Several court reporters have asked about the exemption in Rule 22-605(K), NMRA 1996 for contracting with governmental entities. It appears that governmental entities act in a wide variety of capacities, and that the exemption should apply to contracting with them if they are acting in certain capacities while the exemption should not apply if they are acting in other capacities.

          The opening words of the rule make the purpose of the rule clear. The prohibition against contracting is designed to insure the integrity of the record and to avoid the appearance of partiality. When governmental entities act in ways that require court reporting, those ways are generally adjudicative, legislative, or administrative, where the governmental entity acts as the impartial decision maker. In such circumstances, it would make little sense to prohibit court reporters from contracting with the government. Indeed, employment contracts between court reporters and the courts they serve would be prohibited without the governmental exception.

          The governmental exception was intended to recognize this reality. If a court reporter is on contract to the neutral decision maker, there is little danger that the integrity of the record will be compromised.

          On the other hand, when a court reporter is on contract to a governmental entity when it is not acting in an adjudicative, legislative, or administrative capacity, then the dangers presented by contracting are apparent. When the governmental entity is acting as a party in litigation in much the same way that a private party would act, then a court reporter on contract to that entity could be viewed in the same manner as a court reporter on contract to any other party who frequently litigates. Accordingly, it is the advisory opinion of the Court Reporter Board that a functional capacity test will be used for governmental and quasi-governmental entities. A court reporter may contract with a governmental entity, the City of Albuquerque for example, to report its hearings when the City is acting in an adjudicative, legislative, or administrative capacity. However, when the City of Albuquerque is a litigant and wishes to contract with a court reporter to do all its depositions in Tort Claims Act cases, for example, then that will be considered contracting and will be considered prohibited by Rule 22-605(K). Similarly, contracts with the Risk Management Division to take depositions in Tort Claims Act litigation will be considered as violating Rule 22-605(K). On the other hand, contracts with the Pharmacy Board to report license revocation hearings will be permitted.