2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 8 - Per Diem and Mileage
Section 10-8-4 - Per diem and mileage rates; in lieu of payment.
A. 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 up to ninety-five dollars ($95.00) per diem expenses:
(1) for each board or committee meeting attended; or
(2) for each day spent in discharge of official duties for travel within the state but away from the officer's home.
Nonsalaried public officers who travel to attend a board or committee meeting may elect to be reimbursed per diem under either Paragraph (1) or (2) of this subsection.
B. Every salaried public officer or employee who is traveling within the state but away from the officer's or employee's home and designated post of duty on official business shall receive either reimbursement pursuant to the provisions of Subsection K or L of this section or:
(1) up to eighty-five dollars ($85.00) per diem expenses for each day spent in the discharge of official duties for a salaried public officer or employee of a local public body or state agency. If the secretary finds that a per diem allowance of eighty-five dollars ($85.00) is inadequate for reimbursement of expenses in any municipality of this state, the secretary may authorize the reimbursement of per diem for travel to the municipality not to exceed one hundred thirty-five dollars ($135); or
(2) up to eighty-five dollars ($85.00) per diem expenses for each day spent in the discharge of official duties for a salaried public officer or employee of a public post-secondary educational institution. If the governing board finds that a per diem allowance of eighty-five dollars ($85.00) is inadequate for reimbursement of expenses in any municipality of this state, the governing board may authorize the reimbursement of per diem for travel to the municipality not to exceed one hundred thirty-five dollars ($135).
C. Every public officer or employee shall receive either reimbursement pursuant to the provisions of Subsection K or L of this section or:
(1) for public officers or employees of a state agency or local public body, up to one hundred fifteen dollars ($115) per diem expenses for each day of travel outside the state on official business. If the secretary finds that a per diem allowance of one hundred fifteen dollars ($115) is inadequate for out-of-state travel to a geographical area, the secretary may authorize per diem not to exceed two hundred fifteen dollars ($215) for out-of-state travel to that geographical area; provided that the secretary may authorize per diem for travel to a locality inside or outside the continental United States for a public officer or employee who is reimbursed solely from federal funds in accordance with the rate allowed by the federal government for travel to that locality. In lieu of per diem, a person trained in the field of accountancy and performing duties in that field of training as an employee while assigned for periods exceeding three weeks per assignment to travel out of state on official business may receive either reimbursement pursuant to the provisions of Subsection K of this section or actual expenses not to exceed two hundred fifteen dollars ($215) per day. Expenses shall be substantiated in accordance with rules promulgated by the department of finance and administration. The secretary may promulgate rules defining what constitutes out-of-state travel for purposes of the Per Diem and Mileage Act; or
(2) for public officers or employees of a public post-secondary educational institution, up to one hundred fifteen dollars ($115) per diem expenses for each day of travel outside the state on official business. If the governing board finds that a per diem allowance of one hundred fifteen dollars ($115) is inadequate for out-of-state travel to a geographical area, the governing board may authorize per diem not to exceed two hundred fifteen dollars ($215) for out-of-state travel to that geographical area; provided that the governing board may authorize per diem for travel to a locality inside or outside the continental United States for a public officer or employee who is reimbursed solely from federal funds in accordance with the rate allowed by the federal government for travel to that locality. Expenses shall be substantiated in accordance with rules promulgated by the governing board. The governing board may promulgate rules defining what constitutes out-of-state travel for purposes of the Per Diem and Mileage Act.
D. Every public officer or employee shall receive up to the internal revenue service standard mileage rate set January 1 of the previous year for each mile traveled in a privately owned vehicle or eighty-eight cents ($.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.
E. The per diem and mileage or per diem and cost of tickets for common carriers paid to salaried public officers or employees is in lieu of actual expenses for transportation, lodging and subsistence.
F. In addition to the in-state per diem set forth in this section, the department of finance and administration, by rule, may authorize a flat subsistence rate in the amount set by the legislature in the general appropriation act for commissioned officers of the New Mexico state police in accordance with rules promulgated by the department of finance and administration.
G. In lieu of the in-state per diem set in Subsection B of this section, the department of finance and administration may, by rule, authorize a flat monthly subsistence rate for certain employees of the department of transportation, provided that the payments made under this subsection shall not exceed the maximum amount that would be paid under Subsection B of this section.
H. Per diem received by nonsalaried public officers for travel on official business or in the discharge of their official duties, other than attending a board or committee meeting, and per diem received by public officers and employees for travel on official business shall be prorated in accordance with rules of the department of finance and administration or the governing board.
I. The provisions of Subsection A of this section do not apply to payment of per diem expense to a nonsalaried public official of a municipality for attendance at board or committee meetings held within the boundaries of the municipality.
J. In addition to any other penalties prescribed by law for false swearing on an official voucher, it shall be cause for removal or dismissal from office.
K. With prior written approval of the secretary or the secretary's designee or the local public body, a nonsalaried public officer of a state agency or local public body, a salaried public officer of a state agency or local public body or a salaried employee of a state agency or local public body is entitled to per diem expenses under this subsection and shall receive:
(1) reimbursement for actual expenses for lodging; and
(2) reimbursement for actual expenses for meals not to exceed thirty dollars ($30.00) per day for in-state travel and forty-five dollars ($45.00) per day for out-of-state travel.
L. With prior written approval of the governing board or its designee, a nonsalaried public officer of a public post-secondary educational institution, a salaried public officer of a public post-secondary educational institution or a salaried employee of a public post-secondary educational institution is entitled to per diem expenses under this subsection and shall receive:
(1) reimbursement for actual expenses for lodging; and
(2) reimbursement for actual expenses for meals not to exceed thirty dollars ($30.00) per day for in-state travel and forty-five dollars ($45.00) per day for out-of-state travel.
History: 1953 Comp., § 5-10-3, enacted by Laws 1963, ch. 31, § 3; 1971, ch. 116, § 3; 1974, ch. 26, § 1; 1975, ch. 106, § 1; 1977, ch. 194, § 1; 1978, ch. 184, § 3; 1979, ch. 38, § 1; 1980, ch. 9, § 1; 1980, ch. 32, § 1; 1981, ch. 109, § 1; 1984, ch. 29, § 2; 1987, ch. 129, 1 § 1; 1989, ch. 338, § 2; 2003, ch. 215, § 1; 2009, ch. 170, § 1.
Compiler's notes. — The General Appropriation Act, referred to in Subsection F, is the yearly act passed by the state legislature which funds all state agencies and personnel.
Cross references. — For payment of travel advances upon public vouchers, see 6-5-8 NMSA 1978.
For applicability to court of appeal judges, see 34-1-9 NMSA 1978.
For applicability to magistrates attending training program, see 35-2-4 NMSA 1978.
For applicability to district attorneys and their employees, see 36-1-3 NMSA 1978.
The 2009 amendment, effective June 19, 2009, in Subsection D, after "employee shall receive", deleted "thirty-two cents ($.32) a mile" and added "up to the internal revenue service standard mileage rate set January 1 of the previous year".
The 2003 amendment, effective July 1, 2003, in Subsection A, increased the per diem for nonsalaried public officers from $75.00 to $95.00; in Subsection B(1), increased the per diem for public officers and employees from $65.00 to $85.00, and the maximum from $75.00 to $135.00; in Subsection C(1), increased the out-of-state per diem from $75.00 to $115.00 and the maximum from $95.00 to $215.00; in Subsection C(2) to increase the post-secondary institution rate from $75.00 to $115.00 and the maximum from $95.00 to $215.00; in Subsection D, increased the mileage rate in a private vehicle from $.25 per mile to $.32 per mile, and the mileage rate in a private airplane from $.40 per mile to $.88 per mile; and in Subsection K(2), increased the reimbursement for meals from $30.00 per day to $45.00 per day.
Source of compensation. — Nothing in the Per Diem and Mileage Act specifies the source from which board members are to receive compensation for travel costs. N.M. Bd. of Veterinary Med. v. Riegger, 2006-NMCA-069, 139 N.M. 679, 137 P.3d 619, aff'd in part, rev'd in part, 2007-NMSC-044, 142 N.M. 248, 164 P.3d 947.
Per diem not part of wages. — Where an employee could not show that reimbursement for per diem expenses for out-of-town travel was in excess of his actual expenses and thus constituted a real economic gain to him, per diem payments were not included in his wages for purposes of calculating the amount of workers' compensation payable to the employee. Antillon v. N.M. State Highway Dep't, 1991-NMCA-093, 113 N.M. 2, 820 P.2d 436.
Enforcement of dropped restriction disallowed. — Where a 35-mile condition is retained only in a per diem clause of a bargaining agreement and it is clear that the parties intended that the 35-mile condition would not apply to a special living allowance provision, the highway department, once it agrees to drop a restriction during negotiations, cannot now be allowed to enforce it. Local 2238 AFSCME v. N.M. State Highway Dep't, 1979-NMSC-057, 93 N.M. 195, 598 P.2d 1155.
Intent of payment. — Payment under this section is intended to defray costs incurred in travel associated with the performance of public business rather than serve as a salary for services performed. 1977 Op. Att'y Gen. No. 77-20.
State highway commissioners. — State highway commissioners, as unsalaried state officers, may not draw the statutory per diem allowance while engaged in official state business at their residence or personal business premises. 1977 Op. Att'y Gen. No. 77-20.
County commissioners. — The "designated post of duty" of a county commissioner is established by reference to Section 4-38-8 NMSA 1978 at the county seat, and, therefore, a county commissioner may not receive per diem for travel to commission meetings or other official business at the county seat. 1988 Op. Att'y Gen. No. 88-65.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 67 C.J.S. Officers and Public Employees §§ 224, 225.
