IAL 101707.

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

New Mexico Attorney General Opinions 2007. IAL 101707. October 17, 2007IAL 101707The Honorable Clinton D. HardenNew Mexico State Senator 1348 CRH Clovis, NM 88101 Re: Opinion Request - Governmental Conduct Act and Community and Branch Community CollegesDear Senator Harden: You have requested our opinion whether community colleges and branch community colleges are considered "state agencies" for purposes of the Governmental Conduct Act, NMSA 1978, §§ 10-16-1 to -18 (1967, as amended through 2007), specifically, for purposes of Section 10-16-9, pertaining to contracts of a "state agency" involving state legislators. Based on our examination of the relevant New Mexico constitutional, statutory and case law authorities, and on the information available to us at this time, we conclude that community colleges are not "state agencies" within the meaning of Section 10-16-9. Branch community colleges are "state agencies" within the meaning of Section 10-16-9. The Governmental Conduct Act was amended in 2007 to add a definition of "state agency" at Section 10-16-2 (I): "`[S]tate agency' means any branch, agency, instrumentality or institution of the state." 2007 N.M. Laws, Ch. 362, § 1. The Governmental Conduct Act prohibits, absent compliance with certain conditions, state agencies from contracting with state legislators at Section 10-16-9 (A) (2007). Section 10-16-9 (A) provides:

A state agency shall not enter into a contract for services, construction or items of personal property with a legislator, the legislator's family or with a business in which the legislator or the legislator's family has a substantial interest unless the legislator has disclosed the legislator's substantial interest and unless the contract is awarded in accordance with the provisions of the Procurement Code, except the potential contractor shall not be eligible for a sole source or small purchase contract. A person negotiating or executing a contract on behalf of a state agency shall exercise due diligence to ensure compliance with the provisions of this subsection.

Community colleges are provided for in the Community College Act, NMSA 1978, §§ 21-13-1 to -26 (1963, as amended through 2007). Community colleges provide two-year public post-secondary educational programs or two years of a vocational or technical curriculum for persons who may or may...