HOUSE BILL 287

53rd legislature - STATE OF NEW MEXICO - second session, 2018

INTRODUCED BY

Cathrynn N. Brown

 

 

 

 

 

AN ACT

RELATING TO STATE LEGISLATORS; PROVIDING FOR THE FORFEITURE OF PENSIONS OR RETIREMENT SERVICE CREDIT UPON CONVICTION OF PUBLIC CORRUPTION OFFENSES; SPECIFYING THE CRIMINAL ACTS THAT QUALIFY AS PUBLIC CORRUPTION OFFENSES.

 

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

     SECTION 1. [NEW MATERIAL] FORFEITURE OF PENSION OR SERVICE CREDIT FOR PUBLIC CORRUPTION OFFENSES.--

          A. If, in the adjudication of a public corruption offense in a New Mexico district court, it appears that the defendant is a state legislator member or retired state legislator member as defined in the Public Employees Retirement Act, the prosecutor shall, in addition to the felony complaint, file a request for entry of an order of forfeiture of pension or service credit.

          B. Upon the filing of a request for entry of an order of forfeiture of pension or service credit, the forfeiture proceeding shall be brought in the same proceeding as the criminal matter and presented to the same trier of fact; provided that:

                (1) the two issues shall be bifurcated;

                (2) the Rules of Criminal Procedure for the District Courts shall apply in the criminal matter and the Rules of Civil Procedure for the District Courts shall apply in the forfeiture proceeding; and

                (3) if the criminal defendant is represented by the public defender department, the chief public defender may authorize department representation of the defendant in the forfeiture proceeding.

          C. If, in the forfeiture proceeding, the state proves by clear and convincing evidence that the defendant is a state legislator member or retired state legislator member and has been convicted of a public corruption offense, after determining issues related to community property and child support obligations and issuing orders to that effect, the court shall order the forfeiture of the state legislator member's service credit accrued pursuant to a state legislator member coverage plan or the retired state legislator member's pension attributable to coverage under a state legislator member coverage plan.

          D. The prosecutor shall serve notice of the entry of the forfeiture order upon the public employees retirement association.

          E. After receipt by the public employees retirement association of a forfeiture order, pending a final appeal, the public employees retirement association shall:

                (1) if the forfeited member has not retired, suspend further accrual of the forfeited member's service credit and payment of member contributions; or

                (2) if the forfeited member has retired, suspend payment of any pension.

          F. If a forfeiture order was issued and was not appealed or, upon final appeal, was upheld, the prosecutor shall notify the public employees retirement association and the public employees retirement association shall:

                (1) if the forfeited member is not retired, permanently revoke the forfeited member's service credit accrued under a state legislator member coverage plan and refund accumulated member contributions associated with the state legislator member coverage plan to the forfeited member; or

                (2) if the forfeited member has retired, permanently terminate the pension associated with a state legislator member coverage plan and refund any associated unexpended accumulated member contributions to the forfeited member, except as provided in Paragraphs (3) and (4) of this subsection;

                (3) if, prior to the order of forfeiture, a court has issued an order pursuant to Section 10-11-136, 10-11-136.1, 10-12B-7, 10-12C-7 or 22-11-42 NMSA 1978, or if, as part of the forfeiture order, orders were issued addressing community property interests or child support obligations, then any action by the public employees retirement association pursuant to Paragraphs (1) and (2) of this subsection shall be in compliance with those court orders; and

                (4) if the forfeited member is currently receiving a pension from the public employees retirement association due to previous employment, the order shall not affect the pension related to the previous employment if the public corruption offense did not arise from conduct related to the previous employment.

          G. If a forfeiture order was issued and was reversed on final appeal, the prosecutor shall notify the public employees retirement association and the public employees retirement association shall:

                (1) if the state legislator member has not retired, permit the state legislator member to pay contributions and accrue service credit that would have accrued during the period of suspension, provided that the state legislator member otherwise qualifies for membership; or

                (2) if the state legislator member has retired, reinstate payment of the suspended pension and pay in full any suspended pension payments.

          H. The provisions of this section apply to crimes committed on or after July 1, 2018.

          I. As used in this section:

                (1) "conviction" means a judgment of guilty of a felony or acceptance of a plea of guilty or nolo contendere to a public corruption offense by a court of competent jurisdiction;

                (2) "forfeited member" means a state legislator member or retired state legislator member who, under a court order issued pursuant to this section, has forfeited service credit or pension rights pursuant to a state legislator member coverage plan;

                (3) "member contributions" means the amounts contributed by a state legislator member and credited to the state legislator member's account in the public employees retirement association, together with interest, if any, credited to that account; and

                (4) "public corruption offense" means any of the following offenses committed by a state legislator member or a retired state legislator member:

                     (a) violating any provision of the Governmental Conduct Act that results in a felony conviction;

                     (b) taking an official act for personal financial interest, as provided in Section 10-16-4 NMSA 1978;

                     (c) paying or receiving public money for services not rendered, as provided in Section 30-23-2 NMSA 1978;

                     (d) making or permitting a false public voucher, as provided in Section 30-23-3 NMSA 1978;

                     (e) committing unlawful interest in a public contract where the value received is more than fifty dollars ($50.00), as provided in Section 30-23-6 NMSA 1978;

                     (f) committing bribery of a public officer or public employee, as provided in Section 30-24-1 NMSA 1978;

                     (g) demanding or receiving a bribe by a public officer or employee, as provided in Section 30-24-2 NMSA 1978;

                     (h) tampering with public records, as provided in Section 30-26-1 NMSA 1978;

                     (i) soliciting or receiving an illegal kickback, as provided in Section 30-41-1 NMSA 1978; and

                     (j) offering or paying an illegal kickback, as provided in Section 30-41-2 NMSA 1978.

     SECTION 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2018.

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