New Mexico Advisory Opinions January 01, 2008: NM Att. Gen.

Advisory Opinion Text

Dear Representative Garcia:

You have asked whether a state legislator may seek re-election to his or her legislative seat and run for county commissioner in the same election cycle without violating any constitutional or statutory provisions of New Mexico law. Based on our examination of the relevant New Mexico constitutional, statutory and case law authorities, and on the information available to us at this time, we conclude that an incumbent state legislator is not prohibited from simultaneously seeking re-election to his or her legislative seat and running for county commission in the same election cycle. We note, however, that Article IV, Section 3 of the New Mexico Constitution prohibits members of the state legislature fi'om also serving as elected county officials.

As a preliminary matter, there are several constitutional and statutory provisions that limit a legislator's ability to hold another public office during the tem1 for which he or she is elected. l Article III, Section 1 of the New Mexico constitution precludes a state legislator from exercising any of the powers belonging to the executive or judicial branches of the state? Article IV, Section 3 prohibits a state legislator from holding any office of trust or profit with the state, county or national governments. Article IV. Section 28 of the state constitution precludes a state egislator from being appointed to any civil office in the state during the term for which s/he is elected.3 None of these constitutional provisions appear to limit a legislator's ability to run for more than one office in the same election cycle.

1 For purposes of this analysis, we assume that no county ordinance limits the ability of a person holding another elective office to run for county commissioner in the county.

2 AI1icle III. § I states in pertinent part: The powers of the government of this state are divided into three distinct departments, the legislative. executive and judicial, and no perSOll or collection of persons charged vvith the exercise of powers belonging to one of these departments shall exercise any powers belonging to either of the others ....

NMSA 1978, Sections 2-1-3 and 2-1-4 (1977) prohibit a state legislator from receiving compensation for services performed as an officer or employee of the state.4 These statutory provisions, however, do not prohibit a member of the legislature from seeking election to more than one office. 5

Article IV, Section 3 of the state constitution does prohibit a state legislator from serving as a member of the legislature while holding any office in state, county or national government. It provides in pertinent part that:

No person shall be eligible to serve in the legislature who, at the time of qualifying, holds any office of trust or profit with the state, county or national governments ....

(Emphasis added). The unambiguous language of this provision makes clear that a member of the legislature may not hold another public office with the state, a county or the national government at the time he or she is sworn and seated as a member of the legislature.6 The basic purpose of this and similar constitutional provisions is to prevent the participation of a legislator in the deliberations and enactments of laws pertaining to an office in which the legislator may subsequently acquire a personal interest. See N.M. Atty. Gen. Op. 62-145 (1962), citing State ex reI. Pickerell v. Myers, 359 P.2d 757 (Ariz. 1961). While this constitutional provision does not preclude a legislator from seeking re-election to his or her legislative seat and running for county commissioner in the same election cycle, it plainly does not allow the legislator, if re-elected, to also serve as county commissioner.

3 See State ex reI. Anaya v. McBride, 88 N.M. 244, 251-2 (1975) (N.M. Const., art. IV, § 28 applies only to appointments and not to elections).

4 More precisely, NMSA 1978, Section 2-1-3 makes it unlawful for a state legislator "to receive any compensation for services performed as an officer or employee of the state, except such compensation and expense money as he is entitled to receive as a member of the legislature," while NMSA 1978, Section 2-1-4 makes it unlawful for "any officer of the state of New Mexico to pay to any member of the legislature compensation for services rendered the state of New Mexico as an officer or employee thereof except such compensation and expense money he is entitled to receive as member of the legislature."

5 See N.M. 495,502 (Ct. App. 1991); see also N.M. Atty. Gen. Op. 77-26 (Sections 2-1-3 and -4 do not include officers or employees of political subdivisions, such as counties, municipalities, or school districts).

6 A person does not become a member of the legislature simply by election thereto.See state Picker v. Mvers ex rel 359 P.2d 757, 759 (Ariz. 1961). Rather, a person becomes a member when the house takes affirmative action and determines the qualifications of those seeking to be seated. See Id.

Your request to us was for a formal Attorney General's Opinion on the matters discussed above. Such an opinion would be a public document available to the general public. Although we are providing you our legal advice in the form of a letter instead of an Attorney General's Opinion, we believe this letter is also a public document, not subject to the attorney-client privilege. Therefore, we may provide copies of this letter to the public.

Very truly yours,

SALLY MALAVE
Assistant Attorney General

cc: Albert J. Lama, Chief Deputy Attorney General
The Honorable Mary Herrera, New Mexico Secretary of State