It shall not be lawful for a member of the legislature to use a pass, or to purchase or receive transportation over any railroad upon terms not open to the general public; and the violation of this section shall work a forfeiture of the office.
This is not a particularly ambiguous provision of our state constitution. At least for someone who is not a lawyer or a bureaucrat. But, as it turns out, it is not so clear to our Attorney General’s office.
The Attorney General is advising his clients, legislators invited on a junket by a private railroad, that it is just fine to ignore the plain text of the State Constitution.
You have requested our advice regarding the constitutionality of legislators and other public officers accepting an invitation to travel on the newly constructed Abo Canyon rail line in one of Burlington Northern Santa Fe Railway’s (“BNSFR’s”) trains. Your request indicates that this is a one-time offer to inspect the new railway and that BNSFR does not provide passenger services in New Mexico. Based on our examination of the relevant constitutional, statutory, judicial and other legal authorities from New Mexico and other states, and on the information available to us at this time, we conclude that the New Mexico constitution probably does not preclude legislators and other public officers from accepting BNSFR’s one-time offer to ride the train at no cost for the purpose of inspecting or touring the newly constructed Abo Canyon rail line.
Article IV, Section 37 and Article XX, Section 14 of the New Mexico Constitution prohibit legislators and certain other public officers from obtaining a free pass for transportation over any railroad upon terms not open to the general public.
Read the full advisory letter–complete with substantial legalese, dodging, and reference to our state high court’s apparent disdain for the text of their governing document.
Given the consequences imposed by the Constitution (removal from office, no exceptions), a competent private attorney not protected by sovereign immunity would never give such advice to a client. There is no wriggle room whatsoever in the Constitution. Only a public lawyer, hiding behind sovereign immunity, making the arrogant assumption that the State’s courts would back him up rather than enforce the law, could give such advice.
In an atmosphere where good-faith compliance with the law was considered to be a virtue, no legislator aware of this Constitutional prohibition would dare accept such a gift and no lawyer would tell him he could. Here the law is treated as an obstacle to be sneered at and circumvented.
Even the AG’s public policy argument is hopelessly weak. The letter states that preventing an archaic form of “subtle bribery” is the basis of this rule, but fails to make any sort of case that the railroad in this case isn’t attempting exactly the same sort of bribery on these 21st century legislators. What, we’re supposed to believe that a legislative “inspection” of this rail line is so imperative that the Constitution should be suspended to allow it? Which legislators are going? Are they all engineers competent to inspect a rail line?
This is in a context where the current AG has been invisible during his term of office. While important, high-profile, matters languish, the AG somehow managed to churn out this low-profile advisory letter to help his political chums go on a train trip. A train trip! Poor New Mexico.