2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 16 - Governmental Conduct › Section 10-16-8 - Contracts involving former public officers or employees; representation of clients after government service.

A. A state agency shall not enter into a contract with, or take any action favorably affecting, any person or business that is:
(1) represented personally in the matter by a person who has been a public officer or employee of the state within the preceding year if the value of the contract or action is in excess of one thousand dollars ($1,000) and the contract is a direct result of an official act by the public officer or employee; or
(2) assisted in the transaction by a former public officer or employee of the state whose official act, while in state employment, directly resulted in the agency's making that contract or taking that action.
B. A former public officer or employee shall not represent a person in the person's dealings with the government on a matter in which the former public officer or employee participated personally and substantially while a public officer or employee.
C. A local government agency shall not enter into a contract with, or take any action favorably affecting, any person or business that is:
(1) represented personally in the matter by a person who has been a public officer or employee of that local government agency within the preceding year if the value of the contract or action is in excess of one thousand dollars ($1,000) and the contract is a direct result of an official act by the public officer or employee; or
(2) assisted in the transaction by a former public officer or employee of that political subdivision of the state whose official act, while in employment with that political subdivision of the state, directly resulted in the agency's making that contract or taking that action.
D. For a period of one year after leaving government service or employment, a former public officer or employee shall not represent for pay a person before the state agency or local government agency at which the former public officer or employee served or worked.
History:
1953 Comp., § 5-12-8, enacted by Laws 1967, ch. 306, § 8; 1983, ch. 90, § 2; 1993, ch. 46, § 32; 2011, ch. 138, § 9.
ANNOTATIONS
The 2011 amendment,
effective July 1, 2011, added a new Subsection C to provide limitations on contracting by local government agencies with former public officers and employees; and relettered the succeeding subsection.
The 1993 amendment,
effective July 1, 1993, rewrote the section heading, which read "Contracts involving former employees"; inserted the subsection designation "A" at the beginning, redesignated Subsections A and B as Paragraphs (1) and (2), and added Subsections B and C; and, in Subsection A, inserted "public officer or" in three places and made minor stylistic changes.
Subsection C [now Subsection D] not unconstitutional regulation of law practice.
— The application of Subsection C [D] to former executive branch attorneys is not an attempt by the legislature to regulate the practice of law and the provision does not violate separation of powers.
Ortiz v. Taxation & Revenue Dep't
, 1998-NMCA-027, 124 N.M. 677, 954 P.2d 109.
Construction with Rule 16-111 NMRA.
— Subsection C [now Subsection D] and Rule 16-111 NMRA, prohibiting an attorney in private practice from representing a client in a matter in which the attorney participated personally and substantially while a public officer or employee, prohibit different types of conduct and are not in conflict.
Ortiz v. Taxation & Revenue Dep't
, 1998-NMCA-027, 124 N.M. 677, 954 P.2d 109.
Restrictions on former public lawyer's representation of a third-party in dealings with the government.
— It is a violation of the Governmental Conduct Act, 10-16-1 to 10-16-8 NMSA 1978, for a lawyer, formerly employed with the New Mexico environment department (NMED), to represent a third party seeking to enforce a consent order that he had a personal and substantial role in negotiating, drafting, executing and enforcing while employed with the NMED, and where NMED is an adverse party in the litigation, because 10-16-8(B) NMSA 1978 prohibits a former public officer or employee from representing a person in the person's dealings with the government on a matter in which the former pubic officer or employee participated personally and substantially while a public officer or employee. 2020 Op. Ethics Comm'n No. 2020-02.
Former government employee's contractual arrangement does not violate the Governmental Conduct Act.
— The Governmental Conduct Act, 10-16-1 to 10-16-18 NMSA 1978, provides that a former government employee shall not represent a person or corporation in dealings with the government on a matter in which the employee personally and substantially participated while a public officer or employee, and also provides that "for a period of one year after leaving service or employment, a former public officer or employee shall not represent for pay a person before the state agency or local government agency at which the former public officer or employee served or worked." The prohibitions set out in 10-16-8(B) and (D) NMSA 1978 are not triggered where a former deputy secretary of a state agency is contemplating working as a contractor for a healthcare corporation during the year after she separated from state government and where, after that initial year, the former deputy secretary may work for the corporation as an employee, because under the facts presented, the former deputy secretary will not "represent" the healthcare corporation before any state agency, whether on a matter the former deputy secretary previously participated in personally and substantially or otherwise. Also under the facts presented, the former deputy secretary did not interact or have communication with the agencies involved in the procurements during her tenure in state government, and therefore the agency's duty not to enter into a contract or take other favorable action affecting any person or business, as provided in 10-16-8(A)(2) NMSA 1978, is not violated. 2022 Op. Ethics Comm'n No. 2022-10.
Former mayor not prohibited from representing union in new collective bargaining agreement.
— Where, in 2021, the city entered into a collective bargaining agreement with the police officers association (POA), and where, in 2023, the POA requested to reopen collective bargaining negotiations per its 2021 agreement, and where a former mayor, in office at the time of the 2021 agreement, is currently serving as a negotiator on behalf of the POA in its negotiations with the city, NMSA 1978, § 10-16-8(C)(2) does not prohibit the city from entering into a new contract with the POA simply because it is represented by the former mayor; the purpose of § 10-16-8(C)(2) is to prevent government officials from using the powers and resources of their public office with a purpose to secure a benefit for themselves after they separate from government services, and there is no indication that the former mayor took official acts with respect to the 2021 collective bargaining agreement with a purpose to secure a benefit for himself or the POA after he separated from the city. The contract at issue is a future collective bargaining agreement between the city and the POA, presumably negotiated pursuant to the city's collective bargaining ordinance, under which both the city and its employees benefit. 2023 Op. Ethics Comm'n No. 2023-06.