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F I S C A L I M P A C T R E P O R T

SPONSOR Rawson

DATE TYPED 1/27/05

HB

SHORT TITLE Per Diem & Mileage for Legislators-Elect

SB 155

ANALYST Fernandez

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

Indeterminate

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

SUMMARY

Synopsis of Bill

Senate Bill 155 would authorize members-elect of the Legislature to receive per-diem and mile-

age to attend new-member orientation provided by Legislative Counsel Service.

Significant Issues

Attorney General Opinion No. 62-145 found that a person who has been elected to the New

Mexico Legislature, but who has not qualified, is not a member of that body for purposes of the

constitutional prohibition against being appointed to any other civil office.

The opinion pointed to a court ruling in Arizona whose constitutional prohibition is practically

identical to New Mexico. In the case of State ex rel. Pickrell v. Myers, 89 Ariz. 167, 359 P.2d

757 (1961), the court ruled that the person does not become a member of the legislature simply

by election thereto. The court said: “until affirmative action is taken by the house by judging of

the election and determining the qualifications of those seeking to be seated, a person elected

may not become a member.” The New Mexico Attorney General ruled that the same is true in

this state where, under Article IV, Section 7, New Mexico Constitution, “each house shall be the

judge of the election and qualification of its own members.”

The Attorney General Opinion also notes that the “Federal courts have long since ruled that

Senate Bill 155 -- Page 2

members of Congress do not include persons who have been elected until such time as they have

been accepted and qualified as such by the branch of Congress to which they were elected and

have embarked upon their duties.”

FISCAL IMPLICATIONS

Pursuant to 2-1-9 NMSA 1978, members of the legislature serving on official business for in-

terim committees within the state shall receive per diem at the internal revenue service per diem

rate as provided in Section 2-1-8 NMSA 1978 for each day served, including travel time, and the

cost of public transportation by the shortest, most direct route or mileage for each mile traveled

by the shortest, most direct route by automobiles at the internal revenue service standard mileage

rate or by privately owned aircraft at the air mileage rate set out by the rules adopted by the de-

partment of finance and administration pursuant to the Per Diem and Mileage Act [10-8-1 to 10-

8-8 NMSA 1978].

Effective 7/1/05-8/31/05, the government per diem rate will be $181.00 per day and 9/1/05-

6/30/06 the per diem rate will be $141.00 per day. The internal revenue service mileage rate is

40.5 cents per mile.

CTF/sb