official act for the purpose of benefitting their children's company and would be required to disclose the legislator's interest in the storage-rental contract on their annual financial disclosure statement. 2023 Op. Ethics Comm'n No. 2023-02.
Self-dealing by non-state-employed council members does not violate the Governmental Conduct Act.
— The Governmental Conduct Act does not prohibit members of the New Mexico council for purchasing from persons with disabilities (council) from voting to approve a contract subject to the State Use Act, 13-1C-1 to 13-1C-7 NMSA 1978, between a state agency or local public body and a council member or a company in which the council member has a financial interest. Most of the members of the council do not receive compensation or cost reimbursements from the state, and therefore are not subject to the Governmental Conduct Act's conflict-of-interest provisions, and although the Governmental Conduct Act prohibits a state agency from entering into a contract with a business in which a public officer or employee has a substantial interest, it is the designated central nonprofit agency that holds contracts under the State Use Act, not the council itself. 2020 Op. Ethics Comm'n No. 2020-07.
The Governmental Conduct Act does not limit communications between a legislator and a lobbyist.
— The Governmental Conduct Act, 10-16-1 to 10-16-18 NMSA 1978, regulates the conduct of legislators in limited circumstances, requires legislators to disclose any conflict of interest, and requires legislators to use the powers of their legislative office only to advance the public interest, but the Governmental Conduct Act does not constrain any communications between a legislator and a lobbyist employed by an entity that contracts with or employs the legislator, nor does it constrain communications between a legislator and the board members or employees of an entity that employs or contracts with the legislator. 2022 Op. Ethics Comm'n No. 2022-06.
Bond attorneys.
— The provision of the Governmental Conduct Act that limits contributions to state officers and employees by businesses that provide financial services does not apply to lawyers who perform bond work for the state. 2007 Op. Att'y Gen. No. 07-04.
Holding a cabinet office and a university position.
— The concurrent holding of a cabinet office and a position with a university regulated, to any degree, by the cabinet office raises the conflict of interest issues addressed by the Governmental Conduct Act and may require the cabinet officer to relinquish the officer's university position. 2007 Op. Att'y Gen. No. 07-06.
Free passes for racing commissioners disallowed.
— When the members of the racing commission distribute free passes which the tracks must honor they are requesting a benefit for themselves or for those upon whom they wish to confer a benefit from persons who are directly affected by their official acts, which is the kind of activity this article is intended to prevent. 1979 Op. Att'y Gen. No. 79-15.
Public employees retirement board members could not accept expense-paid trip.
— Public employees retirement board members could not accept an offer of an expense-paid trip to Columbus, Ohio to be hosted by public employees benefit services corporation. 1989 Op. Att'y Gen. No. 89-21.
District attorney's office may accept unconditional gifts or donations of goods, services or other in-kind benefits.
— Public officers and employees are prohibited from knowingly requesting or receiving any money or thing of value that is conditioned upon or given in exchange for the promised performance of an official act, and the rules of professional conduct for lawyers prohibit a lawyer from accepting compensation from third parties unless there is no interference with the lawyer's independence of professional judgment in rendering legal services, and therefore, under these provisions, a state agency such as a district attorney's office may accept donations of goods and services for official purposes if the donations are made voluntarily and unconditionally and do not affect the office's independent and unbiased provision of prosecutorial and other legal services.
Use of Funds and Services Received from Third Parties
(1/14/19), Att'y Gen. Adv. Ltr. 2019-01.
A state employee who also receives a monthly salary from a political campaign committee does not necessarily violate state ethics laws.
— Although the Gift Act, 10-16B-1 to 10-16B-4 NMSA 1978, the Governmental Conduct Act, 10-16-1 to 10-16-18 NMSA 1978, the Financial Disclosure Act, 10-16A-1 to 10-16A-8 NMSA 1978, the Campaign Reporting Act, 1-19-25 to 1-19-36 NMSA 1978, and the State Ethics Commission Act, Chapter 10, Article 16G NMSA 1978, impose certain duties on state employees and regulate certain state employees' conduct, the limited set of facts presented in this request, that a state employee, while employed and performing regular public duties, is also receiving a monthly salary from a political campaign committee or political organization, do not establish a violation of any of the foregoing statutes. 2020 Op. Ethics Comm'n No. 2020-01.
Cabinet secretary's teleworking accommodations do not violate the Governmental Conduct Act.
— The Governmental Conduct Act, 10-16-3(A) NMSA 1978, prohibits an out-of-state telework accommodation that either inhibits a state employee's performance of statutorily defined duties or otherwise obstructs the advancement of the public interest, but the fact that that the New Mexico secretary of education has worked from Philadelphia, Pennsylvania for several months during the 2020 public health crisis, without any information that the secretary of education's performance is inhibited in any way, does not establish a violation of the Governmental Conduct Act. 2020 Op. Ethics Comm'n No. 2020-06.
Paid leave for a teacher also serving as a legislator does not create an impermissible conflict of interest.
— A school district's provision of compensation, including paid leave, to a school teacher or administrator serving as a legislator does not, by itself, create an impermissible conflict of interest. A disqualifying conflict would exist only if it was established that a school district provided paid leave to a school employee not as compensation for services, but to influence the employee's decisions and official actions as a legislator.
Provision of Paid Leave to Teacher Serving as Legislator
(5/31/17), Att'y Gen. Adv. Ltr. 2017-05.