NMAGO 06-02.

• Case Date: April 17, 2006
• Court: New Mexico

New Mexico Attorney General Opinions 2006. NMAGO 06-02. April 17, 2006OPINION OF PATRICIA A. MADRID Opinion 06-02BY: Sonny Swazo Assistant Attorney General TO: The Honorable Domingo Martinez State Auditor 2113 Warner CircleSanta Fe, NM 87505-5499 QUESTIONS:1. Is a mutual domestic water association ("MDWA" or "association") organized under the Sanitary Projects Act considered a state agency? 2. Does a MDWA handle "public money" when it has revenues that consist only of levies on members? 3. Does a MDWA, whose revenues consists only of levies on members, and a MDWA, whose revenues consist of both levies on members and state funds, need to follow the Open Meetings Act, the Inspection of Public Records Act, the Procurement Code, the Per Diem and Mileage Act?CONCLUSION: Based on our examination of the relevant New Mexico constitutional, statutory and case law authorities, and on the information available to us, we conclude a MDWA is not a state agency, but it qualifies as a public body/ political subdivision and thus has statutory responsibilities to abide by open government laws. ANALYSIS: Your first question is whether a MDWA organized under the Sanitary Projects Act, NMSA 1978, Sections 3-29-1 to -20 (1965, amended through 2006) ("SPA") is considered a state agency. The New Mexico Supreme Court discussed what constitutes a state agency in Harrington v. Atterberry, 21 N.M. 50, 153 P. 1041 (1915). Under Harrington, an entity is considered a state agency when it is under the control of the state. See id. at 61, 72. An entity is generally considered a state agency when the entity is operated and managed by officers appointed by the government and created by statute. See id. An entity that performs functions beneficial to the public or receives appropriations regulated by the government is not a state agency if the government does not otherwise control the entity. See id. at 54, 63, 74. The 2006 Legislature amended the purpose of the SPA. The purpose used to read: "improve the public health of the people of New Mexico through a program which will provide for the installation of sanitary domestic water facilities...." NMSA 1978, § 3-29-3 (1965). The 2006 change to the law now states that the purpose is to "improve the public health of rural communities in New Mexico by providing for the establishment and maintenance of a political subdivision of the state that is empowered by the state to receive public funds for acquisition, construction and improvement of water supply, reuse, storm drainage and wastewater facilities in communities, and to operate and maintain such facilities for the public good." NMSA 1978, § 3-29-3 (2006) (emphasis added). With the 2006 legislative change, it is clear that associations established under the SPA are political subdivisions. Nevertheless, the SPA provides a mixed explanation regarding the State government control. For example, associations are created by citizen petition drive and by citizen vote. Any community member may join the association. See NMSA 1978, § 3-29-11 (1965). Association members elect the association's board of directors from association membership. See NMSA 1978, § 3-29-12(A). Projects are determined by the association's board of directors, "acting upon recommendations from and subject to the approval of the [environment] department." NMSA 1978, § 3-29-4 (1971). Associations are responsible for providing labor, materials, and at least one-third of the project funds. See NMSA 1978, § 3-29-5(A)(4) & (D) (2000). On the other hand, state project funds are available only to those communities that...