SENATE BILL 49
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Linda M. Lopez
AN ACT
RELATING TO ETHICS; AMENDING AND ENACTING SECTIONS OF THE GOVERNMENTAL CONDUCT ACT TO INCLUDE PUBLIC OFFICERS AND EMPLOYEES OF ALL POLITICAL SUBDIVISIONS OF THE STATE; PROHIBITING CERTAIN ACTS BY PUBLIC OFFICERS AND EMPLOYEES.
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;
E. "financial interest" means an interest held by an individual 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;
F. "local government agency" means any branch, agency, instrumentality, institution or other entity of any political subdivision of the state;
[F.] G. "official act" means an official decision, recommendation, approval, disapproval or other action that involves the use of discretionary authority;
[G.] H. "public officer or employee" means any [person who has been elected to, appointed to or hired for any state office and] elected or appointed official or employee of a state agency or local government agency who receives compensation in the form of salary or is eligible for per diem or mileage but excludes legislators;
[H.] I. "standards" means the conduct required by the Governmental Conduct Act;
[I.] J. "state agency" means any branch, agency, instrumentality or institution of the state; and
[J.] K. "substantial interest" means an ownership interest that is greater than twenty percent."
Section 2. Section 10-16-3.1 NMSA 1978 (being Laws 2007, Chapter 362, Section 9) is amended to read:
"10-16-3.1. PROHIBITED POLITICAL ACTIVITIES.--[Public officers and employees are] A public officer or employee is prohibited from:
A. directly or indirectly coercing or attempting to coerce [a state] another public 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 to use property [state] belonging to a state agency or local government agency, or allow its use, for other than authorized purposes."
Section 3. Section 10-16-4.2 NMSA 1978 (being Laws 2007, Chapter 362, Section 10) is amended to read:
"10-16-4.2. 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] a state agency or local government agency."
Section 4. 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 the legislator's, public officer's or employee's [state employment or office] position with a state agency or local government agency for the legislator's, public officer's, employee's or another's private gain."
Section 5. 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. A state agency shall not enter into 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 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 and Economic Development 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.
B. A local government agency shall not enter into a contract for services, construction or items of tangible personal property with a public officer or employee of that political subdivision 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 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 political subdivision or to contracts made pursuant to the provisions of the University Research and Economic Development Park Act. A person negotiating or executing a contract on behalf of a local government agency shall exercise due diligence to ensure compliance with the provisions of this section."
Section 6. Section 10-16-8 NMSA 1978 (being Laws 1967, Chapter 306, Section 8, as amended) is amended to read:
"10-16-8. CONTRACTS INVOLVING FORMER PUBLIC OFFICERS OR EMPLOYEES--REPRESENTATION OF CLIENTS AFTER GOVERNMENT SERVICE.--
A. A state agency shall not enter into a contract with, or take any action favorably affecting, any person or business that is:
(1) represented personally in the matter by a person who has been a public officer or employee of the state within the preceding year if the value of the contract or action is in excess of one thousand dollars ($1,000) and the contract is a direct result of an official act by the public officer or employee; or
(2) assisted in the transaction by a former public officer or employee of the state whose official act, while in state employment, directly resulted in the agency's making that contract or taking that action.
B. A local government agency shall not enter into a contract with, or take any action favorably affecting, any person or business that is:
(1) represented personally in the matter by a person who has been a public officer or employee of that political subdivision of the state within the preceding year if the value of the contract or action is in excess of one thousand dollars ($1,000) and the contract is a direct result of an official act by the public officer or employee; or
(2) assisted in the transaction by a former public officer or employee of that political subdivision of the state whose official act, while in employment with that political subdivision of the state, directly resulted in the agency's making that contract or taking that action. [B.] C. A former public officer or employee shall not represent a person in [his] the person's dealings with the government on a matter in which the former public officer or employee participated personally and substantially while a public officer or employee.
[C.] D. For a period of one year after leaving government service or employment, a former public officer or employee shall not represent for pay a person before the state agency or local government agency at which the former public officer or employee served or worked."
Section 7. Section 10-16-13 NMSA 1978 (being Laws 1967, Chapter 306, Section 13, as amended) is amended to read:
"10-16-13. PROHIBITED BIDDING.--No state agency or [political subdivision of the state] local government agency shall accept a bid or proposal from a person who directly participated in the preparation of specifications, qualifications or evaluation criteria on which the specific competitive bid or proposal was based. A person accepting a bid or proposal on behalf of a state agency or [political subdivision of this state] local government agency shall exercise due diligence to ensure compliance with this section."
Section 8. Section 10-16-13.1 NMSA 1978 (being Laws 1993, Chapter 46, Section 35) is amended to read:
"10-16-13.1. EDUCATION AND VOLUNTARY COMPLIANCE.--
A. The secretary of state and the attorney general shall advise and seek to educate all persons required to perform duties under the Governmental Conduct Act of those duties. This includes advising all those persons at least annually of that act's ethical principles.
B. The secretary of state shall seek first to ensure voluntary compliance with the provisions of the Governmental Conduct Act. A person who violates that act unintentionally or for good cause shall be given ten days' notice to correct the matter. Referrals for civil enforcement of that act shall be pursued only after efforts to secure voluntary compliance with that act have failed."
Section 9. Section 10-16-13.2 NMSA 1978 (being Laws 2007, Chapter 362, Section 8) is amended to read:
"10-16-13.2. CERTAIN BUSINESS SALES TO STATE AGENCIES, LOCAL GOVERNMENT 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 or local government 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 or local government 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 or local government 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 or local government 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.
C. 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 a person over whom the public officer or employee has regulatory authority.
D. 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 a person over whom the public officer or employee has regulatory authority.
E. A public officer or employee shall not accept from a person over whom the public officer or employee has regulatory authority an offer of employment or an offer of a contract in which the public officer or employee provides goods, services, construction, items of tangible personal property or other things of value to the person over whom the public officer or employee has regulatory authority."
Section 10. Section 10-16-13.3 NMSA 1978 (being Laws 2007, Chapter 362, Section 11) is amended to read:
"10-16-13.3. PROHIBITED CONTRIBUTIONS--FINANCIAL SERVICE CONTRACTORS.--
A. A business that contracts with a state agency or local government agency to provide financial services involving the investment of public money or issuance of bonds for public projects shall not knowingly contribute anything of value to a public officer or employee of that state agency or local government agency who has authority over the investment of public money or issuance of bonds, the revenue of which is used for public projects in the state.
B. A public officer or employee of a state agency or local government agency that has authority over the investment of public money or issuance of bonds, the revenue of which is used for public projects in the state, shall not knowingly accept a contribution of anything of value from a business that contracts with that state agency or local government agency to provide financial services involving the investment of public money or issuance of bonds for public projects.
C. For the purposes of this section:
(1) "anything of value" means any money, property, service, loan or promise, but does not include food and refreshments with a value of less than one hundred dollars ($100) consumed in a day; and
(2) "contribution" means a donation or transfer to a recipient for the personal use of the recipient, without commensurate consideration."
Section 11. A new section of the Governmental Conduct Act is enacted to read:
"[NEW MATERIAL] LOCAL GOVERNMENT AGENCY AUTHORITY.--Nothing in the Governmental Conduct Act shall be construed to preclude a local government agency from adopting laws, ordinances, rules or standards that are more stringent than those required by the Governmental Conduct Act."
Section 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.