AGO 07-06.

• Case Date: December 17, 2007
• Court: New Mexico

New Mexico Attorney General Opinions 2007. AGO 07-06. December 17, 2007OPINIONOFGARY K. KINGOpinion No. 07-06BY: Elizabeth A. GlennAssistant Attorney General TO: The Honorable John Arthur Smith New Mexico State Senator Legislative Finance Committee Chair 325 Don Gaspar, Suite 101 Santa Fe, NM 87501QUESTION: Is it appropriate for state universities to contribute to the state salaries of cabinet officers appointed by the Governor? CONCLUSION: Contributions by state universities to executive department officer salaries are consistent with the New Mexico Constitution only if the legislature appropriated the contributions for that purpose or if the contributions are paid in exchange for services the cabinet officers perform for the universities. Even if the contributions are constitutional, the state universities' employment of cabinet officers whose agencies oversee activities of the universities raises conflict-of-interest concerns, including under the Governmental Conduct Act, NMSA 1978, ch. 10, art. 16 (1967, as amended through 2007), which may require the cabinet officers to relinquish their university positions. FACTS: At the time this request was presented, The University of New Mexico ("UNM") was paying a substantial portion of the state salaries of the Secretary of Higher Education Reed Dasenbrock and Secretary of Health Alfredo Vigil. New Mexico State University ("NMSU") was paying the entire state salary of the Deputy Secretary of Higher Education William Flores. In response to press inquiries, the universities contended that their contributions to the cabinet officials' salaries were, in reality, payments to those officials for services they have performed or were performing for the universities. ANALYSIS: 1. Appropriations for State Officer Salaries Nothing in New Mexico law squarely prohibits state universities from contributing to the salaries of state officers and employees. Nevertheless, their authority to contribute is limited by the legislature's exclusive powers under the state constitution to appropriate money and to specify the purposes for which appropriated money is spent. See N.M. Const. art. IV, § 30; State ex rel. Schwartz v. Johnson, 120 N.M. 820, 821, 907 P.2d 1001, 1002 (1995). Legislative control over money donated or contributed to the state is ensured by statutes governing public money, which provide that, with certain exceptions not pertinent here:

All public money in the custody or under the control of any state official or agency obtained or received by any official or agency from any source . . . shall be paid into the state treasury. It is the duty of every official or person in charge of any state agency receiving any money . . . for or on behalf of the state or any agency thereof from any source . . . to forthwith and before the close of the next succeeding business day after receipt of the money to deliver or remit it to the state treasurer.

NMSA 1978, Section 6-10-3 (2003).(fn1) Once in the state treasury, money may be paid out "only upon appropriations made by the legislature" that "distinctly specify the sum appropriated and the object to which it is to be applied." N.M. Const. art. IV, § 30. State officer salaries in particular are further limited by Article XX, Section 9, which provides: "No officer of the state who receives a...