SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
SENATE BILL 451
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO PUBLIC EMPLOYEES; RESTRICTING GIFTS TO CANDIDATES
FOR THE PUBLIC EMPLOYEES RETIREMENT BOARD; MAKING CERTAIN
CONTRIBUTIONS TO CANDIDATES FOR THE PUBLIC EMPLOYEES RETIREMENT
BOARD UNLAWFUL; MAKING CERTAIN EXPENDITURES OF CONTRIBUTIONS BY
CANDIDATES FOR THE PUBLIC EMPLOYEES RETIREMENT BOARD UNLAWFUL;
PROVIDING FOR PENALTIES AND CRIMINAL ENFORCEMENT; AMENDING A SECTION OF THE PUBLIC EMPLOYEES RETIREMENT ACT CONCERNING THE DISCLOSURE OF INFORMATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 10-11-2 NMSA 1978 (being Laws 1987, Chapter 253, Section 2, as amended) is amended to read:
"10-11-2. DEFINITIONS.--As used in the Public Employees Retirement Act:
A. "accumulated member contributions" means the amounts deducted from the salary of a member and credited to the member's individual account, together with interest, if any, credited to that account;
B. "affiliated public employer" means the state and any public employer affiliated with the association as provided in the Public Employees Retirement Act, but does not include an employer pursuant to the Magistrate Retirement Act, the Judicial Retirement Act or the Educational Retirement Act;
C. "association" means the public employees retirement association established under the Public Employees Retirement Act;
D. "disability retired member" means a retired member who is receiving a pension pursuant to the disability retirement provisions of the Public Employees Retirement Act;
E. "disability retirement pension" means the pension paid pursuant to the disability retirement provisions of the Public Employees Retirement Act;
F. "educational retirement system" means that retirement system provided for in the Educational Retirement Act;
G. "employee" means any employee of an affiliated public employer;
H. "federal social security program" means that program or those programs created and administered pursuant to the act of congress approved August 14, 1935, Chapter 531, 49 Stat. 620, as that act may be amended;
I. "final average salary" means the final average salary calculated in accordance with the provisions of the applicable coverage plan;
J. "form of payment" means the applicable form of payment of a pension provided for in Section 10-11-117 NMSA 1978;
K. "former member" means a person who was previously employed by an affiliated public employer, who has terminated that employment and who has received a refund of member contributions;
L. "fund" means the funds included under the Public Employees Retirement Act;
M. "member" means a currently employed, contributing employee of an affiliated public employer, or a person who has been but is not currently employed by an affiliated public employer, who has not retired and who has not received a refund of member contributions; "member" also includes the following:
(1) "adult correctional officer member" means a member who is an adult correctional officer or an adult correctional officer specialist employed by a correctional facility of the corrections department or its successor agency;
(2) "hazardous duty member" means a member who is a juvenile correctional officer employed by the children, youth and families department or its successor agency;
(3) "municipal detention officer member" means a member who is employed by an affiliated public employer other than the state and who has inmate custodial responsibilities at a facility used for the confinement of persons charged with or convicted of a violation of a law or ordinance;
(4) "municipal fire member" means any member who is employed as a full-time nonvolunteer firefighter by an affiliated public employer and who has taken the oath prescribed for firefighters;
(5) "municipal police member" means any member who is employed as a police officer by an affiliated public employer, other than the state, and who has taken the oath prescribed for police officers; and
(6) "state police member" means any member who is an officer of the New Mexico state police and who has taken the oath prescribed for such officers;
N. "membership" means membership in the association;
O. "pension" means a series of monthly payments to a retired member or survivor beneficiary as provided in the Public Employees Retirement Act;
P. "political committee" means two or more persons, other than members of a candidate's immediate family or campaign committee or a husband and wife who make a contribution out of a joint account, who are selected, appointed, chosen, associated, organized or operated primarily for a political purpose. For the purposes of this subsection, "political purpose" means influencing or attempting to influence an election or preprimary convention, including a constitutional amendment or other question submitted to the voters. "Political committee" includes:
(1) political action committees or similar organizations composed of employees or members of a corporation, labor organization, trade or professional association or another similar group that raises, collects, expends or contributes money or any other thing of value for a political purpose;
(2) a single individual who by the individual's actions represents that the individual is a political committee; and
(3) a person or an organization of two or more persons that within one calendar year expends funds in excess of five hundred dollars ($500) to conduct an advertising campaign for a political purpose;
[P.] Q. "public employer" means the state, any municipality, city, county, metropolitan arroyo flood control authority, economic development district, regional housing authority, soil and water conservation district, entity created pursuant to a joint powers agreement, council of government, conservancy district, irrigation district, water and sanitation district, water district and metropolitan water board, including the boards, departments, bureaus and agencies of a public employer, so long as these entities fall within the meaning of governmental plan as that term is used in Section 414(d) of the Internal Revenue Code of 1986, as amended;
[Q.] R. "refund beneficiary" means a person designated by the member, in writing, in the form prescribed by the association, as the person who would be refunded the member's accumulated member contributions payable if the member dies and no survivor pension is payable or who would receive the difference between pension paid and accumulated member contributions if the retired member dies before receiving in pension payments the amount of the accumulated member contributions;
[R.] S. "retire" means to:
(1) terminate employment with all employers covered by any state system or the educational retirement system; and
(2) receive a pension from a state system or the educational retirement system;
[S.] T. "retired member" means a person who has met all requirements for retirement and who is receiving a pension from the fund;
[T.] U. "retirement board" means the retirement board provided for in the Public Employees Retirement Act;
[U.] V. "salary" means the base salary or wages paid a member, including longevity pay, for personal services rendered an affiliated public employer. "Salary" shall not include overtime pay, allowances for housing, clothing, equipment or travel, payments for unused sick leave, unless the unused sick leave payment is made through continuation of the member on the regular payroll for the period represented by that payment, and any other form of remuneration not specifically designated by law as included in salary for Public Employees Retirement Act purposes. Salary in excess of the limitations set forth in Section 401(a) (17) of the Internal Revenue Code of 1986, as amended, shall be disregarded. The limitation on compensation for eligible employees shall not be less than the amount that was allowed to be taken into account under the state retirement system acts in effect on July 1, 1993. For purposes of this subsection, "eligible employee" means an individual who was a member of a state system before the first plan year beginning after December 31, 1995;
[V.] W. "state system" means the retirement programs provided for in the Public Employees Retirement Act, the Magistrate Retirement Act and the Judicial Retirement Act;
[W.] X. "state retirement system acts" means collectively the Public Employees Retirement Act, the Magistrate Retirement Act, the Judicial Retirement Act and the Volunteer Firefighters Retirement Act; and
[X.] Y. "survivor beneficiary" means a person who receives a pension or who has been designated to be paid a pension as a result of the death of a member or retired member."
Section 2. Section 10-11-130 NMSA 1978 (being Laws 1987, Chapter 253, Section 130, as amended) is amended to read:
"10-11-130. RETIREMENT BOARD--AUTHORITY--MEMBERSHIP.--
A. The "retirement board" is created and is the trustee of the association and the funds created by the state retirement system acts and has all the powers necessary or convenient to carry out and effectuate the purposes and provisions of the state retirement system acts, including, in addition to any specific powers provided for in the Public Employees Retirement Act but without limiting the generality of the foregoing, the power to:
(1) administer the state retirement system acts, including the management of the association and making effective the provisions of those acts, as well as to administer and manage any other employee benefit acts as provided by law;
(2) in addition to utilizing services of the attorney general and notwithstanding any other provision of law, employ or contract with and compensate competent legal counsel to handle the legal matters and litigation of the retirement board and the association and to give advice and counsel in regard to any matter connected with the duties of the retirement board;
(3) administer oaths;
(4) adopt and use a seal for authentication of records, processes and proceedings;
(5) create and maintain records relating to all members, affiliated public employers and all activities and duties required of the retirement board;
(6) issue subpoenas and compel the production of evidence and attendance of witnesses in connection with any hearings or proceedings of the retirement board;
(7) make and execute contracts;
(8) purchase, acquire or hold land adjacent to the state capitol grounds or other suitable location and build thereon a building to house the association and its employees and, in the event additional office space is available in the building after the retirement board and its employees have been housed, to rent or lease the additional space to any public agency or private person; provided that first priority for the rental or leasing shall be to public agencies; and further provided that, for the purpose of purchasing, acquiring or holding the land and the building thereon, the retirement board may use funds from the income fund and any other funds controlled by the retirement board the use of which for such purposes is not prohibited by law;
(9) after the sale of the land and building acquired pursuant to Paragraph (8) of this subsection, acquire land and build thereon a new building to house the association and its employees and hold the building and land in fee simple in the name of the association. In order to acquire the land and plan, design and construct the building, the retirement board may expend the proceeds of the sale of the land and building acquired pursuant to Paragraph (8) of this subsection or any funds controlled by the board, the use of which for such purposes is not otherwise prohibited by law;
(10) make and adopt such reasonable rules as may be necessary or convenient to carry out the duties of the retirement board and activities of the association, including any rules necessary to preserve the status of the association as a qualified pension plan under the provisions of the Internal Revenue Code of 1986, as amended, or under successor or related provisions of law; and
(11) designate committees and designate committee members, including individuals who may not be members of the association.
B. The retirement board consists of:
(1) the secretary of state;
(2) the state treasurer;
(3) four members under a state coverage plan to be elected by the members under state coverage plans;
(4) four members under a municipal coverage plan to be elected by the members under municipal coverage plans, provided one member shall be a municipal member employed by a county; and
(5) two retired members to be elected by the retired members of the association.
C. The results of elections of elected members of the retirement board shall be certified at the annual meeting of the association. Elections shall be conducted according to rules the retirement board adopts from time to time.
D. The regular term of office of the elected members of the retirement board is four years. The term of one retirement board member under a state coverage plan expires annually on December 31. The terms of retirement board members under a municipal coverage plan expire on December 31 of noncoinciding years in the pattern set by the retirement board. Members of the retirement board serve until their successors have qualified.
E. A member elected to the retirement board who fails to attend four consecutively scheduled meetings of the retirement board, unless in each case excused for cause by the retirement board members in attendance, is considered to have resigned from the retirement board, and the retirement board shall by resolution declare the office vacated as of the date of adoption of the resolution. A vacancy occurring on the retirement board, except in the case of an elected official, shall be filled by the remaining retirement board members, without requirement that a quorum be present. The member appointed to fill the vacancy serves for the remainder of the vacated term.
F. Members of the retirement board serve without salary for their services as retirement board members, but they shall receive those amounts authorized under the Per Diem and Mileage Act.
G. The retirement board shall hold four regular meetings each year and shall designate in advance the time and place of the meetings. Special meetings and emergency meetings of the retirement board may be held upon call of the [chairman] chair or any three members of the retirement board. Written notice of special meetings shall be sent to each member of the retirement board at least seventy-two hours in advance of the special meeting. Verbal notice of emergency meetings shall be given to as many members as is feasible at least eight hours before the emergency meeting, and the meeting shall commence with a statement of the nature of the emergency. The retirement board shall adopt its own rules of procedure and shall keep a record of its proceedings. All meetings of the retirement board shall comply with the Open Meetings Act. A majority of retirement board members shall constitute a quorum. Each attending member of the retirement board is entitled to one vote on each question before the retirement board, and at least a majority of a quorum shall be necessary for a decision by the retirement board.
H. Annual meetings of the members of the association shall be held in Santa Fe at such time and place as the retirement board [shall] determines from time to time [determine]. Special meetings of the members of the association shall be held in Santa Fe upon call of any seven retirement board members. The retirement board shall send a written notice to the last known residence address of each member currently employed by an affiliated public employer at least ten days prior to any meeting of the members of the association. The notice shall contain the call of the meeting and the principal purpose of the meeting. All meetings of the association shall be public and shall be conducted according to procedures the retirement board [shall] adopts from time to time [adopt]. The retirement board shall keep a record of the proceedings of each meeting of the association.
I. Neither the retirement board nor the association shall allow public inspection of, or disclosure of, information from [any] a member or [retiree] a retired member file unless a prior release and consent, in the form prescribed by the association, has been executed by the member or [retiree] retired member; except that applicable coverage plans, amounts of retirement plan contributions made by members and affiliated public employers and pension amounts paid [and the] may be produced or disclosed without release or consent. The names and addresses of [public employees retirement association] members or [retirees requested for election purposes by candidates for election to the retirement board] retired members may be produced or disclosed in electronic format without release or consent of the member or retired member to candidates for election to the retirement board for election purposes. Information disclosed without release or consent of the member or retired member pursuant to this subsection shall not be distributed or used for commercial purposes."
Section 3. Section 10-11-130.1 NMSA 1978 (being Laws 1999, Chapter 153, Section 1) is amended to read:
"10-11-130.1. RESTRICTIONS ON RECEIPT OF GIFTS--[RESTRICTION] RESTRICTIONS ON CAMPAIGN CONTRIBUTIONS--REQUIRED REPORTING--PENALTIES--CRIMINAL ENFORCEMENT.--
A. Except for gifts of food or beverage given in a place of public accommodation, consumed at the time of receipt, not exceeding fifty dollars ($50.00) for a single gift and the aggregate value of which gifts may not exceed one hundred fifty dollars ($150) in a calendar year, neither a retirement board member nor an employee of the retirement board or association shall receive or accept anything of value directly or indirectly from a person who:
(1) has a current contract with the retirement board or association;
(2) is a potential bidder, offeror or contractor for the provision of services or personal property to the retirement board or association;
(3) is authorized to invest public funds pursuant to state or federal law or is an employee or agent of such a person; or
(4) is an organization, association or other entity having a membership that includes persons described in Paragraphs (1) through (3) of this subsection.
B. No person who is a candidate in a primary or general election for a position that qualifies the person for ex-officio membership on the retirement board, no member serving ex officio on the retirement board and no person who is a nominee for retirement board membership by election by some or all of the members of the association pursuant to the Public Employees Retirement Act shall accept anything of [a] value [of more than twenty-five dollars ($25.00)] as a contribution to an ex-officio member's statewide campaign in a primary or general election or as a contribution to the campaign of a nominee for membership on the board as a member elected by all or some of the members of the association from a person who:
(1) has a current contract with the retirement board or association;
(2) is a potential bidder, offeror or contractor for the provision of services or personal property to the retirement board or association;
(3) is authorized to invest public funds pursuant to state or federal law [or is an employee or agent of such a person]; or
(4) is an organization, association or other entity having a membership that includes persons described in Paragraphs (1) through (3) of this subsection.
C. A candidate for retirement board membership by election by some or all of the members of the association pursuant to the Public Employees Retirement Act shall not accept monetary contributions, in-kind services or anything else of value exceeding six thousand dollars ($6,000) in the aggregate from one or more persons to the candidate's campaign, whether made directly to the candidate, to a political committee or to some other entity supporting the candidate's election, during the combined period of:
(1) the candidate's campaign; and
(2) should that candidate win the election, the term of office following that election until the next campaign for board membership.
[C.] D. Within ten days after an election in which one or more board members are elected by some or all of the members of the association pursuant to the Public Employees Retirement Act, all persons who were candidates for board membership in that election shall file with the association a report disclosing all contributions to their respective campaigns whether made directly to the candidate, a political action committee or to some other entity supporting the candidate's election and an accounting of the purposes and dates of all expenditures of the campaign. The contributions shall be reported by amount and specific source. Within sixty days after the election, the association shall publish the reports required by this subsection.
E. It is unlawful for a person, political committee or some other entity supporting a person who is a candidate for retirement board membership by election by some or all of the members of the association pursuant to the Public Employees Retirement Act to make, or a candidate or the candidate's agent to accept, a contribution that is reported as coming from one person or entity when the candidate or the candidate's agent knows that the contribution is actually from another person or entity that directed that the contribution not be publicly reported.
F. It is unlawful for a candidate for retirement board membership by election by some or all of the members of the association or for the candidate's agent to make an expenditure of contributions received, except for the following purposes:
(1) expenditures of the campaign;
(2) donations to the retirement board credited to the income fund pursuant to the Public Employees Retirement Act;
(3) donations to the general fund; and
(4) donations to an organization to which a federal income tax deduction would be permitted under Subparagraph (A) of Paragraph (1) of Subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended.
G. A person who knowingly and willfully violates any provision of this section is guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one year or both.
H. This section may be enforced by the attorney general or the district attorney in the county where an alleged violator resides, where an involved political committee has its principal place of business or where the violation occurred."
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