It is unlawful for any member of the legislature to receive any compensation for services performed as an officer or employee of the state, except such compensation and expense money as he is entitled to receive as a member of the legislature.

History: 1941 Comp., § 2-104; Laws 1943, ch. 18, § 1; 1953 Comp., § 2-1-4; Laws 1977, ch. 336, § 2.

Cross references. — For person holding governmental office ineligible to serve in legislature, see N.M. Const., art. IV, § 3.

Public school teachers and administrators. — In enacting this section and 2-1-4 NMSA 1978, the legislature did not intend to prohibit school teachers or administrators from being state legislators while employed by a school district. State ex rel. Stratton v. Roswell Indep. Schs., 1991-NMCA-013, 111 N.M. 495, 806 P.2d 1085.

"Member of legislature". — A person who has been elected to the legislature, but who has not qualified, is not a member of that body for purposes of the constitutional prohibition against being appointed to any other civil office. 1962 Op. Att'y Gen. No. 62-145.

A person who was elected to the New Mexico legislature for the first time at the general election in November of 1962 is not a member of the legislature prior to being seated at the session to be convened in January, 1963. 1962 Op. Att'y Gen. No. 62-145.

"Service performed as an officer" within the meaning of this section is that which would be performed by one occupying a "civil office" within the meaning of N.M. Const., art. IV, § 28. 1957 Op. Att'y Gen. No. 57-40.

Section only pertains to legislators who are officers or employees of the state as such. 1957 Op. Att'y Gen. No. 57-11.

State employment by legislator resigning during term. — A state legislator can resign from the legislature and legally obtain state employment during the term for which he was elected. 1977 Op. Att'y Gen. No. 77-25.

County or municipal employment. — A state representative working as a county employee is not an employee paid out of state funds, or, when working as a municipal employee, is not an employee paid out of state funds. The source of payment of salary alone is not the sole test; the duties, both as a county employee and as a municipal employee, would be purely local in character. 1957 Op. Att'y Gen. No. 57-93.

Legislator elected to local school board. — A member of the state legislature is not precluded by state law from serving as an elected local school board member. 1991 Op. Att'y Gen. No. 91-02.

Public school instructors and administrators are state employees within the constraints of the prohibition against serving in the legislature while receiving compensation as an employee of the state. 1988 Op. Att'y Gen. No. 88-20, but see State ex rel. Stratton v. Roswell Indep. Schs., 1991-NMCA-013, 111 N.M. 495, 806 P.2d 1085, which held to the contrary.

Applicability to employees of state university. — The decision of the court of appeals in State ex rel. Stratton v. Roswell Indep. Schs., 1991-NMCA-013, 111 N.M. 495, 806 P.2d 1085, that public school teachers and administrators are not state employees within the meaning of this section and 2-1-4 NMSA 1978, does not alter the prohibition under these sections against a person simultaneously serving in the state legislature and as an employee of a state educational institution such as the University of New Mexico. 1991 Op. Att'y Gen. No. 91-05.

University employee running for legislative seat. — Employees of the University of New Mexico are not barred statutorily from running for legislative seats, but, if elected to the state legislature, they may not simultaneously serve as members of the legislature and as paid university employees. 1990 Op. Att'y Gen. No. 90-21.

Attorney retained on a fee basis is an employee of state under this section and would be prohibited from receiving compensation, except the compensation and expense money to which he is entitled as a legislator. 1945 Op. Att'y Gen. No. 45-4710.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 72 Am. Jur. 2d States, Territories, and Dependencies § 58.

Right to salary of one illegally elected or appointed to legislature, 7 A.L.R. 1682.

Incompatibility, under common-law doctrine, of office of state legislator and position or post in local political subdivision, 89 A.L.R.2d 632.

81A C.J.S. States § 46.