HOUSE BILL 267
49th legislature - STATE OF NEW MEXICO - second session, 2010
INTRODUCED BY
Sandra D. Jeff
AN ACT
RELATING TO CAPITAL OUTLAY; PROVIDING A TRIGGER FOR AUTOMATIC CHANGES OF PURPOSE FOR INACTIVE CAPITAL OUTLAY FUNDING APPROPRIATED FOR PROJECTS DESIGNATED FOR TRIBAL COMMUNITIES TO VIABLE PROJECTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 6-28-1 NMSA 1978 (being Laws 2006, Chapter 105, Section 1) is amended to read:
"6-28-1. LEGISLATIVE FINDINGS AND PURPOSE.--
A. The legislature finds that many residents of this state living within Indian country are impoverished and are involuntarily living without electric service, indoor plumbing, adequate potable water, telecommunications or related infrastructure due to federal government policies over the decades. This finding is based upon federal decennial census data showing that Native Americans living in Indian country have a long history of income below federal poverty levels and a lack of basic domestic amenities. Living under such adverse circumstances has a negative impact on the education of children at the elementary and secondary school levels and on the health and welfare of Native Americans in general.
B. Since the nineteenth century, the federal government has assumed a trust responsibility for Native Americans, but since New Mexico attained statehood, it has had a responsibility for its [Native American] residents, including Native Americans.
C. The legislature finds it is the policy of the state of New Mexico to improve the basic quality of life of residents within Indian country through the use of any means available.
D. The purpose of this act is in part to enable the state, in compliance with the provisions of the constitution of New Mexico, to provide financial and other assistance to residents within Indian country so that they may be served by basic residential services such as electric service, indoor plumbing, sewer, adequate potable water, telecommunications and related infrastructure.
E. The state has developed government-to-government relationships and agreements with the twenty-two Indian nations, tribes and pueblos with members living on the tribes' trust lands or pueblo grants in New Mexico regarding education and other topics. To better provide services to Native Americans, many state agencies have designated divisions or liaisons to work with the nations, tribes and pueblos.
F. The state has worked with Indian nations, tribes and pueblos, of which the Navajo Nation is the largest tribal government, and the state recognizes that the Navajo Nation is divided into political subdivisions designated as chapters.
G. Due to federal, state and tribal policies related to the implementation of capital outlay and other projects, delays in implementation due to bureaucratic [red tape] procedures and barriers have resulted in the reversion of millions of dollars in capital outlay funds designated for projects in Indian country.
H. Tribal governments and their subdivisions have, through the years, organized nonprofit entities to assist in the provision of education and other basic services."
Section 2. A new section of Chapter 6, Article 28 NMSA 1978 is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in Chapter 6, Article 28 NMSA 1978:
A. "capital outlay funding" means state funds, either general fund or severance tax bond funds, appropriated to complete a specified project in a capital outlay appropriation bill;
B. "capital outlay project" means a project for which capital outlay funding has been appropriated;
C. "fiscal agent" means the state agency to which capital outlay funding has been appropriated to complete a project in a tribal community;
D. "local tribal entity" means a subdivision or other legal entity created by a tribe;
E. "Navajo Nation tribal entity" means a chapter or nonprofit entity authorized or created by the Navajo Nation;
F. "tribal community" means the community created by the presence of a tribe;
G. "tribal government administrator" means an entity of a tribe that has the authority to enter into contracts, approve the work completed on a capital outlay project, pay invoices, negotiate with the state and has the human and financial resources to implement a capital outlay project; and
H. "tribe" means a federally recognized Indian nation, tribe or pueblo located wholly or partially in New Mexico."
Section 3. Section 6-28-2 NMSA 1978 (being Laws 2006, Chapter 105, Section 2) is amended to read:
"6-28-2. [FISCAL AGENTS FOR] NAVAJO NATION PROJECTS--ADDITIONAL FINDINGS--TRIBAL GOVERNMENT ADMINISTRATOR.--
A. The state recognizes [the chapters of the Navajo Nation as local] that Navajo Nation tribal entities [having] may have the capability and capacity to apply for and implement capital improvement projects. The state also recognizes [as local] that Navajo Nation tribal entities [those] that are nonprofit entities, organized [under the supervision of tribal governments] by the Navajo Nation, whose mission or objective is to provide education and other basic services [and who] may apply for and implement capital improvement projects. [Therefore]
B. The state may contract through a [fiscal agent] Navajo Nation tribal entity other than the Navajo Nation tribal government for the expenditure of state funds on behalf of [local] Navajo Nation tribal entities [of the Navajo Nation].
C. Unless otherwise negotiated, an administrative fee of no more than five percent of a project's cost may be charged by the entity that serves as [fiscal agent] a tribal government administrator for a project to be located within the Navajo Nation or on land under the control of the Navajo Nation or a Navajo Nation tribal entity."
Section 4. A new section of Chapter 6, Article 28 NMSA 1978 is enacted to read:
"[NEW MATERIAL] AUTOMATIC CHANGE OF PURPOSE--CAPITAL OUTLAY FUNDING FOR INACTIVE CAPITAL OUTLAY PROJECTS APPROPRIATED FOR USE IN TRIBAL COMMUNITIES MOVED TO VIABLE CAPITAL OUTLAY PROJECTS.--
A. Capital outlay funding appropriated for a capital outlay project located within a tribal community shall be reviewed by the fiscal agent for viability, in consultation with the appropriate officials of the tribal community, if, within eighteen months following the effective date of the appropriation of that capital outlay funding, agreements or third party contracts to begin work on the capital outlay project have not been executed or necessary tribal government approvals have not been obtained.
B. To determine if a capital outlay project is viable, a fiscal agent shall determine if the capital outlay project:
(1) is adequately funded to ensure completion of the capital outlay project once started;
(2) has sufficient tribal community support so that the requisite approvals can be obtained, allowing all contracts to be completed and performance to begin within the six months remaining before the end of the second year following the effective date of the appropriation;
(3) has support from the governmental body and agencies that are required to approve the capital outlay project and that the approval is imminent, allowing the capital outlay project to proceed within the six months remaining in the second year following the effective date of the appropriation;
(4) planning is under way to the extent that contractors have been consulted and are ready to enter into contracts to perform as required by the capital outlay project; and
(5) can begin expenditures of money no later than the last day of the second year following the effective date of the appropriation.
C. If the fiscal agent determines that any one of the requirements noted in Subsection B of this section fails to be met, the fiscal agent shall notify the department of finance and administration that the capital outlay project as funded cannot be expended for the purpose for which the appropriation was intended and the process set forth in this section, to be referred to as an "automatic change of purpose", is to be implemented.
D. An automatic change of purpose shall be implemented as follows:
(1) the fiscal agent, after notifying the department of finance and administration that a specific capital outlay appropriation cannot be expended for the purpose for which the appropriation was intended, shall notify the tribal community in which the capital outlay project is to be completed that an automatic change of purpose is required to be completed for the funds appropriated to be expended;
(2) the fiscal agent and the tribal community, after consultation with the legislator who requested the appropriation that cannot be expended, shall determine if there is another capital outlay project within the tribal community for which the funding can be used that is appropriate for capital outlay funding, can receive approvals needed, can have contracts entered into and expenditures begun before the end of the second year following the effective date of the appropriation and requires the amount of funding available from the appropriation;
(3) if no capital outlay project within the tribal community can be identified, the fiscal agent shall confer with the legislator who requested the appropriation and determine if the purpose for which the capital outlay funding was appropriated can be changed to another purpose within the legislator's district that will meet the criteria of a viable capital outlay project; and
(4) if, in the case of a capital outlay project located in a community of the Navajo Nation, no capital outlay project within the legislative district can be found that can absorb the funding from the appropriation within the time allotted, the fiscal agent, legislator and tribal government shall identify another capital outlay project within the Navajo Nation's tribal land in New Mexico to which the money may be shifted and expended within the time constraints of this section.
E. Once an automatic change of purpose has been initiated pursuant to this section, the department of finance and administration shall be notified of the new purpose. A request to change the purpose through the reauthorization of capital outlay projects process shall be submitted by the fiscal agent to the legislative council service on behalf of the legislator who obtained the capital outlay funding for inclusion in the next reauthorization bill.
F. An automatic change of purpose shall not be used if it can be shown that the capital outlay project is viable, has received the appropriate tribal governmental approvals, but is awaiting additional funding from a guaranteed source, such as the federal government or a grant, and that the approval of those funds is certain and imminent. In such a case, the capital outlay project may be allowed an additional twelve months maximum before it is again reviewed for viability or an extension of time to complete the capital outlay project and use the funds is requested."
Section 5. Section 6-28-6 NMSA 1978 (being Laws 2006, Chapter 105, Section 6) is amended to read:
"6-28-6. TRIBAL INFRASTRUCTURE ACT--AUGMENT IMPLEMENTATION.--The provisions of [this act] Chapter 6, Article 28 NMSA 1978 also may be used to implement the provisions of the Tribal Infrastructure Act."
Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.
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