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.
ANNOTATIONSRepeals 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 — Laws 1993, ch. 46, § 28 repealed former 10-16-3 NMSA 1978, as enacted by Laws 1967, ch. 306, § 3, relating to gifts, and enacted a new section, effective July 1, 1993.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.
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.
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.