SENATE BILL 281

44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

INTRODUCED BY

Carroll H. Leavell

AN ACT

RELATING TO LICENSING BOARDS; EXEMPTING THE BOARD OF PHARMACY, THE BOARD OF ACUPUNCTURE AND ORIENTAL MEDICINE, THE NEW MEXICO STATE BOARD OF PUBLIC ACCOUNTANCY AND THE NEW MEXICO REAL ESTATE COMMISSION FROM CERTAIN STATE LAWS; MAKING EXCEPTIONS TO SECTIONS OF THE NMSA 1978 PERTAINING TO PUBLIC MONEY, PERSONNEL, RETIREMENT, TORT CLAIMS AND ATTORNEY GENERAL AND STATE AUDITOR SERVICES; PROVIDING FOR TRANSFERS OF MONEY, APPROPRIATIONS AND PROPERTY TO THE LICENSING BOARDS.

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

Section 1. Section 61-11-5 NMSA 1978 (being Laws 1969, Chapter 29, Section 4, as amended) is amended to read:

"61-11-5. BOARD MEETINGS--QUORUM--OFFICERS--BONDS--EXPENSES.--

A. The board shall annually elect a chairman, vice chairman and secretary-treasurer from its membership.

B. The board shall meet at least once every three months. Special meetings may be called by the chairman and shall be called upon the written request of two or more members of the board. Notification of special meetings shall be made by certified mail unless the notice is waived by the entire board and noted in the minutes. Notice of all regular meetings shall be made by regular mail at least ten days prior to the meeting, and copies of the minutes of all meetings shall be mailed to each board member within forty-five days after any meeting.

C. A majority of the board constitutes a quorum.

D. Members of the board shall [~~be reimbursed as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance~~] serve without compensation other than reasonable reimbursement for mileage and per diem as determined by the board and paid from board funds."

Section 2. Section 61-11-6 NMSA 1978 (being Laws 1969, Chapter 29, Section 5, as amended) is amended to read:

"61-11-6. POWERS AND DUTIES OF BOARD.--

A. The board shall:

[~~(1) adopt, amend or repeal rules and regulations necessary to carry out the provisions of the Pharmacy Act in accordance with the provisions of the Uniform Licensing Act;~~

~~(2)~~] (1) provide for examinations of applicants for licensure as pharmacists;

[~~(3)~~] (2) provide for the issuance and renewal of licenses for pharmacists;

[~~(4)~~] (3) require and establish criteria for continuing education as a condition of annual renewal of licensure for pharmacists;

[~~(5)~~] (4) provide for the issuance and annual renewal of licenses for pharmacist interns and for their training, supervision and discipline;

[~~(6)~~] (5) provide for the licensing of retail pharmacies, nonresident pharmacies, wholesale drug distributors, drug manufacturers, hospital pharmacies, nursing home drug facilities, industrial and public health clinics and all places where dangerous drugs are stored, distributed, dispensed or administered and provide for the inspection of the facilities and activities;

[~~(7)~~] (6) enforce the provisions of all laws of the state pertaining to the practice of pharmacy and the manufacture, production, sale or distribution of drugs or cosmetics and their standards of strength and purity;

[~~(8)~~] (7) conduct hearings upon charges relating to the discipline of a registrant or licensee or the denial, suspension or revocation of a registration or a license in accordance with the Uniform Licensing Act; and

[~~(9) cause the prosecution of any person violating the Pharmacy Act, the New Mexico Drug, Device and Cosmetic Act or the Controlled Substances Act;~~

~~(10)~~] (8) keep a record of all proceedings of the board.

[~~(11) make an annual report to the governor;~~

B. The board may:

(1) adopt, amend or repeal rules necessary to carry out the provisions of the Pharmacy Act in accordance with the provisions of the Uniform Licensing Act;

(2) cause the prosecution of any person violating the Pharmacy Act, the New Mexico Drug, Device and Cosmetic Act or the Controlled Substances Act;

[~~(12)~~] (3) appoint and employ, in the board's discretion, a qualified person who is not a member of the board to serve as executive director and define his duties and responsibilities; except that the power to deny, revoke or suspend any license or registration authorized by the Pharmacy Act shall not be delegated by the board;

[~~(13)~~] (4) appoint and employ inspectors necessary to enforce the provisions of all acts under the administration of the board, which inspectors shall be pharmacists and have all the powers and duties of peace officers. Notwithstanding any other provisions of the Pharmacy Act, inspectors are state employees and are not exempt from the Personnel Act or other provisions of law relating to state employees;

[~~(14)~~] (5) provide for other qualified employees necessary to carry out the provisions of the Pharmacy Act, which employees, unless otherwise provided in that act, serve at the pleasure of the board and are exempt from the provisions of the Personnel Act. The board may provide for health insurance or other benefits for its employees;

[~~(15) have the authority to~~] (6) may employ a competent attorney to give advice and counsel in regard to any matter connected with the duties of the board, to represent the board in any legal proceedings and to aid in the enforcement of the laws in relation to the pharmacy profession and to fix the compensation to be paid to the attorney; provided, however, that the attorney shall be compensated from the money of the board, including that provided for in Section 61-11-19 NMSA 1978. The board may request the attorney general to provide the legal services the board needs for the administration of the Pharmacy Act;

[~~(16)~~] (7) register and regulate qualifications, training and permissible activities of pharmacy technicians;

[~~(17)~~] (8) provide a registry of all persons licensed as pharmacists or pharmacist interns in the state; [~~and~~

~~(18)~~] (9) adopt rules and regulations that prescribe the activities and duties of pharmacy owners and pharmacists in the provision of pharmaceutical care, drug regimen review and patient counseling in each practice setting;

[~~B. The board may:~~

~~(1)~~] (10) delegate its authority to the executive director to issue temporary licenses as provided in Section 61-11-14 NMSA 1978; [~~and~~

~~(2)~~] (11) provide by regulation for the electronic transmission of prescriptions; and

(12) enter into contracts."

Section 3. A new section of the Pharmacy Act is enacted to read:

"[NEW MATERIAL] EXEMPTION FROM CERTAIN ACTS.--

A. Except as otherwise provided in Section 61-11-6 NMSA 1978, the board is specifically exempted from the provisions of the Procurement Code, the Art in Public Places Act and Sections 6-3-1 through 6-3-25, 13-6-1 through 13-6-4 and 15-3-1 through 15-3-34 NMSA 1978.

B. The board is also specifically exempted from the provisions of the Deferred Compensation Act, the Group Benefits Act, the Public Employee Bargaining Act, the Per Diem and Mileage Act and Sections 10-7-1 through 10-7-19 NMSA 1978. The board is also specifically exempted from the provisions of the Public Employees Retirement Act and the Retiree Health Care Act. The board is also specifically exempted from the provisions of the Personnel Act."

Section 4. A new section of the Pharmacy Act is enacted to read:

"[NEW MATERIAL] APPLICABILITY OF OTHER ACTS.--The board is subject to the provisions of the Tort Claims Act, the Joint Powers Agreements Act, the Inspection of Public Records Act, the Public Records Act, the Open Meetings Act, the Governmental Conduct Act, the Financial Disclosure Act and any other state law applicable to the board unless specifically exempted by the Pharmacy Act."

Section 5. A new section of the Pharmacy Act is enacted to read:

"[NEW MATERIAL] BOARD FUNDS.--

A. Money received by the board shall be deposited in an account in a federally insured financial institution qualified to do business in New Mexico. Money in the account shall only be withdrawn by the board to carry out the provisions of the Pharmacy Act.

B. The state auditor may examine the board's accounts, books and records. The governor may request special audits by the state auditor for the protection and oversight of the board's money.

C. The board's money is not public money or state funds within the meaning of state law relating to investment, deposit, security or expenditure of public money.

D. The board's money shall only be used to carry out the provisions of the Pharmacy Act, duties assigned to the board by other laws and the promotion of pharmacy education and standards.

E. Money that has accumulated to the credit of the pharmacy fund shall be continued for use by the board."

Section 6. Section 61-14A-3 NMSA 1978 (being Laws 1993, Chapter 158, Section 11, as amended) is amended to read:

"61-14A-3. DEFINITIONS.--As used in the Acupuncture and Oriental Medicine Practice Act:

A. "acupuncture" means the use of needles inserted into and removed from the human body and the use of other devices, modalities and procedures at specific locations on the body for the prevention, cure or correction of any disease, illness, injury, pain or other condition by controlling and regulating the flow and balance of energy and functioning of the person to restore and maintain health;

B. "board" means the board of acupuncture and oriental medicine;

[~~C. "department" means the regulation and licensing department;~~

D.] C. "doctor of oriental medicine" means a person licensed as a physician to practice acupuncture and oriental medicine with the ability to practice independently, serve as a primary care provider and as necessary collaborate with other health care providers;

[E.] D. "moxibustion" means the use of heat on or above specific locations or on acupuncture needles at specific locations on the body for the prevention, cure or correction of any disease, illness, injury, pain or other condition;

[F.] E. "oriental medicine" means the distinct system of primary health care that uses all allied techniques of oriental medicine, both traditional and modern, to diagnose, treat and prescribe for the prevention, cure or correction of any disease, illness, injury, pain or other physical or mental condition by controlling and regulating the flow and balance of energy and functioning of the person to restore and maintain health;

[G.] F. "primary care provider" means a health care professional acting within the scope of his license who provides the first level of basic or general health care for an individual's health needs, including diagnostic and treatment services; and

[H.] G. "techniques of oriental medicine" means:

(1) the diagnostic and treatment techniques used in oriental medicine that include diagnostic procedures; acupuncture; moxibustion; manual therapy, also known as tui na; other physical medicine modalities and therapeutic procedures; breathing and exercise techniques; and dietary, nutritional and lifestyle counseling;

(2) the prescription or administration of any herbal medicine, homeopathic medicine, vitamins, minerals, enzymes, glandular products, amino acids, and dietary and nutritional supplements;

(3) the prescription or administration of devices, restricted devices and prescription devices, as those devices are defined in the New Mexico Drug, Device and Cosmetic Act, if the board determines by rule that such devices are necessary in the practice of oriental medicine and if the prescribing doctor of oriental medicine has fulfilled requirements for prescriptive authority in accordance with rules promulgated by the board for the devices enumerated in this paragraph;

(4) the prescription or administration of cosmetics, therapeutic serum and over-the-counter drugs, other than those enumerated in Paragraph (2) of this subsection, as those are defined in the New Mexico Drug, Device and Cosmetic Act, if the prescribing doctor of oriental medicine has fulfilled the requirements for prescriptive authority in accordance with rules promulgated by the board for the substances enumerated in this paragraph; and

(5) the prescription or administration of the following dangerous drugs as they are defined in the New Mexico Drug, Device and Cosmetic Act, if the prescribing doctor of oriental medicine has fulfilled the requirements for prescriptive authority in accordance with rules promulgated by the board for the substances enumerated in this paragraph:

(a) sterile water;

(b) sterile saline;

(d) vapocoolants;

(e) topical application of naturally occurring hormones; and

(f) any of the drugs or substances enumerated in Paragraphs (2) and (4) of this subsection if at any time these substances or drugs are classified as dangerous drugs."

Section 7. Section 61-14A-7 NMSA 1978 (being Laws 1993, Chapter 158, Section 15) is amended to read:

"61-14A-7. BOARD CREATED--APPOINTMENT--OFFICERS--COMPENSATION.--

A. There is created the "board of acupuncture and oriental medicine".

[~~B. The board shall be administratively attached to the department.~~

C.] B. The board shall consist of seven members appointed by the governor for terms of three years each. Four members of the board shall be doctors of oriental medicine who have been licensed to practice acupuncture and oriental medicine in New Mexico for at least five years and have practiced in New Mexico for at least two years preceding the date of their appointment. Three members shall be appointed to represent the public and shall not have practiced acupuncture and oriental medicine in this or any other jurisdiction or have any financial interest in the profession regulated. No more than two board members shall be:

(1) owners of institutes offering educational programs in acupuncture and oriental medicine;

(2) faculty members at institutes offering educational programs in acupuncture and oriental medicine;

(3) private tutors offering educational programs in acupuncture and oriental medicine; or

(4) officers in a professional association of acupuncture and oriental medicine.

[D.] C. Members of the board shall be appointed by the governor for staggered terms of three years that shall be made in such a manner that the terms of board members will expire on July 1. When a board member's term has expired, he shall serve until his successor has been appointed and qualified. Vacancies from an unexpired term shall be filled for the remainder of the term in the same manner as the original appointment.

[E.] D. No board member shall serve more than two consecutive full terms, and any member failing to attend, after he has received proper notice, three consecutive meetings shall be recommended for removal as a board member unless excused for reasons set forth by rule.

[F.] E. The board shall elect annually from its membership a chairman and other officers as necessary to carry out its duties.

[G.] F. The board shall meet at least once each year and at other times deemed necessary. Other meetings may be called by the chairman, a majority of board members or the governor. A simple majority of the board members serving constitutes a quorum of the board.

[H.] G. Members of the board shall [~~be reimbursed as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance~~] serve without compensation other than reasonable reimbursement for mileage and per diem as determined by the board and paid from board funds."

Section 8. Section 61-14A-8 NMSA 1978 (being Laws 1993, Chapter 158, Section 16) is amended to read:

"61-14A-8. BOARD--POWERS.--In addition to any authority provided by law, the board shall have the power to:

A. enforce the provisions of the Acupuncture and Oriental Medicine Practice Act;

B. adopt, publish and file, in accordance with the Uniform Licensing Act and the State Rules Act, all rules and regulations necessary for the implementation and enforcement of the provisions of the Acupuncture and Oriental Medicine Practice Act;

C. adopt a code of ethics;

D. adopt and use a seal;

E. inspect institutes, tutorships and the offices of licensees;

F. adopt rules implementing continuing education requirements for the purpose of protecting the health and well-being of the citizens of this state and maintaining and continuing informed professional knowledge and awareness;

G. employ agents [~~or attorneys~~];

H. issue investigative subpoenas for the purpose of investigating complaints against licensees prior to the issuance of a notice of contemplated action;

I. administer oaths and take testimony on any matters within the board's jurisdiction;

J. conduct hearings upon charges relating to the discipline of licensees, including the denial, suspension or revocation of a license in accordance with the Uniform Licensing Act; [~~and~~]

K. grant, deny, renew, suspend or revoke licenses to practice acupuncture and oriental medicine in accordance with the provisions of the Uniform Licensing Act for any cause stated in the Acupuncture and Oriental Medicine Practice Act or the rules and regulations of the board;

L. employ staff to carry out the board's duties pursuant to the Acupuncture and Oriental Medicine Practice Act and provide for health insurance and other employee benefits. Employees serve at the pleasure of the board and are exempt from the provisions of the Personnel Act; and

M. enter into contracts."

Section 9. A new section of the Acupuncture and Oriental Medicine Practice Act is enacted to read:

"[NEW MATERIAL] LEGAL SERVICES.--Upon request of the board, the attorney general shall provide such legal services to the board necessary for the administration of the Acupuncture and Oriental Medicine Practice Act; provided, however, that the board may, in its discretion, employ or contract for the services of other attorneys to assist it in the administration of that act."

Section 10. A new section of the Acupuncture and Oriental Medicine Practice Act is enacted to read:

"[NEW MATERIAL] EXEMPTION FROM CERTAIN ACTS.--

A. The board is specifically exempted from the provisions of the Procurement Code, the Art in Public Places Act and Sections 6-3-1 through 6-3-25, 13-6-1 through 13-6-4 and 15-3-1 through 15-3-34 NMSA 1978.

Section 11. A new section of the Acupuncture and Oriental Medicine Practice Act is enacted to read:

Section 12. A new section of the Acupuncture and Oriental Medicine Practice Act is enacted to read:

"[NEW MATERIAL] BOARD FUNDS.--

B. The state auditor may examine the board's accounts, books and records. The governor may request special audits by the state auditor for the protection and oversight of the board's money.

C. The board's money is not public money or state funds within the meaning of state law relating to investment, deposit, security or expenditure of public money."

Section 13. Section 61-14A-22 NMSA 1978 (being Laws 1993, Chapter 158, Section 30) is amended to read:

"61-14A-22. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The board of acupuncture and oriental medicine is terminated on July 1, [~~1999~~] 2003 pursuant to the Sunset Act. The board shall continue to operate according to [~~Sections 61-14A-1 through 61-14A-21~~] Chapter 61, Article 14A NMSA 1978 until July 1, [~~2000~~] 2004. Effective July 1, [~~2000, Sections 61-14A-1 through 61-14A-21 NMSA 1978 are~~] 2004, Chapter 61, Article 14A NMSA 1978 is repealed."

Section 14. Section 61-28A-1 NMSA 1978 (being Laws 1992, Chapter 10, Section 1) is amended to read:

"61-28A-1. SHORT TITLE.--[~~Sections 1 through 26, 28 and 29 of this act~~] Chapter 61, Article 28A NMSA 1978 may be cited as the "Public Accountancy Act"."

Section 15. Section 61-28A-3 NMSA 1978 (being Laws 1992, Chapter 10, Section 3, as amended) is amended to read:

"61-28A-3. DEFINITIONS.--As used in the Public Accountancy Act:

A. "board" means the New Mexico state board of public accountancy;

B. "certified public accountant" means an individual who has successfully met the certification requirements for certified public accountant set forth in the Public Accountancy Act and who has been granted a certificate by the board;

C. "continuing professional education" means courses in accounting, auditing, tax or other functions of public accountancy identified and approved by the board and provided to individuals seeking to maintain a valid permit to practice;

D. "firm" means a sole proprietorship, a professional corporation, a partnership, a limited liability company or other form of business entity permitted by state law;

[~~E. "fund" means the public accountancy fund;~~

F.] E. "person" means an individual or firm;

[G.] F. "practice" means the performance of public accountancy or the offering to perform public accountancy for a client or potential client by a person holding himself out to the public as a permit holder or registered firm;

[H.] G. "practitioner" means a registered firm or an individual engaged in the practice of public accountancy holding a valid certificate and permit;

[I.] H. "public accountancy" means the performance of one or more kinds of services involving accounting or auditing skills, including the issuance of reports on financial statements, the performance of one or more kinds of management, financial advisory or consulting services, the preparation of tax returns or the furnishing of advice on tax matters;

[J.] I. "quality review" or "peer review" means a study, appraisal or review of one or more aspects of the accounting and auditing work of a practitioner by a practitioner who is not affiliated with the person or firm being reviewed;

[K.] J. "reciprocal jurisdiction" means a state or foreign country identified by the board by rule as having standards for authorizing a person to practice public accountancy equivalent to those prescribed in New Mexico law and by board rule;

[L.] K. "registered firm" means a firm that has been granted a registration by the board pursuant to the Public Accountancy Act;

[M.] L. "registered public accountant" means an individual who, prior to December 31, 1990, successfully met the certification requirements for registered public accountant set forth in the Public Accountancy Act or in prior law and who has been granted a certificate by the board;

[N.] M. "report" means an opinion or other writing that:

(1) states or implies assurance as to the reliability of any financial statements;

(2) includes or is accompanied by any statement or implication that the person issuing it has special knowledge or competency in accounting or auditing indicated by the use of names, titles or abbreviations likely to be understood to identify the author of the report as a practitioner; and

(3) includes the following types of reports as they are defined by board rule:

(a) a compilation report;

(b) a review report; or

[O.] N. "rule" means any written directive of general application duly adopted by the board; and

[P.] O. "state" means any state or insular possession of the United States, including the District of Columbia, Puerto Rico, the United States Virgin Islands and Guam."

Section 16. Section 61-28A-7 NMSA 1978 (being Laws 1992, Chapter 10, Section 7) is amended to read:

"61-28A-7. BOARD--OFFICERS--MEETINGS--REIMBURSEMENT.--

A. The board shall elect annually from among its members a chairman and a secretary-treasurer. Surety bond coverage shall be in accordance with the Surety Bond Act.

B. The board shall meet at such times and places as may be fixed by the board. A majority of the board members then in office shall constitute a quorum at any meeting duly called. Meetings of the board shall be open to the public as required by the Open Meetings Act.

C. Each member of the board shall [~~receive per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance~~] serve without compensation other than reasonable reimbursement for mileage and per diem as determined by the board and paid from board funds.

D. The limit and extent of immunity provided to members of the board shall be defined by the Tort Claims Act."

Section 17. Section 61-28A-8 NMSA 1978 (being Laws 1992, Chapter 10, Section 8, as amended) is amended to read:

"61-28A-8. BOARD--POWERS AND DUTIES.--

A. The board shall retain or arrange for the retention of all applications, all documents under oath that are filed with the board and all records of its proceedings, and it shall maintain a registry of the names and addresses of all certificate and permit holders and registered firms.

B. The board may employ an executive director [~~as an exempt employee~~] and such other personnel as it deems necessary for its administration and enforcement of the Public Accountancy Act and provide for health insurance and other benefits. Employees shall serve at the pleasure of the board and are exempt from the provisions of the Personnel Act.

C. The board may retain its own counsel to advise and assist it [~~in addition to such~~] or may request the advice and assistance [~~as is provided by~~] of the attorney general.

D. The board may sue and be sued in its official name [~~as an agency of New Mexico~~]. To promote fair and complete investigations and hearings, the board may issue subpoenas to compel the attendance of witnesses and the production of documents, administer oaths, take testimony and receive evidence concerning all matters within its jurisdiction according to the provisions of the Uniform Licensing Act and pursuant to rules adopted by the board.

E. The board shall adopt rules governing its administration and enforcement of the Public Accountancy Act. All rule-making activities shall be carried out pursuant to the provisions of the Uniform Licensing Act.

F. The board may conduct investigations and hearings upon its own motion or after receiving notice from any person of an alleged violation of the Public Accountancy Act. All hearings regarding alleged violations of that act shall be conducted pursuant to the provisions of the Uniform Licensing Act. Injunctions and appeals from board orders or decisions shall be pursued according to the provisions of the Uniform Licensing Act and the rules of civil procedure in the district courts.

G. The board shall promulgate rules governing the professional and ethical conduct of practitioners.

H. The board shall exercise such powers as are necessary to carry out the provisions of the Public Accountancy Act.

I. The board shall establish by rule the standards and means by which a practitioner may use a title, designation or abbreviation that indicates he is a specialist or has special expertise in conjunction with the practice of public accountancy."

Section 18. A new section of the Public Accountancy Act is enacted to read:

"[NEW MATERIAL] EXEMPTION FROM CERTAIN ACTS.--

Section 19. A new section of the Public Accountancy Act is enacted to read:

"[NEW MATERIAL] APPLICABILITY OF OTHER ACTS.--The board is specifically subject to the Tort Claims Act, the Joint Powers Agreements Act, the Inspection of Public Records Act, the Public Records Act, the Open Meetings Act, the Governmental Conduct Act, the Financial Disclosure Act and any other state law applicable to the board unless otherwise specifically exempted in the Public Accountancy Act."

Section 20. A new section of the Public Accountancy Act is enacted to read:

"[NEW MATERIAL] BOARD FUNDS.--

B. The state auditor may examine the board's accounts, books and records. The governor may request special audits by the state auditor for the protection and oversight of the board's money.

C. The board's money is not public money or state funds within the meaning of state law relating to investment, deposit, security or expenditure of public money."

Section 21. Section 61-28A-28 NMSA 1978 (being Laws 1993, Chapter 83, Section 6) is amended to read:

"61-28A-28. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The New Mexico state board of public accountancy is terminated on July 1, [~~1999~~] 2003 pursuant to the provisions of the Sunset Act. The board shall continue to operate according to the provisions of the Public Accountancy Act until July 1, [~~2000~~] 2004. Effective July 1, [~~2000~~] 2004, the Public Accountancy Act is repealed."

Section 22. Section 61-29-7 NMSA 1978 (being Laws 1959, Chapter 226, Section 6, as amended) is amended to read:

"61-29-7. REIMBURSEMENT AND EXPENSES.--Each member of the commission shall [~~receive per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance~~] serve without compensation other than reasonable reimbursement for mileage and per diem as determined by the commission and paid from commission funds. The commission may select and appoint an administrator, who shall serve as executive secretary to the commission on annual salary, to perform the duties prescribed by [~~this act~~] Chapter 61, Article 29 NMSA 1978 and such additional duties as the commission may determine. The commission may employ subordinate officers, stenographers, clerks [~~an attorney~~] and such other assistance as may be needed and fix their compensation to be paid [~~from~~] by the [~~real estate~~] commission [~~fund and to~~]. The commission may provide for health insurance and other benefits for its staff. Employees serve at the pleasure of the commission and are exempt from the provisions of the Personnel Act. The commission may enter into contracts and purchase such supplies, equipment and records and [to] incur such other expenses as may be necessary to carry out the provisions of [~~this act~~] Chapter 61, Article 29 NMSA 1978."

Section 23. A new section of Chapter 61, Article 29 NMSA 1978 is enacted to read:

"[NEW MATERIAL] LEGAL SERVICES.--Upon request of the commission, the attorney general shall provide such legal services to the commission necessary for the administration of Chapter 61, Article 29 NMSA 1978; provided, however, that the commission may, in its discretion, employ or contract for the services of other attorneys to assist it in the administration of that article."

Section 24. A new section of Chapter 61, Article 29 NMSA 1978 is enacted to read:

"[NEW MATERIAL] EXEMPTION FROM CERTAIN ACTS.--

A. The commission is specifically exempted from the provisions of the Procurement Code, the Art in Public Places Act and Sections 6-3-1 through 6-3-25, 13-6-1 through 13-6-4 and 15-3-1 through 15-3-34 NMSA 1978.

B. The commission is also specifically exempted from the provisions of the Deferred Compensation Act, the Group Benefits Act, the Public Employee Bargaining Act, the Per Diem and Mileage Act and Sections 10-7-1 through 10-7-19 NMSA 1978. The commission is also specifically exempted from the provisions of the Public Employees Retirement Act and the Retiree Health Care Act. The commission is also specifically exempted from the provisions of the Personnel Act."

Section 25. A new section of Chapter 61, Article 29 NMSA 1978 is enacted to read:

"[NEW MATERIAL] APPLICABILITY OF OTHER ACTS.--The commission, as an organization and its individual members and employees, is specifically subject to and covered by the provisions of the Tort Claims Act, the Joint Powers Agreements Act, the Inspection of Public Records Act, the Public Records Act, the Open Meetings Act, the Governmental Conduct Act, the Financial Disclosure Act and any other state law applicable to the commission unless otherwise specifically exempted in Chapter 61, Article 29 NMSA 1978."

Section 26. Section 61-29-8 NMSA 1978 (being Laws 1959, Chapter 226, Section 7, as amended) is amended to read:

"61-29-8. LICENSE FEES--DISPOSITION.--

A. The following fees shall be charged by the commission [~~and paid into the real estate commission fund~~]:

(1) for each examination, a fee of sixty dollars ($60.00);

(2) for each broker's license issued, a fee of one hundred eighty dollars ($180) and for each renewal thereof, a fee of one hundred eighty dollars ($180);

(3) for each salesperson's license issued, a fee of one hundred eighty dollars ($180) and for each renewal thereof, a fee of one hundred eighty dollars ($180);

(4) subject to the provisions of Paragraph (11) of this subsection, for each change of place of business or change of employer or contractual associate, a fee of twenty dollars ($20.00);

(5) for each duplicate license, where the license is lost or destroyed and affidavit is made thereof, a fee of twenty dollars ($20.00);

(6) for each license history, a fee of twenty-five dollars ($25.00);

(7) for copying of documents by the commission, a fee set by the commission, not to exceed one dollar ($1.00) per copy;

(8) for each additional license law and rules and regulations booklet, a fee set by the commission not to exceed ten dollars ($10.00) per booklet;

(9) for each additional directory of licensed real estate brokers and salespersons, a fee set by the commission not to exceed twenty dollars ($20.00);

(10) for each supplement to the directory of licensed real estate brokers and salespersons, a fee set by the commission not to exceed twenty dollars ($20.00); and

(11) when a license must be reissued for a salesperson because of change of address of the licensed broker's office, death of the licensed broker when a successor licensed broker is replacing the decedent and the salesperson remains in the office or change of name of the office or the entity of the licensed broker, the licensed broker or successor licensed broker as the case may be shall pay to the commission as the affected salesperson's license reissue fee twenty dollars ($20.00), but if there are eleven or more affected salespersons in the licensed broker's office, the total fee paid to effect reissuance of all of those licenses shall not exceed two hundred dollars ($200).

B. All fees set by the commission shall be set by rule or regulation and only after all requirements have been met as prescribed by Chapter 61, Article 29 NMSA 1978. Any changes or amendments to the rules and regulations shall be filed in accordance with the provisions of the State Rules Act.

[C. The commission shall deposit all money received by it from fees in accordance with the provisions of Chapter 61, Article 29 NMSA 1978 with the state treasurer, who shall keep that money in a separate fund to be known as the "real estate commission fund", and money so deposited in that fund is appropriated for the purpose of carrying out the provisions of Chapter 61, Article 29 NMSA 1978 or to maintain the real estate recovery fund as required by the Real Estate Recovery Fund Act and shall be paid out of the fund upon the vouchers of the president and secretary of the commission; provided that the total fees and charges collected and paid into the state treasury and any money so deposited shall be expended only for the purposes authorized by Chapter 61, Article 29 NMSA 1978.

D.] C. The commission shall by regulation provide for a proportionate refund of the license issuance fee or the license renewal fee if the license is issued or renewed for a period of two or three years pursuant to Section 61-29-11 NMSA 1978 and is terminated with more than one year remaining.

D. Money received by the commission shall be deposited in an account in a federally insured financial institution qualified to do business in New Mexico. Money in the account shall only be withdrawn by the commission to carry out the provisions of Chapter 61, Article 29 NMSA 1978.

E. The state auditor may examine the commission's accounts, books and records. The governor may request special audits by the state auditor for the protection and oversight of the board's money.

F. The commission's money is not public money or state funds within the meaning of state law relating to investment, deposit, security or expenditure of public money."

Section 27. Section 61-29-19 NMSA 1978 (being Laws 1978, Chapter 203, Section 2, as amended by Laws 1993, Chapter 83, Section 7 and also by Laws 1993, Chapter 253, Section 3) is amended to read:

"61-29-19. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The New Mexico real estate commission is terminated on July 1, [~~1999~~] 2003 pursuant to the Sunset Act. The commission shall continue to operate according to the provisions of Chapter 61, Article 29 NMSA 1978 until July 1, 2000. Effective July 1, [~~2000~~] 2004, Chapter 61, Article 29 NMSA 1978 is repealed."

Section 28. Section 61-29-20 NMSA 1978 (being Laws 1980, Chapter 82, Section 1) is amended to read:

"61-29-20. SHORT TITLE.--Sections [~~1 through 10 of this act~~] 61-29-20 through 61-29-29 NMSA 1978 may be cited as the "Real Estate Recovery Fund Act"."

Section 29. Section 61-29-21 NMSA 1978 (being Laws 1980, Chapter 82, Section 2) is amended to read:

"61-29-21. FUND CREATED.--[~~There is created in the state treasury a fund which shall be~~] The commission shall create and maintain an account known as the "real estate recovery fund" to be administered by the [~~real estate~~] commission in accordance with the provisions of the Real Estate Recovery Fund Act. All money received by the [~~real estate~~] commission pursuant to the Real Estate Recovery Fund Act shall be [~~credited to the real estate recovery fund~~] deposited in an account in a federally insured financial institution qualified to do business in New Mexico. Money in the account shall be separate from other commission money. The [~~state treasurer~~] commission may invest money in the real estate recovery fund in United States bonds or treasury certificates [~~under~~] pursuant to such rules and regulations as may be prescribed by the [~~state board of finance~~] commission; provided that no investments shall be made [~~which~~] that will impair the necessary liquidity required to satisfy judgment payments awarded pursuant to the Real Estate Recovery Fund Act. All interest earned from such investments shall be credited to the fund to pay any future judgments only. The state auditor may examine the commission's accounts, books and records relating to the performance of its duties pursuant to the Real Estate Recovery Fund Act. The governor may request special audits by the state auditor for the protection and oversight of the fund. Money in the fund is not public money or state funds within the meaning of state law relating to investment, deposit, security or expenditure of public money."

Section 30. Section 61-29-22 NMSA 1978 (being Laws 1980, Chapter 82, Section 3, as amended) is amended to read:

"61-29-22. ADDITIONAL FEES.--

A. [~~On and after the effective date of the Real Estate Recovery Fund Act~~] The commission shall collect an annual fee not in excess of ten dollars ($10.00) from each real estate licensee prior to the issuance of the next license.

B. [~~On and after the effective date of the Real Estate Recovery Fund Act~~] The commission shall collect from each successful applicant for an original real estate license, in addition to his original license fee, a fee not in excess of ten dollars ($10.00).

C. The additional fees provided by this section shall be [~~credited to~~] deposited to the real estate recovery fund. The amount of the real estate recovery fund shall be maintained at two hundred fifty thousand dollars ($250,000). If the real estate recovery fund falls below this amount, the commission shall have authority to adjust the annual amount of additional fees to be charged licensees or to draw on the real estate commission [~~fund~~] account established pursuant to Section 61-29-8 NMSA 1978 in order to maintain the fund level as required in this section."

Section 31. TEMPORARY PROVISION--TRANSFER OF PROPERTY.--

A. On the effective date of this act, all appropriations, money and property of the board of pharmacy held by the state shall be transferred to the board. All agreements and contractual obligations of the regulation and licensing department pertaining to the board of pharmacy shall be binding on the board. All existing rules relating to licensing of pharmacists shall continue to be binding on the board of pharmacy.

B. On the effective date of this act, all appropriations, money and property of the board of acupuncture and oriental medicine held by the state shall be transferred to the board. All agreements and contractual obligations of the regulation and licensing department pertaining to the board of acupuncture and oriental medicine shall be binding on the board. All existing rules relating to licensing of acupuncturists and oriental medicine practitioners shall continue to be binding on the board of acupuncture and oriental medicine.

C. On the effective date of this act, all appropriations, money and property of the New Mexico state board of public accountancy held by the state shall be transferred to the board. All agreements and contractual obligations of the regulation and licensing department pertaining to the New Mexico state board of public accountancy shall be binding on the board. All existing rules relating to licensing of accountants shall continue to be binding on the New Mexico state board of public accountancy.

D. On the effective date of this act, all appropriations, money and property of the New Mexico real estate commission, including the real estate recovery fund, held by the state shall be transferred to the commission. All agreements and contractual obligations of the regulation and licensing department pertaining to the New Mexico real estate commission shall be binding on the commission. All existing rules relating to licensing of real estate brokers and salespersons shall continue to be binding on the New Mexico real estate commission.

Section 32. REPEAL.--Sections 61-11-19, 61-14A-18 and 61-28A-22 NMSA 1978 (being Laws 1969, Chapter 29, Section 18, Laws 1993, Chapter 158, Section 26, and Laws 1992, Chapter 10, Section 22, as amended) are repealed.

Section 33. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.

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