SENATE BILL 249

50th legislature - STATE OF NEW MEXICO - second session, 2012

INTRODUCED BY

Timothy M. Keller

AN ACT

RELATING TO THE PUBLIC REGULATION COMMISSION; PROVIDING FOR APPOINTMENT AND RETENTION ELECTION OF PUBLIC REGULATION COMMISSIONERS.

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

     SECTION 1. Section 8-7-1 NMSA 1978 (being Laws 1997, Chapter 262, Section 1) is amended to read:

     "8-7-1. SHORT TITLE.--[This act] Chapter 8, Article 7 NMSA 1978 may be cited as the "Public Regulation Commission Apportionment Act"."

     SECTION 2. Section 8-7-2 NMSA 1978 (being Laws 1997, Chapter 262, Section 2) is amended to read:

     "8-7-2. MEMBERSHIP.--The public regulation commission is composed of five members to be [elected] appointed from districts established by law. The members may stand for a nonpartisan retention election at the conclusion of their appointed term."

     SECTION 3. Section 8-7-3 NMSA 1978 (being Laws 1997, Chapter 262, Section 3) is amended to read:

     "8-7-3. RESIDENCE.--At the time of [filing a declaration of candidacy] submitting an application for the office of public regulation commission member, [a candidate] an applicant shall reside in the district for which [he] the applicant files. If any [elected] member of the public regulation commission permanently removes [his] the member's residence from or maintains no residence in the district from which [he] the member was [elected, he] appointed or retained, the member shall be deemed to have resigned and [his] a successor shall be selected as provided in the Public Regulation Commission Apportionment Act."

     SECTION 4. Section 8-7-4 NMSA 1978 (being Laws 1997, Chapter 262, Section 4, as amended) is amended to read:

     "8-7-4. APPOINTMENT--RETENTION ELECTION [VACANCY].--[A.] Members of the public regulation commission shall be [elected] appointed for staggered four-year terms [provided that commission members elected at the 1998 general election shall classify themselves by lot so that two commission members shall initially serve terms of two years and three commission members shall serve terms of four years. Thereafter, all commission members shall serve four-year terms], and thereafter may stand in a nonpartisan retention election for an additional term, as provided in Article 11, Section 1 of the constitution of New Mexico. After [serving two terms] being retained in a retention election, a commission member shall be ineligible to hold office as a commission member until one full term has intervened.

          [B. The governor shall by appointment fill vacancies on the public regulation commission. An appointment to fill a vacancy on the public regulation commission shall be for a term ending on December 31 after the next general election, at which election a person shall be elected to fill any remainder of the unexpired term.

          C. An appointment to fill a vacancy on the public regulation commission made before the general election of 2002 shall be made from the district as it was described in Laws 1997, Chapter 262, Sections 6 through 10. After the general election of 2002, a vacancy shall be filled by appointment from the district set out in Sections 8-7-6 through 8-7-10 NMSA 1978.]"

     SECTION 5. Section 8-8-3 NMSA 1978 (being Laws 1998, Chapter 108, Section 3) is amended to read:

     "8-8-3. PUBLIC REGULATION COMMISSION.--

          A. The "public regulation commission", created in Article 11, Section 1 of the constitution of New Mexico, is composed of five commissioners [elected] appointed from districts and eligible for a nonpartisan retention election as provided in that article and the Public Regulation Commission Apportionment Act.

          B. The commission shall annually elect one of its members [chairman] chair, who shall preside at hearings. In the absence of the [chairman] chair, the commission may appoint any other member to preside."

     SECTION 6. A new section of the Public Regulation Commission Act is enacted to read:

     "[NEW MATERIAL] COMMISSIONER QUALIFICATIONS.--

          A. A person shall not be qualified to hold the office of public regulation commissioner unless that person has the following qualifications:

                (1) a baccalaureate or more advanced degree from a regionally accredited post-secondary educational institution; or

                (2) five years of managerial or supervisory experience in one or more of the industries and organizations regulated by the commission.

          B. The public regulation commission nominating committee shall certify to the governor that a proposed applicant's professional experience meets the requirements of this section."

     SECTION 7. Section 8-8-19 NMSA 1978 (being Laws 1998, Chapter 108, Section 19) is amended to read:

     "8-8-19. PROHIBITED ACTS--CANDIDATES--COMMISSIONERS AND EMPLOYEES.--

          A. As used in this section, in addition to the definitions provided in Section [2 of the Public Regulation Commission Act] 8-8-2 NMSA 1978:

                (1) "affiliated interest" means a person who directly controls or is controlled by or is under common control with a regulated entity, including an agent, representative, attorney, employee, officer, owner, director or partner of an affiliated interest. For the purposes of this definition, "control" includes the possession of the power to direct or cause the direction of the management and policies of a person, whether directly or indirectly, through the ownership, control or holding with the power to vote of ten percent or more of the person's voting securities;

                (2) "intervenor" means a person who is intervening as a party in an adjudicatory matter or commenting in a rulemaking pending before the commission or has intervened in an adjudicatory or rulemaking matter before the commission within the preceding twenty-four months, including an agent, representative, attorney, employee, officer, owner, director, partner or member of an intervenor;

                (3) "pecuniary interest" includes owning or controlling securities; serving as an officer, director, partner, owner, employee, attorney or consultant; or otherwise benefiting from a business relationship. "Pecuniary interest" does not include an investment in a mutual fund or similar third-party-controlled investment, pension or disability benefits or an interest in capital credits of a rural electric cooperative or telephone cooperative because of current or past patronage; and

                (4) "regulated entity" means a person whose charges for services to the public are regulated by the commission and includes any direct or emerging competitors of a regulated entity and includes an agent, representative, attorney, employee, officer, owner, director or partner of the regulated entity.

          B. In addition to the requirements of the Financial Disclosure Act and the Governmental Conduct Act, applicants and candidates for the commission, commissioners and employees of the commission shall comply with the requirements of this section and Sections [17 and 18 of the Public Regulation Commission Act] 8-8-17 and 8-8-18 NMSA 1978, as applicable.

          C. An applicant to or a candidate for election to the [public regulation] commission shall not solicit or accept:

                (1) anything of value, either directly or indirectly, from a person whose charges for services to the public are regulated by the commission. For the purposes of this paragraph, "anything of value" includes money, in-kind contributions and volunteer services to the applicant, the candidate or [his] the candidate's campaign organization, but does not include pension or disability benefits; or

                (2) more than five hundred dollars ($500) per election from any other person.

          D. A commissioner or employee of the commission shall not:

                (1) accept anything of value from a regulated entity, affiliated interest or intervenor. For the purposes of this paragraph, a commissioner may accept allowable campaign contributions when campaigning for [reelection] retention. For the purposes of this paragraph, "anything of value" does not include:

                     (a) the cost of refreshments totaling no more than five dollars ($5.00) a day or refreshments at a public reception or other public social function that are available to all guests equally;

                     (b) inexpensive promotional items that are available to all customers of the regulated entity, affiliated interest or intervenor; or

                     (c) pension or disability benefits received from a regulated entity, affiliated interest or intervenor;

                (2) have a pecuniary interest in a regulated entity, affiliated interest or intervenor, and if a pecuniary interest in an intervenor develops, the commissioner or employee shall divest [himself of] that interest or recuse himself or herself from the proceeding with the intervenor interest; or

                (3) solicit any regulated entity, affiliated interest or intervenor to appoint a person to a position or employment in any capacity.

          E. After leaving the commission:

                (1) a former commissioner shall not be employed or retained in a position that requires appearances before the commission by a regulated entity, affiliated interest or intervenor within [two] three years of [his] the former commissioner's separation from the commission;

                (2) a former employee shall not appear before the commission representing a party to an adjudication or a participant in a rulemaking within one year of ceasing to be an employee; and

                (3) a former commissioner or employee shall not represent a party before the commission or a court in a matter that was pending before the commission while the commissioner or employee was associated with the commission and in which [he] the former commissioner or employee was personally and substantially involved in the matter.

          F. The attorney general or a district attorney may institute a civil action in the district court for Santa Fe county or, in [his] the attorney general's or a district attorney's discretion, the district court for the county in which a defendant resides if a violation of this section has occurred or to prevent a violation of this section. A civil penalty may be assessed in the amount of two hundred fifty dollars ($250) for each violation, not to exceed five thousand dollars ($5,000)."

     SECTION 8. REPEAL.--Section 8-7-11 NMSA 1978 (being Laws 2001 (1st S.S.), Chapter 3, Section 8) is repealed.

     SECTION 9. EFFECTIVE DATE.--The provisions of this act shall become effective upon certification by the secretary of state that the constitution of New Mexico has been amended as proposed by a joint resolution of the second session of the fiftieth legislature entitled "A JOINT RESOLUTION PROPOSING AN AMENDMENT TO ARTICLE 11, SECTION 1 OF THE CONSTITUTION OF NEW MEXICO TO PROVIDE FOR THE TERMS, QUALIFICATIONS AND APPOINTMENT OF PUBLIC REGULATION COMMISSIONERS WHO WILL BE SUBJECT TO A RETENTION ELECTION.".

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