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AN ACT

RELATING TO STATE GOVERNMENT; AMENDING AND CHANGING THE NAME

OF THE GOVERNMENTAL DISPUTE RESOLUTION ACT; ESTABLISHING A

BUREAU KNOWN AS THE OFFICE OF ALTERNATIVE DISPUTE PREVENTION

AND RESOLUTION IN THE RISK MANAGEMENT DIVISION OF THE GENERAL

SERVICES DEPARTMENT; PRESCRIBING THE DUTIES AND POWERS OF THE

OFFICE; CREATING AN ADVISORY COUNCIL; MAKING AN

APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 12-8A-1 NMSA 1978 (being Laws 2000,

Chapter 65, Section 1) is amended to read:

"12-8A-1. SHORT TITLE.--Chapter 12, Article 8A NMSA

1978 may be cited as the "Governmental Dispute Prevention and

Resolution Act"."

Section 2. Section 12-8A-2 NMSA 1978 (being Laws 2000,

Chapter 65, Section 2) is amended to read:

"12-8A-2. DEFINITIONS.--As used in the Governmental

Dispute Prevention and Resolution Act:

A. "agency" means the state and its agencies,

departments, boards, instrumentalities or institutions that

are insured by the division;

B. "alternative dispute resolution" means a

process other than litigation used to prevent or resolve

disputes, including mediation, facilitation, regulatory

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negotiation, settlement conferences, binding and nonbinding

arbitration, fact-finding, conciliation, early neutral

evaluation and policy dialogues;

C. "council" means the alternative dispute

prevention and resolution advisory council;

D. "department" means the general services

department;

E. "division" means the risk management division

of the department;

F. "interested party" means a person having or

anticipating a dispute with any agency, or a representative

of that person;

G. "neutral party" means a person who is trained

to provide services as a mediator, arbitrator, facilitator,

fact-finder or conciliator who aids parties to prevent or

resolve disputes;

H. "office" means the bureau known as the office

of alternative dispute prevention and resolution in the

division; and

I. "public facilitation" means collaboration with

identified stakeholders concerning public policy issues,

including policy dialogues and other techniques to seek

consensus, reconcile differences or prevent disputes from

arising in the development or implementation of public

administration issues."

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Section 3. Section 12-8A-3 NMSA 1978 (being Laws 2000,

Chapter 65, Section 3) is amended to read:

"12-8A-3. ALTERNATIVE DISPUTE RESOLUTION--

AUTHORIZATION--PROCEDURES--AGENCY COORDINATORS.--

A. An agency shall provide interested parties with

access to alternative dispute resolution procedures to

prevent or resolve any dispute, issue or controversy

involving any of the agency's operations, policies, programs

or functions, including formal and informal adjudications,

rulemakings, enforcement actions, permitting, certifications,

licensing, policy development and contract administration.

Alternative dispute resolution procedures are voluntary and

may be initiated at the request of the agency or an

interested party to a dispute. Either party may decline to

participate in a requested or offered alternative dispute

resolution activity.

B. An agency that participates in alternative

dispute resolution shall develop a written agreement to be

signed by interested parties that:

(1) provides for the appointment of neutral

parties, consultants or experts agreed upon by all parties

and serving at the will of all parties. A neutral party,

consultant or expert shall have no official, financial or

personal conflict of interest with any issue or party in

controversy unless the conflict of interest is fully

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disclosed in writing to all of the parties and all parties

agree that the person may continue to serve;

(2) specifies any limitation periods

applicable to the commencement or conclusion of formal

administrative or judicial proceedings and, if applicable,

specifies any time periods that the parties have agreed to

waive;

(3) contains provisions for alternative

dispute resolution that conform with rules promulgated by the

division; and

(4) sets forth how costs and expenses of the

procedure chosen shall be equitably apportioned among the

parties.

C. An agreement, developed pursuant to Subsection

B of this section, may be included in an enforcement order,

stipulation, contract, permit or other document entered into

or issued by the agency.

D. The administrative head of an agency may

designate an employee as the alternative dispute resolution

coordinator for that agency. The coordinator shall:

(1) make recommendations to the agency's

executive staff on issues and disputes that are suitable for

alternative dispute resolution;

(2) analyze the agency's enabling statutes

and rules to determine whether they contain impediments to

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the use of alternative dispute resolution or inconsistencies

with rules promulgated by the office and suggest any

modifications;

(3) monitor the agency's use of alternative

dispute resolution;

(4) arrange for training of agency staff in

alternative dispute resolution;

(5) respond to inquiries from the office or

council concerning the agency's use of alternative dispute

resolution;

(6) make recommendations to the office and

council concerning development and implementation of rules,

standards and educational materials;

(7) serve as the agency's liaison with the

office and the council; and

(8) provide information about the office's

rules and the agency's alternative dispute resolution

procedures to the agency's staff and to the public."

Section 4. Section 12-8A-4 NMSA 1978 (being Laws 2000,

Chapter 65, Section 4) is amended to read:

"12-8A-4. AGENCY BUDGETS--CONTRACTS FOR SERVICES.--

A. An agency shall take fiscal actions necessary

to achieve the objectives of the Governmental Dispute

Prevention and Resolution Act and pay for costs incurred in

taking those actions, including reasonable fees for training,

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policy review, system design, evaluation and the use of

impartial third parties. Unless specifically prohibited by

law, an agency may request category transfers pursuant to

Sections 6-3-23 through 6-3-25 NMSA 1978 for the purpose of

paying the necessary costs incurred in meeting the objectives

of the Governmental Dispute Prevention and Resolution Act.

B. An agency may contract with another agency or

with a private entity for any service necessary to meet the

objectives of the Governmental Dispute Prevention and

Resolution Act."

Section 5. Section 12-8A-5 NMSA 1978 (being Laws 2000,

Chapter 65, Section 5) is amended to read:

"12-8A-5. EFFECT ON OTHER LAWS.--Nothing in the

Governmental Dispute Prevention and Resolution Act and rules,

agreements and procedures developed pursuant to that act:

A. limits other dispute prevention or resolution

procedures available to an agency;

B. denies a person a right granted under federal

or other state law, including a right to an administrative or

judicial hearing;

C. waives immunity from suit or affects a waiver

of immunity from suit contained in any other law;

D. waives immunity granted under the eleventh

amendment to the constitution of the United States;

E. authorizes or prohibits binding arbitration as

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a method of alternative dispute resolution when mutually

agreed to in writing by the interested parties;

F. authorizes or requires an agency to take any

action that is inconsistent or contrary to any law or rule;

G. authorizes or requires any meeting, otherwise

required to be open to the public, to be closed;

H. authorizes or requires any record, otherwise

open to public inspection, to be sealed; or

I. shall be interpreted to create an additional

layer of administrative process or to discourage or impede

the use of alternative dispute resolution."

Section 6. A new section of the Governmental Dispute

Prevention and Resolution Act is enacted to read:

"ALTERNATIVE DISPUTE PREVENTION AND RESOLUTION ADVISORY

COUNCIL CREATED.--

A. The "alternative dispute prevention and

resolution advisory council" is created in the division. The

council consists of nine voting members as follows:

(1) the secretary of general services;

(2) the secretary of finance and

administration;

(3) the director of the state personnel

office;

(4) the superintendent of regulation and

licensing;

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(5) the cabinet secretary or agency head of

four other executive branch agencies to be appointed by the

governor from among the ten agencies with the highest

occurrence of public liability claims per authorized number

of staff, no more than two of whom are cabinet secretaries;

and

(6) the director of the division, who shall

serve as chair of the council.

B. An agency head may designate a representative

to serve on the council.

C. The council shall meet at least twice each

year."

Section 7. A new section of the Governmental Dispute

Prevention and Resolution Act is enacted to read:

"ALTERNATIVE DISPUTE PREVENTION AND RESOLUTION ADVISORY

COUNCIL--DUTIES.--The council shall:

A. review information about the use of alternative

dispute resolution, including referrals, and make

recommendations to the office to improve the effectiveness of

alternative dispute resolution programs;

B. develop strategies to encourage and expand the

use of public facilitation in government operations;

C. recommend to the division appropriate training

standards and schedules for neutral parties and agency

managers and supervisors;

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D. review and recommend standards and rules to the

division to foster participation in alternative dispute

resolution and minimize conflict in the discussion of issues

under consideration by interested parties; and

E. present an annual report to the department, the

governor and the legislature by December 1 of each year on

the use, cost and success of alternative dispute resolution

programs."

Section 8. A new section of the Governmental Dispute

Prevention and Resolution Act is enacted to read:

"OFFICE OF ALTERNATIVE DISPUTE PREVENTION AND

RESOLUTION--CREATED--POWERS--DUTIES.--

A. The "office of alternative dispute prevention

and resolution" is created as a bureau of the division.

B. In order to promote alternative dispute

resolution, the office shall:

(1) organize and manage alternative dispute

resolution programs for agencies, employees, vendors,

businesses regulated by governmental entities and other

interested parties;

(2) coordinate the use of neutral parties to

facilitate alternative dispute resolution for interested

parties and training for agency staff;

(3) implement development and use of

alternative dispute resolution strategies;

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(4) provide staff support for the council;

(5) maintain information and educate

government officials about training and use of alternative

dispute resolution and referrals; and

(6) prepare an annual report for review and

presentation by the council on the use, cost and success of

alternative dispute resolution programs."

Section 9. APPROPRIATION.--One hundred eighty-five

thousand dollars ($185,000) is appropriated from the public

liability fund to the risk management division of the general

services department for expenditure in fiscal year 2008 for

three full-time employees for the office of alternative

dispute prevention and resolution for the purpose of

implementing the Governmental Dispute Prevention and

Resolution Act. Any unexpended or unencumbered balance

remaining at the end of fiscal year 2008 shall revert to the

public liability fund.

Section 10. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2007.