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.

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.