Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

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

SPONSOR SJC

ORIGINAL DATE

LAST UPDATED

2/14/07

3/12/07 HB

SHORT TITLE Gift Act

SB CS/931/aSJC/aSFl#1/aSFl#2

ANALYST Wilson

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to a package of ethics bills

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

SUMMARY

Synopsis of SFl#2 Amendment

Senate Floor amendment #2 to the Senate Judiciary Committee substitute for Senate Bill 931

removes food from the thing of value list in the definition of a gift.

Synopsis of SFl#1 Amendment

Senate Floor amendment #1 to the Senate Judiciary Committee substitute for Senate Bill 931

adds a new section that reads that nothing in the Gift Act shall be construed to prohibit a local

government from enacting more restrictive requirements governing the donation or acceptance of

gifts than those imposed by this act.

Synopsis of SJC Amendment

The Senate Judiciary amendment to the Senate Judiciary Committee substitute for Senate Bill

931 now applies to public employees and public officers instead of just state employees and state

officers.

Senate Bill 931/ CS/aSJC/aSFl#1/aSFl#2 – Page

2

The amendment expands the definition of state officer or employee to mean any person who has

been elected to, appointed to or hired

by any public office of the state, instrumentality of the

state, political subdivision of the state, local school board, public post-secondary educational

institution or any commission or board created by any state agency, local public body or public

post-secondary educational institution.

Synopsis of Original Bill

The Senate Judiciary Committee substitute for Senate Bill 931

creates the Gift Act. It makes it a

petty misdemeanor for state officers, state employees and candidates for state office to accept

certain types or amounts of gifts.

Family is defined as a spouse and dependent children.

Gift means any donation or transfer without commensurate consideration of money, property,

service, loan, promise or any other thing of value, including food, lodging, transportation and

tickets for entertainment or sporting events, but does not include:

(1) any activity, including but not limited to the acceptance of a donation, transfer or

contribution, or the making of expenditure or reimbursement, that is authorized by the

Campaign Reporting Act or the Federal Election Campaign Act of 1971, as amended;

(2) a gift given under circumstances that make it clear that the gift is motivated by a

familial relationship rather than the recipient's position as a state officer or employee or

candidate for state office;

(3) compensation for services rendered or capital invested that is:

(a) normal and reasonable in amount

(b) commensurate with the value of the service rendered or the magnitude of the

risk taken on the investment;

(c) in no way increased or enhanced by reason of the recipient's position as a state

officer or employee or candidate for state office; and

(d) not otherwise prohibited by law;

(4) payment for a sale or lease of tangible or intangible property that is commensurate

with the value of the services rendered and is in no way increased or enhanced by reason

of the recipient's position as a state officer or employee or candidate for state office;

(5) a commercially reasonable loan made in the ordinary course of the lender's business

on terms that are available to all similarly qualified borrowers;

(6) reimbursement for out-of-pocket expenses actually incurred in the course of

performing a service for the person making the reimbursement;

(7) any gift accepted on behalf of and that becomes the property of the state or a political

subdivision of the state;

(8) anything for which fair market value is paid or reimbursed by the state officer or

employee or candidate for state office;

Senate Bill 931/ CS/aSJC/aSFl#1/aSFl#2 – Page

3

(9) reasonable expenses for a bona fide educational program or other activities that are

directly related to the state officer's or employee's official duties; provided that in case of

the legislators, the program or activity is approved by the New Mexico legislative

council; or

(10) an educational scholarship or other grant or award made in the ordinary course of the

grantor's business and that is available to all similarly qualified applicants;

In this bill a restricted donor means a person who:

(1) is or is seeking to be a party to any one or any combination of sales, purchases, leases

or contracts to, from or with the agency in which the donee holds office or is employed;

(2) will personally be, or is the agent of a person who will be, directly and substantially

affected financially by the performance or nonperformance of the donee's official duty in

a way that is greater than the effect on the public generally or on a substantial class of

persons to which the person belongs as a member of a profession, occupation, industry or

region;

(3) is personally, or is the agent of a person who is, the subject of or party to a matter that

is pending before a regulatory agency and over which the donee has discretionary

authority as part of the donee's official duties or employment within the regulatory

agency; or

(4) is a lobbyist or the lobbyist's employer with respect to matters over which the donee

may reasonably be expected to act; and

A state officer or employee or a candidate for state office, or that person's family, shall not

knowingly accept from a restricted donor, and a restricted donor shall not knowingly donate to a

state officer or employee or a candidate for state office, or that person's family, a gift of a market

value greater than $250.

A state officer or employee or a candidate for state office, or that person's family, shall not

accept from a restricted donor, and a restricted donor shall not donate to a state officer or

employee or candidate for state office, or that person's family, a gift of a market value greater

than $100 during a legislative session.

FISCAL IMPLICATIONS

There is no fiscal impact.

SIGNIFICANT ISSUES

The AGO raises the basic issue of whether New Mexico should, like a majority of other states,

ban or limit the amount of certain types of gifts to public officials.

The bill will have to be construed in light of New Mexico’s criminal bribery statute, NMSA

Section 30-24-1 which prohibits any person giving or offering to give, directly or indirectly,

anything of value to any public officer or public employee, with intent to induce or influence

such public officer or public employee to execute any of their powers or to perform any public

duty. Therefore, the motivation behind the gifts allowed by this bill will have to be examined in

Senate Bill 931/ CS/aSJC/aSFl#1/aSFl#2 – Page

4

light of that statute.

Furthermore, state law prohibits any state officer, employee, candidate or family members from

knowingly asking for or accepting anything of value greater than that fixed or allowed by law for

the execution or performance of any service or duty. NMSA Section 30-23-1. The motivation

behind accepting the gifts authorized by this bill will have to be examined in light of that statute.

RELATIONSHIP

This bill relates to a package of ethics bills that include:

HB 553, Contributions to State Agents & Candidates

HB 818, Public Financing of Statewide Campaigns

HB 819 Gift Act

HB 820, Legislative Campaign Funds for Office Duties

HB 821, Campaign Reporting Requirements

HB 822, State Ethics Commission Act

HB 823, Prohibit Certain Acts by Public Officers

HB 1154, Lobbyist Filing Fees

HB 1295, Retaliation for Ethics Violation Reporting

HB 1053, Campaign Reporting Act Exception Statements

HB 1296, Investigation of Elected Officials by AG

SB 342, Candidate Withdrawal Requirements

SB 400, Contributions to State Agents & Candidates (dup HB 553)

SB 445, Extend Governmental Conduct Act

SB 588, Former Legislators as Lobbyists

SB 671, Candidate Withdrawal Requirements (dup SB 342)

SB 737, Disclosure by Procurement Contractors

SB 796, Legislative Campaign Funds for Office Duties (dup HB 820)

SB 799, Public Financing of Statewide Campaigns (dup HB 818)

SB 800, Campaign Reporting Requirements (dup HB 821)

SB 815, State Ethics Commission Act (dup HB 822)

SB 953, Lobbyist Filing Fees (dup HB 1154)

SB 1043, Whistleblower Protection Act

SB 1051, Inclusion in Governmental Conduct Act

SB 1107, Prohibit Certain Acts by Public Officers (dup HB 823)

SB 1137, Reporting of Lobbyist Compensation

SB 1177, Disclosure by Procurement Contractors

POSSIBLE QUESTIONS

The AGO asks if any violation of the Gift Act, regardless of the amount involved, should be

limited only to the penalty of a petty misdemeanor. Should there be some gradation of

penalties.

Who does one report to. How will the provisions of this bill be enforced.

DW/mt