HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 180
47th legislature - STATE OF NEW MEXICO - second session, 2006
AN ACT
RELATING TO ETHICS; AMENDING AND ENACTING SECTIONS OF THE GOVERNMENTAL CONDUCT ACT; PROHIBITING CERTAIN ACTS BY PUBLIC OFFICERS AND EMPLOYEES; PROHIBITING CERTAIN CONTRACTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 10-16-2 NMSA 1978 (being Laws 1967, Chapter 306, Section 2, as amended) is amended to read:
"10-16-2. DEFINITIONS.--As used in the Governmental Conduct Act:
A. "business" means a corporation, partnership, sole proprietorship, firm, organization or individual carrying on a business;
B. "confidential information" means information that by law or practice is not available to the public;
C. "employment" means rendering of services for compensation in the form of salary as an employee;
D. "family" means an individual's spouse, parents, children or siblings, by consanguinity or affinity;
[D.] E. "financial interest" means an interest held by an individual [his spouse or dependent minor children] or the individual's family that is:
(1) an ownership interest in business; or
(2) any employment or prospective employment for which negotiations have already begun;
[E.] F. "official act" means an official decision, recommendation, approval, disapproval or other action that involves the use of discretionary authority;
[F. "person" means an individual or entity;]
G. "public officer or employee" means any person who has been elected to, appointed to or hired for any state office and who receives compensation in the form of salary or is eligible for per diem or mileage, but excludes legislators and judges;
H. "standards" means the conduct required by the Governmental Conduct Act; and
I. "substantial interest" means an ownership interest that is greater than twenty percent."
Section 2. Section 10-16-4 NMSA 1978 (being Laws 1967, Chapter 306, Section 4, as amended) is amended to read:
"10-16-4. OFFICIAL ACT FOR PERSONAL FINANCIAL INTEREST PROHIBITED--DISQUALIFICATION FROM OFFICIAL ACT--PROVIDING A PENALTY.--
A. It is unlawful for a public officer or employee to take an official act for the primary purpose of directly enhancing [his own] the public officer's or employee's financial interest or financial position. 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.
B. A public officer or employee shall [disqualify himself] be disqualified from engaging in any official act directly affecting [his] the public officer's or employee's financial interest.
[C. If the public interest so requires, the governor may make an exception to Subsection B of this section for a public officer or employee by expressing the exception and the reasons for it in writing. The exception is effective when the public officer or employee files this writing with the secretary of state.]"
Section 3. Section 10-16-6 NMSA 1978 (being Laws 1967, Chapter 306, Section 6, as amended) is amended to read:
"10-16-6. CONFIDENTIAL INFORMATION.--No legislator, public officer or employee shall use or disclose confidential information acquired by virtue of [his] the legislator's, public officer's or employee's state employment or office for [his] the legislator's, public officer's or employee's or another's private gain."
Section 4. Section 10-16-7 NMSA 1978 (being Laws 1967, Chapter 306, Section 7, as amended) is amended to read:
"10-16-7. CONTRACTS INVOLVING PUBLIC OFFICERS OR EMPLOYEES.--A state agency shall not enter into [any] a contract for services, construction or items of tangible personal property with a public officer or employee of the state, with the family of the public officer or employee or with a business in which the public officer or employee or the family of the public officer or employee has a substantial interest unless the public officer or employee has disclosed [his] the public officer's or employee's substantial interest and unless the contract is awarded pursuant to the Procurement Code, except that the potential contractor shall not be eligible for a sole source or small purchase contract; provided that this section does not apply to a contract of official employment with the state or to contracts made pursuant to the provisions of the University Research Park Act. A person negotiating or executing a contract on behalf of a state agency shall exercise due diligence to ensure compliance with the provisions of this section."
Section 5. Section 10-16-9 NMSA 1978 (being Laws 1967, Chapter 306, Section 9, as amended) is amended to read:
"10-16-9. CONTRACTS INVOLVING LEGISLATORS--REPRESENTATION BEFORE STATE AGENCIES.--
A. A state agency shall not enter into [any procurement] a contract for services, construction or items of tangible personal property with a legislator, the legislator's family or with a business in which the legislator or the legislator's family has a substantial interest unless the legislator has disclosed [his] the legislator's substantial interest and unless the contract is awarded in accordance with the provisions of the Procurement Code, except the potential contractor shall not be eligible for a sole source or small purchase contract. A person negotiating or executing a contract on behalf of a state agency shall exercise due diligence to ensure compliance with the provisions of this subsection.
B. A legislator shall not appear for, represent or assist another person in [any] a matter before a state agency, unless without compensation or for the benefit of a constituent, except for legislators who are attorneys or other professional persons engaged in the conduct of their professions and, in those instances, the legislator shall refrain from references to [his] the legislator's legislative capacity except as to matters of scheduling, from communications on legislative stationery and from threats or implications relating to legislative actions."
Section 6. Section 10-16-13 NMSA 1978 (being Laws 1967, Chapter 306, Section 13) is amended to read:
"10-16-13. PROHIBITED BIDDING.--No state agency shall accept [any] a bid or proposal from a person who directly or indirectly participated in the preparation of specifications, qualifications or evaluation criteria on which the competitive bidding or proposal was [held] based. A person accepting a bid or proposal on behalf of a state agency shall exercise due diligence to ensure compliance with this section."
Section 7. A new section of the Governmental Conduct Act is enacted to read:
"[NEW MATERIAL] CERTAIN BUSINESS SALES TO STATE AGENCIES AND THEIR EMPLOYEES PROHIBITED.--
A. A public officer or employee shall not sell or be a party to a transaction to sell goods, services, construction or items of tangible personal property directly or indirectly, through the public officer's or employee's family or a business in which the public officer or employee has a substantial interest, to the state agency with which the public officer or employee is employed. It is not a violation of this subsection if the public officer or employee employed by the state agency in good faith is not aware of:
(1) the substantial interest held by the public officer or employee or the public officer's or employee's family in the business that is selling or engaged in a transaction to sell goods, services, construction or items of tangible personal property to the state agency by which the public officer or employee is employed; or
(2) the sale of or the transaction to sell goods, services, construction or items of tangible personal property by the public officer's or employee's family or by a business in which the public officer or employee or the public officer's or employee's family has a substantial interest to the state agency by which the public officer or employee is employed.
B. A public officer or employee shall not sell, offer to sell, coerce the sale of or be a party to a transaction to sell goods, services, construction or items of tangible personal property, directly or indirectly through the public officer's or employee's family or a business in which the public officer or employee has a substantial interest, to an employee supervised by the public officer or employee. A public officer or employee shall not receive a commission or shall not profit from the sale or a transaction to sell goods, services, construction or items of tangible personal property to an employee supervised by the public officer or employee. The provisions of this subsection shall not apply if the supervised employee initiates the sale. It is not a violation of this subsection if a public officer or employee, in good faith, is not aware that the employee to whom the goods, services, construction or items of tangible personal property are being sold is under the supervision of the public officer or employee."
Section 8. A new section of the Governmental Conduct Act is enacted to read:
"[NEW MATERIAL] PROHIBITED POLITICAL ACTIVITIES.--Public officers and employees are prohibited from:
A. directly or indirectly coercing or attempting to coerce a state officer or employee to pay, lend or contribute anything of value to a party, committee, organization, agency or person for a political purpose;
B. threatening to deny a promotion or pay increase to an employee who does or does not vote for certain candidates, requiring an employee to contribute a percentage of the employee's pay to a political fund, influencing a subordinate employee to purchase a ticket to a political fundraising dinner or similar event, advising an employee to take part in political activity or similar activities; or
C. violating the officer's or employee's duty to not use state property, or allow its use, for other than authorized purposes."
Section 9. A new section of the Governmental Conduct Act is enacted to read:
"[NEW MATERIAL] DISCLOSURE OF OUTSIDE EMPLOYMENT.--A public officer or employee shall disclose in writing to the supervisor of the officer or employee, or in the event there is no supervisor, to the secretary of state, all employment engaged in by the officer or employee other than the employment with the state."
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