HOUSE BILL 184
48th legislature - STATE OF NEW MEXICO - second session, 2008
INTRODUCED BY
Luciano "Lucky" Varela
FOR THE INVESTMENTS AND PENSIONS OVERSIGHT COMMITTEE AND
THE REVENUE STABILIZATION AND TAX POLICY COMMITTEE
AN ACT
RELATING TO PUBLIC FUNDS; CLARIFYING THE PROVISION REGARDING INVESTMENTS OF PUBLIC FUNDS OF LOCAL GOVERNING BODIES AND OTHER ELIGIBLE GOVERNING BODIES; EXPANDING PARTICIPATION OF PARTICIPATING GOVERNMENTS IN CERTAIN INVESTMENT FUNDS; AMENDING SECTIONS OF THE NMSA 1978; MAKING APPROPRIATIONS; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 6-10-1.1 NMSA 1978 (being Laws 1987, Chapter 79, Section 3, as amended) is amended to read:
"6-10-1.1. DEFINITIONS.--As used in Chapter 6, Article 10 NMSA 1978:
[A. "deposit" includes share, share certificate and share draft;
B.] A. "department" means the department of finance and administration; [and]
B. "deposit" includes share, share certificate and share draft;
C. "eligible governing body" means a local governing body, the governing authority of a tribe or any other governmental or quasi-governmental body created or authorized to be created pursuant to New Mexico statutes;
D. "finance officer" means the chief financial officer of an eligible governing body or a participating government;
E. "local governing body" means a political subdivision of the state, including a school district or a post-secondary educational institution;
F. "participating government" means an eligible governing body or the state treasurer on behalf of the general fund that has invested money in the participating government investment fund;
[C.] G. "secretary" means the secretary of finance and administration; and
H. "tribe" means a federally recognized Indian nation, tribe or pueblo or a subdivision or agency of a federally recognized Indian nation, tribe or pueblo, located wholly or partially in New Mexico."
Section 2. Section 6-10-10 NMSA 1978 (being Laws 1933, Chapter 175, Section 4, as amended) is amended to read:
"6-10-10. DEPOSIT AND INVESTMENT OF FUNDS.--
A. Upon the certification or designation of a bank, savings and loan association or credit union whose deposits are insured by an agency of the United States to receive public money on deposit, the state treasurer and county or municipal treasurers who have on hand any public money by virtue of their offices shall make deposit of that money in banks and savings and loan associations and may make deposit of that money in credit unions whose deposits are insured by an agency of the United States, designated by the authority authorized by law to so designate to receive the deposits of all money thereafter received or collected by the treasurers.
B. County or municipal treasurers may deposit money in one or more accounts with any such bank, savings and loan association or credit union located in their respective counties, subject to limitation on credit union accounts.
C. The state treasurer may deposit money in one or more accounts with any such bank, savings and loan association or credit union, subject to the limitation on credit union accounts.
D. Duplicate receipts or deposit slips shall be taken for each deposit made pursuant to Subsection A, B or C of this section. When deposits are made by the state treasurer, one copy of the receipt or deposit slip shall be retained by the state treasurer and the other copy shall be filed monthly on the first day of each month with the financial control division of the department of finance and administration. When deposits are made by the treasurer or any other authorized person making the deposits for a board of finance of a public or educational institution, one copy of the receipt or deposit slip shall be retained by the treasurer or authorized person making the deposit and the other copy shall be filed monthly on the first day of each month with that board of finance. When deposits are made by a county or municipal treasurer, one of the duplicate receipts or deposit slips shall be retained by the treasurer making the deposit and the other copy shall be filed monthly on the first day of each month with the secretary of the board of finance of the county or municipality for which that treasurer is acting.
E. "Deposit", as used in this section, means either investment or deposit and includes share, share certificate and share draft.
F. County or municipal treasurers, with the advice and consent of their respective boards of finance charged with the supervision and control of the respective funds, may invest all sinking funds or money remaining unexpended from the proceeds of any issue of bonds or other negotiable securities of any county, municipality or school district that is entrusted to their care and custody and all money not immediately necessary for the public uses of the counties, municipalities or school districts not invested or deposited in banks, savings and loan associations or credit unions in:
(1) bonds or negotiable securities of the United States, the state or a county, municipality or school district that has a taxable valuation of real property for the last preceding year of at least one million dollars ($1,000,000) and that has not defaulted in the payment of any interest or sinking fund obligation or failed to meet any bonds at maturity at any time within five years last preceding; or
(2) securities that are issued by the United States government or by its agencies or instrumentalities and that are either direct obligations of the United States, the federal home loan mortgage association, the federal national mortgage association, the federal farm credit bank, federal home loan banks or the student loan marketing association or that are backed by the full faith and credit of the United States government.
G. The treasurer of a class A county or the treasurer of a municipality having a population of more than sixty-five thousand according to the most recent federal decennial census and located within a class A county, with the advice and consent of the boards of finance charged with the supervision and control of the funds, may invest all sinking funds or money remaining unexpended from the proceeds of any issue of bonds or other negotiable securities of the county or municipality that is entrusted to the treasurer's care and custody and all money not immediately necessary for the public uses of the county or municipality not invested or deposited in banks, savings and loan associations or credit unions in:
(1) shares of a diversified investment company registered pursuant to the federal Investment Company Act of 1940 that invests in fixed-income securities or debt instruments that are listed in a nationally recognized, broad-market, fixed-income-securities market index; provided that the investment company or manager has total assets under management of at least one hundred million dollars ($100,000,000) and provided that the board of finance of the county or municipality may allow reasonable administrative and investment expenses to be paid directly from the income or assets of these investments;
(2) individual, common or collective trust funds of banks or trust companies that invest in fixed-income securities or debt instruments that are listed in a nationally recognized, broad-market, fixed-income-securities market index; provided that the investment company or manager has total assets under management of at least one hundred million dollars ($100,000,000) and provided that the board of finance of the county or municipality may allow reasonable administrative and investment expenses to be paid directly from the income or assets of these investments; or
(3) shares of pooled investment funds managed by the state investment officer, as provided in Subsection [G] E of Section 6-8-7 NMSA 1978; provided that the board of finance of the county or municipality may allow reasonable administrative and investment expenses to be paid directly from the income or assets of these investments.
H. A local public body, with the advice and consent of the body charged with the supervision and control of the local public body's respective funds, may invest all sinking funds or money remaining unexpended from the proceeds of any issue of bonds or other negotiable securities of the investor that is entrusted to the local public body's care and custody and all money not immediately necessary for the public uses of the investor and not otherwise invested or deposited in banks, savings and loan associations or credit unions in contracts with banks, savings and loan associations or credit unions for the present purchase and resale at a specified time in the future of specific securities at specified prices at a price differential representing the interest income to be earned by the investor. The contract shall be fully secured by obligations of the United States or other securities backed by the United States having a market value of at least one hundred two percent of the contract. The collateral required for investment in the contracts provided for in this subsection shall be shown on the books of the financial institution as being the property of the investor and the designation shall be contemporaneous with the investment. As used in this subsection, "local public body" includes all political subdivisions of the state and agencies, instrumentalities and institutions thereof; provided that home rule municipalities that prior to July 1, 1994 had enacted ordinances authorizing the investment of repurchase agreements may continue investment in repurchase agreements pursuant to those ordinances.
I. The state treasurer, with the advice and consent of the state board of finance, may invest money held in demand deposits and not immediately needed for the operation of state government and money held in the [short-term] participating government investment fund, except as provided in Section 6-10-10.1 NMSA 1978. The investments may be made in securities that are issued by the United States government or by its departments or agencies and are either direct obligations of the United States or are backed by the full faith and credit of the United States government or agencies sponsored by the United States government.
J. The state treasurer, with the advice and consent of the state board of finance, may also invest in contracts for the present purchase and resale at a specified time in the future, not to exceed one year or, in the case of bond proceeds, not to exceed three years, of specific securities at specified prices at a price differential representing the interest income to be earned by the state. Such contract shall not be invested in unless the contract is fully secured by obligations of the United States or its agencies or instrumentalities or by other securities backed by the United States or its agencies or instrumentalities having a market value of at least one hundred two percent of the amount of the contract. The securities required as collateral under this subsection shall be delivered to a third-party custodian bank pursuant to a contract with the state and the counterparty or to the fiscal agent of New Mexico or its designee. Delivery shall be made simultaneously with the transfer of funds or as soon as practicable, but no later than the same day that the funds are transferred.
K. The state treasurer, with the advice and consent of the state board of finance, may also invest in contracts for the temporary exchange of state-owned securities for the use of broker-dealers, banks or other recognized institutional investors in securities, for periods not to exceed one year for a specified fee rate. Such contract shall not be invested in unless the contract is fully secured by exchange of an irrevocable letter of credit running to the state, cash or equivalent collateral of at least one hundred two percent of the market value of the securities plus accrued interest temporarily exchanged. The collateral required by this subsection shall be delivered to the fiscal agent of New Mexico or its designee simultaneously with the transfer of funds or as soon as practicable, but no later than the same day that the state-owned securities are transferred.
L. Neither of the contracts in Subsection J or K of this section shall be invested in unless the contracting bank, brokerage firm or recognized institutional investor has a net worth in excess of five hundred million dollars ($500,000,000).
M. The state treasurer, with the advice and consent of the state board of finance, may also invest in any of the following investments in an amount not to exceed forty percent of any fund that the state treasurer invests:
(1) commercial paper rated "prime" quality by a national rating service, issued by corporations organized and operating within the United States;
(2) medium-term notes and corporate notes with a maturity not exceeding five years that are rated A or its equivalent or better by a nationally recognized rating service and that are issued by a corporation organized and operating in the United States; or
(3) an asset-backed obligation with a maturity not exceeding five years that is rated AAA or its equivalent by a nationally recognized rating service.
N. The state treasurer, with the advice and consent of the state board of finance, may also invest in:
(1) shares of an open-ended diversified investment company that:
(a) is registered with the United States securities and exchange commission;
(b) complies with the diversification, quality and maturity requirements of Rule 2a-7, or any successor rule, of the United States securities and exchange commission applicable to money market mutual funds; and
(c) assesses no fees pursuant to Rule 12b-1, or any successor rule, of the United States securities and exchange commission, no sales load on the purchase of shares and no contingent deferred sales charge or other similar charges, however designated, provided that the state shall not, at any time, own more than five percent of a money market mutual fund's assets; [or]
(2) individual, common or collective trust funds of banks or trust companies that invest in United States fixed-income securities or debt instruments authorized pursuant to Subsections I, J and M of this section, provided that the investment manager has assets under management of at least one billion dollars ($1,000,000,000) and the investments made by the state treasurer pursuant to this paragraph are less than five percent of the assets of the individual, common or collective trust fund; or
(3) the participating government investment fund managed by the office of the state treasurer. Investments made pursuant to this paragraph shall be less than five percent of the total assets of the participating government investment fund.
O. Public funds to be invested in negotiable securities or loans to financial institutions fully secured by negotiable securities at current market value shall not be paid out unless there is a contemporaneous transfer of the securities at the earliest time industry practice permits, but in all cases, settlement shall be on a same-day basis either by physical delivery or, in the case of uncertificated securities, by appropriate book entry on the books of the issuer, to the purchaser or to a reputable safekeeping financial institution acting as agent or trustee for the purchaser, which agent or trustee shall furnish timely confirmation to the purchaser."
Section 3. Section 6-10-10.1 NMSA 1978 (being Laws 1988, Chapter 61, Section 2, as amended) is amended to read:
"6-10-10.1. [SHORT-TERM] PARTICIPATING GOVERNMENT INVESTMENT FUND CREATED--DISTRIBUTION OF EARNINGS--REPORT OF INVESTMENTS.--
A. There is created in the state treasury the [short-term] "participating government investment fund". The fund shall consist of all deposits from [governmental entities and Indian tribes or pueblos] participating governments, including revenues dedicated to repaying bonds, that are placed in the custody of the state treasurer for [short-term] investment purposes pursuant to this section. The state treasurer shall maintain [a] one or more separate [account] accounts for each [governmental entity and Indian tribe or pueblo] participating government having deposits in the participating government investment fund and may divide the fund into two or more subfunds, as the state treasurer deems appropriate, for short-term and medium-term investment purposes, including one or more subfunds for bond proceeds deposited by participating governments.
B. If [a local public] an eligible governing body is unable to receive payment on public money at the rate of interest as set forth in Section 6-10-36 NMSA 1978 from financial institutions within the geographic boundaries of the [governmental unit, then a local public] eligible governing body, or if the eligible governing body is not bound by the terms of Section 6-10-36 NMSA 1978, the finance [official] officer having control of the money of that [local public] eligible governing body [in that official's custody] not required for current expenditure may, with the consent of the [appropriate local] board of finance [if any] of the eligible governing body if consent is required by the laws or rules of the eligible governing body, remit some or all of [such] the money to the state treasurer for deposit for the purpose of [short-term] investment as allowed by this section.
C. Before [local] funds are invested or reinvested [for the purpose of short-term investment] pursuant to this section, [the local public body] a finance [official] officer shall notify and make [such] the funds available for investment to banks, savings and loan associations and credit unions located within the geographical boundaries of [their respective governmental unit] the participating government or the eligible governing body, subject to the limitation on credit union accounts. To be eligible for [such] deposit of the government funds, the financial institution shall pay to the [local public] participating government or eligible governing body the rate established by the state treasurer pursuant to a policy adopted by the state board of finance for [such short-term] the investments.
D. [The local public body] A finance [official] officer shall specify the length of time a deposit shall be in the [short-term] participating government investment fund [but in any event the deposit shall not be made for more than one hundred eighty-one days]. The state treasurer through the use of the state fiscal agent shall separately track each [such] deposit and shall make [such] information regarding the deposit available to the public upon written request.
E. The state treasurer shall invest the [short-term] participating government investment fund as provided [for state funds under] in Section 6-10-10 NMSA 1978 regarding the investment of state funds in investments with a maturity at the time of purchase that does not exceed three [hundred ninety-seven days] years. The state treasurer may elect to have the [short-term] participating government investment fund consolidated for investment purposes with the state funds under the control of the state treasurer; provided that accurate and detailed accounting records are maintained for the account of each participating [entity and Indian tribe or pueblo] government and that a proportionate amount of interest earned is credited to each of the separate [government] accounts of a participating government. The fund shall be invested to achieve its objective, which is to realize the maximum return consistent with safe and prudent management.
F. At the end of each month, all net investment income or losses from investment of the [short-term] participating government investment fund shall be distributed by the state treasurer to the [contributing entities and Indian tribes or pueblos] accounts of participating governments in amounts directly proportionate to the respective amounts deposited by them in the participating government investment fund and the length of time the amounts in [the fund] each account were invested.
G. The state treasurer shall charge participating [entities, Indian tribes and pueblos] governments reasonable audit, administrative and investment expenses [to be paid] and shall deduct those expenses directly from [their] the net investment income for the investment and administrative services provided pursuant to this [section] subsection. The amount of the charges, the manner of the use by the state treasurer and the nature of bond-related services to be offered shall be established in rules adopted and promulgated by the state treasurer subject to approval by the state board of finance.
H. Subject to appropriation by the legislature, amounts deducted from the accounts of participating governments for charges permitted pursuant to this section shall be expended by the state treasurer in fiscal year 2008 and in subsequent fiscal years for the administration and management of the participating government investment fund, services provided to participating governments related to investment of their money in that fund and other services authorized by this section. Balances remaining at the end of a fiscal year from the amounts deducted pursuant to this section shall revert to the general fund. Balances in the state treasurer's operating account resulting from deductions taken pursuant to this section in excess of the amount required to provide administration, management and related services required by this subsection or other services authorized by this section shall be offset by reductions in the charges made by the state treasurer to the accounts of participating governments in subsequent deductions from participating governments' accounts.
[G.] I. Investments of the [short-term] participating government investment fund shall be made in such a manner that the portion of the fund invested in short-term investments maintains a "AA" or higher rating. Each fiscal year and at such other times as directed by the state board of finance, the state treasurer shall cause to have the short-term investment portion of the participating government investment fund rated by a nationally recognized statistical rating organization. If the rating received by the short-term investment portion of the fund is lower than "AA", the state treasurer shall immediately submit a plan to the state board of finance detailing the steps that will be taken to obtain a "AA" or higher rating.
[H. As used in this section, "local public body" means a political subdivision of the state, including school districts and post-secondary educational institutions.
I. In addition to the deposit of funds of local public bodies, the state treasurer may also accept for deposit, deposit and account for, in the same manner as funds of local public bodies, funds of the following governmental entities if the governing authority of the entity approves by resolution the deposit of the funds for the short-term investment:
(1) the agricultural commodity commission
established under the Agricultural Commodity Commission Act;
(2) the Albuquerque metropolitan arroyo flood control authority established under the Arroyo Flood Control Act;
(3) the business improvement district management committee established under the Business Improvement District Act;
(4) the New Mexico community development council established under the New Mexico Community Assistance Act;
(5) the governing authority of only special districts authorized under Chapter 73 NMSA 1978;
(6) the board of trustees established under the Economic Advancement District Act;
(7) the board of directors of a corporation or foundation established under the Educational Assistance Act;
(8) a board of directors established under the Flood Control District Act;
(9) the New Mexico hospital equipment loan council established under the Hospital Equipment Loan Act;
(10) the authority established under the Industrial and Agricultural Finance Authority Act;
(11) the authority established under the Las Cruces Arroyo Flood Control Act;
(12) the authority established under the Mortgage Finance Authority Act;
(13) the authority established under the Municipal Mortgage Finance Act;
(14) the authority established under the Public School Insurance Authority Act;
(15) the authority established under the Southern Sandoval County Arroyo Flood Control Act;
(16) a board of trustees established under the Special Hospital District Act;
(17) the authority established under the New Mexico Finance Authority Act; and
(18) the corporation established under the Small Business Investment Act.
J. In addition to the deposit of funds of local public bodies, the state treasurer may also accept for deposit and deposit and account for, in the same manner as funds of local public bodies, funds of any Indian tribe or pueblo in the state if authorized to do so under a joint powers agreement executed by the state treasurer and the governing authority of the Indian tribe or pueblo under the provisions of the Joint Powers Agreements Act.]
J. The state treasurer may offer to provide to participating governments services related to requirements of the federal income tax laws applicable to the investment of bond proceeds.
K. A tribe or quasi-governmental body created pursuant to New Mexico statute may become a participating government only if the governing authority of the tribe or quasi-governmental body has adopted a resolution authorizing the tribe or quasi-governmental body to remit money to the state treasurer for investment in the participating government investment fund.
L. Deposits by the state treasurer on behalf of the general fund shall not exceed five percent of the total amount in the participating government investment fund at any time."
Section 4. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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