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STATE OF NEW MEXICO
OFFICE OF THE ATTORNEY GENERAL
HECTOR H. BALDERAS
ATTORNEY GENERAL
TANIA MAESTAS SHARON PINO CARLA MARTINEZ SONYA CARRASCO-TRUJILLO
Deputy of Civil Affairs Deputy of Criminal Affairs Chief of Staff for Operations Chief of Staff for Policy & Public Affairs
April 29, 2016
The Honorable Mary Kay Papen
New Mexico State Senator
904 Conway Avenue
Las Cruces, NM 88005
Re: Opinion Request - Valuation of In-Kind Services
Dear Senator Papen:
You have requested additional guidance from the Office of the Attorney General regarding a
2011 Attorney General advisory letter, which addressed your inquiry into the legality of leasing
county-owned property at below market rates to private organizations under the Anti-Donation
Clause of Article IX, Section 14 of the New Mexico Constitution. See Letter from Zachary
Shandler, Assistant Attorney General, to Senator Mary Kay Papen (Mar. 30, 2011) (2011 AG
Advisory Letter). You now seek clarification and guidance pertaining to the valuation of in-kind
services - specifically, the extent to which the value of services provided by nonprofit health
and social services organizations may be taken into account as in-kind contributions toward the
value of space provided to them by units of local government . . . [and] advice as to the
establishment of guidelines for the valuation of such in-kind contributions. As discussed in
more detail below, we conclude that the value of services can be consideration for the lease of
property, in whole or in part, as long as the total consideration is reasonably equivalent to the
value of the lease.
An exchange in which services rendered by a private nonprofit are treated as consideration for
property leased from a unit of local government implicates the Anti-Donation Clause, which
provides in relevant part, Neither the state nor any county, school district or municipality,
except as otherwise provided in this constitution, shall directly or indirectly lend or pledge its
credit or make any donation to or in aid of any person, association or public or private
corporation.... N.M. Const. art. IX, § 14. A donation for purposes of the Anti-Donation
Clause, is a 'gift,' an allocation or appropriation of something of value, without consideration.
Village of*Deming v. Hosdreg Co., 62 N.M. 18, 28, 303 P.2d 920 (1956).
TELEPHONE: (505) 827-6000 a FAX: (505) 827-5826 www nmag.gov
MAILING ADDRESS: PO. BOX 1508 * SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET * SANTA FE, NEW MEXICO 87501](ViewImageLocal?handle=hein.sag/sagnm0095&div=1&collection=&method=preview&ext=.png&size=3)