HOUSE BILL 155

52nd legislature - STATE OF NEW MEXICO - second session, 2016

INTRODUCED BY

Matthew McQueen

AN ACT

RELATING TO PUBLIC OFFICIALS; CREATING THE PUBLIC CORRUPTION ACT; ENACTING PENALTIES; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

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

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 25 of this act may be cited as the "Public Corruption Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Public Corruption Act:

          A. "public office" means an office, election to which is covered by the Campaign Reporting Act; and

          B. "public official" means a person campaigning for or 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 3. [NEW MATERIAL] FRAUD BY A PUBLIC OFFICIAL.--

          A. Fraud by a public official consists of the intentional misappropriation or taking of anything of value that belongs to another by means of fraudulent conduct, practices or representations.

          B. Whoever commits fraud by a public official when the value of the property misappropriated or taken is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.

          C. Whoever commits fraud by a public official when the value of the property misappropriated or taken is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.           D. Whoever commits fraud by a public official when the value of the property misappropriated or taken exceeds twenty thousand dollars ($20,000) is guilty of a second degree felony.

          E. Whoever commits fraud by a public official when the property misappropriated or taken is a firearm that is valued at less than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.

     SECTION 4. [NEW MATERIAL] EMBEZZLEMENT BY A PUBLIC OFFICIAL.--

          A. Embezzlement by a public official consists of a public official embezzling or converting to the public official's own use anything of value, with which the person has been entrusted, with fraudulent intent to deprive the owner thereof.

          B. Whoever commits embezzlement by a public official when the value of the thing embezzled or converted is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.

          C. Whoever commits embezzlement by a public official when the value of the thing embezzled or converted is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.

          D. Whoever commits embezzlement by a public official when the value of the thing embezzled or converted exceeds twenty thousand dollars ($20,000) is guilty of a second degree felony.

     SECTION 5. [NEW MATERIAL] EXTORTION BY A PUBLIC OFFICIAL.--

          A. Extortion by a public official consists of the communication or transmission of any threat to another by any means whatsoever with intent thereby to wrongfully obtain anything of value or to wrongfully compel the person threatened to do or refrain from doing any act against that person's will. Any of the following acts shall be sufficient to constitute a threat under this section:

                (1) a threat to do an unlawful injury to the person or property of the person threatened or of another;

                (2) a threat to accuse the person threatened, or another, of any crime;

                (3) a threat to expose, or to impute to, the person threatened, or another, any deformity or disgrace;

                (4) a threat to expose any secret affecting the person threatened or another; or

                (5) a threat to kidnap the person threatened or another.

          B. Whoever commits extortion by a public official is guilty of a third degree felony.

     SECTION 6. [NEW MATERIAL] FORGERY BY A PUBLIC OFFICIAL.--

          A. Forgery by a public official consists of:

                (1)  falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud; or

                (2)  knowingly issuing or transferring a forged writing with intent to injure or defraud.

          B. Whoever commits forgery by a public official when there is no quantifiable damage or when the damage is two thousand five hundred dollars ($2,500) or less is guilty of a fourth degree felony.

          C. Whoever commits forgery by a public official when the damage is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.

          D. Regardless of value, a public official who commits forgery by a public official of a will, codicil, trust instrument, deed, mortgage, lien or any other instrument affecting title to real property is guilty of a third degree felony.

          E. Whoever commits forgery by a public official when the damage is over twenty thousand dollars ($20,000) is guilty of a second degree felony.

     SECTION 7. [NEW MATERIAL] PAYING OR RECEIVING MONEY FOR SERVICES NOT RENDERED BY A PUBLIC OFFICIAL.--

          A. Paying or receiving public money for services not rendered by a public official consists of a public official 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 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 by a public official is guilty of a fourth degree felony.

     SECTION 8. [NEW MATERIAL] MAKING OR PERMITTING FALSE PUBLIC VOUCHER BY A PUBLIC OFFICIAL.--

          A. Making or permitting false public voucher by a public official consists of a public official knowingly, intentionally or 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 by a public official is guilty of a fourth degree felony.

     SECTION 9. [NEW MATERIAL] UNLAWFUL INTEREST IN A PUBLIC CONTRACT BY A PUBLIC OFFICIAL.--

          A. Unlawful interest in a public contract by a public official consists of:

                (1) any public official 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:

                     (a) prior written consent of the head of a 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

                     (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 official 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

                (2) a seller or the seller's agents, or a purchaser or the purchaser's agents, offering to pay or paying anything of value, directly or indirectly, to a public official in connection with the sale or purchase of securities or goods by the state or any of its political subdivisions, unless the requirements of Subparagraphs (a) and (b) of Paragraph (1) of this subsection are complied with.

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

          C. Nothing in this section shall prohibit a public official from receiving the public official's regular remuneration for services rendered to the state or its political subdivisions in connection with the aforementioned transactions.

          D. Whoever commits unlawful interest in a public contract by a public official where the value received by the public official is more than fifty dollars ($50.00) is guilty of a fourth degree felony.

          E. A public official convicted of a felony under the provisions of this section is forever disqualified from employment by the state or any of its political subdivisions.

     SECTION 10. [NEW MATERIAL] BRIBERY OF A PUBLIC OFFICER OR A PUBLIC EMPLOYEE BY A PUBLIC OFFICIAL.--

          A. Bribery of a public officer or a public employee by a public official consists of a public official giving or offering to give, directly or indirectly, anything of value to any public officer or public employee with intent to induce or influence the public officer or public employee to:

                (1) give or render any official opinion, judgment or decree;

                (2) be more favorable to one party than to another in any cause, action, suit, election, appointment, matter or thing pending or to be brought before such person;

                (3) procure the public officer or public employee to vote or withhold the officer's or employee's vote on any question, matter or proceeding that is then or may thereafter be pending and that may by law come or be brought before the officer or employee in the officer's or employee's public capacity;

                (4) execute any of the powers vested in the public officer or public employee; or

                (5) perform any public duty otherwise than as required by law or to delay or omit to perform any public duty required of the public officer or public employee by law.

          B. Whoever commits bribery of a public officer or a public employee by a public official is guilty of a third degree felony.

     SECTION 11. [NEW MATERIAL] DEMANDING OR RECEIVING A BRIBE BY A PUBLIC OFFICIAL.--

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

          B. Whoever commits demanding or receiving a bribe by a public official is guilty of a third degree felony and upon conviction shall forfeit the office then held by the official.

     SECTION 12. [NEW MATERIAL] BRIBERY OR INTIMIDATION OF OR RETALIATION AGAINST A WITNESS BY A PUBLIC OFFICIAL.--

          A. Bribery or intimidation of a witness by a public official consists of a public official knowingly:

                (1) giving or offering to give anything of value to any witness or to any person likely to become a witness in any judicial, administrative, legislative or other official cause or proceeding to testify falsely or to abstain from testifying to any fact in such cause or proceeding;

                (2) intimidating or threatening any witness or person likely to become a witness in any judicial, administrative, legislative or other official cause or proceeding for the purpose of preventing such individual from testifying to any fact, to abstain from testifying or to testify falsely; or

                (3) intimidating or threatening any person or giving or offering to give anything of value to any person with the intent to keep the person from truthfully reporting to a law enforcement officer or any agency of government that is responsible for enforcing criminal laws information relating to the commission or possible commission of a felony offense or a violation of conditions of probation, parole or release pending judicial proceedings.

          B. Retaliation against a witness by a public official consists of a public official knowingly engaging in conduct that causes bodily injury to another person or damage to the tangible property of another person, or threatening to do so, with the intent to retaliate against any person for any information relating to the commission or possible commission of a felony offense or a violation of conditions of probation, parole or release pending judicial proceedings given by a person to a law enforcement officer.

          C. Whoever commits bribery or intimidation of a witness by a public official is guilty of a third degree felony.

          D. Whoever commits retaliation against a witness by a public official is guilty of a second degree felony.

     SECTION 13. [NEW MATERIAL] ACCEPTANCE OF A BRIBE BY A WITNESS WHO IS A PUBLIC OFFICIAL.--

          A. No public official who is a witness or is likely to become a witness shall receive, agree to receive or solicit any bribe or anything of value to:

                (1) testify falsely or to abstain from testifying to any fact in any cause in any judicial, administrative, legislative or other proceeding; or

                (2) abstain from truthfully reporting to a law enforcement officer, or any agency of government that is responsible for enforcing criminal laws, information relating to the commission or possible commission of a felony offense or a violation of conditions of probation, parole or release pending judicial proceedings.

          B. A public official who receives, agrees to receive or solicits a bribe is guilty of a fourth degree felony.

     SECTION 14. [NEW MATERIAL] PERJURY BY A PUBLIC OFFICIAL.--

          A. Perjury by a public official consists of a public official making a false statement under oath, affirmation or penalty of perjury that is material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding or matter, knowing such statement to be untrue.

          B. Whoever commits perjury by a public official is guilty of a fourth degree felony.

     SECTION 15. [NEW MATERIAL] TAMPERING WITH PUBLIC RECORDS BY A PUBLIC OFFICIAL.--

          A. Tampering with public records by a public official consists of:

                (1) a public official knowingly altering any public record without lawful authority;

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

                (3) a public official knowingly falsifying or falsely making any record or file authorized or required by law to be kept;

                (4) a public official knowingly issuing or causing to be issued any false or untrue certified copy of a public record; or

                (5) a public official knowingly destroying, concealing, mutilating or removing without lawful authority 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 by a public official is guilty of a fourth degree felony.

     SECTION 16. [NEW MATERIAL] SOLICITING OR RECEIVING A KICKBACK, BRIBE OR REBATE BY A PUBLIC OFFICIAL.--A public official who knowingly solicits or receives any 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. 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 is guilty of a fourth degree felony; or

          B. 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 is guilty of a fourth degree felony.

     SECTION 17. [NEW MATERIAL] OFFERING OR PAYING A KICKBACK, BRIBE OR REBATE BY A PUBLIC OFFICIAL.--A public official who knowingly offers or pays any 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. to refer an individual to a 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 is guilty of a fourth degree felony; or

          B. 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 is guilty of a fourth degree felony.

     SECTION 18. [NEW MATERIAL] RACKETEERING BY A PUBLIC OFFICIAL.--Racketeering by a public official consists of a public official committing a felony violation of the Racketeering Act.

     SECTION 19. [NEW MATERIAL] COMPUTER CRIMES BY A PUBLIC OFFICIAL.--Computer crimes by a public official consists of a public official committing a felony violation of the Computer Crimes Act.

     SECTION 20. [NEW MATERIAL] MONEY LAUNDERING BY A PUBLIC OFFICIAL.--Money laundering by a public official consists of a public official committing a felony violation of the Money Laundering Act.

     SECTION 21. [NEW MATERIAL] VIOLATION OF THE GOVERNMENTAL CONDUCT ACT BY A PUBLIC OFFICIAL.--Violation of the Governmental Conduct Act by a public official consists of a public official committing a felony violation of the Governmental Conduct Act.

     SECTION 22. [NEW MATERIAL] VIOLATION OF THE PROCUREMENT CODE BY A PUBLIC OFFICIAL.--Violation of the Procurement Code by a public official consists of a public official committing a felony violation of the Procurement Code.

     SECTION 23. [NEW MATERIAL] VIOLATION OF THE ELECTION CODE BY A PUBLIC OFFICIAL.--Violation of the Election Code by a public official consists of a public official committing a felony violation of a provision of the Election Code.

     SECTION 24. [NEW MATERIAL] CONSPIRACY TO COMMIT A VIOLATION OF THE PUBLIC CORRUPTION ACT.--Conspiracy to commit a violation of the Public Corruption Act consists of a public official conspiring to commit any of the offenses set forth in the Public Corruption Act, as provided in Section 30-28-2 NMSA 1978.

     SECTION 25. [NEW MATERIAL] SENTENCING.--

          A. Whoever is convicted, pleads guilty to or pleads nolo contendere to a crime under the Public Corruption Act, in addition to the penalties prescribed in the particular crime and in Section 31-18-15 NMSA 1978:

                (1) shall have an additional fine imposed, not to exceed the value of the salary and fringe benefits paid to the offender by virtue of holding an elected public office, from the date of the commission of the first act that was the basis of the offense; and

                (2) shall forfeit the person's pension under the Public Employees Retirement Act attributed to any time served as a public official after the person's first election or appointment to a public office.

          B. Any portion of a pension that, pursuant to a court order, is committed to satisfy community property interest or child support obligations pursuant to Section 10-11-136, 10-11-136.1, 10-12B-7, 10-12C-7 or 22-11-42 NMSA 1978, or in any other proceeding, shall not be affected under this section for the duration of the obligation.

          C. If, pursuant to this section, a public official has forfeited the official's pension, any amounts contributed by the official and credited to the official's account in the state retirement system shall be refunded to the official, pursuant to the satisfaction of any of the obligations in Subsection B of this section.

          D. Any pension subject to forfeiture under Subsection B of Section 10-12B-17 NMSA 1978 shall not be affected by the provisions of this section.

     SECTION 26. 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, other than a public official covered under the Public Corruption Act, 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, other than a public official covered under the Public Corruption Act, 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) of Subsection A of this section] Subparagraphs (a) and (b) of Paragraph (1) of this 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 degree felony. [Any] 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."

     SECTION 27. Section 30-24-2 NMSA 1978 (being Laws 1963, Chapter 303, Section 24-2) is amended to read:

     "30-24-2. DEMANDING OR RECEIVING A BRIBE BY A PUBLIC OFFICER OR PUBLIC EMPLOYEE.--Demanding or receiving a bribe by a public officer or public employee consists of [any] a public officer, other than a public official covered under the Public Corruption Act, 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] a 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.

     Whoever commits demanding or receiving a bribe by a public officer or public employee is guilty of a third degree felony, and upon conviction, [thereof such] that public officer or public employee shall forfeit the office then held by [him] the officer or employee."

     SECTION 28. 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.--Tampering with public records consists of:

          A. knowingly altering any public record without lawful authority;

          B. any public officer, other than a public official covered under the Public Corruption Act, 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. any public officer, other than a public official covered under the Public Corruption Act, or public employee knowingly falsifying or falsely making any record or file, authorized or required by law to be kept;

          D. any public officer, other than a public official covered under the Public Corruption Act, or public employee knowingly issuing or causing to be issued any false or untrue certified copy of a public record; or

          E. 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.

     Whoever commits tampering with public records is guilty of a fourth degree felony."

     SECTION 29. REPEAL.--Section 31-18-15.4 NMSA 1978 (being Laws 2012, Chapter 3, Section 1) is repealed.

     SECTION 30. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2016.

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