HOUSE BILL 434
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Alonzo Baldonado
AN ACT
RELATING TO THE LEGISLATURE; AMENDING THE LOBBYIST REGULATION ACT; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 2-11-2 NMSA 1978 (being Laws 1977, Chapter 261, Section 2, as amended) is amended to read:
"2-11-2. DEFINITIONS.--As used in the Lobbyist Regulation Act:
A. "compensation" means any money, per diem, salary, fee or portion thereof or the equivalent in services rendered or in-kind contributions received or to be received in return for lobbying services performed or to be performed;
B. "corruption statute" includes:
(1) the Election Code;
(2) the Campaign Reporting Act;
(3) the Lobbyist Regulation Act;
(4) the Governmental Conduct Act;
(5) the Financial Disclosure Act;
(6) the Gift Act;
(7) the Procurement Code;
(8) the New Mexico Uniform Securities Act;
(9) the 1999 Public Accountancy Act;
(10) fraud, as provided in Section 30-16-6 NMSA 1978;
(11) embezzlement, as provided in Section 30-16-8 NMSA 1978;
(12) forgery, as provided in Section 30-16-10 NMSA 1978;
(13) misconduct by officials, as provided in Sections 30-23-1 through 30-23-7 NMSA 1978;
(14) bribery, as provided in Sections 30-24-1 through 30-24-3.1 NMSA 1978;
(15) non-disclosure of third-party marketers, as provided in Sections 6-8-22 and 22-11-54 NMSA 1978;
(16) perjury and false affirmation, as provided in Section 30-25-1 NMSA 1978; and
(17) tampering with public records, as provided in Section 30-26-1 NMSA 1978;
[B.] C. "expenditure" means a payment, transfer or distribution or obligation or promise to pay, transfer or distribute any money or other thing of value, but does not include a lobbyist's own personal living expenses and the expenses incidental to establishing and maintaining an office in connection with lobbying activities or compensation paid to a lobbyist by a lobbyist's employer;
[C.] D. "legislative committee" means a committee created by the legislature, including interim and standing committees of the legislature;
[D.] E. "lobbying" means attempting to influence:
(1) a decision related to any matter to be considered or being considered by the legislative branch of state government or any legislative committee or any legislative matter requiring action by the governor or awaiting action by the governor; or
(2) an official action;
[E.] F. "lobbyist" means any individual who is compensated for the specific purpose of lobbying; is designated by an interest group or organization to represent it on a substantial or regular basis for the purpose of lobbying; or in the course of [his] employment, is engaged in lobbying on a substantial or regular basis. "Lobbyist" does not include:
(1) an individual who appears on [his] the individual's own behalf in connection with legislation or an official action;
(2) [any] an elected or appointed officer of the state or its political subdivisions or an Indian tribe or pueblo acting in [his] the officer's official capacity;
(3) an employee of the state or its political subdivisions, specifically designated by an elected or appointed officer of the state or its political subdivision, who appears before a legislative committee or in a rulemaking proceeding only to explain the effect of legislation or a rule on [his] the designated employee's agency or political subdivision, provided the elected or appointed officer of the state or its political subdivision keeps for public inspection and files with the secretary of state such designation;
(4) [any] a designated member of the staff of an elected state official, provided the elected state official keeps for public inspection and files with the secretary of state such designation;
(5) a member of the legislature, the staff of [any] a member of the legislature or the staff of [any] a legislative committee when addressing legislation;
(6) [any] a witness called by a legislative committee or administrative agency to appear before that legislative committee or agency in connection with legislation or an official action;
(7) an individual who provides only oral or written public testimony in connection with a legislative committee or in a rulemaking proceeding and whose name and the interest on behalf of which [he] the individual testifies have been clearly and publicly identified; or
(8) a publisher, owner or employee of the print media, radio or television, while gathering or disseminating news or editorial comment to the general public in the ordinary course of business;
[F.] G. "lobbyist's employer" means the person whose interests are being represented and by whom a lobbyist is directly or indirectly retained, compensated or employed;
[G.] H. "official action" means the action or nonaction of a state official or state agency, board or commission acting in a rulemaking proceeding;
[H.] I. "person" means an individual, partnership, association, committee, federal, state or local governmental entity or agency, however constituted, public or private corporation or any other organization or group of persons who are voluntarily acting in concert;
[I.] J. "political contribution" means a gift, subscription, loan, advance or deposit of [any] money or other thing of value, including the estimated value of an in-kind contribution, that is made or received for the purpose of influencing a primary, general or statewide election, including a constitutional or other question submitted to the voters, or for the purpose of paying a debt incurred in any such election;
[J.] K. "prescribed form" means a form prepared and prescribed by the secretary of state;
[K.] L. "rulemaking proceeding" means a formal process conducted by a state agency, board or commission for the purpose of adopting a rule, regulation, standard, policy or other requirement of general applicability and does not include adjudicatory proceedings; [and
L.] M. "state public officer" means a person holding a statewide office provided for in the constitution of New Mexico; and
N. "substantive provision" means a provision, the violation of which requires conduct involving misrepresentation, dishonesty, moral turpitude or corruption."
SECTION 2. Section 2-11-8.2 NMSA 1978 (being Laws 1977, Chapter 261, Section 4, as amended) is amended to read:
"2-11-8.2. COMPLIANCE WITH ACT--ENFORCEMENT OF ACT--
BINDING ARBITRATION--CIVIL PENALTIES.--
A. The secretary of state shall advise and seek to educate all persons required to perform duties pursuant to the Lobbyist Regulation Act of those duties. This includes advising all registered lobbyists at least annually of the Lobbyist Regulation Act's deadlines for submitting required reports. The secretary of state, in consultation with the attorney general, shall issue advisory opinions, when requested to do so in writing, on matters concerning the Lobbyist Regulation Act. All prescribed forms prepared shall be clear and easy to complete.
B. The secretary of state may conduct thorough examinations of reports and initiate investigations to determine whether the Lobbyist Regulation Act has been violated. Additionally, any person who believes that a provision of that act has been violated may file a written complaint with the secretary of state. The secretary of state shall adopt procedures for issuing advisory opinions, processing complaints and notifications of violations.
C. The secretary of state shall at all times seek to ensure voluntary compliance with the provisions of the Lobbyist Regulation Act. If the secretary of state determines by a preponderance of the evidence that a provision of that act for which a penalty may be imposed has been violated, the secretary of state shall by written notice set forth the violation and the fine imposed and inform the person that [he] the person has ten working days to provide a written explanation, under penalty of perjury, stating any reason the violation occurred. If a timely explanation is filed and the secretary of state determines that good cause exists, the secretary of state may by a written notice of final action partially or fully waive any fine imposed. A written notice of final action shall be sent by certified mail.
D. Except at provided in Subsection H of this section, if the person charged disputes the secretary of state's determination, including an advisory opinion, the person charged may request binding arbitration within ten working days of the date of the final action. Any penalty imposed shall be due and payable within ten working days of the notice of final action. No additional penalty shall accrue pending issuance of the arbitration decision. Fines paid pursuant to a notice of final action that are subsequently reduced or dismissed shall be reimbursed with interest within ten working days after the filing of the arbitration decision with the secretary of state. Interest on the reduced or dismissed portion of the fine shall be the same as the rate of interest earned by the secretary of state's escrow account to be established by the department of finance and administration.
E. An arbitration hearing shall be conducted by a single arbitrator selected within ten days by the person against whom the penalty has been imposed from a list of five arbitrators provided by the secretary of state. Neither the secretary of state nor a person subject to the Lobbyist Regulation Act, Campaign Reporting Act or Financial Disclosure Act may serve as an arbitrator. Arbitrators shall be considered to be independent contractors, not public officers or employees, and shall not be paid per diem and mileage.
F. The arbitrator may impose any penalty and take any action the secretary of state is authorized to take. The arbitrator shall state the reasons for [his] the arbitrator's decision in a written document that shall be a public record. The decision shall be final and binding. The decision shall be issued and filed with the secretary of state within thirty days of the conclusion of the hearing. Unless otherwise provided for in this section, or by rule or regulation adopted by the secretary of state, the procedures for the arbitration shall be governed by the Uniform Arbitration Act. No arbitrator shall be subject to liability for actions taken pursuant to this section.
G. Any person who files a report after the deadline imposed by the Lobbyist Regulation Act, or any person who files a false or incomplete report, shall be liable for and shall pay to the secretary of state fifty dollars ($50.00) per day for each regular working day after the time required for the filing of the report until the complete report is filed, up to a maximum of five thousand dollars ($5,000).
H. Pursuant to the provisions of Subsection C of this section, if the secretary of state determines that a person has violated a substantive provision of a corruption statute, the secretary shall, in addition to any other penalties provided for by law, revoke that person's lobbyist registration. That person shall be permanently enjoined from registering as a lobbyist unless that person is acquitted in a court of law or pardoned. A person permanently enjoined from registering as a lobbyist pursuant to this subsection may appeal the secretary's determination pursuant to the provisions of Section 39-3-1.1 NMSA 1979.
[H.] I. The secretary of state may refer a matter to the attorney general or a district attorney for a civil injunctive or other appropriate order or enforcement."
SECTION 3. Section 2-11-9 NMSA 1978 (being Laws 1977, Chapter 261, Section 9, as amended) is amended to read:
"2-11-9. PENALTIES.--
A. In addition to any other penalties that may be assessed, any person who knowingly and willfully violates [any of the provisions] a nonsubstantive provision of the Lobbyist Regulation Act shall be punished by a fine of up to five thousand dollars ($5,000) and may have [his] the person's lobbyist registration revoked or [his] the person's lobbying activities enjoined for up to three years.
B. In addition to any other penalties that may be assessed, any person who is convicted of violating any substantive provision of a corruption statute shall be punished by a fine of up to five thousand dollars ($5,000) and shall have the person's lobbyist registration revoked and the person's lobbying activities enjoined permanently."
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