SENATE BILL 259
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
William H. Payne
AN ACT
RELATING TO PUBLIC OFFICIALS; ENHANCING SENTENCES FOR FELONIES; PROVIDING FOR THE FORFEITURE OF CERTAIN RIGHTS AND BENEFITS UNDER THE STATE RETIREMENT SYSTEMS UPON CONVICTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Criminal Sentencing Act is enacted to read:
"[NEW MATERIAL] FELONIES--PUBLIC OFFICIALS--ENHANCEMENT OF SENTENCES.--
A. When a separate finding of fact by the trier of fact shows beyond a reasonable doubt that an offender is a public official and that the felony conviction relates to, arises out of or is in connection with the offender's holding of an elected office, the basic sentence may be increased by an additional fine not to exceed the value of the salary and fringe benefits paid to the offender, by virtue of holding an elected office, after the commission of the first act that was a basis for the felony conviction.
B. As used in this section, "public official" means a person elected to an office in an election covered by the Campaign Reporting Act or a person appointed to an office that is subject to an election covered by that act."
SECTION 2. [NEW MATERIAL] FORFEITURE OF PENSION FOR PUBLIC OFFICIALS.--
A. If, in the adjudication of a public official for a felony offense that relates to, arises out of or is in connection with the offender's holding of an elected office, 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 felony offense that relates to, arises out of or is in connection with the offender's holding of an elected office, 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 or 22-11-42 NMSA 1978 or, as part of the forfeiture order, orders were issued addressing community property interests or child support obligations, 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 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 by a state or federal court of competent jurisdiction to an offense that relates to, arises out of or is in connection with the offender's holding of an elected office;
(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 official" means a person elected to an office in an election covered by the Campaign Reporting Act or a person appointed to an office that is subject to an election covered by that act;
(6) "retired member" means an individual who has retired and is receiving a pension from a state system; and
(7) "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 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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