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Absent lawmaker returns per diem

One of two lawmakers who missed the entire recent session of the Legislature but still received compensation for attending has returned the money.

Rep. Phillip Archuleta, D-Las Cruces, sent the Legislative Council Service a check for nearly $5,100, according to the agency, which provides administrative and other services for the Legislature.

Archuleta, elected in 2012, missed the legislative session that ended in February because of illness; he had a leg amputated in January.

Rep. Ernest Chavez, D-Albuquerque, also didn’t attend the session because of illness.

Despite being absent, Chavez and Archuleta received a per diem, or daily, payment of $159 for each of the 30 days of the session, or a total of nearly $4,800 each.

Chavez and Archuleta also received mileage for one round trip to Santa Fe, even though they never made the trip. Archuleta’s check to the Legislative Council Service also included his mileage allowance.

Lawmakers don’t receive an annual salary, but the New Mexico Constitution says they shall receive a per diem “for each day’s attendance during each session of the Legislature.”

Under the Legislature’s long-held interpretation of that provision, legislators receive per diem for each day of a session, regardless of attendance and even though the Legislature doesn’t meet every day of a session.

The Constitution says lawmakers shall also receive round-trip mileage once each session.

In response to a complaint about the payments to Chavez, Archuleta and a third lawmaker who missed several session days because of illness, the state Attorney General’s Office announced it would conduct what it calls a preliminary investigation.

The practice of legislators receiving per diem when absent from a session because of illness dates back decades.

Legislative leaders have said lawmakers receive per diem for each session day in part because most are presumed to have established residences in Santa Fe for the entire session and must pay those costs.

Also, when not at the Capitol, lawmakers might meet informally among themselves, talk to constituents or tend to other legislative duties.

The per diem is sometimes referred to as an expense allowance, but it is reported to the Internal Revenue Service as compensation.

I haven’t been able to reach Archuleta for comment, but he told the Las Cruces Sun-News that because of what was happening with his health, he wasn’t aware he was receiving per diem until being alerted by a family member.

Asked why he decided to return the money, Archuleta told the newspaper, “I figured I’d better do that for the benefit of the community.” He is seeking re-election this year.

Archuleta said he watched webcasts of the session, had three bills introduced and secured $690,000 in funding for public works projects in his district.

I also haven’t been able to reach Chavez for comment. Chavez, 77, a member of the House for 10 years, isn’t seeking re-election.

The absence of Chavez and Archuleta narrowed the Democratic majority in the House to 35-33 and created gridlock in the House in originating a state budget bill. The House later agreed to a Senate budget bill.

An alternative

The state of Idaho has a unique way of dealing with absences by lawmakers when its Legislature meets.

Legislators there can name substitutes to serve in their place when temporarily away from a session because of illness or other reasons.

Idaho is the only state that allows the practice, according to The Spokesman-Review newspaper in Spokane, Wash.

Legislators who name substitutes suffer no loss in salary, but their per diem goes to the substitutes.

Members of the Idaho Legislature receive an annual salary of more than $16,000 and a per diem for session days of $122 if they establish a second residence in the capital of Boise and $49 if they don’t.

Since the Idaho Legislature began its session in January, at least seven lawmakers have named substitutes for from three days to three weeks, according to The Spokesman-Review. One legislator named his wife.

Legislators took time off from the session to campaign, attend to family business and because of illness, the newspaper said.

“The whole point is, if you’re not here, your district is going unrepresented” without a substitute, said Senate President Pro Tem Brent Hill, a Rexburg Republican.

The law allowing lawmakers to name temporary substitutes dates to World War II, when many legislative seats were left vacant by legislators who went to fight in the war.

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