Advisory Opinions

State Ethics Commission Advisory Opinions

What is an Advisory Opinion?

The State Ethics Commission may issue advisory opinions upon appropriate requests.  Advisory opinions are statements of a legal interpretation on a matter submitted by a request.  Advisory opinions are not the result of the termination of a litigated case.  Rather, they are written in response to a request that poses a legal question and a corresponding set of factual assumptions.  Generally, advisory opinions are non-binding statements of the  law.  Under the State Ethics Commission Act, however, an advisory opinion issued by the Commission are binding on the Commission in any subsequent administrative hearing concerning a person who acted in good faith and in reasonable reliance on that advisory opinion.

Who Can Request Advisory Opinions?

Under the State Ethics Commission Act, 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.

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.usRequests 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. 

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?

Advisory Opinion Requests are typically addressed within 60 days of being received unless circumstances delay Commission staff, in which case, the applicant will be notified every 30 days until the request is addressed.

Are Advisory Requests Public?

Requests for Advisory Opinions are confidential and are not subject to the provisions of the Inspection of Public Records Act. Advisory Opinions themselves are made public, but with the requester’s name and identifying information redacted.

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.

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.