Advisory Opinions

State Ethics Commission Advisory Opinions

What is an Advisory Opinion?

The State Ethics Commission may issue advisory opinions upon request.  Advisory opinions interpret the ethics laws and apply those laws to the facts set forth in the requestThere are two kinds of advisory opinions: formal advisory opinions and informal advisory opinions.    

 Formal advisory opinions are issued by the Commission itself based on staff recommendations and are binding on the Commission in any administrative hearing concerning a person who acted in good faith and in reasonable reliance on that advisory opinion.  Because the Commission must vote to adopt a formal advisory opinion, it can take sixty days or more for the Commission to issue a formal advisory opinion after receiving a request. 

Informal advisory opinions are issued by the Commission’s staff attorneys.  Commission staff issue informal advisory opinions on a short time frame, usually a few days after a request is received.  Evidence that a requester relied on an informal opinion to make a decision is evidence of good faith efforts to comply with the law, but does not bind the Commission. 

Who Can Request Advisory Opinions?

The State Ethics Commission may issue advisory opinions requested in writing by a public official, public employee, candidate, person subject to the Campaign Reporting Act, government contractor, lobbyist, or lobbyist’s employer.” Under the Act, “public official” and “public employee” includes state officials and state employees, but does not include officials and employees of local public bodies.  Commission staff may issue informal advisory opinions to anyone subject to the Governmental Conduct Act, which includes county and municipal employees. 

How Can a Request for an Advisory Opinion Be Submitted?

Requests must be submitted by post or in writing to the Commission’s email address at ethics.commission@state.nm.us. Requests must identify a specific set of factual circumstances and involve a question about the applicability of one of the provisions of law over which the Commission has jurisdiction.  A written request should state whether the request is for a formal or informal advisory opinion. 

If you have questions about this process or need assistance with filing a request for an advisory opinion, please contact a staff member of the SEC.  

What Happens After an Advisory Opinion is Requested?

A request for a formal advisory opinion is typically addressed within 60 days of being received unless the Commission needs more time to answer the opinion, in which case, the applicant will be notified every 30 days until the request is addressed. 

A request for an informal advisory opinion is typically addressed within 5 business days of receipt, unless Commission staff require additional time to research or write a response. 

Are Advisory Requests Public?

Requests for Advisory Opinions are confidential and are not subject to the provisions of the Inspection of Public Records Act. Formal Advisory Opinions themselves are posted on the Commission’s website, but with the requester’s name and identifying information redacted.  Informal advisory opinions, which are specific to the requester and the set of facts presented in the request, are confidential and are not subject to public inspection. 

FORMAL ADVISORY OPINIONS (By Legal Category)

GOVERNMENTAL CONDUCT ACT

2020-01: Does a state employee’s receipt of a monthly salary from a political campaign committee or political organization while employed and performing their regular public duties violate the Governmental Conduct Act?

Decision: No, absent facts showing that the state employee’s service was compromised as a result of his or her outside employment.

2020-02: Does the Governmental Conduct Act prohibit a former state agency attorney from representing a nonprofit organization in the same matter that the state employee previously represented the state agency?

Decision: Yes.

2020-06: Under the Governmental Conduct Act, may a cabinet secretary or another state employee work remotely from outside of the state on a permanent or near-permanent basis, when their job duties are ordinarily based in New Mexico?

Decision: Subsection 10-16-3(A) of the Governmental Conduct Act prohibits an out-of-state telework accommodation that either inhibits a state employee’s duties or otherwise obstructs the public interest.  Beyond this general statement, the Commission does not have enough information to provide an opinion as to whether the specific arrangements in the request violate the Governmental Conduct Act.

2021-01:

1. May state agencies purchase goods and services from the construction company under the current statewide price agreement? 

2. May the state purchasing agent enter another statewide price agreement with the construction company while the legislator holds legislative office? 

Decision:

1. Yes, but only if the legislator first discloses to the procuring state agency the legislator’s ownership interest in the construction company. 

2. Yes, but only if the legislator first discloses to the state purchasing agent the legislator’s ownership interest in the construction company. 

2021-02: A member of the legislature 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. The nonprofit organization receives contract and grant money from federal, state, and local governments.
1) How should the legislator and the non-profit organization “handle any [of the nonprofit’s] applications for state funds?” 2) Additionally, may the legislator vote on legislation on sexual assault laws and appropriations for programs helping victims of sexual assault?

Decision:

1. The Governmental Conduct Act does not prohibit a legislator from sitting on the board of a nonprofit organization that receives state contracts or grants, provided the legislator’s interest is disclosed prior to a contract. 

2. As a general matter, yes. But the GCA and Article IV, Section 28 could be implicated depending on the specific provisions contained in the legislation. 

2021-03: May a business significantly owned by a legislator apply for and receive a grant from the Department of Finance and Administration and the New Mexico Finance Authority for economic hardship suffered as a result of the COVID-19 pandemic? 

Decision: Yes.

2021-04:

1) Does it violate the Governmental Conduct Act for the State Auditor to make public statements that threaten to “apply pressure” on the Martin Luther King, Jr. Commission? 

2) Does it violate the Governmental Conduct Act for a Senator to make public statements about lawsuits that the Senator, in their capacity as a private attorney, filed on behalf of clients against the Martin Luther King, Jr. Commission? 

3) Does it violate the Governmental Conduct Act for a Senator and the State Treasurer, who is also a member of the Martin Luther King, Jr. Commission, to send at total of nine separate requests under the Inspection of Public Records Act to the Martin Luther King, Jr. Commission’s sole employee? 

Decision: 
No. The facts alleged in the request would not constitute a violation.

2021-07  May legislators who are respondents to administrative complaints pending in the State Ethics Commission vote on proposed legislation that affects the State Ethics Commission?

Decision: Yes

2021-08  1. (a)  May a legislator or a legislator’s family apply for or receive state funds following passage of legislation making such funds available?  

1. (b)  If a legislator or their family members may not apply for or receive state funds made available by a statute, does a member who recuses from the vote on that legislation obviate the prohibition? 

  1. May a legislator or a legislator’s family apply for a small business loan made available by the Small Business Recovery Act of 2020, Laws 2020 (1st S.S.), ch. 6, §§ 1–7?
  1. May a legislator or a legislator’s family apply for “recovery grant” funds made available by Laws 2021, Chapter 3, Sections 10 through 13? 

Decision:

1. (a) It depends on how state agencies make the funds available. 

1 (b) No. Recusal from a related vote would not obviate any constitutional or statutory limitation. 

2. No. The loans provided through the Act are contracts with the state which, under Article IV, Section 28 of the NM constitution may not be entered into by a legislator nor their business while serving as a legislator or for one year after their final day of service.  The Governmental Conduct Act also imposes additional prohibitions that apply to contracts involving the state and legislators, their immediate family, and their businesses. 

3. Yes. A business owned by a legislator or a legislator’s family members may apply for “recovery grant” funds made available by Laws 2021, Chapter 3, Sections 10 through 13.

2021-09   May a legislator or a business a legislator owns apply for a small business loan made available by the Small Business Recovery Act of 2020, Laws 2020 (1st S.S.), Chapter 6, Sections 1 through 7 (“2020 Act”), and the Small Business Recovery and Stimulus Act, Laws 2021 Chapter 5, Sections 1 through 8 (“2021 Act”)? 

    Decision:

    No.  The 2020 Act and 2021 Act authorize small business loans, which are contracts.  As a result, Article IV, Section 28 of the New Mexico Constitution prohibits a legislator from being directly or indirectly interested in any small business loan authorized by the 2020 Act or the 2021 Act for the duration of the legislator’s term and for one year after their term expires. 

    CAMPAIGN REPORTING ACT

    2021-05: May a member of the legislature who is also a candidate for United States representative solicit contributions for their campaign for federal office during a legislative session? 

    Decisions: Yes

    GIFT ACT

    2020-03: (1) Does the Gift Act permit Holtec International to provide flights, meals, refreshments, and lodging to legislators as part of an educational tour of Holtec’s nuclear generating station in Missouri?  (2) Does the Campaign Reporting Act require the legislators to report Holtec’s contributions as in-kind campaign contributions? 

    Decisions: (1) Yes; (2) No.

    PROCUREMENT CODE

    2020-04: Does the Procurement Code prohibit a person involved in a procurement award decision from discussing the contents of a proposal submitted in response to request for proposals prior to the award?

    Decision: Yes.

    2020-05: Two companies, which are separately registered as suppliers to the State, share the same office address.  Each company separately submitted an identical twenty-item bid in response to an invitation to bid.  Do the identical bids of these two companies constitute price fixing or collusion or violate the Procurement Code?

    Decision: Yes.
     

    2020-07: Can the non-state-employee members of the Council for Purchasing from Persons with Disabilities participate in the Council’s vote to award State Use Act contracts to themselves or companies they own? 
    Decision: Self-dealing by non-state-employee Council members does not violate the Governmental Conduct Act or the Procurement Code.  If the Council wishes to prohibit a member from participating in a decision award a contract to the member or a company the member owns, the Council can amend its rules or recommend amendments to the Governmental Conduct Act or the Procurement Code.  

    2020-08: Where a school district has awarded contracts for legal services to three law firms based upon competitive sealed proposals, does the Procurement Code allow a school district to procure legal services in excess of $40,000 from a law firm that was not awarded a contract through the school district’s competitive-sealed-proposal process?​  

    Decision: Yes.
     

     

     

    2021-06: When a sole source contract is amended, does notice of the amendment need to be posted on the state purchasing agent’s or central purchasing office’s website and the sunshine portal? 

    Decision: Yes.