House Bill text for HB0381

HOUSE BILL 381

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Luciano "Lucky" Varela

AN ACT

RELATING TO STATE AGENCIES; INCLUDING STATE INSTRUMENTALITIES IN THE DEFINITION OF STATE AGENCY FOR THE PURPOSES OF CHAPTER 6, ARTICLE 3 NMSA 1978; REPEALING A DUPLICATE SECTION OF LAW.

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

Section 1. Section 6-3-1 NMSA 1978 (being Laws 1957, Chapter 253, Section 1) is amended to read:

"6-3-1. STATE AGENCY DEFINED.--

A. As used in Chapter 6, Article 3 NMSA 1978, "state agency" means any department, institution, board, bureau, commission, district [or], committee or instrumentality of government of the state [of New Mexico] and means every office or officer of any of [the above] them.

B. The following instrumentalities are subject to the provisions of Chapter 6, Article 3 NMSA 1978:

(1) the New Mexico finance authority;

(2) the New Mexico lottery authority;

(3) the New Mexico exposition center authority;

(4) the New Mexico mortgage finance authority;

(5) the New Mexico hospital equipment loan council; and

(6) the New Mexico renewable energy transmission authority."

Section 2. Section 6-21-4 NMSA 1978 (being Laws 1992, Chapter 61, Section 4, as amended) is amended to read:

"6-21-4. NEW MEXICO FINANCE AUTHORITY CREATED--MEMBERSHIP--QUALIFICATIONS--QUORUM--MEETINGS--COMPENSATION--BOND.--

A. There is created a public body politic and corporate [separate and apart from the state] constituting a governmental instrumentality to be known as the "New Mexico finance authority" for the performance of essential public functions.

B. The authority shall be composed of twelve members. The state investment officer, the secretary of finance and administration, the secretary of economic development, the secretary of energy, minerals and natural resources, the secretary of environment, the executive director of the New Mexico municipal league and the executive director of the New Mexico association of counties or their designees shall be ex-officio members of the authority with voting privileges. The governor, with the advice and consent of the senate, shall appoint to the authority the chief financial officer of a state higher educational institution and four members who are residents of the state. The appointed members shall serve at the pleasure of the governor.

C. The appointed members of the authority shall be appointed to four-year terms. The initial members shall be appointed to staggered terms of four years or less so that the term of at least one member expires on January 1 of each year. Vacancies shall be filled by appointment by the governor for the remainder of the unexpired term. Any member of the authority shall be eligible for reappointment.

D. Each appointed member, before entering upon [his] the member's duty, shall take an oath of office to administer the duties of [his] the member's office faithfully and impartially. A record of the oath shall be filed in the office of the secretary of state.

E. The governor shall designate an appointed member of the authority to serve as [chairman] chair. The authority shall elect annually one of its members to serve as vice [chairman] chair. The authority shall appoint and prescribe the duties of such other officers, who need not be members, as the authority deems necessary or advisable, including a chief executive officer and a secretary, who may be the same person. The authority may delegate to one or more of its members, officers, employees or agents such powers and duties as it may deem proper and consistent with the New Mexico Finance Authority Act.

F. The chief executive officer of the authority shall direct the affairs and business of the authority, subject to the policies, control and direction of the authority. The secretary of the authority shall keep a record of the proceedings of the authority and shall be custodian of all books, documents and papers filed with the authority, the minute book or journal of the authority and its official seal. The secretary shall make copies of all minutes and other records and documents of the authority and give certificates under the official seal of the authority to the effect that the copies are true copies, and all persons dealing with the authority may rely upon the certificates.

G. Meetings of the authority shall be held at the call of the [chairman] chair or whenever three members shall so request in writing. A majority of members then serving constitutes a quorum for the transaction of any business. The affirmative vote of at least a majority of a quorum present shall be necessary for any action to be taken by the authority. An ex-officio member may designate in writing another person to attend meetings of the authority and to the same extent and with the same effect act in [his] the ex-officio member's stead. No vacancy in the membership of the authority shall impair the right of a quorum to exercise all rights and perform all duties of the authority.

H. Each member of the authority shall give bond as provided in the Surety Bond Act. All costs of the surety bonds shall be borne by the authority.

I. The authority is not created or organized, and its operations shall not be conducted, for the purpose of making a profit. No part of the revenues or assets of the authority shall benefit or be distributable to its members, officers or other private persons. The members of the authority shall receive no compensation for their services, but shall be reimbursed for actual and necessary expenses at the same rate and on the same basis as provided for public officers in the Per Diem and Mileage Act.

J. The [authority shall not be subject to the supervision or control of any other board, bureau, department or agency of the state except as specifically provided in the New Mexico Finance Authority Act. No] use of the [terms] term "state agency" or "instrumentality" in any other law of the state shall not be deemed to refer to the authority unless the authority is specifically referred to in the law.

K. The authority is a governmental instrumentality for purposes of the Tort Claims Act."

Section 3. Section 6-24-5 NMSA 1978 (being Laws 1995, Chapter 155, Section 5) is amended to read:

"6-24-5. NEW MEXICO LOTTERY AUTHORITY CREATED.--

A. There is created a public body politic and corporate [separate and apart from the state] constituting a governmental instrumentality to be known as the "New Mexico lottery authority". The authority is created and organized for the purpose of establishing and conducting the [New Mexico state] lottery to provide revenues for the public purposes designated by the New Mexico Lottery Act.

B. The authority shall be governed by a board of directors composed of seven members who are residents of New Mexico appointed by the governor with the advice and consent of the senate. The members of the board of directors shall be prominent persons in their businesses or professions and shall be appointed so as to provide equitable geographical representation. No more than four members of the board shall be from any one political party. The governor shall consider appointing at least one member who has at least five years experience as a law enforcement officer, at least one member who is an attorney admitted to practice in New Mexico and at least one member who is a certified public accountant certified in New Mexico.

C. Board members shall be appointed for five-year terms. To provide for staggered terms, four of the initially appointed members shall be appointed for terms of five years and three members for terms of three years. Thereafter, all members shall be appointed for five-year terms. A vacancy shall be filled by appointment by the governor for the remainder of the unexpired term. A member shall serve until [his] a replacement is confirmed by the senate. Board members shall be eligible for reappointment.

D. The board shall select one of its members as [chairman] chair annually. A [chairman] chair may be selected for successive years. Members of the board may be removed by the governor for malfeasance, misfeasance or willful neglect of duty after reasonable notice and a public hearing unless the notice and hearing are expressly waived in writing by the member.

E. The board shall hold regular meetings at the call of the [chairman] chair, but not less often than once each calendar quarter. A board meeting may also be called upon the request in writing of three or more board members. A majority of members then in office constitutes a quorum for the transaction of any business and for the exercise of any power or function of the authority.

F. Board members shall receive no compensation for their services, but shall be paid expenses incurred in the conduct of authority business as allowed and approved by the authority in accordance with policies adopted by the board.

G. A board member shall be subject to a background check and investigation to determine [his] fitness for office. The results of that background check shall be made available to the governor and the senate."

Section 4. Section 6-25A-1 NMSA 1978 (being Laws 2005, Chapter 342, Section 1) is amended to read:

"6-25A-1. SHORT TITLE.--[This act] Chapter 6, Article 25A NMSA 1978 may be cited as the "New Mexico Exposition Center Authority Act"."

Section 5. Section 6-25A-4 NMSA 1978 (being Laws 2005, Chapter 342, Section 4) is amended to read:

"6-25A-4. NEW MEXICO EXPOSITION CENTER AUTHORITY CREATED--MEMBERSHIP--QUALIFICATIONS--QUORUM--MEETINGS-- COMPENSATION--BOND.--

A. [There] The "New Mexico exposition center authority" is created as a public body politic and corporate [separate and apart from the state] constituting a governmental instrumentality [to be known as the "New Mexico exposition center authority"] for the performance of essential public functions.

B. The authority shall be composed of fifteen members, including the secretary of finance and administration, the secretary of economic development, the secretary of tourism, the chair of the state transportation commission, the secretary of transportation, the [executive director] chief executive officer of the New Mexico finance authority, the mayor of the city of Albuquerque, the chair of the Bernalillo county board of county commissioners, the mayor of the city of Santa Fe, the chair of the Santa Fe county board of county commissioners, the executive director of the mid-region council of governments and four members who are residents of the state, at least three of whom are nonresidents of Bernalillo or Santa Fe county, appointed by the governor, with the advice and consent of the senate. The appointed members shall serve at the pleasure of the governor.

C. The appointed members of the authority shall be appointed to four-year terms. The initial members shall be appointed to staggered terms of four years or less, so that the term of at least one member expires on January 1 of each year. Vacancies shall be filled by appointment by the governor for the remainder of the unexpired term. An appointed member shall continue to serve beyond the expiration of the member's term until a new member is appointed. Any member shall be eligible for reappointment.

D. Each appointed member before entering upon the member's duties shall take an oath of office to administer the duties of office faithfully and impartially. A record of the oath shall be filed in the office of the secretary of state.

E. The governor shall designate an appointed member of the authority to serve as chair. The authority shall elect annually one of its members to serve as vice chair. The authority shall appoint and prescribe the duties of such other officers, who need not be members, as the authority deems necessary or advisable, including an executive director and a secretary, who may be the same person. The authority may delegate to one or more of its members, officers, employees or agents such powers and duties as it may deem proper and consistent with the New Mexico Exposition Center Authority Act.

F. The executive director of the authority shall direct the affairs and business of the authority, subject to the policies, control and direction of the authority. The secretary of the authority shall keep a record of the proceedings of the authority and shall be the custodian of all books, documents and papers filed with the authority, the minute book or journal of the authority and its official seal. The secretary shall make copies of all minutes and other records and documents of the authority and give certificates under the official seal of the authority to the effect that the copies are true copies, and all persons dealing with the authority may rely upon the certificates.

G. Meetings of the authority shall be held at the call of the chair or whenever three members shall so request in writing. A majority of members then serving constitutes a quorum for the transaction of any business. The affirmative vote of at least a majority of a quorum present shall be necessary for any action to be taken by the authority. An ex-officio member may designate in writing another person to attend meetings and to act for that member with the same authority as the member. No vacancy in the membership of the authority shall impair the right of a quorum to exercise all rights and perform all duties of the authority.

H. Each member of the authority shall give a bond as provided in the Surety Bond Act. All costs of the surety bonds shall be borne by the authority.

J. The [authority shall not be subject to the supervision or control of any other board, bureau, department or agency of the state except as specifically provided in the New Mexico Exposition Center Authority Act. No] use of the [terms] term "state agency" or "instrumentality" in any other law of the state shall not be deemed to refer to the authority unless the authority is specifically referred to in the law.

K. The authority may operate the exposition center in the participating jurisdictions in accordance with the purposes expressed in the New Mexico Exposition Center Authority Act.

L. The authority shall be included as a "qualified entity" within the meaning of that term pursuant to the New Mexico Finance Authority Act.

M. The authority shall be included in the definition of "qualifying entity" pursuant to the Local Economic Development Act.

N. The authority shall be included as an "eligible entity" within the meaning of that term pursuant to the Statewide Economic Development Finance Act.

O. The authority is a governmental instrumentality for purposes of the Tort Claims Act."

Section 6. Section 58-18-2 NMSA 1978 (being Laws 1975, Chapter 303, Section 2, as amended) is amended to read:

"58-18-2. LEGISLATIVE FINDINGS--DECLARATION OF

PURPOSE.--

A. The legislature finds and declares that there exists in the state of New Mexico a serious shortage of decent, safe and sanitary residential housing available at prices and rentals within the financial means of persons and families of low or moderate income. This shortage is severe in certain urban areas of the state, is especially critical in the rural areas and is inimical to the health, safety, welfare and prosperity of all residents of the state.

B. The legislature finds and determines that the shortage of residential housing causes overcrowding and congestion and exacerbates existing slum conditions, which, in turn, contribute substantially and increasingly to the spread of disease and crime, impair economic values, necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health, welfare and safety programs, fire and accident protection and other services, substantially impair or arrest the growth of municipalities, aggravate traffic problems and promote juvenile delinquency and other social ills.

C. The legislature finds and declares further that private enterprise unaided has not been able to produce the needed construction of decent, safe and sanitary residential housing at prices and rentals that persons and families of low or moderate income can afford or to achieve the urgently needed rehabilitation of much of their present housing. It is imperative that the supply of residential housing for persons and families of low or moderate income be increased substantially and that private enterprise and investment be encouraged to sponsor, build and rehabilitate residential housing for such persons and families.

D. It is found and declared that a major cause of this housing shortage is the lack of funds in private banking channels available for affordable residential mortgages. This lack of funds has contributed to drastic reductions in construction starts of new residential housing and has frustrated the sale and purchase of existing residential housing in the state.

E. It is further found and declared that the drastic reduction in residential construction starts and, in residential rehabilitation projects associated with housing shortages, has caused a condition of substantial unemployment and underemployment in the construction industry, which results in hardships to many individuals and families, wastes vital human resources, increases the public assistance burdens of the state and its municipalities, impairs the security of family life, impedes the economic and physical development of municipalities and adversely affects the welfare and prosperity of all the people of the state. A stable supply of adequate funds for affordable residential mortgages is required to spur new housing starts and the rehabilitation of existing units in an orderly and sustained manner and thereby to reduce the hazards of unemployment and underemployment in the construction industry. The unaided operations of private enterprise have not met and cannot meet the need for a stable supply of adequate funds for affordable residential mortgage financing.

F. The legislature further finds and determines that for the purposes of remedying these conditions, helping to alleviate the shortage of adequate housing and encouraging and providing the financing for the acquisition, construction, rehabilitation and improvement of residential housing for persons and families of low or moderate income within the state, a public body politic and corporate [separate and apart from the state] constituting a governmental instrumentality to be known as the New Mexico mortgage finance authority should be created with power to raise funds from private and public investors, to make funds available for such purposes, to create and implement programs from time to time as may be necessary or appropriate to accomplish its purposes and to assist, nadminister, finance or service housing programs for or through private and nonprofit organizations and local, state, federal and tribal agencies or their instrumentalities. The legislature finds and declares further that in accomplishing these purposes, the New Mexico mortgage finance authority is acting in all respects for the benefit of the people of the state in the performance of essential public functions and is serving a valid public purpose in improving and otherwise promoting their health, welfare and prosperity, and that the enactment of the provisions set forth in the Mortgage Finance Authority Act is for a valid public purpose and is declared to be such as a matter of express legislative determination."

Section 7. Section 58-18-4 NMSA 1978 (being Laws 1975, Chapter 303, Section 4, as amended) is amended to read:

"58-18-4. AUTHORITY CREATED.--

A. There is created a public body politic and corporate [separate and apart from the state] constituting a governmental instrumentality, to be known as the "New Mexico mortgage finance authority", for the performance of essential public functions. The authority shall be composed of seven members. The lieutenant governor, state treasurer and attorney general shall be ex-officio members of the authority with voting privileges. The governor, with the advice and consent of the senate, shall appoint the other four members of the authority, who shall be residents of the state and shall not hold other public office. The four members of the authority appointed by the governor shall be appointed for terms of four years or less, staggered so that the term of one member expires on January 1 of each year. Vacancies shall be filled by appointment by the governor for the remainder of the unexpired term. Any member of the authority shall be eligible for reappointment. Each member of the authority appointed by the governor may be removed by the governor for misfeasance, malfeasance or willful neglect of duty after reasonable notice and a public hearing, unless the notice and hearing are, in writing, expressly waived. Each member of the authority appointed by the governor, before entering upon duty, shall take an oath of office to administer the duties of the office faithfully and impartially, and a record of the oath shall be filed in the office of the secretary of state. The governor shall designate a member of the authority to serve as chair for a term that shall be coterminous with the chair's then current term as a member of the authority. The authority shall annually elect one of its members as vice chair. The authority shall also elect or appoint and prescribe the duties of other officers, who need not be members, as the authority deems necessary or advisable, including an executive director and a secretary, who may be the same person. The authority shall fix the compensation of officers. Officers and employees of the authority are not subject to the Personnel Act. The authority may delegate to one or more of its members, officers, employees or agents the powers and duties it may deem proper.

B. All members, officers, employees or agents exercising any voting power or discretionary authority shall be required to have a fiduciary bond in the amount of one million dollars ($1,000,000) for the faithful performance of their duties, the cost of which shall be proper expense of the authority.

C. The executive director shall administer, manage and direct the affairs and business of the authority, subject to the policies, control and direction of the members of the authority. The secretary of the authority shall keep a record of the proceedings of the authority and shall be custodian of all books, documents and papers filed with the authority, the minute book or journal of the authority and its official seal. The secretary shall have authority to make copies of all minutes and other records and documents of the authority and to give certificates under the official seal of the authority to the effect that the copies are true copies, and all persons dealing with the authority may rely upon the certificates.

D. Meetings of the authority shall be held at the call of the chair or whenever three members so request in writing. A majority of members in office shall constitute a quorum for the transaction of any business and for the exercise of any power or function of the authority. A vacancy in the membership of the authority shall not impair the rights of a quorum to exercise all the rights and to perform all the duties of the authority. An ex-officio member from time to time may designate in writing another person to attend meetings of the authority and, to the same extent and with the same effect, act in the member's stead.

E. The authority is not created or organized, and its operations shall not be conducted, for the purpose of making a profit. No part of the revenues or assets of the authority shall inure to the benefit of or be distributable to its members or officers or other private persons. The members of the authority shall not receive compensation for their services, but the members of the authority, its officers and employees shall be paid allowed expenses if approved by the authority in accordance with policies adopted by the authority and approved by the Mortgage Finance Authority Act oversight committee.

F. [The authority shall be separate and apart from the state and shall not be subject to the supervision or control of a board, bureau, department or agency of the state except as specifically provided in the Mortgage Finance Authority Act. To effectuate the separation of the state from the authority] The use of the [terms] term "state agency" or "instrumentality" in any other law of the state shall not be deemed to refer to the authority unless the authority is specifically named."

Section 8. Section 58-23-5 NMSA 1978 (being Laws 1983, Chapter 290, Section 5, as amended by Laws 2006, Chapter 90, Section 2 and by Laws 2006, Chapter 92, Section 2) is amended to read:

"58-23-5. COUNCIL--CREATED--MEMBERS--QUALIFICATIONS--BOARD.--

A. There is created a public body politic and corporate [separate and apart from the state] constituting a governmental instrumentality to be known as the "New Mexico hospital equipment loan council" for the performance of essential public functions.

B. The council shall be governed by a board of directors consisting of five members. The governor, with the advice and consent of the senate, shall appoint the members of the board.

C. Each member of the board shall be a resident of the state, and in addition:

(1) two members shall be officers or directors of financial institutions located in New Mexico;

(2) two members shall be officers or directors of a health facility located in New Mexico. Such members shall have been employed for a total of five years as officers or directors of any health facility;

(3) one member shall be appointed from and represent the public and shall not be directly or indirectly affiliated with any health facility; and

(4) no more than three members shall be of the same political party.

D. The [council shall be separate and apart from the state and shall not be subject to the supervision or control of any board, bureau, department or agency of the state except as specifically provided in the Hospital Equipment Loan Act. In order to effectuate the separation of the state from the council, no] use of the [terms] term "state agency" or "instrumentality" in any other law of the state shall not be deemed to refer to the council unless the council is specifically referred to therein, except that the council is a state agency and instrumentality for the purposes of Article 8, Section 3 of the constitution of New Mexico."

Section 9. Section 62-16A-1 NMSA 1978 (being Laws 2007, Chapter 3, Section 1) is amended to read:

"62-16A-1. SHORT TITLE.--[Sections 1 through 15 of this act] Chapter 62, Article 16A NMSA 1978 may be cited as the "New Mexico Renewable Energy Transmission Authority Act"." Section 10. Section 62-16A-3 NMSA 1978 (being Laws 2007, Chapter 3, Section 3) is amended to read:

"62-16A-3. NEW MEXICO RENEWABLE ENERGY TRANSMISSION AUTHORITY CREATED--ORGANIZATION.--

A. The "New Mexico renewable energy transmission authority" is created as a public body politic and corporate [separate and apart from the state] constituting a governmental instrumentality for the performance of essential public functions.

B. The authority shall be composed of seven members as follows:

(1) three members appointed by the governor with the advice and consent of the senate. The initial appointees shall be appointed for staggered terms of one, two and three years; thereafter the members shall be appointed for three-year terms;

(2) the state investment officer or the state investment officer's designee;

(3) the state treasurer or the state treasurer's designee;

(4) one member appointed by the speaker of the house of representatives who shall serve at the pleasure of the speaker of the house; and

(5) one member appointed by the president pro tempore of the senate who shall serve at the pleasure of the president pro tempore.

C. The qualifications of the members shall be as follows:

(1) one member appointed by the governor shall have expertise in financial matters involving the financing of major electrical transmission projects;

(2) the other four appointed members shall have:

(a) special knowledge of the public utility industry, as evidenced by college degrees or by experience, at least five years of which must be with the public utility industry; and

(b) knowledge of renewable energy development; and

(3) no member shall represent a person that owns or operates facilities.

D. The members initially appointed by the speaker of the house and the president pro tempore of the senate shall, by lot, determine one to have an initial term of two years and one to have an initial term of four years; thereafter, the appointments will be for staggered terms of four years.

E. In addition to the seven voting members, the secretary of energy, minerals and natural resources shall serve as an ex-officio nonvoting member of the authority.

F. The governor shall designate an appointed member of the authority to serve as chair, and the authority may elect annually such other officers as it deems necessary.

G. The authority shall meet at the call of the chair or whenever four members shall so request in writing. A majority of members then serving constitutes a quorum for the transaction of business, but the affirmative vote of at least four members is necessary for any action to be taken by the authority.

H. The authority is not created or organized, and its operations are not conducted, for the purpose of making a profit, but it is expected to recover the costs of operating the authority. No part of the revenues or assets of the authority shall benefit or be distributable to its members, officers or other private persons. The members of the authority shall receive no compensation for their services, but the public members shall be reimbursed for actual and necessary expenses at the same rate and on the same basis as provided for public officers in the Per Diem and Mileage Act.

I. The [authority is not subject to the supervision or control of any other board, bureau, department or agency of the state except as specifically provided in the New Mexico Renewable Energy Transmission Authority Act. No] use of the [terms] term "state agency" or "instrumentality" in any other law of the state shall not be deemed to refer to the authority unless the authority is specifically referred to in the law.

J. The authority is a governmental instrumentality for purposes of the Tort Claims Act."

Section 11. REPEAL.--Section 6-3-9 NMSA 1978 (being Laws 1955, Chapter 114, Section 1) is repealed.

Section 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.

- 24 -