0001| SENATE BILL 618 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| DON KIDD | 0005| | 0006| | 0007| | 0008| FOR THE COURTS, CORRECTIONS AND CRIMINAL JUSTICE COMMITTEE | 0009| | 0010| AN ACT | 0011| RELATING TO INSTITUTIONAL FUNDS; ENACTING THE UNIFORM | 0012| MANAGEMENT OF INSTITUTIONAL FUNDS ACT; REGARDING AUTHORITY TO | 0013| INVEST FUNDS; PROVIDING FOR DELEGATION OF AUTHORITY TO MANAGE | 0014| FUNDS; PROVIDING A STANDARD OF CONDUCT AND PORTFOLIO STRATEGY | 0015| FOR MANAGEMENT OF FUNDS; AMENDING AND ENACTING SECTIONS OF THE | 0016| NMSA 1978. | 0017| | 0018| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0019| Section 1. [NEW MATERIAL] DEFINITIONS.--As used in the | 0020| Uniform Management of Institutional Funds Act: | 0021| A. "institution" means: | 0022| (1) an incorporated or unincorporated | 0023| organization organized and operated exclusively for | 0024| educational, religious, charitable or other eleemosynary | 0025| purposes; | 0001| (2) a government, a governmental subdivision | 0002| or agency or other governmental organization to the extent that | 0003| it holds funds exclusively for educational, religious, | 0004| charitable or other eleemosynary purposes; or | 0005| (3) an organization described in Section | 0006| 501(c)(3) of the Internal Revenue Code organized and operated | 0007| exclusively to support one or more organizations described in | 0008| Paragraphs (1) and (2) of Subsection A of this section; | 0009| B. "institutional fund" means a fund held by an | 0010| institution for its exclusive use, benefit or purposes, or for | 0011| the exclusive use, benefit or purposes of one or more other | 0012| institutions, but does not include: | 0013| (1) a fund held for an institution by a | 0014| trustee that is not an institution; | 0015| (2) a fund in which a beneficiary that is not | 0016| an institution has an interest, other than possible rights that | 0017| could arise upon violation or failure of the purposes of the | 0018| fund; | 0019| (3) a fund established pursuant to the | 0020| provisions of Article 8, Section 10 of the constitution of New | 0021| Mexico; or | 0022| (4) a fund established pursuant to the | 0023| provisions of Article 12, Section 2 of the constitution of New | 0024| Mexico; | 0025| C. "endowment fund" means an institutional fund, or | 0001| any part thereof, not wholly expendable by the institution on a | 0002| current basis under the terms of the applicable gift | 0003| instrument; | 0004| D. "governing board" means the body responsible for | 0005| the management of an institution or of an institutional fund; | 0006| E. "historic dollar value" means the aggregate fair | 0007| value in dollars of: | 0008| (1) an endowment fund at the time it became an | 0009| endowment fund; | 0010| (2) each subsequent donation to the fund at | 0011| the time it is made; and | 0012| (3) each accumulation made pursuant to a | 0013| direction in the applicable gift instrument at the time the | 0014| accumulation is added to the fund. The determination of | 0015| historic dollar value made in good faith by the institution is | 0016| conclusive; and | 0017| F. "gift instrument" means a will, deed, grant, | 0018| conveyance, agreement, memorandum, writing, articles, bylaws, | 0019| charter, declaration, agreement, constitutional provision, law, | 0020| rule, regulation or other governing document under which | 0021| property is transferred to or held by an institution as an | 0022| institutional fund. | 0023| Section 2. [NEW MATERIAL] ACCUMULATION OF ANNUAL NET | 0024| INCOME--RESERVE--APPROPRIATION OF APPRECIATION.-- | 0025| A. The governing board may accumulate so much of | 0001| the annual net income of an institutional fund as is prudent | 0002| under the standard established by Section 6 of the Uniform | 0003| Management of Institutional Funds Act. The governing board may | 0004| hold any or all of the accumulated annual net income in an | 0005| income reserve for subsequent expenditure for the uses and | 0006| purposes for which the institutional fund is established or may | 0007| add any or all of the accumulated annual net income to the | 0008| principal of the institutional fund as is prudent under the | 0009| standard established by Section 6 of the Uniform Management of | 0010| Institutional Funds Act. | 0011| B. Subject to the limitation set forth in | 0012| Subsection C of this section, the governing board may | 0013| appropriate for expenditure for the uses and purposes for which | 0014| an endowment fund is established so much of the net | 0015| appreciation, realized and unrealized, in the fair value of the | 0016| assets of an endowment fund over the historic dollar value of | 0017| the fund as is prudent under the standard established by | 0018| Section 6 of the Uniform Management of Institutional Funds Act. | 0019| C. The appropriation for expenditure by the | 0020| governing board of the net appreciation of an endowment fund in | 0021| any one year in an amount greater than seven percent of the | 0022| fair market value of the endowment fund, calculated on the | 0023| basis of market values determined at least quarterly and | 0024| averaged over a period of three or more years, shall create a | 0025| rebuttable presumption of imprudence on the part of the | 0001| governing board. | 0002| D. This section does not limit the authority of the | 0003| governing board to expend funds as permitted under other law, | 0004| the terms of the applicable gift instrument or charter, or the | 0005| articles of incorporation or other governing instrument of the | 0006| institution. | 0007| Section 3. [NEW MATERIAL] RULES OF CONSTRUCTION.-- | 0008| A. Section 2 of the Uniform Management of | 0009| Institutional Funds Act does not apply if, and to the extent | 0010| that, the applicable gift instrument indicates the donor's | 0011| intention that annual net income shall not be accumulated or | 0012| added to the principal or that net appreciation shall not be | 0013| expended. A restriction upon accumulation of annual net income | 0014| or addition of such income to the principal or the expenditure | 0015| of net appreciation may not be implied from a designation of a | 0016| gift as an endowment or from a direction or authorization in | 0017| the applicable gift instrument to use only "income", | 0018| "interest", "dividends" or "rents, issues or profits", or "to | 0019| preserve the principal intact", or a direction that contains | 0020| other words of similar import. | 0021| B. Except as otherwise provided in Subsection A of | 0022| this section, the following terms or comparable language in the | 0023| provisions of a gift instrument, unless otherwise limited or | 0024| modified, authorizes any investment strategy permitted under | 0025| the Uniform Management of Institutional Funds Act: | 0001| "investments permitted by law for investment of trust funds", | 0002| "legal investments", "authorized investments", "using the | 0003| judgment and care under the circumstances then prevailing that | 0004| persons of prudence, discretion and intelligence exercise in | 0005| the management of their own affairs, not in regard to | 0006| speculation, but in regard to the permanent disposition of | 0007| their funds, considering the probable income as well as the | 0008| probable safety of their capital", "prudent man rule", "prudent | 0009| trustee rule", "prudent person rule" and "prudent investor | 0010| rule". | 0011| Section 4. [NEW MATERIAL] INVESTMENT AUTHORITY.--In | 0012| addition to an investment otherwise authorized by law or by the | 0013| applicable gift instrument, and without restriction to | 0014| investments a fiduciary may make, but subject to any specific | 0015| limitations set forth in the applicable gift instrument or in | 0016| the applicable law other than law relating to investments by a | 0017| fiduciary, the governing board may: | 0018| A. invest and reinvest an institutional fund in | 0019| kind of property or type of investment consistent with the | 0020| standards of the Uniform Management of Institutional Funds Act, | 0021| including any real or personal property deemed advisable by the | 0022| governing board, whether or not it produces a current return, | 0023| including mortgages, stocks, bonds, debentures and other | 0024| securities of profit or nonprofit corporations, shares in or | 0025| obligations of associations, limited liability companies, | 0001| partnerships or individuals and obligations of any government | 0002| or subdivision or instrumentality thereof; | 0003| B. retain property contributed by a donor to an | 0004| institutional fund for as long as the governing board deems | 0005| advisable; | 0006| C. include all or any part of an institutional fund | 0007| in any pooled or common fund maintained by the institution; or | 0008| D. invest all or any part of an institutional fund | 0009| in any other pooled or common fund available for investment, | 0010| including shares or interests in regulated investment | 0011| companies, mutual funds, common trust funds, investment | 0012| partnerships, real estate investment trusts or similar | 0013| organizations in which funds are commingled and investment | 0014| determinations are made by persons other than the governing | 0015| board. | 0016| Section 5. [NEW MATERIAL] DELEGATION OF INVESTMENT AND | 0017| MANAGEMENT FUNCTIONS.-- | 0018| A. Except as otherwise provided by applicable law | 0019| relating to governmental institutions or funds, a governing | 0020| board may delegate investment and management functions that a | 0021| prudent governing body could delegate under the circumstances. | 0022| A governing board shall exercise reasonable care, skill and | 0023| caution in: | 0024| (1) selecting an agent; | 0025| (2) establishing the scope and terms of the | 0001| delegation, consistent with the purposes of the institutional | 0002| fund; and | 0003| (3) periodically reviewing the agent's actions | 0004| in order to monitor the agent's performance and the agent's | 0005| compliance with the terms of the delegation. | 0006| B. In performing a delegated function, an agent | 0007| owes a duty to the governing board to exercise reasonable care | 0008| to comply with the terms of the delegation. | 0009| C. The members of a governing board who comply with | 0010| the requirements of Subsection B of this section are not liable | 0011| for the decisions or actions of the agent to whom the function | 0012| was delegated. | 0013| D. By accepting the delegation of an investment or | 0014| management function from a governing board of an institution | 0015| that is subject to the laws of New Mexico, an agent submits to | 0016| the jurisdiction of the courts of New Mexico in all actions | 0017| arising from the delegation. | 0018| E. The governing board may authorize the payment of | 0019| compensation for investment advisory or management services. | 0020| Section 6. [NEW MATERIAL] STANDARD OF CONDUCT-- | 0021| PORTFOLIO STRATEGY.-- | 0022| A. Members of a governing board shall invest and | 0023| manage an institutional fund as a prudent investor would, by | 0024| considering the purposes, distribution requirements and other | 0025| circumstances of the fund. In satisfying this standard, the | 0001| governing board shall exercise reasonable care, skill and | 0002| caution. | 0003| B. Among the circumstances that a governing board | 0004| shall consider are: | 0005| (1) long- and short-term needs of the | 0006| institution in carrying out its educational, religious, | 0007| charitable or other eleemosynary purposes; | 0008| (2) its present and anticipated financial | 0009| requirements; | 0010| (3) the expected total return from income and | 0011| the appreciation of its investments; | 0012| (4) general economic conditions; | 0013| (5) the possible effect of inflation or | 0014| deflation; | 0015| (6) the expected tax consequence, if any, of | 0016| investment decisions or strategies; | 0017| (7) the role that each investment or course of | 0018| action plays within the overall investment portfolio of the | 0019| institutional fund; | 0020| (8) other resources of the institution; | 0021| (9) the needs of the institution and the | 0022| institutional fund for liquidity, regularity of income and | 0023| preservation or appreciation of capital; and | 0024| (10) an asset's special relationship or | 0025| special value, if any, to the purposes of the applicable gift | 0001| instrument or to the institution. | 0002| C. A governing board's investment and management | 0003| decisions about individual assets shall be made not in | 0004| isolation but in the context of the institutional fund's | 0005| portfolio of investments as a whole and as a part of an overall | 0006| investment strategy having risk and return objectives | 0007| reasonably suited to the institution. | 0008| D. A governing board shall make a reasonable effort | 0009| to verify the facts relevant to the investment and management | 0010| of institutional fund assets. | 0011| E. A governing board shall diversify the | 0012| investments of an institutional fund unless the board | 0013| reasonably determines that, because of special circumstances, | 0014| the purposes of the fund are better served without | 0015| diversifying. | 0016| F. Subject to the provisions of Subsection B of | 0017| Section 4 of the Uniform Management of Institutional Funds Act, | 0018| within a reasonable time after receiving donated assets, a | 0019| governing board shall review the donated assets and make and | 0020| implement decisions concerning the retention and disposition of | 0021| assets in order to bring the portfolio of the institutional | 0022| fund into compliance with the purposes, terms, distribution | 0023| requirements and other circumstances of the institutional fund | 0024| and with the requirements of the Uniform Management of | 0025| Institutional Funds Act. | 0001| G. A governing board shall invest and manage the | 0002| assets of an institutional fund solely in the interest of the | 0003| institution. | 0004| H. In investing and managing assets of an | 0005| institutional fund, a governing board may incur only costs that | 0006| are appropriate and reasonable in relation to the assets, the | 0007| purposes of the fund and the terms of the gift instrument. | 0008| Section 7. [NEW MATERIAL] RELEASE OF RESTRICTIONS ON | 0009| USE OR INVESTMENT.-- | 0010| A. With the written consent of the donor, the | 0011| governing board may release, in whole or in part, a restriction | 0012| imposed by the applicable gift instrument on the use or | 0013| investment of an institutional fund. | 0014| B. If written consent of the donor cannot be | 0015| obtained by reason of his death, disability, unavailability or | 0016| impossibility of identification, the governing board may apply | 0017| in the name of the institution to the district court for | 0018| release of a restriction imposed by the applicable gift | 0019| instrument on the use or investment of an institutional fund. | 0020| The attorney general shall be notified of the application and | 0021| shall be given an opportunity to be heard. If the district | 0022| court finds that the restriction is obsolete, inappropriate or | 0023| impracticable, it may by order release the restriction in whole | 0024| or in part. A release under this subsection may not change an | 0025| endowment fund to a fund that is not an endowment fund. | 0001| C. A release under this section may not allow a | 0002| fund to be used for purposes other than the educational, | 0003| religious, charitable or other eleemosynary purposes of the | 0004| institution affected. | 0005| D. This section does not limit the application of | 0006| the doctrine of cy-pres. | 0007| Section 8. [NEW MATERIAL] REVIEWING COMPLIANCE.-- | 0008| Compliance with the Uniform Management of Institutional Funds | 0009| Act is determined in light of the facts and circumstances | 0010| existing at the time of a governing board's decision and not by | 0011| hindsight. | 0012| Section 9. [NEW MATERIAL] SEVERABILITY.--If any | 0013| provision of the Uniform Management of Institutional Funds Act | 0014| or the application thereof to any person or circumstances is | 0015| held invalid, the invalidity shall not affect other provisions | 0016| or applications of that act that can be given effect without | 0017| the invalid provision or application, and to this end the | 0018| provisions of the Uniform Management of Institutional Funds Act | 0019| are declared severable. | 0020| Section 10. [NEW MATERIAL] APPLICATION.--The Uniform | 0021| Management of Institutional Funds Act applies to gift | 0022| instruments executed or in effect on or after its effective | 0023| date and to institutional funds existing on and created after | 0024| its effective date. The Uniform Management of Institutional | 0025| Funds Act governs any decisions and actions taken after its | 0001| effective date. | 0002| Section 11. [NEW MATERIAL] UNIFORMITY OF APPLICATION | 0003| AND CONSTRUCTION.--The Uniform Management of Institutional | 0004| Funds Act shall be so applied and construed as to effectuate | 0005| its general purpose to make uniform the law with respect to the | 0006| subject of that act among those states that enact it. | 0007| Section 12. [NEW MATERIAL] SHORT TITLE.--Sections 1 | 0008| through 12 of this act may be cited as the "Uniform Management | 0009| of Institutional Funds Act". | 0010| Section 13. Section 21-1-38 NMSA 1978 (being Laws 1991, | 0011| Chapter 69, Section 1) is amended to read: | 0012| "21-1-38. DEFINITION--REQUIREMENTS FOR ADOPTION OF | 0013| INVESTMENT POLICY FOR INVESTING ENDOWMENT FUNDS.-- | 0014| A. As used in this section: | 0015| (1) "endowment funds" means funds: | 0016| (a) acquired by gift by an educational | 0017| institution with respect to which the donors or other outside | 0018| agencies have stipulated as a condition of the gift, and the | 0019| stipulation is expressed specifically in the gift instrument, | 0020| that the principal is to be maintained and invested for the | 0021| purpose of producing [present] current and future income | 0022| that may either be added to the principal or expended, and the | 0023| maintenance of the principal may be either: 1) held inviolate | 0024| and in perpetuity; or 2) expended after the passage of a stated | 0025| period of time or upon the happening of a specified event; and | 0001| (b) notwithstanding the source of | 0002| acquisition, that the governing board of the educational | 0003| institution [have] has determined and [have] has | 0004| designated by a written instrument, either revocable or | 0005| irrevocable, to be retained for long-term investment; and | 0006| (2) "educational institution" means an | 0007| educational institution designated in Article 12, Section 11 of | 0008| the constitution of New Mexico and any post-secondary | 0009| educational institution, which term includes, but is not | 0010| limited to, an academic, vocational, technical, business, | 0011| professional or other school, college or university or other | 0012| organization or person offering or purporting to offer courses, | 0013| instruction, training or education through correspondence or in | 0014| person, to any individual within this state over the compulsory | 0015| school attendance age, if that post-secondary educational | 0016| institution is directly supported in whole or in part by state | 0017| or local taxation. | 0018| B. The board of finance, as that term is defined in | 0019| Section 6-10-9 NMSA 1978, for each of the educational | 0020| institutions: | 0021| (1) shall adopt regulations governing the | 0022| investment of endowment funds by the institution's board of | 0023| finance, which regulations shall provide at least for: | 0024| (a) the application of the investment | 0025| standard of conduct described in Section 6-8-10 NMSA 1978 | 0001| and the Uniform Management of Institutional Funds Act as the | 0002| standard for evaluating an investment; | 0003| (b) the appointment of an investment | 0004| advisory committee made up of individuals having demonstrated | 0005| experience and skill in the field of the investment of | 0006| endowment funds; and | 0007| (c) the development of a comprehensive | 0008| investment policy for the investment of endowment funds by the | 0009| institution, with the advice and upon the recommendation of the | 0010| investment committee; and | 0011| (2) may employ an institutional endowment | 0012| funds investment manager and delegate to him the power to make | 0013| purchases, sales exchanges, investments and reinvestments of | 0014| endowment funds." | 0015| Section 14. EFFECTIVE DATE.--The effective date of the | 0016| provisions of this act is July 1, 1997. | 0017| - - | 0018| | 0019| FORTY-THIRD LEGISLATURE | 0020| FIRST SESSION, 1997 | 0021| | 0022| | 0023| February 13, 1997 | 0024| | 0025| Mr. President: | 0001| | 0002| Your CORPORATIONS & TRANSPORTATION COMMITTEE, to | 0003| whom has been referred | 0004| | 0005| SENATE BILL 618 | 0006| | 0007| has had it under consideration and reports same with | 0008| recommendation that it DO PASS, and thence referred to the | 0009| FINANCE COMMITTEE. | 0010| | 0011| Respectfully submitted, | 0012| | 0013| | 0014| | 0015| | 0016| __________________________________ | 0017| Roman M. Maes, III, Chairman | 0018| | 0019| | 0020| | 0021| Adopted_______________________ Not | 0022| Adopted_______________________ | 0023| (Chief Clerk) (Chief Clerk) | 0024| | 0025| | 0001| Date ________________________ | 0002| | 0003| | 0004| The roll call vote was 6 For 0 Against | 0005| Yes: 6 | 0006| No: None | 0007| Excused: Fidel, Kidd, McKibben, Robinson | 0008| Absent: None | 0009| | 0010| | 0011| S0618CT1 | 0012| | 0013| | 0014| | 0015| FORTY-THIRD LEGISLATURE | 0016| FIRST SESSION, 1997 | 0017| | 0018| | 0019| February 26, 1997 | 0020| | 0021| Mr. President: | 0022| | 0023| Your FINANCE COMMITTEE, to whom has been referred | 0024| | 0025| SENATE BILL 618 | 0001| | 0002| has had it under consideration and reports same with | 0003| recommendation that it DO PASS. | 0004| | 0005| Respectfully submitted, | 0006| | 0007| | 0008| | 0009| | 0010| __________________________________ | 0011| Ben D. Altamirano, Chairman | 0012| | 0013| | 0014| | 0015| Adopted_______________________ Not | 0016| Adopted_______________________ | 0017| (Chief Clerk) (Chief Clerk) | 0018| | 0019| | 0020| | 0021| Date ________________________ | 0022| | 0023| | 0024| The roll call vote was 6 For 0 Against | 0025| Yes: 6 | 0001| No: None | 0002| Excused: Aragon, Eisenstadt, Ingle, Lyons, McKibben | 0003| Absent: None | 0004| | 0005| | 0006| S0618FC1 | 0007| FORTY-THIRD LEGISLATURE | 0008| FIRST SESSION | 0009| | 0010| | 0011| February 28, 1997 | 0012| | 0013| | 0014| SENATE FLOOR AMENDMENT number _______ to SENATE BILL 618 | 0015| | 0016| Amendment sponsored by Senator Don Kidd | 0017| | 0018| | 0019| 1. On page 2, line 6, strike the semicolon and insert in | 0020| lieu thereof a period. | 0021| | 0022| 2. On page 2, between lines 6 and 7, insert: | 0023| | 0024| ""Institution" does not include an institution with assets | 0025| of more than ten million dollars ($10,000,000) and that is | 0001| organized and operated for private educational purposes;". | 0002| | 0003| | 0004| | 0005| | 0006| | 0007| | 0008| __________________________ | 0009| Don Kidd | 0010| | 0011| | 0012| | 0013| Adopted ___________________ Not Adopted _______________________ | 0014| (Chief Clerk) (Chief Clerk) | 0015| | 0016| | 0017| Date _________________ | 0018| State of New Mexico | 0019| House of Representatives | 0020| | 0021| FORTY-THIRD LEGISLATURE | 0022| FIRST SESSION, 1997 | 0023| | 0024| | 0025| March 14, 1997 | 0001| | 0002| | 0003| Mr. Speaker: | 0004| | 0005| Your TAXATION AND REVENUE COMMITTEE, to whom has | 0006| been referred | 0007| | 0008| SENATE BILL 618, as amended | 0009| | 0010| has had it under consideration and reports same with | 0011| recommendation that it DO PASS, and thence referred to the | 0012| APPROPRIATIONS AND FINANCE COMMITTEE. | 0013| | 0014| Respectfully submitted, | 0015| | 0016| | 0017| | 0018| | 0019| Jerry W. Sandel, Chairman | 0020| | 0021| | 0022| Adopted Not Adopted | 0023| | 0024| (Chief Clerk) | 0025| (Chief Clerk) | 0001| | 0002| Date | 0003| | 0004| The roll call vote was 11 For 0 Against | 0005| Yes: 11 | 0006| Excused: Sandoval, Stell | 0007| Absent: None | 0008| | 0009| | 0010| G:\BILLTEXT\BILLW_97\S0618 State of New Mexico | 0011| House of Representatives | 0012| | 0013| FORTY-THIRD LEGISLATURE | 0014| FIRST SESSION, 1997 | 0015| | 0016| | 0017| March 20, 1997 | 0018| | 0019| | 0020| Mr. Speaker: | 0021| | 0022| Your APPROPRIATIONS AND FINANCE COMMITTEE, to | 0023| whom has been referred | 0024| | 0025| SENATE BILL 618, as amended | 0001| | 0002| has had it under consideration and reports same with | 0003| recommendation that it DO PASS. | 0004| | 0005| Respectfully submitted, | 0006| | 0007| | 0008| | 0009| | 0010| Max Coll, Chairman | 0011| | 0012| | 0013| Adopted Not Adopted | 0014| | 0015| (Chief Clerk) | 0016| (Chief Clerk) | 0017| | 0018| Date | 0019| | 0020| The roll call vote was 14 For 0 Against | 0021| Yes: 14 | 0022| Excused: Knowles, Marquardt, Wallace | 0023| Absent: None | 0024| | 0025| | 0001| G:\BILLTEXT\BILLW_97\S0618 |