HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE SAFETY AND CIVIL AFFAIRS COMMITTEE SUBSTITUTE FOR

HOUSE BILL 278

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

AN ACT

RELATING TO PUBLIC PENSIONS; CREATING THE PUBLIC PENSION FORFEITURE ACT; PROVIDING FOR FORFEITURE OF A PUBLIC PENSION FOLLOWING CONVICTION FOR CERTAIN FELONIES.

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

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Public Pension Forfeiture Act".

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

          A. "campaign offense" means a felony offense that relates to campaign practices, that is provided for in Chapter 1, Article 19 NMSA 1978 and that was committed while the person served in a public trust position or was seeking election to a public trust position;

          B. "public corruption offense" means a felony offense:

                (1) that is provided for in the Governmental Conduct Act and that was committed while the person served in a public trust position;

                (2) that relates to kickbacks, bribes or rebates, that is provided for in Chapter 30, Article 41 NMSA 1978 and that was committed while the person served in a public trust position;

                (3) that requires a finding that a defendant was a "public employee" or "public officer", as those terms are defined in the Criminal Code, and that was committed while the person served in a public trust position;

                (4) that was committed while the person served in a public trust position and for which the state or a political subdivision of the state is the victim of the offense;

                (5) that was committed while the person served in a public trust position and for which the finder of fact makes a separate finding of fact, beyond a reasonable doubt, that but for the person's public employment, the person could not have committed the offense;

                (6) that is a "serious violent offense" as provided in Section 33-2-34 NMSA 1978 and for which the finder of fact makes a separate finding of fact, beyond a reasonable doubt, that but for the person's public employment, the person could not have committed the offense;

                (7) that is a "sex offense" as provided in Section 29-11A-3 NMSA 1978 and for which the finder of fact makes a separate finding of fact, beyond a reasonable doubt, that but for the person's public employment, the person could not have committed the offense; or

                (8) that is a first or second degree felony and for which the finder of fact makes a separate finding of fact, beyond a reasonable doubt, that but for the person's public employment, the person could not have committed the offense;

          C. "public employment" means a position in which service credit may be earned pursuant to a retirement act;

          D. "public trust position" means:

                (1) an elected position within state government or within a political subdivision of the state; or

                (2) an appointed position for which the consent of the senate is required;

          E. "retirement act" means the following acts:

                (1) the Public Employees Retirement Act;

                (2) the Judicial Retirement Act;

                (3) the Magistrate Retirement Act; or

                (4) the Educational Retirement Act; and

          F. "service credit" means all years of actual service credit earned pursuant to a retirement act.

     SECTION 3. [NEW MATERIAL] FORFEITURE OF SERVICE CREDIT UPON CONVICTION.--

          A. If a person who has earned service credit pursuant to a retirement act is convicted of a campaign offense or a public corruption offense, all service credit earned by the person shall be forfeited; provided, however, that if the person retired from and subsequently returned to public employment, the person's service credit earned prior to retirement shall not be forfeited unless the person's conviction relates to a campaign offense or a public corruption offense that the person committed in connection with the person's pre-retirement public employment.

          B. Upon a person's conviction for a campaign offense or a public corruption offense, the court shall enter an order of forfeiture that directs the public employees retirement association or the educational retirement board to terminate the person's retirement act pension payments that relate to forfeited service credit as provided in Subsection A of this section and, subject to relevant court orders, to refund any remaining accumulated member contributions in accordance with the applicable retirement act, to the person.

          C. The court shall stay the order of forfeiture provided for in Subsection B of this section, pending disposition of:

                (1) a direct appeal of the conviction; or

                (2) a dissolution of marriage or a child support matter that was filed prior to the person's conviction.

          D. The court shall not stay the order of forfeiture provided for in Subsection B of this section pending disposition of a petition for writ of habeas corpus or for other post-conviction relief.

          E. If the convicted person whose service credit was forfeited pursuant to this section is subsequently pardoned, the forfeiture and the refund of the person's accumulated member contributions shall be regarded as a voluntary withdrawal by the person of that person's accumulated member contributions.

     SECTION 4. APPLICABILITY.--The provisions of this act apply to a campaign offense or a public corruption offense that is committed on or after July 1, 2016.

     SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2016.

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