AGO IAL080907.

• Case Date: August 09, 2007
• Court: New Mexico

New Mexico Attorney General Opinions 2007. AGO IAL080907. August 9, 2007IAL080907The Honorable Stuart IngleNew Mexico State Senator 2106 West University Drive Portales, NM 88130 Re: Opinion Request - Salary Increase for Appointee to Office of SheriffDear Senator Ingle: You requested our advice regarding whether Article IV, Section 27 of the New Mexico Constitution prohibits a county commission from compensating a person appointed to fill a vacancy in a county office at a higher rate than the previous incumbent. As discussed in more detail below, we conclude that the constitutional prohibition against midterm salary increases generally does not apply to a person who is appointed to fill a vacancy in a county office. We understand that your question stems from a vacancy in the position of De Baca County sheriff that occurred in June 2007. The county commission is preparing to fill the vacancy for the remainder of the term, which ends December 31, 2010. The county commission would like to pay the person appointed to fill the vacant position at a rate higher than that received by the previous incumbent, although still within the statutory limits. See NMSA 1978, §§ 4-44-4 to -8 (2006) (setting maximum salaries of elected county officers, including sheriffs, that may be provided by boards of county commissioners). Article IV, Section 27 provides, in pertinent part:

No law shall be enacted giving any extra compensation to any public officer . . . after services are rendered . . .; nor shall the compensation of any officer be increased or diminished during his term of office, except as otherwise provided in this constitution.

(Emphasis added.) The New Mexico Supreme Court has explained that Article IV, Section 27's prohibition against midterm salary increases

was designed to protect the individual officer against legislative oppression which must flow from party rancor, personal spleen, enmity, or grudge. These could well harass and cripple service; while, on the other hand, party feeling, blood, or business relations might be combined in such pernicious activity in the form of strong and powerful lobbying as to sway the members of the Legislature and cause the bestowal of an unmerited increase.

State ex rel. Gilbert v. Board of County Comm'rs, 29 N.M. 209, 214, 222 P. 654 (1924) (holding that legislature's reduction...