New Mexico Register / Volume XXXI, Issue
12 / June 23, 2020
NOTICE OF RULE MAKING AND PUBLIC RULE
HEARING
Notice of Rulemaking: The State
Ethics Commission [the commission] will hold a public hearing on the proposed adoption
of certain rules, as detailed below in the description of Proposed Rules,
establishing procedures for requests for advisory opinions and for commission
responses; giving notice of and conducting meetings, including virtual
meetings, of the commission; and creating a proposed model code of ethics for
state officers and employees. These new
rules are proposed pursuant to Sections 10-16-11 and 11.1, NMSA 1978;
Subsection C of Section 10-15-1, NMSA 1978; Section 10-16G-8, NMSA 1978; and
Paragraph 4 of Subsection B of Section 10-16G-5, NMSA 1978. No technical scientific information was
consulted in drafting these proposed rules.
Copies of all the proposed
rules may be found at the Commission’s website, https://www.sec.state.nm.us, or
at the commission’s main office in Albuquerque: the New Mexico Ethics
Commission, University of New Mexico Science and Technology Park, 800 Bradbury
Drive SE, Suite 215, Albuquerque, NM, 87106.
The proposed rules are also provided in this notice.
Notice of Public Rule Hearing: The public
rule hearing is currently scheduled to occur on Friday, August 7, 2020 at 9:00
am in UNM’s Science and Technology
Park’s Executive Board Room, 851 University SE, Suite 200, Albuquerque,
NM 87106. It is possible that,
pursuant to the Public Health Emergency declared by Governor Michelle Lujan
Grisham in Executive Order 2020-004, as extended, and in light of the current
pandemic, the Commission will decide to conduct this meeting remotely at that
time and date rather than in person. In that case, instructions for public
participation will be posted on the Commission’s website,
https://www.sec.state.nm.us. Members of the public are advised to check this
website before the meeting to confirm whether it will be held in person or over
the internet. The public hearing will be conducted in a fair and equitable
manner by the commission and shall be recorded.
Any interested member of the public may attend the hearing, in person or
remotely, and will be provided a reasonable opportunity to offer public
comment, including presentation of data, views, or arguments, on the proposed
rules during the hearing. Individuals
with disabilities who need any form of auxiliary aid to attend or participate
in the public hearing are asked to contact Sonny.Haquani@state.nm.us. The commission will make every effort to
accommodate all reasonable requests, but cannot guarantee accommodation of a
request that is not received at least five calendar days before the scheduled
hearing.
Notice of Acceptance of Written Public Comment: Written public
comments, including presentation of data, views, or arguments about the
proposed rules, from any interested member of the public will be accepted until
5:00 p.m. on Wednesday, August 5, 2020, by submitting them via email to ethics.commission@state.nm.us
with the subject line “SEC Rulemaking R20-01,” or via first class mail or by
hand delivery to the commission’s Albuquerque office: New Mexico Ethics
Commission, University of New Mexico Science and Technology Park, 800 Bradbury Drive
SE, Suite 215, Albuquerque, NM, 87106.
Description of Proposed Rules: In compliance
with Section 14-4-5.2 NMSA 1978, this notice includes the following summary of
the proposed amendment and the new proposed rule, a short explanation of the
purpose of the amendment and new rule, and specific legal authority authorizing
the amendment and proposed new rule. The method and manner of public comment
and notice of public hearing on the proposed rules are listed above.
1.8.1.1 NMAC (“General Provisions”); proposed
amendments: This rule currently ensures that the state
ethics commission is administered so that it works effectively, efficiently and
fairly to achieve its constitutional and statutory mission. That mission is to ensure compliance with all
applicable public ethics laws by all public officials, employees, candidates,
contractors, lobbyists and others subject to the commission’s jurisdiction
throughout their employment or dealings with New Mexico state government; and
to ensure that the public ethics laws are clear, comprehensive and effective.
The first amendments to this
rule proposed in this proceeding, 1.8.1.9 and 1.8.1.10 NMAC, will add two new
sections describing the procedure for people to request, and for the commission
to issue, advisory opinions, either official or informal. The second amendment
to this rule, 1.8.1.16 NMAC, creates rules for convening and managing meetings
of the commission. These include rules governing executive sessions, virtual
meetings, and maintaining order during meetings.
The proposed amendments to
1.8.1 NMAC are as follows: amendments to Sections 1, 3, and renumbered 14,
adding new Sections 9, 10 and 16 and renumbering subsequent existing sections,
effective xx/xx/2020.
1.8.1.1 ISSUING
AGENCY: State ethics commission (the commission), 800
Bradbury Dr. SE, Ste. 21[7]5, Albuquerque, NM 87106.
[1.8.1.1 NMAC-N, 1/1/2020; A,
xx/xx/2020]
1.8.1.3 STATUTORY
AUTHORITY: Paragraph 2 of Subsection A of Section
10-16G-5, State Ethics Commission Act, Section 10-16G-1 NMSA 1978;
Subsection (C) of Section 10-15-1, Open Meetings Act, Section 10-15-1 NMSA 1978.
[1.8.1.3 NMAC-N, 1/1/2020; A,
xx/xx/2020]
1.8.1.9 ADVISORY
OPINIONS:
A. The
commission may issue advisory opinions on matters related to ethics. Advisory opinions shall:
(1) be requested in writing by a
public official, public employee, candidate, person subject to the Campaign
Reporting Act, government contractor, lobbyist or lobbyist’s employer;
(2) identify a specific set of circumstances involving an
ethics issue;
(3) be issued within sixty days of receipt of the request
unless the commission notifies the requester of a delay in issuance and
continues to notify the requester every thirty days until the advisory opinion
is issued; and
(4) be published after omitting
the requester’s name and identifying information.
B. A
request for an advisory opinion shall be confidential and not subject to the
provisions of the Inspection of Public Records Act.
C. Unless
amended or revoked, an advisory opinion shall be binding on the commission in
any subsequent commission proceedings concerning a person who acted in good
faith and in reasonable reliance on the advisory opinion.
[1.8.1.9 NMAC-N, xx/xx/2020]
1.8.1.10 INFORMAL ADVISORY OPINIONS:
A. A
person authorized to request an advisory opinion who desires a response in
fewer than 60 days for the purpose of deliberation and decision making may
submit the request for an informal advisory opinion to the director or general
counsel, who may answer the request. An
informal advisory opinion is specific to the person who requests the advice and
the facts presented in the request. The
commission shall treat as confidential the request and the informal advisory
opinion issued in response.
B. Any
informal advisory opinion issued pursuant to this rule is not binding on the
commission unless and until the commission votes to adopt the informal advisory
opinion as an advisory opinion. If the
commission determines that a person committed a violation after reasonably
relying on an informal advisory opinion and the violation is directly related
to the informal advisory opinion, the commission may consider that the person
acted in good faith.
C. Before
each regular meeting of the commission, the director shall review any informal
advisory opinions issued since the last meeting. The director, based on any informal advisory
opinion issued, may draft an advisory opinion for the commission to consider
for issuance as an advisory opinion.
[1.8.1.10 NMAC-N, xx/xx/2020]
1.8.1.[12] 14 ADDRESS FOR FILING
DOCUMENTS:
A. By
mail: Director, State Ethics Commission, 800 Bradbury Dr. SE, Ste. [217]
215, Albuquerque, NM 87106.
B. In
person: State Ethics Commission, 800 Bradbury Dr. SE, Ste. [217] 215,
Albuquerque, NM 87106.
C. By
email: ethics.commission@state.nm.us.
[1.8.14 NMAC-N, 1/1/2020; Rn & A, xx/xx/2020]
1.8.1.16 COMMISSION
MEETINGS: The commission chair, in consultation with
the director, shall determine the time, place, and duration of commission
meetings necessary to conduct the commission’s business.
A. Executive
Session. Upon motion and vote of a quorum, the commission may enter into a
closed, executive session to discuss matters that are confidential under the State
Ethics Commission Act, Section 10-16G-1 NMSA 1978, and as otherwise permitted
by the Open Meetings Act, Section 10-15-1 NMSA 1978.
B. Virtual
meetings. With the consent of the
commission chair, the commission may meet virtually via web or teleconference. In the event the commission meets virtually,
commission staff shall ensure that the meeting occurs on a platform that allows
members of the public to observe and participate. At a virtual or telephonic meeting, each
commissioner participating must be identified when speaking and all meeting
participants and members of the public attending must be able to hear every
person who speaks during the meeting.
The commission staff shall record virtual meetings and make the
recordings (except for recordings of closed executive sessions) available for
public inspection.
C. Virtual
attendance by individual commissioners. An individual
commissioner may attend a physical commission meeting virtually, through
telephone phone or web conference, when it is difficult or impossible for the
commissioner to attend the meeting in person, provided that each commissioner
participating by conference telephone can be identified when speaking, and all
meeting participants and members of the public attending can hear every person
who speaks during the meeting.
D. Maintaining
order. The commission chair may take
reasonable steps to ensure the commission is able to fairly and efficiently
conduct its business, including adopting parliamentary procedure, imposing
reasonable limitations on public comment, and excluding members of the public
who disrupt commission meetings.
[1.8.1.16 NMAC-N, xx/xx/2020]
1.8.4.1 NMAC (“Proposed Code of Ethics”): This new proposed rule will create proposed code of
ethics for public officials and public employees, to be submitted to each
elected public official and public agency for adoption, pursuant to Paragraph
(4) of Subsection B of Section 10-16G-5 NMSA 1978. The proposed code of ethics
will compile in a single rule the ethics provisions of state laws and rules
governing the conduct of state officers and employees. Topics to be addressed in the proposed code
include the definition of and restrictions on: conflicts of interest, acceptance
of gifts, business relations with employees or regulated entities, procurement
issues, limitations on former employees, public access to records and meetings
of state bodies, allowable political activity and ethical conduct in the
workplace, among other subjects.
The proposed 1.8.4 NMAC is
as follows:
TITLE 1 GENERAL GOVERNMENT ADMINISTRATION
CHAPTER 8 STATE ETHICS COMMISSION
PART 4 CODE
OF ETHICS
1.8.4.1 ISSUING
AGENCY: State Ethics Commission, 800 Bradbury Dr. SE, Ste.
215, Albuquerque, New Mexico 87106.
[1.8.4.1 NMAC-N, xx/xx/2020]
1.8.4.2 SCOPE: This part contains a proposed
code of ethics for officers and employees of executive and legislative state
agencies and other institutions and instrumentalities of the state. Elected statewide executive branch officers
and other state agencies must consider this proposed code when adopting either
a code of conduct under Subsection C of Section 11 of the Governmental Conduct
Act, Section 10-16-1 NMSA 1978, or a code of ethics under Paragraph 4 of
Subsection B of Section 5 of the State Ethics Commission Act, Section 10-16G-1
NMSA 1978, for employees subject to the adopting agencies’ control. If adopted, this code will apply to all
officers and employees of the adopting agency, as well as other persons working
for the agency, such as contractors.
[1.8.4.2 NMAC-N, xx/xx/2020]
1.8.4.3 STATUTORY
AUTHORITY: Sections 11 and 11.1 of the Governmental Conduct
Act, Section 10-16-1 NMSA 1978; and Paragraph 4 of Subsection B of Section 5 of
the State Ethics Commission Act, Section 10-16G-1 NMSA 1978.
[1.8.4.3 NMAC-N, xx/xx/2020]
[1.8.4.4 NMAC-N, xx/xx/2020]
1.8.4.5 EFFECTIVE
DATE: January 1, 2021, unless a later date is cited at the
end of a section, in which case the later date is the effective date.
[1.8.4.5 NMAC-N, xx/xx/2020]
1.8.4.6 OBJECTIVE:
The objective of this part is to provide the executive and legislative
branch agencies of state government and other institutions and
instrumentalities of the state with a proposed code of ethics to consider when
agencies adopt either a code of ethics under Paragraph 4 of Subsection B of
Section 5 of the State Ethics Commission Act, Section 10-16G-1 NMSA 1978, or a
code of conduct under Sections 11 and 11.1 of the Governmental Conduct Act,
Section 10-16-1 NMSA 1978. If adopted,
this Code will furnish standards of conduct for the adopting agency’s officer’s and employees, the violation of which could form
the basis for discipline by the adopting agency.
[1.8.4.6 NMAC-N, xx/xx/2020]
1.8.4.7 DEFINITIONS: The following terms apply to this
part unless their context clearly indicates otherwise:
A. “Agency” or “this Agency” means the
agency that has adopted this proposed code of ethics.
B. “Business” means an entity other than this agency.
C. “Code” means this proposed
code of ethics.
D. “Commission” means the State Ethics Commission.
E. “Financial interest” means an ownership interest in a business or property; or employment
or prospective employment for which negotiations have already begun.
F. “Gift” has the same meaning as defined by Subsection B of
Section 2 of the Gift Act, Section 10-16B-1 NMSA 1978, namely, 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 an 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 family relationship or close personal 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 to be used by the state or a political
subdivision of the state, including travel, subsistence and related expenses
accepted by a state agency in connection with a state officer's or employee's
official duties that take place away from the state official's or employee's
station of duty;
(8) anything for which fair market value is paid or reimbursed
by the state officer or employee or candidate for state office;
(9) reasonable expenses for a bona fide educational program that
is directly related to the state officer's or employee's official duties; or
(10) a retirement gift.
G. “Indirectly” means in a roundabout manner; coming about or resulting otherwise than directly or
immediately, as effects or consequences.
H. “Market value” means the amount for which a good or service can be
sold on the relevant market.
I. “Official act” means any act or omission to act that would not be
possible but for the actor’s official position or state employment.
J. “Public officer or
employee” means any elected or appointed official or employee of a state agency
who receives compensation in the form of salary or is eligible for per diem or
mileage, but excludes legislators.
K. “Restricted donor” has the same meaning as defined by Subsection D of
Section 2 of the Gift Act, Section 10-16B-1 NMSA 1978, namely, 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 a client of a lobbyist with respect to
matters within the donee’s jurisdiction.
L. “Shall” means must, and “must”
means shall.
M. Any other
terms shall be defined for purposes of this rule as they are defined in Section
2 of the Governmental Conduct Act, Section 10-16-1 NMSA 1978.
[1.8.4.7 NMAC-N, xx/xx/2020]
A. This
Code is organized by subject area rather than by the statutes that concern the
various subject matters of this code.
B. The
Commission publishes and updates extensive commentary and examples
corresponding to this Code on the Commission’s website. An official or employee of this agency
dealing with an ethical issue should identify and consult the relevant sections
of this Code. If this Code does not
resolve the issue, further guidance might be found in the Commission’s
separately published commentary.
[1.8.4.8 NMAC-N, xx/xx/2020]
1.8.4.9 PRINCIPLES OF PUBLIC
ETHICS: This Code is
based on, and should be interpreted to advance, the following principles of
public ethics:
A. Honest services. An officer
or employee shall conduct government functions in accordance with the law and
free from conflicts of interest. Public
office is a public trust; as such, an official or employee must take care to
ensure that every official act and decision affecting the rights or interests
of individuals is based in law and the public interest.
B. Proportionality. When
committing an official act or making a decision, an officer or employee shall ensure
that the action taken is proportional to the goal being pursued. The officer or employee shall avoid
restricting the rights of New Mexicans or imposing burdens on them when those
restrictions or burdens are not justified by a public interest.
C. Impartiality and fairness. The conduct
of an officer or employee shall never be guided by:
(1) personal, family or financial interests;
(2) a motivation to benefit or empower an elected official, a
candidate for office, or a political party or its members; or
(3) a motivation to disadvantage or disempower an elected
official, a candidate for office, or a political party or its members.
D. Consistency. Like cases
shall be treated alike. An officer or
employee shall behave consistently with the agency’s normal practices, unless
there is a legitimate basis for departing from those practices in an individual
case and that basis is documented in writing.
An officer or employee shall respect the reasonable expectations of the
public that the agency will continue to act as it has acted in similar
circumstances unless there is a rational basis for the change.
E. Diligence. An
officer or employee shall ensure that every decision on a matter is made with care and adequate understanding
of the issue, within a reasonable time, and without unnecessary delay.
F. Respect. An officer
or employee shall be courteous and accessible to members of the public,
co-workers, and their colleagues.
G. Transparency. The official
acts and decisions of officers and employees shall be made openly and with
adequate opportunity for public review and comment.
H. Fallibility
and reversibility. Individuals not only err in judgment but also act in ways that
unconsciously benefit some and burden others; accordingly, an officer or employee
shall endeavor to take official acts and make decisions in ways that are
deliberative, open to review and, where appropriate, reversible.
[1.8.4.9 NMAC-N, xx/xx/2020]
A. Outside employment.
(1) Duty to avoid conflicts
from outside employment. An officer or
employee of this agency engaged in paid employment for a business shall ensure
that the employment does not conflict with the duties of state employment.
(2) Disclosure of outside employment. An officer or employee having permissible outside
employment shall:
(a) file with the employee’s supervisor, or other officer or
employee that this agency designates, a signed statement explaining the outside
employment and why it does not create a conflict;
(b) the disclosure statement shall include the name of the
officer or employee, the name and general nature of the business, the hours
that the officer or employee will work, and the reasons why the work does not
create a conflict of interest with the officer’s or employee’s public duties;
(c) in the disclosure statement, the officer or employee
shall additionally commit to disclose any potential conflict of interest that
may arise during the officer or employee’s work with the business.
B. Disclosure of potential
conflicts of interest and disqualification.
(1) Disclosure
of financial interests.
(a) Mandatory
financial disclosure by officers and agency heads. An officer or
head of this agency must disclose financial interests to the Secretary of State
on the form provided by the Secretary of State.
(b) Disclosure of financial
interests: contents; when filed. The disclosure required by 1.8.4.10.B(1)(a)
NMAC shall be filed within thirty days of taking office and each January
thereafter and shall disclose the following financial interests of the filing
individual and the filing individual’s spouse, for the prior calendar year:
(i) current employer and the nature of the business or
occupation;
(ii) all sources of gross income over $5,000, identified by
category;
(iii) real estate owned in the state other than the personal
residence;
(iv) other business interests of $10,000 or greater value;
(v) memberships on for-profit boards;
(vi) New Mexico
professional licenses held;
(vii) sales to state agencies exceeding $5,000 for the prior year;
and
(viii) state agencies before which clients were represented or
assisted during the prior year.
(c) Officers and employees
required to disclose potentially conflicting financial interests; when filed. An officer or employee of this agency must file a
disclosure of financial interests when the officer or employee believes, or has
reason to believe, that their financial interest may be affected by their
official acts or actions of the state agency that employs them. The disclosure must be filed before entering
state employment or within ten days of the date when the officer or employee
knows, or should know, that a potential conflict has arisen and thereafter each
subsequent January, so long as the conflict or potential conflict continues to
exist.
(d) Financial disclosure
statements are public records. All disclosures required under this
subsection are public records.
(2) Disqualification
from acts affecting financial interests.
(a) An officer
or employee of this agency may not take official acts for the purpose of
enhancing their financial interests. An officer or employee must be
disqualified from any matters that could directly enhance or diminish the
officer’s or employee’s financial interest. If disqualified, then the officer or employee
shall refrain from acting on a matter involving the disqualifying financial
interest.
(b) An officer or employee of this agency
is not disqualified from taking an official action under 1.8.4.10(B)(2)(a) NMAC
if the benefit of the official act to the officer’s or employee’s financial
interest is proportionately equal to or less than the benefit to the general public.
C. Business
with regulated entities.
(1) Sales
to regulated persons. An officer or employee of this
agency may not directly or indirectly sell goods or services to, or profit from
a transaction with, a business or individual over whom this agency has
regulatory authority.
(2) No
acceptance of job or contract offers from regulated entities. An officer or
employee of this agency may not accept an offer of employment from, or a
contract to provide goods or services to any entity that this agency regulates. An officer or employee shall disqualify
themselves from any official act or decision involving a business in which an
immediate family member is employed or in which the officer or employee seeks
employment.
(3) Ordinary
transactions at market rates allowed. Nothing in this rule prevents an officer
or employee from purchasing or contracting for services or goods from a
regulated entity on the same bases that are available to other members of the
public.
D. Accepting or Giving Gifts.
(1) Gifts from restricted donors. An officer or employee
of this agency may not, directly or indirectly, solicit a gift from, and shall
decline any gift offered by, a restricted donor or by any person who gives a
gift because of the donee’s status as an officer or employee of this agency.
(2) Gifts
and business from subordinates. An
officer or employee of this agency may not, directly or indirectly:
(a) accept a gift from an employee having a lower rank or
receiving less pay, unless the donor and donee are not in a
subordinate-superior relationship and there is a personal relationship between
the donor and recipient that would justify the gift.
(b) solicit business from a supervised employee where the
business redounds to the financial interest of the officer or employee or an
immediate family member.
(3) Soliciting
gifts for charities. An officer or employee of this agency may not solicit or
require a charitable donation from any business, or an agent of any business,
regulated by or contracting with this agency; nor from any employees that the
officer or employee supervises.
(4) Declining
permissible gifts. An officer or
employee of this agency shall consider declining an otherwise permissible gift,
if they believe that a reasonable person with knowledge of the relevant facts
would question the officer or employee’s integrity or impartiality as a result
of accepting the gift. Among other relevant factors, the officer or employee
shall take into account whether:
(a) the gift has a high market value;
(b) the timing of the gift creates the appearance that the donor
is seeking to influence an official action;
(c) the gift offered by a person or business entity who has
interests may substantially affect the performance or nonperformance of the officer
or employee’s duties; and
(d) acceptance of the gift would provide the donor with
significantly disproportionate access.
(5) Disclosure
of offers of gifts from restricted donors. If a restricted donor offers a gift
of any value to an officer or employee of this agency, or if an officer or
employee of this agency unintentionally receives a gift from a restricted
donor, the officer or employee shall report to their supervisor: the date the
offer or gift was made or received, the name of the donor and the donor’s
relationship to the agency, the nature and value of the gift, and whether the
officer or employee accepted or refused the gift.
(6) Certain
donations of private funds prohibited.
No officer or employee of this agency may give:
(a) a gift
from their own funds to any person with whom their agency is doing business, or
considering doing business, under circumstances which may appear to favor the
recipient over other similarly situated persons; or
(b) a gift to any other state officer or employee when the gift
may be, or may appear to be, intended to influence any official decision by the
recipient.
(7) Certain
donations of public funds prohibited. No
officer or employee of this agency may give to any person any gift from public
funds, unless the gift:
(a) is a service appreciation award of de minimis value; or
(b) does not violate the Anti-Donation Clause, N.M. Const.,
Article IX, Section 14.
E. Honoraria; no solicitation or acceptance of honoraria permitted
for speaking or writing.
(1) An
officer or employee of this agency may not request or receive honoraria for a
speech or service that relates to the performance of public duties; provided
that an officer or employee of this agency may accept reasonable reimbursement
for meals, lodging or actual travel expenses incurred in making the speech or
rendering the service.
(2) An
officer or employee of this agency may accept payment for services rendered in
the normal course of a private business pursuit.
F. Timekeeping,
reimbursement, and use of state property.
(1) An
officer or employee of this agency must
work during the hours required and report time accurately.
(2) An
officer or employee of this agency shall not claim reimbursement in excess of
what is necessary and incidental to an official duty or action.
(3) An officer or employee of
this agency shall limit personal use of
state office supplies and assigned equipment, such as computers and telephones,
and otherwise shall not use state property or expend state funds for private
purposes.
G. Procurement.
(1) Fair
and equitable treatment of persons involved in public procurement. An officer
or employee of this agency shall treat persons involved in public procurement
fairly and equitably.
(2) Maximizing the value of
public funds. An officer or employee of this agency
involved in procurement shall endeavor to maximize the purchasing value of
public funds.
(3) Conflicts of interest
prohibited; Intra-agency waiver.
(a) An officer or employee of this agency shall not
participate directly or indirectly in a procurement when the officer or
employee, or their immediate family member, has a financial interest in a
business participating in the procurement.
(b) An
officer or employee of this agency who is participating directly or indirectly
in procuring goods or services for this agency shall not be concurrently
employed by any person or
business contracting with this agency.
(c) A conflict of interest under
subparagraphs (a) or (b) this Paragraph may be waived by this agency, if the
contemporaneous employment or financial interest has been publicly disclosed,
the officer or employee is able to perform procurement functions without actual
or apparent bias or favoritism, and the officer or employee’s participation is
in the best interests of this agency.
(4) Due diligence by agency.
(a) Participation by person submitting bid or proposal.
An officer or employee of this agency, having responsibilities for evaluating
or overseeing a bid or proposal shall exercise due diligence in ensuring that
any person or parties submitting bids or proposals do not participate or
contribute any knowledge, guidance or explanation in the preparation or receive
any advance notice of specifications, qualifications or evaluation criteria on
which the specific bid or proposal will be based.
(b) Campaign
contribution disclosure and prohibition. An officer or employee of this agency
who participates, directly or indirectly, in procuring goods or services for this
agency shall exercise due diligence to ensure that the prospective contractor:
(i) does
not give a campaign contribution or other thing of value to a person elected to
an office or a person appointed to complete a term of elected office who has the
authority to award or influence the award of a contract into which the
prospective contractor seeks to enter; and
(ii) disclose
all campaign contributions, where such contributions in the aggregate exceed
over $250 in the two years before the beginning of the procurement process,
given by the prospective contractor or a family member or representative of the
prospective contractor to a person elected to an office or a person appointed
to complete a term of elected office who has the authority to award or
influence the award of a contract into which the prospective contractor seeks
to enter.
H. Former officers and
employees.
(1) Contracting. This agency
may not contract with or take any other favorable action toward a person or
business that is:
(a) represented by a person who was an officer or employee of this agency within
the preceding year, if the contract or action has a value of $1,000 or more and
is the direct result of the officer or employee’s official act; or
(b) assisted by
a former officer or employee of this agency whose official act while in state
employment directly resulted in the contract or action. This subparagraph
applies regardless of the value of the contract or action, or the length of
time since the officer or employee left the agency.
(2) Restrictions on former
officers or employees representing a person in the person’s dealings with this
agency.
(a) A former officer or employee of this agency is
prohibited from representing anyone in dealings with this agency on any matter
in which the officer or employee participated personally and substantially
during their employment with this agency.
(b) A
former officer or employee of this agency may not, for one year after the
termination of their employment with this agency, represent for pay a person on
any matter before this agency, regardless of whether they were involved in that
matter personally.
[1.8.4.10 NMAC-N, xx/xx/2020]
1.8.4.11 OPEN
GOVERNMENT AND FREEDOM OF INFORMATION
A. An officer or employee of this agency should welcome
and encourage the public to attend and participate in public meetings.
B. An officer or employee of this
agency must permit members of the public to inspect this agency’s records,
unless the records are confidential under the law.
[1.8.4.11 NMAC-N, xx/xx/2020]
1.8.4.12 POLITICAL
ACTIVITY
A. An officer or employee of
this agency may not use their official position to pressure others to
participate in political activities.
B. An officer or employee of this agency may not use their official
position to influence an election or nomination, or otherwise engage in any
partisan political activity while on duty.
C. An
officer or employee of this agency may not serve as an officer of a political
organization.
D. An officer or employee of
this agency may not use or allow others to use state money or property to
promote a political campaign, candidate for elected office, political party, or
other partisan political organization.
E. An officer or employee of this
agency who becomes a candidate in a
partisan election must take a leave of absence upon filing for or accepting the
candidacy.
F. An officer or employee of
this agency may participate in political activities while off duty, including:
(1) donating to political candidates;
(2) volunteering or working for a political campaign or
political organization, so long as the officer’s or employee’s work does not violate any applicable
conflict-of-interest provision of this rule or statute; and
(3) holding non-partisan political office, such as non-partisan
county or municipal office or a seat on a local school board.
[1.8.4.12 NMAC-N, xx/xx/2020]
1.8.4.13 ETHICAL
CONDUCT IN THE WORKPLACE
A. An officer or employee of
this agency with supervisory responsibility shall:
(1) manage the hiring of new employees fairly and equitably;
(2) diligently investigate allegations of misconduct;
(3) refrain from unsolicited private business dealings with supervised
employees, either directly or indirectly; and
(4) ensure all visitors and staff can access this agency’s
services.
B. An officer or employee of this
agency shall:
(1) treat colleagues with respect;
(2) learn about what behavior constitutes harassment, and make
efforts to remove it from the workplace;
(3) report violations of this code of ethics or other laws to
responsible authorities within this agency or to the Commission; and
(4) learn how to recognize, report and prevent substance abuse
among this agency’s personnel.
[1.8.4.13 NMAC-N, xx/xx/2020]
History of 1.8.4 NMAC: [RESERVED]