2023 New Mexico Statutes › Chapter 21 - State and Private Education Institutions › Article 1 - General Provisions Relating to State Educational Institutions › Section 21-1-35 - Sales by boards, officers or employees prohibited; parties to contracts receiving commission or profit; penalty.

No board of regents of a state educational institution, no member of a board and no school official or teacher, either directly or indirectly, shall sell to any state educational institution that he is connected with by reason of being a member of a board of regents of a state educational institution or to any school official or teacher, any school books, school furniture, equipment, apparatus or any other kind of school supplies, sell property insurance or life insurance to any employee of that state educational institution or do any work under contract, nor shall any such board or members thereof or school officers or teachers receive any commission or profit on account thereof, and all such persons are prohibited from being parties directly or indirectly to any such contract or transaction; provided that the provisions of this section shall not apply to contracts entered into pursuant to the provisions of the University Research Park Act [University Research Park and Economic Development Act][Chapter 21, Article 28 NMSA 1978] or that comply with provisions of the Governmental Conduct Act [Chapter 10, Article 16 NMSA 1978] and the Procurement Code [13-1-28 to 13-1-199 NMSA 1978]. Any person violating the provisions of this section shall be fined not exceeding one thousand dollars ($1,000) or imprisoned not exceeding one year in the penitentiary of New Mexico or be fined and imprisoned as set forth in this section in the discretion of the court.
History:
Laws 1923, ch. 148, § 1415; 1927, ch. 139, § 5; C.S. 1929, § 120-1415; 1941 Comp., § 55-715; Laws 1943, ch. 119, § 1; 1953 Comp., § 73-8-15; Laws 1979, ch. 17, § 1; 1989, ch. 264, § 29; 1999, ch. 148, § 2.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Laws 2007, ch. 247, § 1 changed the "University Research Park Act" to the "University Research Park and Economic Development Act".
The 1999 amendment,
effective June 18, 1999, added "or that comply with provisions of the Governmental Conduct Act and the Procurement Code" at the end of the first sentence.
The 1989 amendment,
effective April 5, 1989, added the proviso at the end of the first sentence, and made minor stylistic changes throughout the section.
Purpose of 22-21-1 NMSA 1978 and this section
is to prevent a conflict of interest between school board members and the districts with which they are connected.
State ex rel. Martinez v. Padilla
, 1980-NMSC-064, 94 N.M. 431, 612 P.2d 223.
Practice restricting bus drivers in place of purchasing gas prohibited.
— The practice of requiring certain district bus drivers to buy their gas at a school board member's gas station is exactly the type of improper conflict this section was designed to prohibit, and the activity does not fall within the "regular course of business," exception of 22-21-1B NMSA 1978.
State ex rel. Martinez v. Padilla
, 1980-NMSC-064, 94 N.M. 431, 612 P.2d 223.
When sales by school board members permissible.
— Members of school boards could sell to schools under the jurisdiction of their boards, so long as the provisions of the former Public Purchases Act were complied with, which included purchases made in the regular course of business or upon competitive bids of not to exceed the regularly established prices and when such members received no compensation other than from profits from their business. 1957 Op. Att'y Gen. No. 57-53 (issued prior to 1999 amendment of section).
Termination of employment required.
— Under this section in order for an enumerated individual to properly perform work or supply services by contract and which involve tasks other than those covered under his official capacity or employment, such person must first terminate his official position or employment prior to entering into any such contract. 1964 Op. Att'y Gen. No. 64-88 (issued prior to 1999 amendment of section).
When bus driver is board member.
— Should any school bus driver qualify and serve as a member of the board of education with whom he holds a contract, without first terminating the contract, such person would be in violation of this section. 1953 Op. Att'y Gen. No. 53-5727 (issued prior to 1999 amendment of section).
Board member wants to be bus driver.
— A member of a local school district board may not enter into a contract with the school district to drive a school bus on behalf of the district. 1964 Op. Att'y Gen. No. 64-88 (issued prior to 1999 amendment of section).
When wife of board member is bus driver.
— No violation of this section would result where a school board transfers a school bus transportation contract to the wife of a member of the local board making such transfer, as the board member is neither directly nor indirectly working under contract to his school district and the contract is truly between the school board and the wife only, with the husband having no personal interest, pecuniary or otherwise, in the contract. 1971 Op. Att'y Gen. No. 71-36 (issued prior to 1999 amendment of section).
Truck route not permissible.
— It is not permissible for a member of the municipal school board to have a truck route for his school. 1936 Op. Att'y Gen. No. 36-1389.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
63A Am. Jur. 2d Public Officers and Employees §§ 321, 338 to 343, 411; 68 Am. Jur. 2d Schools § 23.
Relationship as disqualifying interest within statute making it unlawful for an officer to be interested in a public contract, 74 A.L.R. 792.
67 C.J.S. Officers and Public Employees §§ 204, 255 to 259; 78 C.J.S. Schools and School Districts § 405.