SENATE RULES COMMITTEE SUBSTITUTE FOR
SENATE BILL 261
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO RETIREMENT BENEFITS; PROVIDING FOR THE FORFEITURE OF CERTAIN RIGHTS AND BENEFITS UNDER THE STATE RETIREMENT SYSTEMS UPON THE CONVICTION FOR CERTAIN CRIMES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. FORFEITURE OF PENSION FOR CERTAIN PENALTY CONVICTIONS.--
A. As used in this section:
(1) "conviction" means a judgment of guilty of a felony or acceptance of a plea of nolo contendere to a felony charge by a state or federal court of competent jurisdiction;
(2) "felony" means a crime designated by law as a felony or a crime for which the authorized penalty is imprisonment for one year or more;
(3) "forfeited member" means an individual who, under a court order issued pursuant to this section, has forfeited pension rights in a state system;
(4) "member" means an individual who is classified as a "member" of a state system pursuant to the laws governing that state system;
(5) "member contributions" means the amounts deducted from a member's salary and credited to the member's account in a state system, together with interest, if any, credited to that account;
(6) "public employment" means a position held as an elected or appointed official or as an employee of the state or one of its agencies, departments, political subdivisions or institutions;
(7) "retired member" means an individual who has retired and is receiving a pension from a state system; and
(8) "state system" means a retirement program provided for in the Educational Retirement Act, the Public Employees Retirement Act, the Magistrate Retirement Act or the Judicial Retirement Act.
B. If, in the adjudication of a felony in a New Mexico district court, it appears that the defendant is a member or retired member and that the felony is one arising from the misuse of public money and related to the member's or retired member's public employment, the district attorney or attorney general shall, in addition to the felony complaint, file for an order of forfeiture of pension. Upon the filing, the forfeiture of pension 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 shall apply in the criminal matter and the rules of civil procedure shall apply in the forfeiture proceeding;
(3) if the criminal defendant is represented by the public defender department, the chief public defender or the district public defender may authorize department representation of the defendant in the forfeiture proceeding; and
(4) if the state proves by clear and convincing evidence that the defendant is a member or retired member and has been convicted of a felony arising out of the misuse of public money and related to the member's or retired member's public employment, after determining issues related to community property and child support obligations and issuing orders to that effect, the court may order the forfeiture of the member's or retired member's right to a pension and other retirement benefits from a state system and serve the order upon the appropriate state system.
C. Upon a person's initial conviction in a court of another state or a federal court of a felony that appears to arise out of the misuse of public money and related to public employment, the attorney general or a district attorney shall initiate the forfeiture of a state system pension by filing for an order of forfeiture of pension with the district court for the county of Santa Fe or the district court for the county in which the member or retired member resides or in which the member or retired member was engaged in public employment; provided that no action shall be brought pursuant to this subsection after three years from the date of the person's initial conviction. If, after notice and hearing, the state proves, by clear and convincing evidence, that the person is a member or retired member, that the member or retired member was convicted of a felony and that the felony was one arising out of the misuse of public money and related to the member's or retired member's public employment, after determining issues related to community property and child support obligations and issuing orders to that effect, the court may order the forfeiture of the member's or retired member's right to a pension and other retirement benefits from a state system and notify the appropriate state system of the order.
D. After receipt by a state system of an order issued pursuant to Subsection B or C of this section, pending a final appeal, the state system shall suspend the forfeited member's service credit and, if the forfeited member is a retired member, shall suspend any pension.
E. After notification to a state system that an order issued pursuant to Subsection B or C of this section was not appealed or, upon final appeal, was upheld:
(1) except as provided in Paragraph (5) of this subsection, the state system shall revoke the forfeited member's service credit;
(2) if the forfeited member is not currently receiving a pension, except as provided in Paragraph (4) of this subsection, the state system shall refund accumulated member contributions to the forfeited member;
(3) if the forfeited member is currently receiving a pension, except as provided in Paragraph (4) or (5) of this subsection, the state system shall cease paying a pension and shall refund any unexpended accumulated member contributions to the forfeited member;
(4) 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 as part of the forfeiture order, orders were issued addressing community property interests or child support obligations, then any action by a state system pursuant to Paragraph (2) or (3) of this subsection shall be in compliance with those court orders; and
(5) if the forfeited member is currently receiving a pension from a state system due to previous employment but had subsequently returned to public employment while continuing to receive the pension, the order shall not affect the pension related to the previous employment if the felony did not arise from conduct related to the previous employment.
F. If, on final appeal, the court finding pursuant to Subsection B or C of this section or the conviction is overturned, the forfeiture order is voided, the attorney general shall notify the state system and the state system shall reinstate the forfeited service credit and pay in full any suspended pension payments.
G. If no appeal is made from a court finding pursuant to Subsection B or C of this section or if, on final appeal, the court finding is upheld, the district attorney or the attorney general shall notify the state system and the state system shall comply with the procedures of Subsection E of this section.
Section 2. APPLICABILITY.--The provisions of this act apply to crimes committed on or after the effective date of this act.
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