SB0099

SENATE BILL 99

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Steven P. Neville

AN ACT

RELATING TO THE PUBLIC REGULATION COMMISSION; REMOVING REFERENCES TO THE ELECTION OF COMMISSION MEMBERS; PROVIDING FOR A DELAYED EFFECTIVE DATE CONTINGENT ON AMENDMENT OF THE CONSTITUTION OF NEW MEXICO TO PROVIDE FOR APPOINTMENT OF COMMISSION MEMBERS FROM THE STATE AT LARGE; MAKING TECHNICAL CONFORMING CHANGES; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978.

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

SECTION 1. Section 1-8-2 NMSA 1978 (being Laws 1969, Chapter 240, Section 152, as amended by Laws 2014, Chapter 40, Section 3 and by Laws 2014, Chapter 81, Section 3) is amended to read:

"1-8-2. NOMINATION BY MINOR POLITICAL PARTY--CONVENTION-- DESIGNATED NOMINEES.--

A. If the rules of a minor political party require nomination by political convention:

(1) the chair and secretary of the state political convention shall certify to the secretary of state the names of their party's nominees for United States senator, United States representative, all elective state offices, legislative offices elected from multicounty districts, [the public regulation commission] all elective judicial officers in the judicial department and all offices representing a district composed of more than one county; and

(2) the chair and secretary of the county political convention shall certify to the county clerk the names of their party's nominees for elected county offices and for legislative offices elected from a district located wholly within one county or that is composed of only one county.

B. The names certified to the secretary of state shall be filed on the twenty-third day following the primary election in the year of the general election and shall be accompanied by nominating petitions containing the signatures of voters totaling not less than one percent of the total number of votes cast for governor at the last preceding general election at which a governor was elected:

(1) in the state for statewide offices; and

(2) in the district for offices other than statewide offices.

The petition shall contain a statement that the voters signing the petition are residents of the area to be represented by the office for which the person being nominated is a candidate.

C. The names certified to the county clerk shall be filed on the twenty-third day following the primary election in the year of the general election and shall be accompanied by a nominating petition containing the signatures of voters totaling not less than one percent of the total number of votes cast for governor at the last preceding general election at which a governor was elected:

(1) in the county for countywide offices; and

(2) in the district for offices other than countywide offices.

The petition shall contain a statement that the voters signing the petition are residents of the area to be represented by the office for which the person being nominated is a candidate.

D. Except in the case of a political party certified in the year of the election, persons certified as candidates shall be members of that party on the day the governor issues the primary election proclamation.

E. When a political party is certified in the year of the general election, and after the day the governor issues the primary election proclamation, a person certified as a candidate shall be:

(1) a member of that party not later than the date the political party filed its rules and qualifying petitions pursuant to Sections 1-7-2 and 1-7-4 NMSA 1978; and

(2) a resident in the district of the office for which the person is a candidate on the date of the governor's proclamation for the primary election or in the case of a person seeking the office of United States senator or United States representative, a resident within New Mexico on the date of the governor's proclamation for the primary election. No person who is a candidate for a party in a primary election may be certified as a candidate for a different party in the general election in the same election cycle.

F. No voter shall sign a petition prescribed by this section for more persons than the number of candidates necessary to fill the office at the next ensuing general election."

SECTION 2. Section 1-8-3 NMSA 1978 (being Laws 1969, Chapter 240, Section 153, as amended) is amended to read:

"1-8-3. NOMINATION BY MINOR POLITICAL PARTY--OTHER METHODS.--If the rules and regulations of a minor political party require nomination by a method other than a political convention:

A. the state [chairman] chair and the governing board of the state party shall certify to the secretary of state the names of their party's nominees for United States senator, United States representative, all elective state offices, legislative offices elected from multicounty districts, [public regulation commission] all elective judicial officers in the judicial department and all offices representing a district composed of more than one county;

B. the county [chairman] chair and the governing board of the county party shall certify to the county clerk the names of their party's nominees for elected county offices and for legislative offices elected from a district located wholly within one county or that is composed of only one county; and

C. the names of such nominees shall be filed in the same time and manner prescribed by the Election Code for convention-designated nominees of minor political parties, and each list of names certified shall be accompanied by the petition containing a list of signatures and addresses of voters as prescribed for convention-designated nominees."

SECTION 3. Section 1-8-13 NMSA 1978 (being Laws 1969, Chapter 240, Section 162, as amended) is amended to read:

"1-8-13. PRIMARY ELECTION LAW--CONTENTS OF

PROCLAMATION.--

A. The proclamation calling a primary election shall contain:

[A.] (1) the names of the major political parties participating in the primary election;

[B.] (2) the offices for which each political party shall nominate candidates; provided that if any law is enacted by the legislature in the year in which the primary election is held and the law does not take effect until after the date of the proclamation but prior to the date of the primary election, the proclamation shall conform to the intent of the law with respect to the offices for which each political party shall nominate candidates;

[C.] (3) the date on which declarations of candidacy and nominating petitions for United States representative, any office voted upon by all the voters of the state, a legislative office, the office of district judge, district attorney, [state board of] public education [public regulation] commission or magistrate shall be filed and the places where they shall be filed in order to have the candidates' names printed on the official ballot of their party at the primary election;

[D.] (4) the date on and place at which declarations of candidacy shall be filed for any other office and filing fees paid or, in lieu thereof, a pauper's statement of inability to pay;

[E.] (5) the final date on and place at which candidates for the office of United States representative and for any statewide office seeking preprimary convention designation by the major parties shall file petitions and declarations of candidacy;

[F.] (6) the final date on which the major political parties shall hold state preprimary conventions for the designation of candidates; and

[G.] (7) the final date on and place at which certificates of designation of primary election candidates shall be filed by political parties with the secretary of state.

B. As used in the Primary Election Law, "statewide office" means [any] an office voted on by all the voters of the state."

SECTION 4. Section 1-8-25 NMSA 1978 (being Laws 1969, Chapter 240, Section 170, as amended) is amended to read:

"1-8-25. PROPER FILING OFFICER--DECLARATION OF CANDIDACY--NOMINATING PETITIONS--WITHDRAWAL OF CANDIDACY.--For the purposes of Chapter 1, Articles 8 and 12 NMSA 1978, the proper filing officer is:

A. the secretary of state for the offices of:

(1) United States senator;

(2) United States representative;

(3) all state elective offices;

(4) legislative offices elected from multicounty districts;

[(5) all public regulation commission districts;

(6)] (5) all elective judicial offices in the judicial department, except magistrates; and

[(7)] (6) all offices representing a district composed of more than one county; and

B. the county clerk for the offices of:

(1) all elective county offices;

(2) magistrates; and

(3) legislative offices elected from a district located wholly within one county or that is composed of only one county."

SECTION 5. Section 1-8-33 NMSA 1978 (being Laws 1973, Chapter 228, Section 7, as amended) is amended to read:

"1-8-33. PRIMARY ELECTION LAW--NOMINATING PETITION-- NUMBER OF SIGNATURES REQUIRED.--

A. As used in this section, "total vote" means the sum of all votes cast for all of the party's candidates for governor at the last preceding primary election at which the party's candidate for governor was nominated.

B. Candidates who seek preprimary convention designation shall file nominating petitions at the time of filing declarations of candidacy. Nominating petitions for those candidates shall be signed by a number of voters equal to at least two percent of the total vote of the candidate's party in the state or congressional district, or the following number of voters, whichever is greater: for statewide offices, two hundred thirty voters; and for congressional candidates, seventy-seven voters.

C. Nominating petitions for candidates for any other office to be voted on at the primary election for which nominating petitions are required shall be signed by a number of voters equal to at least three percent of the total vote of the candidate's party in the district or division, or the following number of voters, whichever is greater: for metropolitan court and magistrate courts, ten voters; [for the public regulation commission, fifty voters] for the public education commission, twenty-five voters; for state representative, ten voters; for state senator, seventeen voters; and for district attorney and district judge, fifteen voters.

D. A candidate who fails to receive the preprimary convention designation that the candidate sought may collect additional signatures to total at least four percent of the total vote of the candidate's party in the state or congressional district, whichever applies to the office the candidate seeks, and file a new declaration of candidacy and nominating petitions for the office for which the candidate failed to receive a preprimary designation. The declaration of candidacy and nominating petitions shall be filed with the secretary of state either ten days following the date of the preprimary convention at which the candidate failed to receive the designation or on the date all declarations of candidacy and nominating petitions are due pursuant to the provisions of the Primary Election Law, whichever is later."

SECTION 6. Section 1-8-36.1 NMSA 1978 (being Laws 1981, Chapter 156, Section 1, as amended) is amended to read:

"1-8-36.1. PRIMARY ELECTION LAW--WRITE-IN CANDIDATES.--

A. Write-in candidates are permitted in the primary election only for the offices of United States representative, members of the legislature, district judges, district attorneys, [public regulation commission] public education commission, magistrates and any office voted upon by all voters of the state.

B. A person may be a write-in candidate only for nomination by the major political party with which the person is affiliated as shown by the certificate of registration, and such person shall have the qualifications to be a candidate in the primary election for the political party for which the person is a write-in candidate.

C. A person desiring to be a write-in candidate for one of the offices listed in Subsection A of this section in the primary election shall file with the proper filing officer a declaration of intent to be a write-in candidate. Such declaration of intent shall be filed between 9:00 a.m. and 5:00 p.m. on the third Tuesday in March.

D. A write-in vote shall be counted and canvassed only if:

(1) the name written in is the name of a declared write-in candidate and shows two initials and last name; first name, middle initial or name and last name; first and last name; or the full name as it appears on the declaration of intent to be a write-in candidate and misspellings of the above combinations that can be reasonably determined by a majority of the members of the precinct board to identify a declared write-in candidate; and

(2) the name is written on the proper line provided on the ballot for write-in votes for the office for which the candidate has filed a declaration of intent and the voter has followed the directions for casting a vote for the write-in candidate.

E. At the time of filing the declaration of intent to be a write-in candidate, the write-in candidate shall be considered a candidate for all purposes and provisions relating to candidates in the Election Code, including the obligations to report pursuant to the Campaign Reporting Act, except that the write-in candidate's name shall not be printed on the ballot.

F. No unopposed write-in candidate shall have the write-in candidate's nomination certified unless the write-in candidate receives at least the number of write-in votes in the primary election as the write-in candidate would need signatures on a nominating petition pursuant to the requirements set out in Section 1-8-33 NMSA 1978.

G. A write-in vote shall be cast by writing in the name and following the directions for casting a vote for the write-in candidate. As used in this section, "write-in" does not include the imprinting of any name by rubber stamp or similar device or the use of pre-printed stickers or labels."

SECTION 7. Section 1-8-51 NMSA 1978 (being Laws 1977, Chapter 322, Section 7, as amended) is amended to read:

"1-8-51. INDEPENDENT CANDIDATES FOR GENERAL OR UNITED STATES REPRESENTATIVE SPECIAL ELECTIONS--NOMINATING PETITIONS--REQUIRED NUMBER OF SIGNATURES.--

A. The basis of percentage for the total number of votes cast in each instance referred to in this section shall be the total vote cast for governor at the last preceding general election at which a governor was elected.

B. Nominating petitions for an independent candidate for president of the United States shall be signed by a number of voters equal to at least three percent of the total number of votes cast in the state.

C. Nominating petitions for an independent candidate for United States senator or any other statewide elective office shall be signed by a number of voters equal to at least three percent of the total number of votes cast in the state.

D. Nominating petitions for an independent candidate for United States representative shall be signed by a number of voters equal to at least three percent of the total number of votes cast in the district.

E. Nominating petitions for an independent candidate for a member of the legislature, [public regulation commission] district judge, district attorney, member of the [state board of] public education commission, magistrate or county office shall be signed by a number of voters equal to at least three percent of the total number of votes cast in the district, division or county, as the case may be.

F. A voter shall not sign a petition for an independent candidate as provided in this section if [he] the voter has signed a petition for another independent candidate for the same office."

SECTION 8. Section 1-19A-10 NMSA 1978 (being Laws 2003, Chapter 14, Section 10, as amended) is amended to read:

"1-19A-10. PUBLIC ELECTION FUND--CREATION--USE.--

A. There is created in the state treasury the "public election fund" solely for the purposes of:

(1) financing the election campaigns of certified candidates for covered offices;

(2) paying administrative and enforcement costs of the Voter Action Act; and

(3) carrying out all other specified provisions of the Voter Action Act.

B. The state treasurer shall invest the funds as other state funds are invested, and all income derived from the fund shall be credited directly to the fund. Remaining balances at the end of a fiscal year shall remain in the election fund and not revert to the general fund.

C. Money received from the following sources shall be deposited directly into the fund:

(1) qualifying contributions that have been submitted to the secretary;

(2) any recurring balance of unspent fund money distributed to a certified candidate who does not remain a candidate through the primary or general election period for which the money was distributed;

(3) money that remains unspent or unencumbered by a certified candidate following the date of the primary election;

(4) money that remains unspent or unencumbered by a certified candidate following the date of the general election;

(5) unspent seed money that cannot be used for any other purpose;

(6) money distributed to the fund from funds received pursuant to the Uniform Unclaimed Property Act (1995); and

(7) money appropriated by the legislature.

[D. A subaccount shall be established in the fund, and money in the subaccount shall only be used to pay the costs of carrying out the provisions of the Voter Action Act related to public regulation commission elections.

E. Two hundred thousand dollars ($200,000) per year shall be collected and deposited in the subaccount for public regulation commission elections as follows:

(1) one hundred thousand dollars ($100,000) from inspection and supervision fees collected pursuant to Section 62-8-8 NMSA 1978; and

(2) one hundred thousand dollars ($100,000) from utility and carrier inspection fees collected pursuant to Section 63-7-20 NMSA 1978.]"

SECTION 9. Section 8-1-1 NMSA 1978 (being Laws 1971, Chapter 260, Section 1, as amended) is amended to read:

"8-1-1. COMPENSATION OF [ELECTIVE] STATE OFFICERS.--

A. Annual compensation of [elective] state officers shall be paid as follows:

governor. . . . . . . . . . . . . . . . . . . . .$110,000

secretary of state. . . . . . . . . . . . . . . . .85,000

state auditor. . . . . . . . . . . . . . . . . . .85,000

state treasurer. . . . . . . . . . . . . . . . . .85,000

attorney general. . . . . . . . . . . . . . . . . 95,000

commissioner of public lands. . . . . . . . . . . 90,000

public regulation commissioner. . . . . . . . . . 90,000.

B. Any person succeeding to the office of governor as provided in Article 5, Section 7 of the constitution of New Mexico shall receive the salary of the office. Every person serving as acting governor during the incapacity or absence of the governor from the state, other than the secretary of state, shall receive two hundred fifty dollars ($250) as compensation for each day's service as acting governor.

C. All compensation under this section shall be paid from the general fund, except that the amount paid to the commissioner of public lands shall be paid from the state lands maintenance fund."

SECTION 10. Section 8-8-2 NMSA 1978 (being Laws 1998, Chapter 108, Section 2) is amended to read:

"8-8-2. DEFINITIONS.--As used in the Public Regulation Commission Act:

A. "commission" means the public regulation commission;

B. "commissioner" means a person [elected or] appointed to the public regulation commission; and

C. "person" means an individual, corporation, firm, partnership, association, joint venture or similar legal entity."

SECTION 11. Section 8-8-3 NMSA 1978 (being Laws 1998, Chapter 108, Section 3) is amended to read:

"8-8-3. PUBLIC REGULATION COMMISSION.--

A. The "public regulation commission", created in Article 11, Section 1 of the constitution of New Mexico, is composed of five commissioners [elected from districts] appointed from the state at large as provided in that article [and the Public Regulation Commission Apportionment Act].

B. The commission shall annually elect one of its members [chairman] chair, who shall preside at hearings. In the absence of the [chairman] chair, the commission may appoint any other member to preside."

SECTION 12. Section 8-8-3.1 NMSA 1978 (being Laws 2013, Chapter 64, Section 1) is amended to read:

"8-8-3.1. QUALIFICATIONS OF COMMISSIONERS.--

A. In addition to other requirements imposed by law, in order to be [elected or] appointed as a commissioner, a person must be qualified for office by:

(1) having at least ten years of professional experience in an area regulated by the commission or in the energy sector and involving a scope of work that includes accounting, public or business administration, economics, finance, statistics, engineering or law; or

(2) having a total of ten years of combined professional experience as described in Paragraph (1) of this subsection and higher education resulting in at least a professional license or a baccalaureate degree from an institution of higher education that has been accredited by a regional or national accrediting body in an area regulated by the commission, including accounting, public or business administration, economics, finance, statistics, engineering or law [or

(3) holding the office of commissioner on January 1, 2013].

B. As used in this section, "professional experience" means employment in which the [candidate or] prospective appointee for commissioner regularly made decisions requiring discretion and independent judgment and:

(1) engaged in policy analysis, research or implementation in an area regulated by the commission or in the energy sector;

(2) managed, as the head, deputy head or division director, a federal, state, tribal or local government department or division responsible for utilities, transportation or construction; or

(3) managed a business or organization regulated by the commission or in the energy sector that had five or more employees during the time it was managed by the candidate or prospective appointee.

[C. A candidate for election to the office of commissioner shall certify by notarized affidavit that the candidate meets the requirements of Subsection A of this section to be filed with the declaration of candidacy.

D. A voter may challenge the candidacy for election to the office of commissioner of any person seeking nomination for the reason that the person seeking nomination does not meet the requirements of Subsection A of this section. The challenge shall be made by filing a petition in the district court within ten days after the last day for filing a declaration of candidacy or a statement of candidacy for convention designation, which petition shall be heard in the same manner as provided in Subsection F of Section 1-8-26 NMSA 1978.]"

SECTION 13. Section 8-8-19 NMSA 1978 (being Laws 1998, Chapter 108, Section 19) is amended to read:

"8-8-19. PROHIBITED ACTS--CANDIDATES--COMMISSIONERS AND EMPLOYEES.--

A. As used in this section, in addition to the definitions provided in Section [2 of the Public Regulation Commission Act] 8-8-2 NMSA 1978:

(1) "affiliated interest" means a person who directly controls or is controlled by or is under common control with a regulated entity, including an agent, representative, attorney, employee, officer, owner, director or partner of an affiliated interest. For the purposes of this definition, "control" includes the possession of the power to direct or cause the direction of the management and policies of a person, whether directly or indirectly, through the ownership, control or holding with the power to vote of ten percent or more of the person's voting securities;

(2) "intervenor" means a person who is intervening as a party in an adjudicatory matter or commenting in a rulemaking pending before the commission or has intervened in an adjudicatory or rulemaking matter before the commission within the preceding twenty-four months, including an agent, representative, attorney, employee, officer, owner, director, partner or member of an intervenor;

(3) "pecuniary interest" includes owning or controlling securities; serving as an officer, director, partner, owner, employee, attorney or consultant; or otherwise benefiting from a business relationship. "Pecuniary interest" does not include an investment in a mutual fund or similar third-party-controlled investment, pension or disability benefits or an interest in capital credits of a rural electric cooperative or telephone cooperative because of current or past patronage; and

(4) "regulated entity" means a person whose charges for services to the public are regulated by the commission and includes any direct or emerging competitors of a regulated entity and includes an agent, representative, attorney, employee, officer, owner, director or partner of the regulated entity.

B. In addition to the requirements of the Financial Disclosure Act and the Governmental Conduct Act, candidates for the commission, commissioners and employees of the commission shall comply with the requirements of this section and Sections [17 and 18 of the Public Regulation Commission Act] 8-8-17 and 8-8-18 NMSA 1978, as applicable.

[C. A candidate for election to the public regulation commission shall not solicit or accept:

(1) anything of value, either directly or indirectly, from a person whose charges for services to the public are regulated by the commission. For the purposes of this paragraph, "anything of value" includes money, in-kind contributions and volunteer services to the candidate or his campaign organization, but does not include pension or disability benefits; or

(2) more than five hundred dollars ($500) per election from any other person.

D.] C. A commissioner or employee of the commission shall not:

(1) accept anything of value from a regulated entity, affiliated interest or intervenor. [For the purposes of this paragraph, a commissioner may accept allowable campaign contributions when campaigning for reelection.] For the purposes of this paragraph, "anything of value" does not include:

(a) the cost of refreshments totaling no more than five dollars ($5.00) a day or refreshments at a public reception or other public social function that are available to all guests equally;

(b) inexpensive promotional items that are available to all customers of the regulated entity, affiliated interest or intervenor; or

(2) have a pecuniary interest in a regulated entity, affiliated interest or intervenor, and if a pecuniary interest in an intervenor develops, the commissioner or employee shall divest [himself of] that interest or recuse [himself] the commissioner or employee from the proceeding with the intervenor interest; or

(3) solicit any regulated entity, affiliated interest or intervenor to appoint a person to a position or employment in any capacity.

[E.] D. After leaving the commission:

(1) a former commissioner shall not be employed or retained in a position that requires appearances before the commission by a regulated entity, affiliated interest or intervenor within two years of [his] the former commissioner's separation from the commission;

(2) a former employee shall not appear before the commission representing a party to an adjudication or a participant in a rulemaking within one year of ceasing to be an employee; and

(3) a former commissioner or employee shall not represent a party before the commission or a court in a matter that was pending before the commission while the commissioner or employee was associated with the commission and in which [he] the former commissioner or employee was personally and substantially involved in the matter.

[F.] E. The attorney general or a district attorney may institute a civil action in the district court for Santa Fe county or, in [his] the attorney general's or a district attorney's discretion, the district court for the county in which a defendant resides if a violation of this section has occurred or to prevent a violation of this section. A civil penalty may be assessed in the amount of two hundred fifty dollars ($250) for each violation, not to exceed five thousand dollars ($5,000)."

SECTION 14. REPEAL.--Sections 8-7-1 through 8-7-5 and 8-7-11 NMSA 1978 (being Laws 1997, Chapter 262, Sections 1 through 5 and Laws 2001 (1st S.S.), Chapter 3, Section 8, as amended) are repealed.

SECTION 15. CONTINGENT EFFECTIVE DATE.--The provisions of this act shall become effective upon certification by the secretary of state that the constitution of New Mexico has been amended as proposed by a joint resolution of the first session of the fifty-fourth legislature, entitled "A JOINT RESOLUTION PROPOSING TO AMEND ARTICLE 11 OF THE CONSTITUTION OF NEW MEXICO BY REPEALING SECTION 1 AND ADDING A NEW SECTION 1 TO PROVIDE FOR THE TRANSITION TO A FIVE-MEMBER FULL-TIME PUBLIC REGULATION COMMISSION THAT IS APPOINTED FROM THE STATE AT LARGE".

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