SB 364 A Sensible Solution to Dispute Between Ethics Commission and Legislature

Common Cause applauds both the Legislature and the Ethics Commission for quickly coming together to resolve the thorny issue of the proper use of legislative stationery. Stationery may seem like a minor point to many, but it’s become symbolic of the exercise of a legislator’s power and influence outside of the legislative session.

At the start of the 2023 session legislators on both sides of the aisle were disturbed by an opinion from an attorney with the NM Ethics Commission issued in response to an inquiry from the Legislative Council Service, whose lawyers draft bills and provide staff support to legislators.  The opinion appeared to bar legislators from using their official stationery when contacting state agencies on behalf of their constituents, a routine practice.

Like an Attorney General’s opinion, an opinion from an attorney with the Ethics Commission does not constitute a law but could have influenced future interpretations of the underlying law, in this case the Governmental Conduct Act.

Legislators, understandably, feel that it’s their duty to go to battle for their constituents to help them get rebates from the Tax and Revenue Department, for example, or to resolve a health insurance problem with the Superintendent of Insurance. The use of legislative stationery seems entirely appropriate. Yet lawyers from the Ethics Commission—reading the letter of the law—were worried about the opportunity for legislators to get paid by the people for whom they were going to bat (armed with legislative stationery)—a rare instance indeed—but one that raises questions about misuse of one’s office.

SB 364, now on the Governor’s desk, clarifies the issue. No legislator shall assist another person before a state agency unless without compensation. If the legislator is an attorney or other professional representing a client, they shall not use legislative stationery or email or refer to their status as a legislator. Otherwise, legislators can use their stationery or email to help their constituents.

We thank the leadership of the Legislature and the NM Ethics Commission for resolving the issue.  It’s a win-win for both sides. The NM Ethics Commission has a role in enforcing the Governmental Conduct Act, exposing loopholes and suggesting fixes. And legislators have a valid role in representing their constituents.

We urge the Governor to sign this good bill.