HB0480

HOUSE BILL 480

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Cathrynn N. Brown

AN ACT

RELATING TO GOVERNMENTAL CONDUCT; EXTENDING PROVISIONS OF THE GOVERNMENTAL CONDUCT ACT TO INCLUDE PUBLIC OFFICERS AND EMPLOYEES OF POLITICAL SUBDIVISIONS OF THE STATE; EXPANDING THE DEFINITION OF "CONTRACT" IN THE GOVERNMENTAL CONDUCT ACT; LIMITING THE AMOUNT THAT A SENTENCE MAY BE SUSPENDED, DEFERRED OR TAKEN UNDER ADVISEMENT FOR CONVICTION OF A CRIME DEALING WITH PUBLIC CORRUPTION; SPECIFYING THE CRIMINAL ACTS THAT QUALIFY AS PUBLIC CORRUPTION OFFENSES; LIMITING THE MERITORIOUS DEDUCTION AMOUNT FOR PERSONS CONVICTED OF PUBLIC CORRUPTION OFFENSES; PROVIDING FOR THE FORFEITURE OF CERTAIN RIGHTS AND BENEFITS UNDER THE STATE RETIREMENT SYSTEMS UPON CONVICTION OF PUBLIC CORRUPTION OFFENSES; PROVIDING FOR TREBLE DAMAGES AND ATTORNEY FEES FROM PERSONS CONVICTED OF CERTAIN PUBLIC CORRUPTION OFFENSES; PROVIDING PENALTIES; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

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

SECTION 1. Section 10-16-2 NMSA 1978 (being Laws 1967, Chapter 306, Section 2, as amended) is amended to read:

"10-16-2. DEFINITIONS.--As used in the Governmental Conduct Act:

A. "business" means a corporation, partnership, sole proprietorship, firm, organization or individual carrying on a business;

B. "confidential information" means information that by law or practice is not available to the public;

C. "contract" means an agreement or transaction having a value of more than one thousand dollars ($1,000) with a state or local government agency for:

(1) the rendition of services, including professional services;

(2) the furnishing of any material, supplies or equipment;

(3) the construction, alteration or repair of any public building or public work;

(4) the acquisition, sale or lease of any land or building;

(5) a licensing arrangement;

(6) a loan or loan guarantee; or

(7) the purchase of financial securities or instruments;

[C.] D. "employment" means rendering of services for compensation in the form of salary as an employee;

[D.] E. "family" means an individual's spouse, parents, children or siblings, by consanguinity or affinity;

[E.] F. "financial interest" means an interest held by an individual or the individual's family that is:

(1) an ownership interest in business or property; or

(2) any employment or prospective employment for which negotiations have already begun;

G. "local government agency" means a political subdivision of the state or an agency of a political subdivision of the state;

[F.] H. "official act" means an official decision, recommendation, approval, disapproval or other action that involves the use of discretionary authority;

[G.] I. "public officer or employee" means any [person who has been elected to, appointed to or hired for any state office and] elected or appointed official or employee of a state agency or local government agency who receives compensation in the form of salary or is eligible for per diem or mileage but excludes legislators;

[H.] J. "standards" means the conduct required by the Governmental Conduct Act;

[I.] K. "state agency" means any branch, agency, instrumentality or institution of the state; and

[J.] L. "substantial interest" means an ownership interest that is greater than twenty percent."

SECTION 2. Section 10-16-3 NMSA 1978 (being Laws 1993, Chapter 46, Section 28, as amended) is amended to read:

"10-16-3. ETHICAL PRINCIPLES OF PUBLIC SERVICE--CERTAIN OFFICIAL ACTS PROHIBITED--PENALTY.--

A. A legislator or public officer or employee shall treat the legislator's or public officer's or employee's government position as a public trust. The legislator or public officer or employee shall use the powers and resources of public office only to advance the public interest and not to obtain personal benefits or pursue private interests incompatible with the public interest.

B. Legislators and public officers and employees shall conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.

C. Full disclosure of real or potential conflicts of interest shall be a guiding principle for determining appropriate conduct. At all times, reasonable efforts shall be made to avoid undue influence and abuse of office in public service.

D. No legislator or public officer or employee may request or receive, and no person may offer a legislator or public officer or employee, any money, thing of value or promise thereof that is conditioned upon or given in exchange for promised performance of an official act. Any person who knowingly and willfully violates the provisions of this subsection is guilty of a [fourth] third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement.

E. A person convicted under the provisions of Subsection D of this section shall, in addition to any other punishment, be liable for three times the amount of money, or three times the monetary value of the thing of value received, and reasonable attorney fees, including the fees of the attorney general or district attorney."

SECTION 3. Section 10-16-3.1 NMSA 1978 (being Laws 2007, Chapter 362, Section 9) is amended to read:

"10-16-3.1. PROHIBITED POLITICAL ACTIVITIES.--[Public officers and employees are] A public officer or employee is prohibited from:

A. directly or indirectly coercing or attempting to coerce [a state] another public officer or employee to pay, lend or contribute anything of value to a party, committee, organization, agency or person for a political purpose;

B. threatening to deny a promotion or pay increase to an employee who does or does not vote for certain candidates, requiring an employee to contribute a percentage of the employee's pay to a political fund, influencing a subordinate employee to purchase a ticket to a political fundraising dinner or similar event, advising an employee to take part in political activity or similar activities; or

C. violating the officer's or employee's duty [to] not to use property [state] belonging to a state agency or local government agency, or allow its use, for other than authorized purposes."

SECTION 4. Section 10-16-4 NMSA 1978 (being Laws 1967, Chapter 306, Section 4, as amended) is amended to read:

"10-16-4. OFFICIAL ACT FOR PERSONAL FINANCIAL INTEREST PROHIBITED--DISQUALIFICATION FROM OFFICIAL ACT--PROVIDING A PENALTY.--

A. It is unlawful for a public officer or employee to take an official act for the primary purpose of directly enhancing the public officer's or employee's financial interest or financial position. Any person who knowingly and willfully violates the provisions of this subsection is guilty of a [fourth] third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement. A person convicted under the provisions of this section shall, in addition to any other punishment, be liable for three times the amount of money, or three times the monetary value of the thing of value received, and reasonable attorney fees, including the fees of the attorney general or district attorney.

B. A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer's or employee's financial interest.

C. No public officer during the term for which elected and no public employee during the period of employment shall acquire a financial interest when the public officer or employee believes or should have reason to believe that the new financial interest will be directly affected by the officer's or employee's official act."

SECTION 5. Section 10-16-4.2 NMSA 1978 (being Laws 2007, Chapter 362, Section 10) is amended to read:

"10-16-4.2. DISCLOSURE OF OUTSIDE EMPLOYMENT.--A public officer or employee shall disclose in writing to the [supervisor of the officer or employee, or in the event there is no supervisor, to the secretary of state] officer's or employee's respective office or employer all employment engaged in by the officer or employee other than the employment with [the] or service to a state agency or local government agency."

SECTION 6. Section 10-16-6 NMSA 1978 (being Laws 1967, Chapter 306, Section 6, as amended) is amended to read:

"10-16-6. CONFIDENTIAL INFORMATION.--No legislator or public officer or employee shall use or disclose confidential information acquired by virtue of the legislator's or public officer's or employee's [state employment or office] position with a state agency or local government agency for the legislator's, public officer's or employee's or another's private gain."

SECTION 7. Section 10-16-7 NMSA 1978 (being Laws 1967, Chapter 306, Section 7, as amended) is amended to read:

"10-16-7. CONTRACTS INVOLVING PUBLIC OFFICERS OR EMPLOYEES.--

A. A state agency shall not enter into a contract [for services, construction or items of tangible personal property] with a public officer or employee of the state, with the family of the public officer or employee or with a business in which the public officer or employee or the family of the public officer or employee has a substantial interest unless the public officer or employee has disclosed through public notice the public officer's or employee's substantial interest and unless the contract is awarded pursuant to [the Procurement Code, except that the potential contractor shall not be eligible for a sole source or small purchase contract] a competitive process; provided that this section does not apply to a contract of official employment with the state [or to contracts made pursuant to the provisions of the University Research Park and Economic Development Act or the New Mexico Research Applications Act]. A person negotiating or executing a contract on behalf of a state agency shall exercise due diligence to ensure compliance with the provisions of this section.

B. Unless a public officer or employee has disclosed the public officer's or employee's substantial interest through public notice and unless a contract is awarded pursuant to a competitive process, a local government agency shall not enter into a contract with a public officer or employee of that local government agency, with the family of the public officer or employee or with a business in which the public officer or employee or the family of the public officer or employee has a substantial interest.

C. Subsection B of this section does not apply to a contract of official employment with a political subdivision. A person negotiating or executing a contract on behalf of a local government agency shall exercise due diligence to ensure compliance with the provisions of this section."

SECTION 8. Section 10-16-8 NMSA 1978 (being Laws 1967, Chapter 306, Section 8, as amended) is amended to read:

"10-16-8. CONTRACTS INVOLVING FORMER PUBLIC OFFICERS OR EMPLOYEES--REPRESENTATION OF CLIENTS AFTER GOVERNMENT SERVICE.--

A. A state agency shall not enter into a contract with, or take any action favorably affecting, any person or business that is:

(1) represented personally in the matter by a person who has been a public officer or employee of the state within the preceding year if the value of the contract or action is in excess of one thousand dollars ($1,000) and the contract is a direct result of an official act by the public officer or employee; or

(2) assisted in the transaction by a former public officer or employee of the state whose official act, while in state employment, directly resulted in the agency's making that contract or taking that action.

B. A former public officer or employee shall not represent a person in [his] the person's dealings with the government on a matter in which the former public officer or employee participated personally and substantially while a public officer or employee.

C. A local government agency shall not enter into a contract with, or take any action favorably affecting, any person or business that is:

(1) represented personally in the matter by a person who has been a public officer or employee of that local government agency within the preceding year if the value of the contract or action is in excess of one thousand dollars ($1,000) and the contract is a direct result of an official act by the public officer or employee; or

(2) assisted in the transaction by a former public officer or employee of that political subdivision of the state whose official act, while in employment with that political subdivision of the state, directly resulted in the agency's making that contract or taking that action.

[C.] D. For a period of one year after leaving government service or employment, a former public officer or employee shall not represent for pay a person before the state agency or local government agency at which the former public officer or employee served or worked."

SECTION 9. Section 10-16-13 NMSA 1978 (being Laws 1967, Chapter 306, Section 13, as amended) is amended to read:

"10-16-13. PROHIBITED BIDDING.--No state agency or [political subdivision of the state] local government agency shall accept a bid or proposal from a person who directly participated in the preparation of specifications, qualifications or evaluation criteria on which the specific competitive bid or proposal was based. A person accepting a bid or proposal on behalf of a state agency or [political subdivision of this state] local government agency shall exercise due diligence to ensure compliance with this section."

SECTION 10. Section 10-16-13.2 NMSA 1978 (being Laws 2007, Chapter 362, Section 8) is amended to read:

"10-16-13.2. CERTAIN BUSINESS SALES TO THE EMPLOYEES OF STATE AGENCIES [AND THEIR EMPLOYEES] AND LOCAL GOVERNMENT AGENCIES PROHIBITED.--

[A. A public officer or employee shall not sell or be a party to a transaction to sell goods, services, construction or items of tangible personal property directly or indirectly, through the public officer's or employee's family or a business in which the public officer or employee has a substantial interest, to the state agency with which the public officer or employee is employed. It is not a violation of this subsection if the public officer or employee employed by the state agency in good faith is not aware of:

(1) the substantial interest held by the public officer or employee or the public officer's or employee's family in the business that is selling or engaged in a transaction to sell goods, services, construction or items of tangible personal property to the state agency by which the public officer or employee is employed; or

(2) the sale of or the transaction to sell goods, services, construction or items of tangible personal property by the public officer's or employee's family or by a business in which the public officer or employee or the public officer's or employee's family has a substantial interest to the state agency by which the public officer or employee is employed.

B.] A. A public officer or employee shall not sell, offer to sell, coerce the sale of or be a party to a transaction to sell goods, services, construction or items of tangible personal property directly or indirectly through the public officer's or employee's family or a business in which the public officer or employee has a substantial interest, to an employee supervised by the public officer or employee. A public officer or employee shall not receive a commission or shall not profit from the sale or a transaction to sell goods, services, construction or items of tangible personal property to an employee supervised by the public officer or employee. The provisions of this subsection shall not apply if the supervised employee initiates the sale. It is not a violation of this subsection if a public officer or employee, in good faith, is not aware that the employee to whom the goods, services, construction or items of tangible personal property are being sold is under the supervision of the public officer or employee.

[C.] B. A public officer or employee shall not sell, offer to sell, coerce the sale of or be a party to a transaction to sell goods, services, construction or items of tangible personal property, directly or indirectly through the public officer's or employee's family or a business in which the public officer or employee has a substantial interest, to a person over whom the public officer or employee has regulatory authority.

[D.] C. A public officer or employee shall not receive a commission [or shall not] or profit from the sale or a transaction to sell goods, services, construction or items of tangible personal property to a person over whom the public officer or employee has regulatory authority.

[E.] D. A public officer or employee shall not accept from a person over whom the public officer or employee has regulatory authority an offer of employment or an offer of a contract in which the public officer or employee provides goods, services, construction, items of tangible personal property or other things of value to the person over whom the public officer or employee has regulatory authority."

SECTION 11. Section 10-16-13.3 NMSA 1978 (being Laws 2007, Chapter 362, Section 11) is amended to read:

"10-16-13.3. PROHIBITED CONTRIBUTIONS--FINANCIAL SERVICE CONTRACTORS.--

A. A business that contracts with a state agency or local government agency to provide financial services involving the investment of public money or issuance of bonds for public projects shall not knowingly contribute anything of value to a public officer or employee of that state agency or local government agency who has authority over the investment of public money or issuance of bonds, the revenue of which is used for public projects in the state.

B. A public officer or employee of a state agency or local government agency that has authority over the investment of public money or issuance of bonds, the revenue of which is used for public projects in the state, shall not knowingly accept a contribution of anything of value from a business that contracts with that state agency or local government agency to provide financial services involving the investment of public money or issuance of bonds for public projects.

C. For the purposes of this section:

(1) "anything of value" means any money, property, service, loan or promise, but does not include food and refreshments with a value of less than one hundred dollars ($100) consumed in a day; and

(2) "contribution" means a donation or transfer to a recipient for the personal use of the recipient, without commensurate consideration."

SECTION 12. A new section of the Governmental Conduct Act is enacted to read:

"[NEW MATERIAL] STATE AGENCY OR LOCAL GOVERNMENT AGENCY AUTHORITY.--Nothing in the Governmental Conduct Act shall be construed to preclude a state agency or local government agency from adopting and publishing ordinances, rules or standards that are more stringent than those required by the Governmental Conduct Act."

SECTION 13. Section 30-23-2 NMSA 1978 (being Laws 1963, Chapter 303, Section 23-2) is amended to read:

"30-23-2. PAYING OR RECEIVING PUBLIC MONEY FOR SERVICES NOT RENDERED.--

A. Paying or receiving public money for services not rendered consists of knowingly making or receiving payment or causing payment to be made from public funds where such payment purports to be for wages, salary or remuneration for personal services [which] that have not in fact been rendered.

B. Nothing in this section shall be construed to prevent the payment of public funds where such payments are intended to cover lawful remuneration to public officers or public employees for vacation periods or absences from employment because of sickness or for other lawfully authorized purposes.

C. Whoever commits paying or receiving public money for services not rendered is guilty of a [fourth] third degree felony, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement. A person convicted under the provisions of this section shall, in addition to any other punishment, be liable for three times the amount of money received for services not rendered and reasonable attorney fees, including the fees of the attorney general or district attorney."

SECTION 14. Section 30-23-3 NMSA 1978 (being Laws 1963, Chapter 303, Section 23-3, as amended) is amended to read:

"30-23-3. MAKING OR PERMITTING FALSE PUBLIC VOUCHER.-- A. Making or permitting false public voucher consists of knowingly, intentionally or [wilfully] willfully making, causing to be made or permitting to be made a false material statement or forged signature upon any public voucher, or invoice supporting a public voucher, with intent that the voucher or invoice shall be relied upon for the expenditure of public money.

B. Whoever commits making or permitting false public voucher is guilty of a [fourth] third degree felony, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement. A person convicted under the provisions of this section shall, in addition to any other punishment, be liable for three times the amount of the monetary value of the false public voucher and reasonable attorney fees, including the fees of the attorney general or district attorney."

SECTION 15. Section 30-23-6 NMSA 1978 (being Laws 1963, Chapter 303, Section 23-6) is amended to read:

"30-23-6. UNLAWFUL INTEREST IN A PUBLIC CONTRACT.--

A. Unlawful interest in a public contract consists of:

[A. any] (1) a public officer or public employee receiving anything of value, directly or indirectly, from either a seller or a seller's agents or a purchaser or a purchaser's agents in connection with the sale or purchase of securities, goods, leases, lands or anything of value by the state or any of its political subdivisions, unless:

[(1)] (a) prior written consent of the head of the department of the state or political subdivision involved in the transaction is obtained and filed as a matter of public record in the office of secretary of state; and

[(2)] (b) subsequent to the transaction, a statement is filed as a matter of public record in the office of secretary of state by the purchaser or seller giving anything of value to a public officer or public employee and this statement contains the date the services were rendered, the amount of remuneration for the rendered services and the nature of the rendered services; and

[B. any] (2) a seller or [his] the seller's agents or a purchaser or [his] the purchaser's agents offering to pay or paying anything of value, directly or indirectly, to a public officer or public employee in connection with the sale or purchase of securities or goods by the state or any of its political subdivisions unless the requirements of [Paragraphs (1) and (2)] Subparagraphs (a) and (b) of Paragraph (1) of [Subsection A of] this [section] subsection are complied with. [Any]

B. A person violating the provisions of Paragraph (2) of Subsection [B] A of this section, where [such] the violations [forms] form the basis for prosecution and conviction of a public officer or public employee, shall be disqualified from transacting [any] business with the state or its political subdivisions for a period of five years from the date of [such] the violation.

C. Nothing in this section shall prohibit a public officer or public employee from receiving [his] regular remuneration for services rendered to the state or its political subdivisions in connection with the aforementioned transactions.

D. Whoever commits unlawful interest in public contracts where the value received by [him] the person is fifty dollars ($50.00) or less is guilty of a misdemeanor.

E. Whoever commits unlawful interest in public contracts where the value received by [him] the person is more than fifty dollars ($50.00) is guilty of a [fourth] third degree felony, [Any] and eighteen months of the sentence shall not be suspended, deferred or taken under advisement. A public officer or public employee convicted of a felony [hereunder] under the provisions of this section is forever disqualified from employment by the state or any of its political subdivisions.

F. Notwithstanding the provisions of Section 30-23-7 NMSA 1978, a person convicted under the provisions of this section shall, in addition to any other punishment, be liable for three times the amount of money received, or three times the monetary value of the unlawful contract, and reasonable attorney fees, including the fees of the attorney general or district attorney."

SECTION 16. Section 30-24-1 NMSA 1978 (being Laws 1963, Chapter 303, Section 24-1) is amended to read:

"30-24-1. BRIBERY OF PUBLIC OFFICER OR PUBLIC EMPLOYEE-- FAILURE TO REPORT.--

A. Bribery of public officer or public employee consists of any person giving or offering to give, directly or indirectly, anything of value to any public officer or public employee, with intent to induce or influence [such] that public officer or public employee to:

[A.] (1) give or render any official opinion, judgment or decree;

[B.] (2) be more favorable to one party than to the other in any cause, action, suit, election, appointment, matter or thing pending or to be brought before [such] that person;

[C.] (3) procure [him] the person to vote or withhold [his] the person's vote on [any] a question, matter or proceeding [which] that is then or may thereafter be pending, and [which] that may by law come or be brought before [him] the person in [his] the person's public capacity;

[D.] (4) execute any of the powers [in him] vested in the person; or

[E.] (5) perform [any] a public duty otherwise than as required by law, or to delay in or omit to perform [any] a public duty required of [him] the person by law.

B. Whoever commits bribery of a public officer or public employee is guilty of a third degree felony, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement.

C. It is unlawful for a public officer or public employee who has direct knowledge of bribery of a public officer or public employee to fail to report the bribery to a law enforcement officer or the supervisor of the reporting officer or employee. If the bribery is reported to the supervisor of the officer or employee reporting the bribery, the supervisor shall report the bribery to a law enforcement officer. Any person who knowingly and willfully violates the provisions of this subsection is guilty of a fourth degree felony."

SECTION 17. Section 30-24-2 NMSA 1978 (being Laws 1963, Chapter 303, Section 24-2) is amended to read:

"30-24-2. DEMANDING OR RECEIVING BRIBE BY PUBLIC OFFICER OR PUBLIC EMPLOYEE--FAILURE TO REPORT.--

A. Demanding or receiving bribe by public officer or public employee consists of any public officer or public employee soliciting or accepting, directly or indirectly, anything of value, with intent to have [his] the officer's or employee's decision or action on any question, matter, cause, proceeding or appointment influenced [thereby] by the bribe, and which decision or action, by law, is pending or might be brought before [him] the officer or employee in [his] the officer's or employee's official capacity.

B. Whoever commits demanding or receiving a bribe by a public officer or public employee is guilty of a third degree felony, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement. A person convicted under the provisions of this section shall, in addition to any other punishment, be liable for three times the amount of money, or three times the monetary value of the bribe, and reasonable attorney fees, including the fees of the attorney general or district attorney. Upon conviction, [thereof such] a public officer or public employee shall forfeit the office then held by [him] the officer or employee.

C. It is unlawful for a public officer or public employee who has direct knowledge of demanding or receiving a bribe by a public officer or public employee to fail to report the bribery to a law enforcement officer or the supervisor of the reporting officer or employee. If the demanding of or receiving of a bribe is reported to the supervisor of the officer or employee reporting the incident, the supervisor shall report the demanding of or receiving of a bribe to a law enforcement officer. Any person who knowingly and willfully violates the provisions of this subsection is guilty of a fourth degree felony."

SECTION 18. Section 30-26-1 NMSA 1978 (being Laws 1963, Chapter 303, Section 26-1) is amended to read:

"30-26-1. TAMPERING WITH PUBLIC RECORDS.--

A. Tampering with public records consists of:

[A.] (1) knowingly altering any public record without lawful authority;

[B.] (2) any public officer or public employee knowingly filing or recording any written instrument, judicial order, judgment or decree in a form other than as the original thereof in fact appeared;

[C.] (3) any public officer or public employee knowingly falsifying or falsely making any record or file, authorized or required by law to be kept;

[D.] (4) any public officer or public employee knowingly issuing or causing to be issued any false or untrue certified copy of a public record; or

[E.] (5) knowingly destroying, concealing, mutilating or removing without lawful authority [and] any public record or public document belonging to or received or kept by any public authority for information or record or pursuant to law.

B. Whoever commits tampering with public records is guilty of a [fourth] third degree felony, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement."

SECTION 19. Section 30-41-1 NMSA 1978 (being Laws 1979, Chapter 384, Section 1) is amended to read:

"30-41-1. SOLICITING OR RECEIVING ILLEGAL KICKBACK.--

A. Whoever knowingly solicits or receives, [any] directly or indirectly, a remuneration in the form of any kickback, bribe or rebate [directly or indirectly, overtly or covertly] in cash or in kind from a person:

[A.] (1) in return for referring an individual to that person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part with public money; or

[B.] (2) in return for purchasing, leasing, ordering or arranging for or recommending purchasing, leasing or ordering any goods, facilities, services or items for which payment may be made in whole or in part with public money, [shall be] is guilty of a [fourth] third degree felony, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement. A person convicted pursuant to the provisions of this subsection shall, in addition to any other punishment, be liable for three times the amount of money received, or three times the monetary value of the illegal kickback, and reasonable attorney fees, including the fees of the attorney general or district attorney.

B. It is unlawful for a public officer or public employee who has direct knowledge of a person soliciting or receiving an illegal kickback to fail to report the solicitation or receipt of the illegal kickback to a law enforcement officer or the supervisor of the reporting officer or employee. If the solicitation or receipt of the illegal kickback is reported to the supervisor of the officer or employee reporting the solicitation or receipt of the illegal kickback, the supervisor shall report the solicitation or receipt of the illegal kickback to a law enforcement officer. Any person who knowingly and willfully violates the provisions of this subsection is guilty of a fourth degree felony."

SECTION 20. Section 30-41-2 NMSA 1978 (being Laws 1979, Chapter 384, Section 2) is amended to read:

"30-41-2. OFFERING OR PAYING ILLEGAL KICKBACK.--

A. Whoever knowingly offers or pays, [any] directly or indirectly, a remuneration in the form of any kickback, bribe or rebate [directly or indirectly, overtly or covertly] in cash or in kind to any person to induce such person:

[A.] (1) to refer an individual to a person for the furnishing or arranging for the furnishing of [any] an item or service for which payment may be made in whole or in part with public money; or

[B.] (2) to purchase, lease, order or arrange for or recommend purchasing, leasing or ordering any goods, facilities, services or items for which payment may be made in whole or in part with public money, shall be guilty of a [fourth] third degree felony, and eighteen months of the sentence shall not be suspended, deferred or taken under advisement. A person convicted under the provisions of this subsection shall, in addition to any other punishment, be liable for three times the monetary value of anything received through violation of this subsection and reasonable attorney fees, including the fees of the attorney general or district attorney.

B. It is unlawful for a public officer or public employee who has direct knowledge of a person offering or paying an illegal kickback to fail to report the offer or payment of the illegal kickback to a law enforcement officer or the supervisor of the reporting officer or employee. If the offer or payment of the illegal kickback is reported to the supervisor of the officer or employee reporting the offer or payment of the illegal kickback, the supervisor shall report the offer or payment of the illegal kickback to a law enforcement officer. Any person who knowingly and willfully violates the provisions of this subsection is guilty of a fourth degree felony."

SECTION 21. Section 33-2-34 NMSA 1978 (being Laws 1999, Chapter 238, Section 1, as amended) is amended to read:

"33-2-34. ELIGIBILITY FOR EARNED MERITORIOUS DEDUCTIONS.--

A. To earn meritorious deductions, a prisoner confined in a correctional facility designated by the corrections department must be an active participant in programs recommended for the prisoner by the classification supervisor and approved by the warden or the warden's designee. Meritorious deductions shall not exceed the following amounts:

(1) for a prisoner confined for committing a serious violent offense or a public corruption offense, up to a maximum of four days per month of time served;

(2) for a prisoner confined for committing a nonviolent offense, up to a maximum of thirty days per month of time served;

(3) for a prisoner confined following revocation of parole for the alleged commission of a new felony offense or for absconding from parole, up to a maximum of four days per month of time served during the parole term following revocation; and

(4) for a prisoner confined following revocation of parole for a reason other than the alleged commission of a new felony offense or absconding from parole:

(a) up to a maximum of eight days per month of time served during the parole term following revocation, if the prisoner was convicted of a serious violent offense or failed to pass a drug test administered as a condition of parole; or

(b) up to a maximum of thirty days per month of time served during the parole term following revocation, if the prisoner was convicted of a nonviolent offense.

B. A prisoner may earn meritorious deductions upon recommendation by the classification supervisor, based upon the prisoner's active participation in approved programs and the quality of the prisoner's participation in those approved programs. A prisoner may not earn meritorious deductions unless the recommendation of the classification supervisor is approved by the warden or the warden's designee.

C. If a prisoner's active participation in approved programs is interrupted by a lockdown at a correctional facility, the prisoner may continue to be awarded meritorious deductions at the rate the prisoner was earning meritorious deductions prior to the lockdown, unless the warden or the warden's designee determines that the prisoner's conduct contributed to the initiation or continuance of the lockdown.

D. A prisoner confined in a correctional facility designated by the corrections department is eligible for lump-sum meritorious deductions as follows:

(1) for successfully completing an approved vocational, substance abuse or mental health program, one month; except when the prisoner has a demonstrable physical, mental health or developmental disability that prevents the prisoner from successfully earning a general education diploma, in which case, the prisoner shall be awarded three months;

(2) for earning a general education diploma, three months;

(3) for earning an associate's degree, four months;

(4) for earning a bachelor's degree, five months;

(5) for earning a graduate qualification, five months; and

(6) for engaging in a heroic act of saving life or property, engaging in extraordinary conduct for the benefit of the state or the public that is at great expense or risk to or involves great effort on [behalf] the part of the prisoner or engaging in extraordinary conduct far in excess of normal program assignments that demonstrates the prisoner's commitment to self-rehabilitation. The classification supervisor and the warden or the warden's designee may recommend the number of days to be awarded in each case based upon the particular merits, but any award shall be determined by the director of the adult institutions division of the corrections department or the director's designee.

E. Lump-sum meritorious deductions, provided in Paragraphs (1) through (6) of Subsection D of this section, may be awarded in addition to the meritorious deductions provided in Subsections A and B of this section. Lump-sum meritorious deductions shall not exceed one year per award and shall not exceed a total of one year for all lump-sum meritorious deductions awarded in any consecutive twelve-month period.

F. A prisoner is not eligible to earn meritorious deductions if the prisoner:

(1) disobeys an order to perform labor, pursuant to Section 33-8-4 NMSA 1978;

(2) is in disciplinary segregation;

(3) is confined for committing a serious violent offense and is within the first sixty days of receipt by the corrections department; or

(4) is not an active participant in programs recommended and approved for the prisoner by the classification supervisor.

G. The provisions of this section shall not be interpreted as providing eligibility to earn meritorious deductions from a sentence of life imprisonment or a sentence of death.

H. The corrections department shall promulgate rules to implement the provisions of this section, and the rules shall be matters of public record. A concise summary of the rules shall be provided to each prisoner, and each prisoner shall receive a quarterly statement of the meritorious deductions earned.

I. A New Mexico prisoner confined in a federal or out-of-state correctional facility is eligible to earn meritorious deductions for active participation in programs on the basis of the prisoner's conduct and program reports furnished by that facility to the corrections department. All decisions regarding the award and forfeiture of meritorious deductions at such facility are subject to final approval by the director of the adult institutions division of the corrections department or the director's designee.

J. In order to be eligible for meritorious deductions, a prisoner confined in a federal or out-of-state correctional facility designated by the corrections department must actively participate in programs that are available. If a federal or out-of-state correctional facility does not have programs available for a prisoner, the prisoner may be awarded meritorious deductions at the rate the prisoner could have earned meritorious deductions if the prisoner had actively participated in programs.

K. A prisoner confined in a correctional facility in New Mexico that is operated by a private company, pursuant to a contract with the corrections department, is eligible to earn meritorious deductions in the same manner as a prisoner confined in a state-run correctional facility. All decisions regarding the award or forfeiture of meritorious deductions at such facilities are subject to final approval by the director of the adult institutions division of the corrections department or the director's designee.

L. As used in this section:

(1) "active participant" means a prisoner who has begun, and is regularly engaged in, approved programs;

(2) "program" means work, vocational, educational, substance abuse and mental health programs, approved by the classification supervisor, that contribute to a prisoner's self-betterment through the development of personal and occupational skills. "Program" does not include recreational activities;

(3) "nonviolent offense" means any offense other than a serious violent offense; [and]

(4) "serious violent offense" means:

(a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

(b) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978;

(d) third degree aggravated battery against a household member, as provided in Section 30-3-16 NMSA 1978;

(e) first degree kidnaping, as provided in Section 30-4-1 NMSA 1978;

(f) first and second degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(g) second and third degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(h) first and second degree robbery, as provided in Section 30-16-2 NMSA 1978;

(i) second degree aggravated arson, as provided in Section 30-17-6 NMSA 1978;

(j) shooting at a dwelling or occupied building, as provided in Section 30-3-8 NMSA 1978;

(k) shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

(l) aggravated battery upon a peace officer, as provided in Section 30-22-25 NMSA 1978;

(m) assault with intent to commit a violent felony upon a peace officer, as provided in Section 30-22-23 NMSA 1978;

(n) aggravated assault upon a peace officer, as provided in Section 30-22-22 NMSA 1978; and

(o) any of the following offenses, when the nature of the offense and the resulting harm are such that the court judges the crime to be a serious violent offense for the purpose of this section: 1) involuntary manslaughter, as provided in Section 30-2-3 NMSA 1978; 2) fourth degree aggravated assault, as provided in Section 30-3-2 NMSA 1978; 3) third degree assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978; 4) fourth degree aggravated assault against a household member, as provided in Section 30-3-13 NMSA 1978; 5) third degree assault against a household member with intent to commit a violent felony, as provided in Section 30-3-14 NMSA 1978; 6) third and fourth degree aggravated stalking, as provided in Section 30-3A-3.1 NMSA 1978; 7) second degree kidnaping, as provided in Section 30-4-1 NMSA 1978; 8) second degree abandonment of a child, as provided in Section 30-6-1 NMSA 1978; 9) first, second and third degree abuse of a child, as provided in Section 30-6-1 NMSA 1978; 10) third degree dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978; 11) third and fourth degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; 12) fourth degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978; 13) third degree robbery, as provided in Section 30-16-2 NMSA 1978; 14) third degree homicide by vehicle or great bodily injury by vehicle, as provided in Section 66-8-101 NMSA 1978; and 15) battery upon a peace officer, as provided in Section 30-22-24 NMSA 1978; and

(5) "public corruption offense" means:

(a) violating the ethical principles of public service, as provided in Subsection D of Section 10-16-3 NMSA 1978;

(b) taking an official act for personal financial interest, as provided in Section 10-16-4 NMSA 1978;

(d) making or permitting false public voucher, as provided in Section 30-23-3 NMSA 1978;

(e) committing unlawful interest in a public contract, where the value received is more than fifty dollars ($50.00), as provided in Section 30-23-6 NMSA 1978;

(f) committing bribery of public officer or public employee, as provided in Section 30-24-1 NMSA 1978;

(g) demanding or receiving bribe by public officer or employee, as provided in Section 30-24-2 NMSA 1978;

(h) tampering with public records, as provided in Section 30-26-1 NMSA 1978;

(i) soliciting or receiving illegal kickback, as provided in Section 30-41-1 NMSA 1978; and

(j) offering or paying illegal kickback, as provided in Section 30-41-2 NMSA 1978.

M. Except for sex offenders, as provided in Section 31-21-10.1 NMSA 1978, an offender sentenced to confinement in a correctional facility designated by the corrections department who has been released from confinement and who is serving a parole term may be awarded earned meritorious deductions of up to thirty days per month upon recommendation of the parole officer supervising the offender, with the final approval of the adult parole board. The offender must be in compliance with all the conditions of the offender's parole to be eligible for earned meritorious deductions. The adult parole board may remove earned meritorious deductions previously awarded if the offender later fails to comply with the conditions of the offender's parole. The corrections department and the adult parole board shall promulgate rules to implement the provisions of this subsection. This subsection applies to offenders who are serving a parole term on or after July 1, 2004."

SECTION 22. [NEW MATERIAL] FORFEITURE OF PENSION FOR PUBLIC CORRUPTION OFFENSES.--

A. If, in the adjudication of a public corruption offense in a New Mexico district court, it appears that the defendant is a member or retired member, the district attorney or attorney general shall, in addition to the felony complaint, file for an order of forfeiture of pension. Upon the filing, the forfeiture of pension proceeding shall be brought in the same proceeding as the criminal matter and presented to the same trier of fact; provided that:

(1) the two issues shall be bifurcated;

(2) the rules of criminal procedure shall apply in the criminal matter and the rules of civil procedure shall apply in the forfeiture proceeding;

(3) if the criminal defendant is represented by the public defender department, the chief public defender or the district public defender may authorize department representation of the defendant in the forfeiture proceeding; and

(4) if the state proves by clear and convincing evidence that the defendant is a member or retired member and has been convicted of a public corruption offense, after determining issues related to community property and child support obligations and issuing orders to that effect, the court may order the forfeiture of the member's or retired member's right to a pension and other retirement benefits from a state system and serve the order upon the appropriate state system.

B. After receipt by a state system of an order issued pursuant to Subsection A of this section, pending a final appeal, the state system shall suspend the forfeited member's service credit and, if the forfeited member is a retired member, shall suspend any pension.

C. After notification to a state system that an order issued pursuant to Subsection A of this section was not appealed or, upon final appeal, was upheld:

(1) except as provided in Paragraph (5) of this subsection, the state system shall revoke the forfeited member's service credit;

(2) if the forfeited member is not currently receiving a pension, except as provided in Paragraph (4) of this subsection, the state system shall refund accumulated member contributions to the forfeited member;

(3) if the forfeited member is currently receiving a pension, except as provided in Paragraph (4) or (5) of this subsection, the state system shall cease paying a pension and shall refund any unexpended accumulated member contributions to the forfeited member;

(4) if, prior to the order of forfeiture, a court has issued an order pursuant to Section 10-11-136, 10-11-136.1, 10-12B-7, 10-12C-7 or 22-11-42 NMSA 1978, or as part of the forfeiture order, orders were issued addressing community property interests or child support obligations, then any action by a state system pursuant to Paragraph (2) or (3) of this subsection shall be in compliance with those court orders; and

(5) if the forfeited member is currently receiving a pension from a state system due to previous employment but had subsequently returned to public employment while continuing to receive the pension, the order shall not affect the pension related to the previous employment if the public corruption offense did not arise from conduct related to the previous employment.

D. If, on final appeal, the court finding pursuant to Subsection A of this section or the conviction is overturned, the forfeiture order is voided, the attorney general shall notify the state system and the state system shall reinstate the forfeited service credit and pay in full any suspended pension payments.

E. If no appeal is made from a court finding pursuant to Subsection A of this section or if, on final appeal, the court finding is upheld, the district attorney or the attorney general shall notify the state system and the state system shall comply with the procedures of Subsection C of this section.

F. The provisions of this section apply to crimes committed on or after July 1, 2011.

G. As used in this section:

(1) "conviction" means a judgment of guilty of a felony or acceptance of a plea of nolo contendere to a public corruption offense by a state or federal court of competent jurisdiction;

(2) "forfeited member" means an individual who, under a court order issued pursuant to this section, has forfeited pension rights in a state system;

(3) "member" means an individual who is classified as a "member" of a state system pursuant to the laws governing that state system;

(4) "member contributions" means the amounts deducted from a member's salary and credited to the member's account in a state system, together with interest, if any, credited to that account;

(5) "public corruption offense" means:

(a) violating the ethical principles of public service, as provided in Subsection D of Section 10-16-3 NMSA 1978;

(b) taking an official act for personal financial interest, as provided in Section 10-16-4 NMSA 1978;

(d) making or permitting a false public voucher, as provided in Section 30-23-3 NMSA 1978;

(e) committing unlawful interest in a public contract, where the value received is more than fifty dollars ($50.00), as provided in Section 30-23-6 NMSA 1978;

(f) committing bribery of a public officer or public employee, as provided in Section 30-24-1 NMSA 1978;

(g) demanding or receiving a bribe by a public officer or employee, as provided in Section 30-24-2 NMSA 1978;

(h) tampering with public records, as provided in Section 30-26-1 NMSA 1978;

(i) soliciting or receiving an illegal kickback, as provided in Section 30-41-1 NMSA 1978; and

(j) offering or paying an illegal kickback, as provided in Section 30-41-2 NMSA 1978;

(6) "public employment" means a position held as an elected or appointed official or as an employee of the state or one of its agencies, departments, political subdivisions or institutions;

(7) "retired member" means an individual who has retired and is receiving a pension from a state system; and

(8) "state system" means a retirement program provided for in the Educational Retirement Act, the Public Employees Retirement Act, the Magistrate Retirement Act or the Judicial Retirement Act.

SECTION 23. REPEAL.--Sections 3-10-4, 3-10-5 and 4-44-22 through 4-44-27 NMSA 1978 (being Laws 1977, Chapter 78, Section 1, Laws 1965, Chapter 300, Section 14-9-5 and Laws 1969, Chapter 244, Sections 1 through 6) are repealed.

SECTION 24. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.

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