SENATE RULES COMMITTEE SUBSTITUTE FOR

SENATE BILL 269

49th legislature - STATE OF NEW MEXICO - second session, 2010

AN ACT

RELATING TO SPECIAL PROSECUTIONS; PROVIDING FOR AN INDEPENDENT COUNSEL TO INVESTIGATE AND TO TAKE ACTION AGAINST ALLEGED FRAUD AND OTHER IMPROPRIETIES ARISING FROM MANAGEMENT OF THE STATE'S INVESTMENT FUNDS AND TO RECOVER MONEY LOST TO THE FUNDS DUE TO FRAUD OR OTHER IMPROPRIETIES; MAKING AN APPROPRIATION; DECLARING AN EMERGENCY.

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

     Section 1. OFFICE OF INDEPENDENT COUNSEL.--

          A. The "office of independent counsel" is created. The office of independent counsel shall have the jurisdiction and act on behalf of the state as provided in Subsection E of this section. The person to fill the office of independent counsel shall be an independent contractor procured by the office of the attorney general following the competitive sealed proposal for professional services provisions of the Procurement Code. The office of independent counsel shall exercise its investigatory and other functions independently of and without approval or control of the office of the attorney general; provided that all invoices under the contract shall be submitted to the office of the attorney general for approval, and the office of the attorney general shall be responsible for reviewing and approving invoices, ensuring compliance with contract provisions and approving payments for services rendered.

          B. The person selected to fill the office of independent counsel shall be an attorney with a reputation for integrity and impartial decision-making and with appropriate experience to ensure that an investigation will be properly, expeditiously and thoroughly conducted and that any action, whether administrative or civil, will be skillfully and vigorously executed. The person selected shall agree that the person's responsibilities as independent counsel shall take first precedence over other matters in the person's professional life, including the necessity to devote the person's entire professional time to an investigation and prosecution if conditions require that commitment.

          C. As an exception to the provisions of Section 13-1-150 NMSA 1978, the original term of the contract for the office of independent counsel shall be for one year and may be continued for additional one-year terms until the matter being investigated or prosecuted is brought to conclusion, subject to sufficient money being appropriated to continue the contract.

          D. The office of independent counsel may administer oaths and issue subpoenas, which may be enforced through any district court of the state. The subpoena power is limited to the office of independent counsel's jurisdiction as specified in this section. Service of process shall be made by any sheriff or any member of the New Mexico state police and shall be served without cost to the office of independent counsel.

          E. The jurisdiction of the office of independent counsel is to investigate the loss or misuse of money from the funds that are invested by the state investment officer in any instance involving alleged or suspected fraud or other malfeasance or negligence; to determine, if appropriate, whether any money lost or misused can be recovered; and, if the determination is that money can be recovered, to take any appropriate administrative or civil action necessary to recover the money subject to the following provisions:

                (1) if the office of independent counsel discovers or determines during its investigation or administrative or civil action prosecution of a matter that any activity or conduct may constitute a criminal violation, the office of independent counsel shall suspend its activity in the matter and refer it to the office of the attorney general;

                (2) if the office of the attorney general accepts the referral as a criminal matter, the office of independent counsel shall take no further action in the matter; and

                (3) if the office of the attorney general does not accept the referral, the office of independent counsel shall proceed in the matter within its administrative and civil jurisdiction.

          F. Monthly, following the inception of a contract, the office of independent counsel shall report in writing the status of its work to the New Mexico legislative council and the legislative finance committee. When the office of independent counsel makes a determination concerning whether money can be recovered, and prior to any decision to take administrative or civil action, the office of independent counsel shall report the determination to the New Mexico legislative council and to the legislative finance committee and shall take no further action until the New Mexico legislative council reviews the determination with the office of independent counsel.

          G. For fiscal year 2010 and each fiscal year thereafter in which the contract with the office of independent counsel is continued, pursuant to Sections 6-3-23 through 6-3-25 NMSA 1978, the office of the attorney general may request budget increases from the funds managed by the state investment officer as are necessary to fund the office of independent counsel contract and, if approved, the amount of budget increase is appropriated.

     Section 2. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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