FORTY-THIRD LEGISLATURE FIRST SESSION, 1997 SB 229/a February 14, 1997 Mr. President: Your PUBLIC AFFAIRS COMMITTEE, to whom has been referred SENATE BILL 229 has had it under consideration and reports same with recommendation that it DO PASS, amended as follows: 1. On page 7, line 3, after "account" insert "to be established by the department of finance and administration". 2. On page 7, line 8, after "selected" insert "within ten days". 3. On page 7, line 10, after the period strike the remainder of the line, strike lines 11 and 12 through the period. 4. On page 7, line 23, after "Abritrators" strike "selected by the secretary of state". 5. On page 11, line 4, strike "the Campaign Reporting Act" and insert in lieu thereof "that act". 6. On page 15, between lines 5 and 6, insert a new section to read: Section 6. Section 2-11-8.2 NMSA 1978 (being Laws 1977, Chapter 261, Section 4, as amended) is amended to read: "2-11-8.2. COMPLIANCE WITH ACT--ENFORCEMENT OF ACT-- BINDING ARBITRATION--CIVIL PENALTIES.-- A. The secretary of state shall advise and seek to educate all persons required to perform duties pursuant to the Lobbyist Regulation Act of those duties. This includes advising all registered lobbyists at least annually of the Lobbyist Regulation Act's deadlines for submitting required reports. The secretary of state, in consultation with the attorney general, shall issue advisory opinions, when requested to do so in writing, on matters concerning the Lobbyist Regulation Act. All prescribed forms prepared shall be clear and easy to complete. B. The secretary of state may conduct thorough examinations of reports and initiate investigations to determine whether the Lobbyist Regulation Act has been violated. Additionally, any person who believes that a provision of that act has been violated may file a written complaint with the secretary of state. The secretary of state shall adopt procedures for issuing advisory opinions, processing complaints and notifications of violations. C. The secretary of state shall at all times seek to ensure voluntary compliance with the provisions of the Lobbyist Regulation Act. If the secretary of state determines that a provision of that act for which a penalty may be imposed has been violated, the secretary of state shall by written notice set forth the violation and the fine imposed and inform the person that he has ten working days to provide a written explanation, under penalty of perjury, stating any reason the violation occurred. If a timely explanation is filed and the secretary of state determines that good cause exists, the secretary of state may by a written notice of final action partially or fully waive any fine imposed. A written notice of final action shall be sent by certified mail. D. If the person charged disputes the secretary of state's determination, including an advisory opinion, the person charged may request binding arbitration within ten working days of the date of the final action. Any penalty imposed shall [not] be due and payable [until the arbitration decision is issued, and] within ten working days of the notice of final action. No additional penalty shall accrue pending issuance of the arbitration decision. Fines paid pursuant to a notice of final action that are subsequently reduced or dismissed shall be reimbursed with interest within ten working days after the filing of the arbitration decision with the secretary of state. Interest on the reduced or dismissed portion of the fine shall be the same as the rate of interest earned by the secretary of state's escrow account to be established by the department of finance and administration. E. An arbitration hearing shall be conducted by a [panel of three persons. The person against whom the penalty has been imposed shall choose one panel member and submit the panel member's name with the request for arbitration. The secretary of state shall choose one panel member and provide notice of the selection within fifteen days of receipt of the request for arbitration. The two members shall then choose the third panel member. If no agreement is reached on a third panel member within thirty days of receipt of the request for arbitration, the presiding judge of the district court for the first judicial district shall appoint the third panel member within ten days thereafter] single arbitrator selected within ten days by the person against whom the penalty has been imposed from a list of five arbitrators provided by the secretary of state. Neither the secretary of state nor a person subject to the Lobbyist Regulation Act, Campaign Reporting Act or Financial Disclosure Act may serve as [a panel member. Panel members shall be paid per diem and mileage by the secretary of state in accordance with the provisions of the Per Diem and Mileage Act plus reimbursement for reasonable actual expenses] an arbitrator. Arbitrators shall be considered to be independent contractors, not public officers or employees, and shall not be paid per diem and mileage. F. The [arbitration panel] arbitrator may impose any penalty and take any action the secretary of state is authorized to take. The [panel] arbitrator shall state the reasons for [its] his decision in a written document that shall be a public record. The decision shall be final and binding. The decision shall be issued and filed with the secretary of state within [forty-five] thirty days of the conclusion of the hearing. Unless otherwise provided for in this section, or by rule or regulation adopted by the secretary of state, the procedures for the arbitration shall be governed by the Uniform Arbitration Act. [including the procedures set forth in Section 44-7-7 NMSA 1978 authorizing the issuance of subpoenas] No [panel member] arbitrator shall be subject to liability for actions taken pursuant to this section. G. Any person who files a report after the deadline imposed by the Lobbyist Regulation Act, or any person who files a false or incomplete report, shall be liable for and shall pay to the secretary of state fifty dollars ($50.00) per day for each regular working day after the time required for the filing of the report until the complete report is filed, up to a maximum of five thousand dollars ($5,000). H. The secretary of state may refer a matter to the attorney general or a district attorney for a civil injunctive or other appropriate order or enforcement.". 7. Renumber succeeding sections accordingly. 8. On page 18, lines 8, 9 and 10, remove the brackets and line-through. 9. On page 18, line 8, strike "person" and insert in lieu thereof "elected official". 10. On page 19, between lines 3 and 4, insert a new section: Section 8. Section 10-16A-6 NMSA 1978 (being Laws 1993, Chapter 46, Section 44) is amended to read: "10-16A-6. INVESTIGATIONS--BINDING ARBITRATION--FINES-- ENFORCEMENT.-- A. The secretary of state may conduct thorough examinations of statements and initiate investigations to determine whether the Financial Disclosure Act has been violated. Any person who believes that act has been violated may file a written complaint with the secretary of state. The secretary of state shall adopt procedures for processing complaints and notifications of violations. B. If the secretary of state determines that a violation has occurred for which a penalty should be imposed, the secretary of state shall so notify the person charged and impose the penalty. If the person charged disputes the secretary of state's determination, the person charged may request binding arbitration. C. The arbitration decision shall be decided by a [panel of three persons. The secretary of state shall choose one panel member within fifteen days of receipt of the request for arbitration; the person charged shall choose another panel member and submit the arbitrator's name with the request for arbitration; and those two members shall choose the third panel member. If no agreement is reached on a third panel member within thirty days of receipt of the request for arbitration, the presiding judge of the district court for the first judicial district shall appoint the third panel member] single arbitrator selected within ten days by the person against whom the penalty has been imposed from a list of five arbitrators provided by the secretary of state. No [panel member] arbitrator may be a person subject to the Financial Disclosure Act, Campaign Reporting Act or Lobbyist Regulation Act. [Panel members shall be paid per diem and mileage in accordance with the provisions of the Per Diem and Mileage Act plus reimbursement for reasonable actual expenses.] Arbitrators shall be considered to be independent contractors, not public officers or employees, and shall not be paid per diem and mileage. D. The [arbitration panel] arbitrator may take any action the secretary of state is authorized to take. The [panel] arbitrator shall state the reasons for [its] his decision in a written document that shall be a public record. The decision shall be final and binding. The decision shall be issued within [forty- five] thirty days of the conclusion of the hearing. Unless otherwise provided for in this section, or by rule or regulation adopted by the secretary of state, the procedures for the arbitration shall be governed by the Uniform Arbitration Act [including the procedures set forth in Section 44-7-7 NMSA 1978 authorizing the issuance of subpoenas]. No [panel member] arbitrator shall be subject to liability for actions taken pursuant to this section. E. Any person who files a statement or report after the deadline imposed by the Financial Disclosure Act or any person who files a false or incomplete statement or report [shall be] is liable for and shall pay to the secretary of state, at or from the time initially required for the filing, fifty dollars ($50.00) per day for each regular working day after the time required for the filing of the statement or report until the complete report is filed, up to a maximum of five thousand dollars ($5,000). F. The secretary of state may refer a matter to the attorney general or a district attorney for a civil injunctive or other appropriate order or enforcement."". 11. Renumber the succeeding section accordingly. Respectfully submitted, __________________________________ Shannon Robinson, Chairman Adopted_______________________ Not Adopted_______________________ (Chief Clerk) (Chief Clerk) Date ________________________ The roll call vote was 6 For 0 Against Yes: 6 No: 0 Excused: Boitano, Feldman, Vernon Absent: None S0229PA1 .116709.1 .116990.1