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Lawmakers collect per diem despite absence

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The empty seat seen here during this year's legislative session should have been occupied by Ernest Chavez, D-Albuquerque. (Eddie Moore/Albuquerque Journal)

The empty seat seen here during this year’s legislative session should have been occupied by Ernest Chavez, D-Albuquerque. (Eddie Moore/Albuquerque Journal)

The New Mexico Constitution says state legislators shall receive a per diem, or daily payment, “for each day’s attendance during each session of the Legislature.”

But under the Legislature’s long-standing interpretation of that provision, physical attendance hasn’t been required for a lawmaker to receive a per diem, now set at $159.

For example, legislators receive per diem for each day of the Legislature’s annual regular session, even though the Legislature doesn’t meet every day of a session. Also, on session days when the Legislature does meet, lawmakers who don’t attend for illness or other reasons still receive per diem.

There have been abuses. One of my all-time favorites: A senator slipped away from a session for a couple days in 1997 to play in a slots tournament in Las Vegas, Nev., but still received per diem.

The issue of whether physical attendance should be required for legislators to receive per diem during a session has resurfaced because two lawmakers missed the entire session that ended in February due to illness but each received per diem for the 30 session days.

The legislators – Democratic Reps. Ernest Chavez of Albuquerque and Phillip Archuleta of Las Cruces – also received mileage for one round trip to Santa Fe, even though they never made the trip. The state constitution says lawmakers shall receive round-trip mileage once each session.

The empty seat here belongs to Rep. Phillip Archuleta, D-Las Cruces, and was never used during this year's legislative session. However, Archuleta still received his per diem allowance. (Eddie Moore/Albuquerque Journal)

The empty seat here belongs to Rep. Phillip Archuleta, D-Las Cruces, and was never used during this year’s legislative session. However, Archuleta still received his per diem allowance. (Eddie Moore/Albuquerque Journal)

The Santa Fe New Mexican reported on the per diem and mileage payments to Chavez and Archuleta, as well as per diem payments to Rep. Dianne Hamilton, R-Silver City, for several session days she missed due to pneumonia.

A Santa Fe lawyer later complained to the state Attorney General’s Office that the payments to the three legislators were illegal and the AG’s Office has announced that it will conduct what it calls a preliminary investigation.

Attorney General Gary King has a personal history with the issue. While serving in the House, he received per diem for every day of the Legislature’s 1994 session, despite missing most of the session due to injuries suffered in a car accident.

Chavez and Archuleta couldn’t be reached for comment, but Hamilton said the per diem payments to her while she was out sick from the Legislature were warranted in part because she rents a home in Santa Fe for the entire session.

She said she stayed in Santa Fe during her illness, which included a hospitalization.

The per diem for legislators is sometimes referred to as an expense allowance, but there is nothing in the state constitution that specifically says it is meant to cover lawmakers’ lodging, meals and other costs.

In some respects, per diem seems more like a daily salary than an expense allowance. For example, a legislator who lives in Santa Fe and has few expenses in attending a session receives the same per diem as an out-of-town lawmaker with significant expenses.

House Speaker Ken Martinez, D-Grants, said Chavez and Archuleta watched webcasts of the Legislature during the session, communicated with legislative leaders and had legislation introduced.

“We believe that they attended the legislative meetings, even though they had to do it by other ways,” Martinez told a news conference last month.

Legislative leaders have also previously argued that on days when the Legislature isn’t meeting during a session, lawmakers might meet informally among themselves, talk to constituents or tend to other legislative duties.

Also, a legislator like Hamilton who has established a residence in Santa Fe for a session may have daily expenses, even though the Legislature doesn’t meet each day of a session.

Best I can tell, no New Mexico appeals court has ever ruled on whether the Legislature is properly interpreting the state constitution in paying per diem to lawmakers on session days when the Legislature doesn’t meet and in paying legislators who fail to attend meetings of the Legislature while it’s in session.

Courts in other states haven’t objected to legislators receiving per diem for days when a legislature has taken a brief break from floor action, reasoning such breaks provide an opportunity for lawmakers to consider legislation.

My guess is even if the issue landed in court in New Mexico, the courts would side with the Legislature’s practice of paying regardless of physical attendance.

Courts are reluctant to interfere in the affairs of another branch of government and they are well aware that the Legislature controls their budget.

You might recall the New Mexico Supreme Court in 1995 upheld the pension plan that lawmakers created for themselves despite a constitutional provision that says legislators shall receive “no other compensation, perquisite or allowance” besides per diem and mileage.

Then-Justice Stanley Frost wrote that the retirement program was “too remote and contingent” to constitute compensation in violation of the state constitution.

Frost added this, quoting from a decision by the Arizona Supreme Court:

“(Individuals) in positions of government authority and responsibility are there as representatives of the people. They are placed in these positions by the people, and can be recalled by them. It is to the people that they must, at all times, answer.”

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at tcole@abqjournal.com or 505-992-6280 in Santa Fe. Go to abqjournal.com/letters/new to submit a letter to the editor.

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