NMAGO 06-01.

• Case Date: January 26, 2006
• Court: New Mexico

New Mexico Attorney General Opinions 2006. NMAGO 06-01. January 26, 2006OPINION OF PATRICIA A. MADRID Attorney General Opinion No. 06-01BY: Sally Malavé Assistant Attorney GeneralTO: The Honorable Pete CamposState Senator500 RaynoldsLas Vegas, New Mexico 87701QUESTION PRESENTED:May a legislator serve as president of Luna Vocational-Technical Institute without resigning office and without running afoul of Article 4, Sections 3 or 28 of the New Mexico Constitution, NMSA 1978, Section 2-1-3, or any other provision of law regarding incompatibility?CONCLUSION: A legislator may serve as president of Luna Vocational-Technical Institute without violating the relevant constitutional and statutory prohibitions of New Mexico law. DISCUSSION: Your question requires a three-part analysis: (a) whether the new position is a "state" office as contemplated in Article III, Section 1 and Article IV, Section 3 of the New Mexico Constitution and NMSA 1978, Section 2-1-3; (b) whether the new position is a "civil office" as contemplated in Article IV, Section 28; and (c) whether the two positions are incompatible. Based on our examination of the relevant New Mexico constitutional, statutory and case law authorities, and on the information available to us, we conclude the position of president of Luna Vocational Technical Institute does not appear to be a civil office or a state office and does not appear to create an issue of incompatibility. Therefore, a current legislator may assume this new position without violating the relevant constitutional and statutory prohibitions of New Mexico law. Constitutional Limits on A Legislator's Ability to Serve as President of a Technical Vocational Institute. a. Separation of Powers: Article III, Section 1 Article III, Section 1 of the New Mexico Constitution states in pertinent part: The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers belonging to either of the others . . . This constitutional provision raises the question whether the office of president of a technical and vocational institute is part of the executive or judicial departments of the state, thereby precluding a member of the legislative department from occupying it. New Mexico case law supports the view that the constitution's framers did not intend to include political subdivisions such as school districts in the term "state" and, therefore, that Article III, Section 1 should not preclude a legislator from holding office on a local school board. See N.M. Att'y Gen. Op. 91-02 (1991) (citing State ex rel. Stratton v. Roswell Independent Schools, 111 N.M. 495, 502 (Ct. App. 1991)). In Roswell Independent Schools , the appellate court surmised that political subdivisions are not synonymous with "state." 111 N.M. at 502. The court further stated that when the Constitution either grants or prohibits certain powers, the affected subdivisions are specifically...