Opinion No. 68-121
December 17, 1968
TO: Mr. Richard H. Folmar Assistant Director New Mexico Legislative Council 334 State Capitol Santa Fe, New Mexico 87501
QUESTIONS
1. May a member of the twenty-ninth legislature legally be employed by the Construction Industries Commission, Section 67-35-1, et seq. N.M.S.A., 1953 Compilation (P.S.)?
2. May a member of the twenty-ninth legislature who resigns his position as a member of such legislature be legally employed by the Construction Industries Commission?
CONCLUSIONS
1. No.
2. No.
OPINION
{*196} ANALYSIS
The Construction Industries Commission is operated through public funds. Chapter 2, page 1672, Laws of 1967.
Your first question is controlled by Section 2-1-4, N.M.S.A., 1953 Compilation. It states:
"From and after January 1, 1945, it shall be unlawful for any member of the legislature, during the term for which he is elected to contract for or 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." (Emphasis supplied.)
As to your first question, the above language is clear. The answer is No.
The fact that a legislator resigns does not alter the result. Opinion of the Attorney General No. 58-39, issued February 20, 1958. This office said, in that opinion:
"[T]his office is extremely dubious as to the legality of the compensation paid a professor at the university while he is receiving compensation and expenses as a member of the Legislature, or during the term for which he was so elected." (Emphasis supplied.)
The answer to your second question is No. Any other conclusion would allow a legislator to serve in his elective capacity during the legislative session, resign immediately thereafter, and as a state employee, obtain the fruits of his efforts expended during the legislative session.
By: Donald W. Miller
Assistant Attorney General