Paying or receiving public money for services not rendered consists of knowingly making or receiving payment or causing payment to be made from public funds where such payment purports to be for wages, salary or remuneration for personal servives [services] which have not in fact been rendered.

Nothing in this section shall be construed to prevent the payment of public funds where such payments are intended to cover lawful remuneration to public officers or public employees for vacation periods or absences from employment because of sickness, or for other lawfully authorized purposes.

Whoever commits paying or receiving public money for services not rendered is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-23-2, enacted by Laws 1963, ch. 303, § 23-2.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Section not vague. — This section gives fair warning against expenditure of public funds for services not rendered, while excluding lawful payments for vacation time or sick leave or other lawfully authorized purposes, and hence, there is no vagueness in the statute as written. State v. Gurule, 1977-NMCA-001, 90 N.M. 87, 559 P.2d 1214, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Application of this section is not left to administrative discretion, and lawfulness of authorization is not determined by an administrative official but by a court. State v. Gurule, 1977-NMCA-001, 90 N.M. 87, 559 P.2d 1214, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Section 30-23-1 NMSA 1978 not lesser included offense. — The offense of demanding illegal fees, as contained in Section 30-23-1 NMSA 1978, is not a lesser included offense of paying or receiving public money for services not rendered contained in this section. State v. Casteneda, 1982-NMCA-046, 97 N.M. 670, 642 P.2d 1129.

Charging in alternative. — Indictment charging defendant in the alternative with knowingly making or receiving payment or causing payment to be made from public funds charged one crime committed in various ways and was not legally deficient. State v. Gurule, 1977-NMCA-001, 90 N.M. 87, 559 P.2d 1214, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Indictment was not duplicitous because the statement of facts and subsequent proof related to a series of items, even though each might have been alleged as a separate violation. State v. Gurule, 1977-NMCA-001, 90 N.M. 87, 559 P.2d 1214, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Notice sufficient. — Where defendant asserted he could not properly prepare his defense because he was not informed as to which of 17 instances the state would attempt to prove, and the statement of facts informed defendant that the state was relying on each of the instances to prove the one offense charged in the indictment, defendant was informed of the crime charged in sufficient detail to enable him to prepare his defense. State v. Gurule, 1977-NMCA-001, 90 N.M. 87, 559 P.2d 1214, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Section does not concern judgments for damages for breach of contract awarded to discharge tenured teacher. Sanchez v. Board of Educ., 1969-NMSC-063, 80 N.M. 286, 454 P.2d 768.

Public policy. — While the provisions of former 40-8-12, 1953 Comp., were probably not broad enough to cover travel expenses and per diem allowances, they indicated quite clearly a strong public policy of requiring rendition of services prior to any payment therefor or in connection therewith. 1962 Op. Att'y Gen. No. 62-55.

Locale of services rendered. — Former 40-8-12, 1953 Comp., required that payment was only to be made for services actually rendered to the state of New Mexico; however, it did not mean that the services would necessarily have to be rendered in the state. 1956 Op. Att'y Gen. No. 56-6469.

State funds covered. — This section places restrictions on the payment of funds which are the property of the state. 1975 Op. Att'y Gen. No. 75-10.

Separation of powers to be respected. — This section cannot be read to impose limits on the health and social services (now the human services) department's use of federal funds in administering social service programs, since the legislature is prevented by the separation of powers doctrine from imposing any conditions on the executive branch's use of federal or non-state money. 1975 Op. Att'y Gen. No. 75-10.

Executive departments not unreasonably obstructed. — This section is not applicable to disbursements from revolving funds established out of its general appropriation by the health and social services department (now the human services department) as advances to "providers" under certain federal programs conducted by the department, which advances the providers must return; to read these sections so as to prohibit such advances would unreasonably obstruct the department in the exercise of its statutory powers. 1975 Op. Att'y Gen. No. 75-10.

Dual salaries. — A person may not be employed as a juvenile probation officer and deputy court clerk and paid as both although performing no services as deputy court clerk since this section makes it a misdemeanor to pay or to receive public money for services not rendered. 1964 Op. Att'y Gen. No. 64-152.

Commencement of salary. — Contracts employing new faculty members cannot provide for the commencement of salary payments before teaching services are rendered. 1972 Op. Att'y Gen. No. 72-44.

Payment for sick leave authorized. — Continued payment during sick leave is not payment of public money for services not rendered, even though no services are rendered during the time the employee is absent from work because sick leave is part of the compensation for services which were rendered before the sick leave was taken. 1973 Op. Att'y Gen. No. 73-34.

When services already rendered. — Payment of wages to teachers during sick leave must be made in consideration of services performed; payments made before the services were performed would be payment of "public money for services not rendered" and would violate this section. 1972 Op. Att'y Gen. No. 72-33.

Use of sick leave for maternity purposes. — This section is not violated if the school board allows an employee to use sick leave for maternity purposes, where the employee received payment during "maternity leave" only to the extent of her accumulated sick leave. 1973 Op. Att'y Gen. No. 73-34.

Absence of professor from class. — Unless a faculty member's failure to meet a class on a particular day could be said as a matter of law to constitute a failure to render contracted-for services, no violation of this section would be involved if an institution of higher education failed to deduct salary for such day not actually taught. 1970 Op. Att'y Gen. No. 70-73.

Jury duty constitutes lawfully authorized purpose within the meaning of this section. 1975 Op. Att'y Gen. No. 75-33.

Fees for mileage for jury duty. — School employees need not lose regular compensation while serving on jury duty, but may receive no more than their ordinary rate of compensation during the period of jury duty; however, school employees serving on juries would be entitled to accept the allowance for mileage. 1975 Op. Att'y Gen. No. 75-33.

Payment for vacation periods. — If the board of regents of the school for the deaf decided that time spent by school employees on jury duty would be "vacation periods," then payment of wages during such absence would not be prohibited by former 40-8-12, 1953 Comp. 1962 Op. Att'y Gen. No. 62-73.

Educational leave is lawfully authorized purpose. — Grant of educational leave with pay to a state employee to attend university program on public science policy and administration is "for other lawfully authorized purposes" under this section and does not violate constitutional or statutory provisions. 1972 Op. Att'y Gen. No. 72-67.

Training public employee for special program. — The New Mexico boys' school may properly send one of the employees of the institution to another state for a period of one month for indoctrination in the duties of a youth forestry camp director so that such employee may assist the New Mexico boys' school in managing a forestry camp for boys established in New Mexico. 1963 Op. Att'y Gen. No. 63-126.

Restitution. — Upon conviction under this section, 30-23-7 NMSA 1978 would come into play and recovery thereunder could be had. 1964 Op. Att'y Gen. No. 64-152.

Law reviews. — For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).