45th legislature - STATE OF NEW MEXICO - second session, 2002

RELATING TO THE TORT CLAIMS ACT; CLARIFYING THE DEFINITION OF "SCOPE OF DUTIES"; AMENDING A SECTION OF THE NMSA 1978.

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

Section 1. Section 41-4-3 NMSA 1978 (being Laws 1976, Chapter 58, Section 3, as amended) is amended to read:

"41-4-3. DEFINITIONS.--As used in the Tort Claims Act:

A. "board" means the risk management advisory board;

B. "governmental entity" means the state or any local public body as defined in Subsections C and H of this section;

C. "local public body" means [all] a political [subdivisions] subdivision of the state and [their] its agencies, instrumentalities and institutions and [all] a water and natural gas [associations] association organized pursuant to Chapter 3, Article 28 NMSA 1978;

D. "law enforcement officer" means any full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, or [members] a member of the national guard when called to active duty by the governor;

E. "maintenance" does not include:

(1) conduct involved in the issuance of a permit, driver's license or other official authorization to use the roads or highways of the state in a particular manner; or

(2) an activity or event relating to a public building or public housing project that was not foreseeable;

F. "public employee" means any officer, employee or servant of a governmental entity, excluding independent contractors except for individuals defined in Paragraphs (7), (8), (10) and (14) of this subsection, or of a corporation organized pursuant to the Educational Assistance Act or the Mortgage Finance Authority Act and including:

(1) elected or appointed officials;

(2) law enforcement officers;

(3) persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation;

(4) licensed foster parents providing care for children in the custody of the human services department, corrections department or department of health, but not including foster parents certified by a licensed child placement agency;

(5) members of state or local selection panels established pursuant to the Adult Community Corrections Act;

(6) members of state or local selection panels established pursuant to the Juvenile Community Corrections Act;

(7) licensed medical, psychological or dental arts practitioners providing services to the corrections department pursuant to contract;

(8) members of the board of directors of the New Mexico comprehensive health insurance pool;

(9) individuals who are members of medical review boards, committees or panels established by the educational retirement board or the retirement board of the public employees retirement association;

(10) licensed medical, psychological or dental arts practitioners providing services to the children, youth and families department pursuant to contract;

(11) members of the board of directors of the New Mexico educational assistance foundation;

(12) members of the board of directors of the New Mexico student loan guarantee corporation;

(13) members of the New Mexico mortgage finance authority; and

(14) volunteers, employees and board members of court-appointed special advocate programs;

G. "scope of duties" means [performing any duties that a public employee is requested, required or authorized to perform by the governmental entity, regardless of the time and place of performance] an act performed by a public employee that is:

(1) fairly and naturally incidental to the governmental entity's activities assigned to the public employee;

(2) done while the employee is engaged in the governmental entity's activities with the view of furthering the governmental entity's interest and does not arise entirely from some external, independent and personal motive on the part of the public employee; and

(3) not criminal; and

H. "state" or "state agency" means the state of New Mexico or any of its branches, agencies, departments,

boards, instrumentalities or institutions."