If a New Mexico statute says members of the State Music Commission cannot receive 'compensation, perquisite or allowance,' can they still be reimbursed for the gas and per diem they spend traveling to a Commission meeting?
Plain-English summary
The Music Commission Chair asked whether the statute saying Commission members "shall not receive any compensation, perquisite or allowance" blocks them from being reimbursed for the gas and per diem they incur driving across the state for meetings.
The Attorney General said no, the Commission members can be reimbursed. The Per Diem and Mileage Act applies to "every elected or appointed officer" including members of advisory boards appointed by a state agency. Music Commission members are appointed by the Governor, so they fit. Section 10-8-4(A) gives nonsalaried public officers per diem for board or committee meetings, and Section 10-8-4(D) gives mileage at the IRS standard rate for travel necessary to official duties. Both provisions apply "notwithstanding any other specific law to the contrary."
The opinion harmonizes Section 18-16-3(E) with the PDMA. Section 18-16-3(E)'s no-compensation rule is read as preventing members from profiting or receiving special pecuniary benefit, not as blocking reimbursement for actual out-of-pocket expenses that just put them back where they were. The opinion warns members not to claim per diem when they have not actually traveled significant distances, since that could cross the line from reimbursement into prohibited compensation.
What this means for you
If you are a member of the State Music Commission
Submit your mileage at the IRS standard rate for the travel you actually do for Commission business. Submit per diem for meeting days within the PDMA's published rate schedule, with the documentation the Department of Finance and Administration and your agency require.
Be conservative on per diem when the meeting is short or you did not travel significantly. The opinion specifically warns that per diem could become "compensation, perquisite or allowance" prohibited by Section 18-16-3(E) if it exceeds your actual expenses. Section 10-8-7 imposes penalties for knowingly accepting payment in excess of PDMA-authorized amounts.
If you sit on a different New Mexico board or commission with a similar no-compensation clause
The same harmonization should apply: the PDMA covers all "elected or appointed officers" and "members of advisory boards appointed by any state agency, local public body or public post-secondary educational institution." A statute that prevents you from receiving "compensation" for service is generally read to preserve PDMA reimbursement for actual expenses.
If your statute uses different language ("salary," "honoraria," "remuneration"), the analysis may shift. The opinion turns on the broad terms "compensation, perquisite or allowance," which the AG read as covering pecuniary gain rather than expense reimbursement.
If you are at a state agency that staffs a board or commission
The opinion gives you a defensible framework to process travel-reimbursement claims for board members, even where the enabling statute carries a no-compensation clause. Build the claim form to capture actual mileage and meeting days, follow PDMA caps, and apply DFA and agency-specific reimbursement procedures.
If a member's claim looks like padding (high per diem for a low-travel day, mileage that does not match the meeting location), flag it. The penalty in Section 10-8-7 attaches to the official authorizing or accepting an over-claim.
If you are at the Department of Finance and Administration
The opinion confirms the reach of the PDMA across appointed boards and commissions. Treat advisory-board members the same way you treat other nonsalaried public officers for reimbursement, subject to your existing rate caps and procedural rules.
If you are a state legislator
The opinion applies to any board or commission with a no-compensation clause. If you intend a true no-reimbursement rule for a particular body (perhaps because the body's purpose makes any travel cost trivial), draft explicitly: "members shall not receive any compensation, per diem, mileage, or other reimbursement of any kind." A bare no-compensation clause does not displace the PDMA.
If you advise a New Mexico board or commission
The opinion is grounded in standard statutory-harmonization rules under Section 12-2A-10(A) and case law (State v. Smith, 2004-NMSC-032; Doe v. State, 1992-NMSC-022). The PDMA is older (1963) than the Music Commission Act (2009), and the Legislature is presumed to have known the PDMA when adopting the no-compensation clause. The opinion's reading is the natural outcome of those canons; it would take very specific drafting in the enabling statute to override the PDMA.
Common questions
Q: Can Commission members get a per diem for every meeting?
A: Yes for meeting days, within Section 10-8-4(A) limits. The opinion warns that per diem on days with minimal travel could be challenged as compensation. Members can use judgment to skip per diem when the day's travel was minor.
Q: What is the mileage rate?
A: The IRS standard mileage rate set on January 1 of the previous year, per Section 10-8-4(D). For private airplanes the rate is 88 cents per mile.
Q: What if the Music Commission rule and the PDMA conflict?
A: They do not, as read by the AG. Section 18-16-3(E) prohibits compensation; the PDMA authorizes expense reimbursement. The two work in harmony because reimbursement that just makes you whole is not compensation (Antillon v. New Mexico State Highway Department, 1991-NMCA-093).
Q: What about other reimbursements like meals or hotels?
A: Per diem under Section 10-8-4(A) is calibrated to cover meals and incidentals; lodging is generally separate and follows DFA rules and any per-trip caps. Members should follow standard state travel policy for documentation.
Q: Can members refuse reimbursement?
A: Nothing in the opinion or the PDMA forces a member to claim reimbursement. A member who would prefer not to claim can decline.
Q: What's the penalty for over-claiming?
A: Section 10-8-7 imposes penalties on anyone who knowingly authorizes or accepts payment exceeding PDMA limits. Practically, members and the agency staff who approve claims should both be careful.
Background and statutory framework
The Music Commission was created in 2009 within the Department of Cultural Affairs (Section 18-16-2). Fifteen members are appointed by the Governor, with the Commission able to appoint its own members in some circumstances (Section 18-16-3(B), (D)). Members must be New Mexico residents widely known for professional competence in music. The Commission meets at least four times a year. Section 18-16-3(E) provides that "[m]embers of the commission shall not receive any compensation, perquisite or allowance."
The Per Diem and Mileage Act, codified since 1963 with multiple amendments through 2021, governs reimbursement of travel for "public officers and employees." The PDMA defines "public officer" or "public official" broadly to include "every elected or appointed officer of the state, local public body or any public post-secondary educational institution," including "members of advisory boards appointed by any state agency, local public body or public post-secondary educational institution" (Section 10-8-3(H)).
Section 10-8-4(A) gives nonsalaried public officers per diem for board or committee meetings, "[n]otwithstanding any other specific law to the contrary." Section 10-8-4(D) gives every public officer mileage reimbursement at the IRS standard rate or 88 cents per mile for private airplanes for travel necessary to official duties.
The opinion applies the standard New Mexico statutory-construction framework: legislative intent governs (Taylor v. Waste Management, 2021-NMSC-026); plain language first (State v. Adams, 2022-NMSC-008); when ambiguity exists, look to context and related statutes (State v. Rivera, 2004-NMSC-001); harmonize apparent conflicts where possible (State v. Smith, 2004-NMSC-032; Section 12-2A-10(A)). The Legislature is presumed to know existing law when enacting new statutes (Doe v. State).
The reimbursement-versus-compensation distinction comes from Antillon v. New Mexico State Highway Department, 1991-NMCA-093, which held that travel reimbursement is not a pecuniary benefit unless it exceeds actual expenses.
Citations and references
Statutes:
- NMSA 1978, §§ 10-8-1 to -8 (Per Diem and Mileage Act)
- NMSA 1978, §§ 18-16-1 to -4 (Music Commission Act)
- NMSA 1978, § 12-2A-10(A) (Conflict resolution)
Cases:
- Taylor v. Waste Management of New Mexico, Inc., 2021-NMSC-026
- State v. Adams, 2022-NMSC-008
- State v. Rivera, 2004-NMSC-001
- State v. Smith, 2004-NMSC-032
- Antillon v. New Mexico State Highway Dept., 1991-NMCA-093
- Doe v. State ex rel. Governor's Organized Crime Prevention Comm'n, 1992-NMSC-022
Source
- Landing page: https://nmdoj.gov/publication/opinion/2025-03-opinion-whether-section-18-16-3e-precludes-members-of-the-state-music-commission-from-receiving-reimbursement-for-travel-to-and-from-commission-meetings/
- Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2025-03-1.pdf
Original opinion text
January 10, 2025
OPINION
OF
RAÚL TORREZ
Attorney General
Opinion No. 2025-03
To:
Carlos Medina, Chair of the New Mexico Music Commission
Re:
Attorney General Opinion – Whether Section 18-16-3(E) precludes members of the State
Music Commission from receiving reimbursement for travel to and from Commission
meetings
Question
Does NMSA 1978, Section 18-16-3(E) (2009), which provides that the members of the State Music
Commission ("Commission") "shall not receive any compensation, perquisite or allowance,"
preclude Members of the Commission from receiving reimbursement for travel expenses to and
from Commission meetings?
Answer
No. While Section 18-16-3(E) prohibits a member of the Commission from receiving wages or
pecuniary gain for their service, the statute should be read in the context of, and in harmony with,
the Per Diem Mileage Act, NMSA 1978, Sections 10-8-1 through 10-8-8 (1963, as amended
through 2021) ("PDMA"), which expressly allows "public officials" such as members of the
Commission to be reimbursed for travel expenses. We opine that the PDMA applies to members
of the Commission and authorizes them to be reimbursed for travel expenses as provided in
Sections 10-8-4(A) and 10-8-4(D).
Analysis
I.
Background
The Department of Cultural Affairs is an executive agency of the State of New Mexico that
oversees various boards and commissions. Those boards and commissions are created by the New
Mexico Legislature as codified in Chapter 18 of the New Mexico Statutes Annotated. The Music
Commission is one such commission and is overseen by the Arts Division of the Department of
Cultural Affairs. NMSA 1978, § 18-16-2 (2009).
New Mexico Department of Justice
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The Commission is made up of fifteen members appointed by the Governor. NMSA 1978, § 18-16-3(B) (2009). However, the Commission may also appoint its own members if necessary. See
NMSA 1978, § 18-16-3(D) (2009). Members must be residents of New Mexico and be widely
known for their professional competence and experience in the field of music. Section 18-16-3(B).
The Commission is required to meet at least four times per year. Section 18-16-3(D). Given the
geographic scope of the New Mexico, at least some members of the Commission are therefore
likely to travel considerable distances for meetings.
The question presented is whether members of the Commission may receive travel reimbursement
for attending Commission meetings, particularly considering that Section 18-16-3(E) expressly
states that "[m]embers of the commission shall not receive any compensation, perquisite or
allowance."
We rely on New Mexico law governing statutory construction. When construing statutory
language, the guiding principle is to determine and give effect to legislative intent. Taylor v. Waste
Management of New Mexico, Inc., 2021-NMSC-026, ¶ 8. The first step in the construction analysis
is to consider the plain meaning of the statutory language. State v. Adams, 2022-NMSC-008, ¶ 10.
Unless ambiguity exists, courts adhere to the plain meaning of the statutory language. Id.
However, where one or more provisions give rise to genuine uncertainty as to what the Legislature
was trying to accomplish, ambiguity is present and requires going beyond a plain language
analysis. State v. Rivera, 2004-NMSC-001, ¶¶ 11-12. In such instances, a court must consider a
statute's background and history while considering the statute in reference to its larger statutory
scheme as well as other statutes dealing with the same general subject matter. Id. ¶¶ 12-13. If two
related statutes appear to conflict, then a court must construe the statutes in harmony if at all
possible. Id.; State v. Smith, 2004-NMSC-032, ¶ 13; NMSA 1978, § 12-2A-10(A) (1997).
II.
The PDMA assists in interpreting the legislative intent of Section 18-16-3(E) because
Section 18-16-2(E) is ambiguous as to the question presented.
We first attempt to resolve the question presented through a plain language analysis of Section 18-16-3(E). See Adams, 2022-NMSC-008, ¶ 10.
Section 18-16-3(E)'s prohibition of "compensation, perquisite or allowance" suggests that
members of the Commission cannot be paid wages, receive special privileges or benefits, or obtain
other pecuniary gain as a result of their service. However, reimbursement for travel expenses is
not a pecuniary benefit amounting to "compensation" because it logically places an individual
back in the same position they were prior to reimbursement. See also Antillon v. New Mexico State
Highway Dept., 1991-NMCA-093, ¶ 17 (reasoning that reimbursement for travel expenses does
not economically benefit a public employee unless the amount of reimbursement is in excess of
the employee's actual expenses). Despite that, Section 18-16-3(E)'s prohibition of "perquisite" or
"allowance," could still be read to mean that the Legislature did not intend to grant members of
the Commission certain reimbursements typically associated with travel expenses such as per diem
funds. Unfortunately, Section 18-16-2 does not define "compensation, perquisite or allowance" or
provide helpful context through other definitions.
For these reasons, we opine that Section 18-16-3(E) presents ambiguity as to whether the
Legislature intended for members of Commission to be reimbursed for travel expenses. See Rivera,
2004-NMSC-001, ¶¶ 11-12. Thus, we depart from a plain language analysis of Section 18-16-3(E).
See Adams, 2022-NMSC-008, ¶ 10.
We look to the PDMA to help us ascertain what the Legislature meant when prohibiting Members
from receiving "compensation, perquisite or allowance." We do so because the PDMA predates
Section 18-16-3(E) and because it governs reimbursement of travel expenses incurred by public
officials, and thus can assist in construing Section 18-16-3(E). See Rivera, 2004-NMSC-001, ¶¶
11-12; Doe v. State ex rel. Governor's Organized Crime Prevention Comm'n, 1992-NMSC-022, ¶
12, 114 N.M. 78 ("We presume that the [L]egislature knew about the existing law and did not
intend to enact law inconsistent with any existing law").
If (1) the PDMA applies to Commission members and also (2) authorizes reimbursing the
members' travel expenses, then we may conclude that the Legislature intended for the members to
have their travel expenses reimbursed consistent with the PDMA. These questions require us to
also consider (3) whether any apparent conflict between the PDMA and Section 18-16-3(E) can
be reconciled. See Smith, 2004-NMSC-032, ¶ 13. We address each issue in turn.
III.
The PDMA applies to members of the Commission.
We first consider whether the Legislature intended for the PDMA to apply to members of the
Commission.
Section 10-8-2 states the "[p]urpose of the [PDMA]" is to "establish standard rates for
reimbursement for travel for public officers and employees coming under the [PDMA]." NMSA
1978, § 10-8-2 (1963). The PDMA requires certain travel reimbursements for "public officers" or
"public officials." See generally NMSA 1978, § 10-8-4 (2021). Thus, we must consider whether
Members of the Commission are "public officers" or "public officials" within the meaning of the
PDMA. If so, we may then conclude the Legislature intended for the PDMA to govern members
of the Commission.
The PDMA defines "public officer" or "public official" to mean
every elected or appointed officer of the state, local public body or any public
post-secondary educational institution. "Public officer" or "public official" includes
members of advisory boards appointed by any state agency, local public body or
public post-secondary educational institution.
NMSA 1978, § 10-8-3(H) (emphasis added).
We rely on the broad and plain meaning of this language to opine that the PDMA applies to
members of the Commission because they are "appointed" by the Governor of New Mexico, as
provided in Section 18-16-3(B), to serve the State of New Mexico in an official capacity through
the Music Commission, which is subject to the authority of an executive State agency.
Our conclusion is driven by the plain meaning of the terms "officer" and "official," which mean
"one who holds an office of trust, authority or command," and "one who holds or is invested with
a office," respectively. Members of the Commission are appointed to hold an office of trust or
authority on behalf of the State. It follows that members of the Commission are subject to the
PDMA and thus may be reimbursed as set forth in the PDMA.
IV.
The PDMA authorizes per diem and mileage reimbursement for members of the
Commission as provided in Sections 10-8-4(A) and (D), respectively.
We next consider the extent to which the PDMA allows members to be reimbursed for certain
travel expenses, and, if so, what expenses.
The PDMA authorizes numerous travel reimbursements for public officers and employees and sets
forth eligibility criteria. Here, the pertinent Sections are 10-8-4(A) and 10-8-4(D).
Section 10-8-4(A) provides, in pertinent part:
Notwithstanding any other specific law to the contrary and except as provided
in Subsection I of this section, every nonsalaried public officer shall receive either
reimbursement pursuant to the provisions of Subsection K or L of this section or
per diem expenses in the following amounts for a board or committee meeting
attended; provided that the officer shall not receive per diem expenses for more
than one board or committee meeting that occurs on the same day; or for each day
spent in discharge of official duties for travel within the state but away from the
officer's home[.]
NMSA 1978, § 10-8-4(A) (emphasis added; cost schedule omitted). Section 10-8-4(A) makes clear
that per diem allowances are available to "every" nonsalaried public officer "except as provided
in Subsection I."
We note that even though Section 18-16-3(E) provides that public officers serving on the
Commission "shall not receive any compensation, perquisite or allowance," the first sentence of
Section 10-8-4(A) is clear that the PDMA applies to "every nonsalaried public officer" regardless
of whether another statute says otherwise. Here, Commission members are indeed nonsalaried
public officers. The language "notwithstanding any other specific law to the contrary" plainly
means that regardless of any statute that may say otherwise, nonsalaried public officers shall
receive the benefits of Section 10-8-4(A). This plain language indicates a legislative intent to
reimburse members for per diem expenses as provided in the PDMA. See also Doe, 1992-NMSC-022, ¶ 12.
The PDMA also provides for mileage reimbursement pursuant to Section 10-8-4(D), which states:
Every public officer or employee shall receive up to the internal revenue service
standard mileage rate set January 1 of the previous year for each mile traveled in
a privately owned vehicle or eighty-eight cents ($.88) a mile for each mile traveled
in a privately owned airplane if the travel is necessary to the discharge of the
officer's or employee's official duties and if the private conveyance is not a
common carrier; provided, however, that only one person shall receive mileage for
each mile traveled in a single privately owned vehicle or airplane, except in the case
of common carriers, in which case the person shall receive the cost of the ticket in
lieu of the mileage allowance.
NMSA 1978, § 10-8-4(D) (emphasis added). This Section broadly provides that "every" public
officer or employee "shall" be able to claim mileage reimbursement as described therein. The plain
language is clear, unconditional and requires mileage reimbursement at the rates set therein.
Following the plain language of the PDMA, we conclude that the PDMA authorizes members of
the Commission, as "public officers" or "public officials," to receive the mileage reimbursement
for privately owned vehicles for travel "necessary to the discharge of the officer's official duties"
pursuant to Section 10-8-4(D). This naturally includes mileage reimbursement for driving one's
private vehicle to and from a Commission meeting. Following the plain statutory language, we
also conclude that members of the Commission are eligible to claim per diem allowances as
permitted in Section 10-8-4(A), which references Section 10-8-4(K) and (L).
We caution, however, that claims for per diem expenses must follow the requirements and limits
set forth in detail throughout Sections 10-8-4(A), (K) and (L), in addition to any procedures or
limitations in the PDMA, regulations or procedures imposed by the Department of Finance and
Administration, or other agency-specific regulations concerning travel reimbursements. A per
diem benefit may be deemed to stray into the realm of "compensation, perquisite or allowance"
prohibited by Section 18-16-3(E) if a member is compensated beyond any necessary and actual
expenses incurred. See, e.g., Antillon, 1991-NMCA-093, ¶ 17. In practice, it may be prudent for
members to evaluate whether it is appropriate to claim per diem expenses if they have not travelled
significant distances for a Commission meeting so as not to run afoul of the PDMA or Section 18-6-3(E).
V.
The PDMA and Section 18-16-3(E) may be read in harmony.
Finally, we address the interplay between PDMA and Section 18-16-3(E). New Mexico law
requires us to read two apparently conflicting statutes in harmony if at all possible. See Smith,
2004-NMSC-032, ¶ 13. Here, such harmonization is possible.
We opine that the language in Section 18-16-3(E) limiting payments to members of the
Commission should not be construed as precluding members from receiving reimbursements
guaranteed by the PDMA. We believe Section 18-16-3(E), when considered in context of the
PDMA, is better read as broadly prohibiting the members of the Commission from profiting or
gaining special pecuniary benefits as a result of their service. This prohibition can be reconciled
with the guarantees of the PDMA because a member of the Commission logically does not
experience pecuniary gain or special privileges simply by being reimbursed for reasonable travel
expenses they incur in the course of their duties. See also Antillon, 1991-NMCA-093, ¶ 17.
The key to striking a balance between the PDMA and Section 18-16-3(E) is whether the claim for
reimbursement is indeed reasonable and actual, and whether the PDMA (and any other agency
regulation promulgated pursuant to the PDMA) has been complied with in submitting that claim.
This balance is implicitly recognized by the Legislature's codification of penalties for unjust
enrichment resulting from violation of the PDMA. See NMSA 1978 § 10-8-7 (1989) (providing
penalties for those who knowingly authorize or accept payment in excess of amounts allowed by
the PDMA or other applicable authority).
In addition, the Music Commission was created by the Legislature in 2009, whereas the PDMA
has been codified since 1963 with multiple amendments through 2021. We glean from this history
that the Legislature intended for Section 10-8-4(A) to apply to members of the Commission despite
the language in Section 18-16-3(E). This is because the Legislature is presumed to have considered
the PDMA when it enacted Section 18-16-3(E), and we must presume, when possible, that the
Legislature did not intend to contradict or undermine existing law when passing Section 18-16-3(E). See Doe, 1992-NMSC-022, ¶ 12. New Mexico law supports a harmonious reading of the
PDMA and Section 18-16-3(E).
Finally, the Commission's duties, as codified by the Legislature, indicate that the Legislature
intended for the Commission to promote, preserve, and enrich musical culture, education, and
programming in New Mexico. See NMSA 1978, § 18-16-4 (2009). These duties and goals are
naturally furthered by encouraging service on the Commission. Our conclusion today aligns with
the Legislature's intent in creating the Commission for the common-sense reason that it may prove
difficult to get the best and brightest musicians to serve as members if they have to suffer pecuniary
loss to do so. See Taylor, 2021-NMSC-026, ¶ 8 (providing that the guiding principle of statutory
construction is to effectuate the Legislature's intent).
Conclusion
While Section 18-16-3(E) prohibits a member of the Commission from receiving wages or
pecuniary gain for their service, the statute should be read in the context of, and in harmony with,
the Per Diem Mileage Act, NMSA 1978, Sections 10-8-1 through 10-8-8 (1963, as amended
through 2021) ("PDMA"), which expressly allows "public officials" such as members of the
Commission to be reimbursed for travel expenses. The PDMA applies to members of the
Commission and authorizes them to be reimbursed for travel expenses as provided in Sections 10-8-4(A) and 10-8-4(D).
We emphasize that reimbursement of travel expenses must comply with the requirements of the
PDMA, and where applicable, any requirements imposed by the Department of Finance and
Administration and/or agency-specific regulations governing reimbursements under the PDMA.
Please note that this opinion is a public document and is not protected by the attorney-client
privilege. It will be published on our website and made available to the general public.
RAÚL TORREZ
ATTORNEY GENERAL
/s/ Alexander W. Tucker
Alexander W. Tucker
Assistant Solicitor General