0001| SENATE BILL 618
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| DON KIDD
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0005|
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0006|
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0007|
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0008| FOR THE COURTS, CORRECTIONS AND CRIMINAL JUSTICE COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO INSTITUTIONAL FUNDS; ENACTING THE UNIFORM
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0012| MANAGEMENT OF INSTITUTIONAL FUNDS ACT; REGARDING AUTHORITY TO
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0013| INVEST FUNDS; PROVIDING FOR DELEGATION OF AUTHORITY TO MANAGE
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0014| FUNDS; PROVIDING A STANDARD OF CONDUCT AND PORTFOLIO STRATEGY
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0015| FOR MANAGEMENT OF FUNDS; AMENDING AND ENACTING SECTIONS OF THE
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0016| NMSA 1978.
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0017|
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0018| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0019| Section 1. [NEW MATERIAL] DEFINITIONS.--As used in the
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0020| Uniform Management of Institutional Funds Act:
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0021| A. "institution" means:
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0022| (1) an incorporated or unincorporated
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0023| organization organized and operated exclusively for
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0024| educational, religious, charitable or other eleemosynary
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0025| purposes;
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0001| (2) a government, a governmental subdivision
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0002| or agency or other governmental organization to the extent that
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0003| it holds funds exclusively for educational, religious,
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0004| charitable or other eleemosynary purposes; or
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0005| (3) an organization described in Section
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0006| 501(c)(3) of the Internal Revenue Code organized and operated
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0007| exclusively to support one or more organizations described in
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0008| Paragraphs (1) and (2) of Subsection A of this section;
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0009| B. "institutional fund" means a fund held by an
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0010| institution for its exclusive use, benefit or purposes, or for
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0011| the exclusive use, benefit or purposes of one or more other
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0012| institutions, but does not include:
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0013| (1) a fund held for an institution by a
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0014| trustee that is not an institution;
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0015| (2) a fund in which a beneficiary that is not
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0016| an institution has an interest, other than possible rights that
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0017| could arise upon violation or failure of the purposes of the
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0018| fund;
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0019| (3) a fund established pursuant to the
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0020| provisions of Article 8, Section 10 of the constitution of New
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0021| Mexico; or
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0022| (4) a fund established pursuant to the
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0023| provisions of Article 12, Section 2 of the constitution of New
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0024| Mexico;
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0025| C. "endowment fund" means an institutional fund, or
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0001| any part thereof, not wholly expendable by the institution on a
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0002| current basis under the terms of the applicable gift
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0003| instrument;
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0004| D. "governing board" means the body responsible for
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0005| the management of an institution or of an institutional fund;
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0006| E. "historic dollar value" means the aggregate fair
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0007| value in dollars of:
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0008| (1) an endowment fund at the time it became an
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0009| endowment fund;
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0010| (2) each subsequent donation to the fund at
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0011| the time it is made; and
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0012| (3) each accumulation made pursuant to a
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0013| direction in the applicable gift instrument at the time the
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0014| accumulation is added to the fund. The determination of
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0015| historic dollar value made in good faith by the institution is
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0016| conclusive; and
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0017| F. "gift instrument" means a will, deed, grant,
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0018| conveyance, agreement, memorandum, writing, articles, bylaws,
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0019| charter, declaration, agreement, constitutional provision, law,
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0020| rule, regulation or other governing document under which
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0021| property is transferred to or held by an institution as an
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0022| institutional fund.
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0023| Section 2. [NEW MATERIAL] ACCUMULATION OF ANNUAL NET
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0024| INCOME--RESERVE--APPROPRIATION OF APPRECIATION.--
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0025| A. The governing board may accumulate so much of
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0001| the annual net income of an institutional fund as is prudent
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0002| under the standard established by Section 6 of the Uniform
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0003| Management of Institutional Funds Act. The governing board may
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0004| hold any or all of the accumulated annual net income in an
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0005| income reserve for subsequent expenditure for the uses and
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0006| purposes for which the institutional fund is established or may
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0007| add any or all of the accumulated annual net income to the
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0008| principal of the institutional fund as is prudent under the
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0009| standard established by Section 6 of the Uniform Management of
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0010| Institutional Funds Act.
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0011| B. Subject to the limitation set forth in
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0012| Subsection C of this section, the governing board may
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0013| appropriate for expenditure for the uses and purposes for which
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0014| an endowment fund is established so much of the net
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0015| appreciation, realized and unrealized, in the fair value of the
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0016| assets of an endowment fund over the historic dollar value of
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0017| the fund as is prudent under the standard established by
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0018| Section 6 of the Uniform Management of Institutional Funds Act.
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0019| C. The appropriation for expenditure by the
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0020| governing board of the net appreciation of an endowment fund in
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0021| any one year in an amount greater than seven percent of the
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0022| fair market value of the endowment fund, calculated on the
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0023| basis of market values determined at least quarterly and
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0024| averaged over a period of three or more years, shall create a
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0025| rebuttable presumption of imprudence on the part of the
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0001| governing board.
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0002| D. This section does not limit the authority of the
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0003| governing board to expend funds as permitted under other law,
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0004| the terms of the applicable gift instrument or charter, or the
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0005| articles of incorporation or other governing instrument of the
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0006| institution.
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0007| Section 3. [NEW MATERIAL] RULES OF CONSTRUCTION.--
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0008| A. Section 2 of the Uniform Management of
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0009| Institutional Funds Act does not apply if, and to the extent
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0010| that, the applicable gift instrument indicates the donor's
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0011| intention that annual net income shall not be accumulated or
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0012| added to the principal or that net appreciation shall not be
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0013| expended. A restriction upon accumulation of annual net income
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0014| or addition of such income to the principal or the expenditure
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0015| of net appreciation may not be implied from a designation of a
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0016| gift as an endowment or from a direction or authorization in
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0017| the applicable gift instrument to use only "income",
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0018| "interest", "dividends" or "rents, issues or profits", or "to
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0019| preserve the principal intact", or a direction that contains
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0020| other words of similar import.
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0021| B. Except as otherwise provided in Subsection A of
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0022| this section, the following terms or comparable language in the
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0023| provisions of a gift instrument, unless otherwise limited or
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0024| modified, authorizes any investment strategy permitted under
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0025| the Uniform Management of Institutional Funds Act:
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0001| "investments permitted by law for investment of trust funds",
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0002| "legal investments", "authorized investments", "using the
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0003| judgment and care under the circumstances then prevailing that
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0004| persons of prudence, discretion and intelligence exercise in
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0005| the management of their own affairs, not in regard to
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0006| speculation, but in regard to the permanent disposition of
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0007| their funds, considering the probable income as well as the
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0008| probable safety of their capital", "prudent man rule", "prudent
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0009| trustee rule", "prudent person rule" and "prudent investor
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0010| rule".
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0011| Section 4. [NEW MATERIAL] INVESTMENT AUTHORITY.--In
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0012| addition to an investment otherwise authorized by law or by the
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0013| applicable gift instrument, and without restriction to
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0014| investments a fiduciary may make, but subject to any specific
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0015| limitations set forth in the applicable gift instrument or in
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0016| the applicable law other than law relating to investments by a
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0017| fiduciary, the governing board may:
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0018| A. invest and reinvest an institutional fund in
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0019| kind of property or type of investment consistent with the
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0020| standards of the Uniform Management of Institutional Funds Act,
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0021| including any real or personal property deemed advisable by the
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0022| governing board, whether or not it produces a current return,
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0023| including mortgages, stocks, bonds, debentures and other
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0024| securities of profit or nonprofit corporations, shares in or
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0025| obligations of associations, limited liability companies,
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0001| partnerships or individuals and obligations of any government
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0002| or subdivision or instrumentality thereof;
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0003| B. retain property contributed by a donor to an
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0004| institutional fund for as long as the governing board deems
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0005| advisable;
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0006| C. include all or any part of an institutional fund
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0007| in any pooled or common fund maintained by the institution; or
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0008| D. invest all or any part of an institutional fund
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0009| in any other pooled or common fund available for investment,
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0010| including shares or interests in regulated investment
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0011| companies, mutual funds, common trust funds, investment
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0012| partnerships, real estate investment trusts or similar
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0013| organizations in which funds are commingled and investment
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0014| determinations are made by persons other than the governing
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0015| board.
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0016| Section 5. [NEW MATERIAL] DELEGATION OF INVESTMENT AND
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0017| MANAGEMENT FUNCTIONS.--
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0018| A. Except as otherwise provided by applicable law
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0019| relating to governmental institutions or funds, a governing
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0020| board may delegate investment and management functions that a
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0021| prudent governing body could delegate under the circumstances.
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0022| A governing board shall exercise reasonable care, skill and
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0023| caution in:
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0024| (1) selecting an agent;
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0025| (2) establishing the scope and terms of the
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0001| delegation, consistent with the purposes of the institutional
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0002| fund; and
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0003| (3) periodically reviewing the agent's actions
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0004| in order to monitor the agent's performance and the agent's
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0005| compliance with the terms of the delegation.
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0006| B. In performing a delegated function, an agent
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0007| owes a duty to the governing board to exercise reasonable care
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0008| to comply with the terms of the delegation.
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0009| C. The members of a governing board who comply with
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0010| the requirements of Subsection B of this section are not liable
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0011| for the decisions or actions of the agent to whom the function
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0012| was delegated.
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0013| D. By accepting the delegation of an investment or
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0014| management function from a governing board of an institution
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0015| that is subject to the laws of New Mexico, an agent submits to
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0016| the jurisdiction of the courts of New Mexico in all actions
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0017| arising from the delegation.
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0018| E. The governing board may authorize the payment of
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0019| compensation for investment advisory or management services.
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0020| Section 6. [NEW MATERIAL] STANDARD OF CONDUCT--
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0021| PORTFOLIO STRATEGY.--
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0022| A. Members of a governing board shall invest and
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0023| manage an institutional fund as a prudent investor would, by
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0024| considering the purposes, distribution requirements and other
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0025| circumstances of the fund. In satisfying this standard, the
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0001| governing board shall exercise reasonable care, skill and
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0002| caution.
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0003| B. Among the circumstances that a governing board
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0004| shall consider are:
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0005| (1) long- and short-term needs of the
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0006| institution in carrying out its educational, religious,
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0007| charitable or other eleemosynary purposes;
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0008| (2) its present and anticipated financial
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0009| requirements;
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0010| (3) the expected total return from income and
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0011| the appreciation of its investments;
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0012| (4) general economic conditions;
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0013| (5) the possible effect of inflation or
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0014| deflation;
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0015| (6) the expected tax consequence, if any, of
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0016| investment decisions or strategies;
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0017| (7) the role that each investment or course of
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0018| action plays within the overall investment portfolio of the
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0019| institutional fund;
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0020| (8) other resources of the institution;
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0021| (9) the needs of the institution and the
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0022| institutional fund for liquidity, regularity of income and
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0023| preservation or appreciation of capital; and
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0024| (10) an asset's special relationship or
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0025| special value, if any, to the purposes of the applicable gift
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0001| instrument or to the institution.
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0002| C. A governing board's investment and management
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0003| decisions about individual assets shall be made not in
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0004| isolation but in the context of the institutional fund's
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0005| portfolio of investments as a whole and as a part of an overall
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0006| investment strategy having risk and return objectives
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0007| reasonably suited to the institution.
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0008| D. A governing board shall make a reasonable effort
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0009| to verify the facts relevant to the investment and management
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0010| of institutional fund assets.
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0011| E. A governing board shall diversify the
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0012| investments of an institutional fund unless the board
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0013| reasonably determines that, because of special circumstances,
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0014| the purposes of the fund are better served without
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0015| diversifying.
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0016| F. Subject to the provisions of Subsection B of
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0017| Section 4 of the Uniform Management of Institutional Funds Act,
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0018| within a reasonable time after receiving donated assets, a
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0019| governing board shall review the donated assets and make and
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0020| implement decisions concerning the retention and disposition of
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0021| assets in order to bring the portfolio of the institutional
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0022| fund into compliance with the purposes, terms, distribution
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0023| requirements and other circumstances of the institutional fund
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0024| and with the requirements of the Uniform Management of
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0025| Institutional Funds Act.
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0001| G. A governing board shall invest and manage the
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0002| assets of an institutional fund solely in the interest of the
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0003| institution.
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0004| H. In investing and managing assets of an
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0005| institutional fund, a governing board may incur only costs that
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0006| are appropriate and reasonable in relation to the assets, the
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0007| purposes of the fund and the terms of the gift instrument.
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0008| Section 7. [NEW MATERIAL] RELEASE OF RESTRICTIONS ON
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0009| USE OR INVESTMENT.--
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0010| A. With the written consent of the donor, the
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0011| governing board may release, in whole or in part, a restriction
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0012| imposed by the applicable gift instrument on the use or
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0013| investment of an institutional fund.
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0014| B. If written consent of the donor cannot be
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0015| obtained by reason of his death, disability, unavailability or
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0016| impossibility of identification, the governing board may apply
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0017| in the name of the institution to the district court for
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0018| release of a restriction imposed by the applicable gift
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0019| instrument on the use or investment of an institutional fund.
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0020| The attorney general shall be notified of the application and
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0021| shall be given an opportunity to be heard. If the district
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0022| court finds that the restriction is obsolete, inappropriate or
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0023| impracticable, it may by order release the restriction in whole
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0024| or in part. A release under this subsection may not change an
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0025| endowment fund to a fund that is not an endowment fund.
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0001| C. A release under this section may not allow a
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0002| fund to be used for purposes other than the educational,
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0003| religious, charitable or other eleemosynary purposes of the
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0004| institution affected.
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0005| D. This section does not limit the application of
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0006| the doctrine of cy-pres.
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0007| Section 8. [NEW MATERIAL] REVIEWING COMPLIANCE.--
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0008| Compliance with the Uniform Management of Institutional Funds
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0009| Act is determined in light of the facts and circumstances
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0010| existing at the time of a governing board's decision and not by
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0011| hindsight.
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0012| Section 9. [NEW MATERIAL] SEVERABILITY.--If any
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0013| provision of the Uniform Management of Institutional Funds Act
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0014| or the application thereof to any person or circumstances is
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0015| held invalid, the invalidity shall not affect other provisions
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0016| or applications of that act that can be given effect without
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0017| the invalid provision or application, and to this end the
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0018| provisions of the Uniform Management of Institutional Funds Act
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0019| are declared severable.
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0020| Section 10. [NEW MATERIAL] APPLICATION.--The Uniform
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0021| Management of Institutional Funds Act applies to gift
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0022| instruments executed or in effect on or after its effective
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0023| date and to institutional funds existing on and created after
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0024| its effective date. The Uniform Management of Institutional
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0025| Funds Act governs any decisions and actions taken after its
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0001| effective date.
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0002| Section 11. [NEW MATERIAL] UNIFORMITY OF APPLICATION
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0003| AND CONSTRUCTION.--The Uniform Management of Institutional
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0004| Funds Act shall be so applied and construed as to effectuate
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0005| its general purpose to make uniform the law with respect to the
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0006| subject of that act among those states that enact it.
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0007| Section 12. [NEW MATERIAL] SHORT TITLE.--Sections 1
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0008| through 12 of this act may be cited as the "Uniform Management
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0009| of Institutional Funds Act".
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0010| Section 13. Section 21-1-38 NMSA 1978 (being Laws 1991,
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0011| Chapter 69, Section 1) is amended to read:
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0012| "21-1-38. DEFINITION--REQUIREMENTS FOR ADOPTION OF
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0013| INVESTMENT POLICY FOR INVESTING ENDOWMENT FUNDS.--
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0014| A. As used in this section:
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0015| (1) "endowment funds" means funds:
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0016| (a) acquired by gift by an educational
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0017| institution with respect to which the donors or other outside
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0018| agencies have stipulated as a condition of the gift, and the
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0019| stipulation is expressed specifically in the gift instrument,
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0020| that the principal is to be maintained and invested for the
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0021| purpose of producing [present] current and future income
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0022| that may either be added to the principal or expended, and the
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0023| maintenance of the principal may be either: 1) held inviolate
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0024| and in perpetuity; or 2) expended after the passage of a stated
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0025| period of time or upon the happening of a specified event; and
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0001| (b) notwithstanding the source of
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0002| acquisition, that the governing board of the educational
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0003| institution [have] has determined and [have] has
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0004| designated by a written instrument, either revocable or
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0005| irrevocable, to be retained for long-term investment; and
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0006| (2) "educational institution" means an
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0007| educational institution designated in Article 12, Section 11 of
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0008| the constitution of New Mexico and any post-secondary
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0009| educational institution, which term includes, but is not
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0010| limited to, an academic, vocational, technical, business,
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0011| professional or other school, college or university or other
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0012| organization or person offering or purporting to offer courses,
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0013| instruction, training or education through correspondence or in
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0014| person, to any individual within this state over the compulsory
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0015| school attendance age, if that post-secondary educational
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0016| institution is directly supported in whole or in part by state
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0017| or local taxation.
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0018| B. The board of finance, as that term is defined in
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0019| Section 6-10-9 NMSA 1978, for each of the educational
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0020| institutions:
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0021| (1) shall adopt regulations governing the
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0022| investment of endowment funds by the institution's board of
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0023| finance, which regulations shall provide at least for:
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0024| (a) the application of the investment
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0025| standard of conduct described in Section 6-8-10 NMSA 1978
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0001| and the Uniform Management of Institutional Funds Act as the
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0002| standard for evaluating an investment;
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0003| (b) the appointment of an investment
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0004| advisory committee made up of individuals having demonstrated
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0005| experience and skill in the field of the investment of
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0006| endowment funds; and
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0007| (c) the development of a comprehensive
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0008| investment policy for the investment of endowment funds by the
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0009| institution, with the advice and upon the recommendation of the
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0010| investment committee; and
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0011| (2) may employ an institutional endowment
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0012| funds investment manager and delegate to him the power to make
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0013| purchases, sales exchanges, investments and reinvestments of
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0014| endowment funds."
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0015| Section 14. EFFECTIVE DATE.--The effective date of the
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0016| provisions of this act is July 1, 1997.
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0017| - -
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0018|
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0019| FORTY-THIRD LEGISLATURE
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0020| FIRST SESSION, 1997
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0021|
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0022|
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0023| February 13, 1997
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0024|
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0025| Mr. President:
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0001|
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0002| Your CORPORATIONS & TRANSPORTATION COMMITTEE, to
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0003| whom has been referred
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0004|
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0005| SENATE BILL 618
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0006|
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0007| has had it under consideration and reports same with
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0008| recommendation that it DO PASS, and thence referred to the
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0009| FINANCE COMMITTEE.
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0010|
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0011| Respectfully submitted,
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0012|
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0013|
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0014|
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0015|
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0016| __________________________________
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0017| Roman M. Maes, III, Chairman
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0018|
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0019|
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0020|
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0021| Adopted_______________________ Not
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0022| Adopted_______________________
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0023| (Chief Clerk) (Chief Clerk)
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0024|
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0025|
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0001| Date ________________________
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0002|
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0003|
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0004| The roll call vote was 6 For 0 Against
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0005| Yes: 6
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0006| No: None
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0007| Excused: Fidel, Kidd, McKibben, Robinson
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0008| Absent: None
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0009|
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0010|
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0011| S0618CT1
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0012|
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0013|
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0014|
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0015| FORTY-THIRD LEGISLATURE
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0016| FIRST SESSION, 1997
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0017|
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0018|
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0019| February 26, 1997
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0020|
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0021| Mr. President:
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0022|
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0023| Your FINANCE COMMITTEE, to whom has been referred
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0024|
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0025| SENATE BILL 618
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0001|
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0002| has had it under consideration and reports same with
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0003| recommendation that it DO PASS.
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0004|
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0005| Respectfully submitted,
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0006|
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0007|
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0008|
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0009|
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0010| __________________________________
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0011| Ben D. Altamirano, Chairman
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0012|
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0013|
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0014|
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0015| Adopted_______________________ Not
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0016| Adopted_______________________
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0017| (Chief Clerk) (Chief Clerk)
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0018|
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0019|
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0020|
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0021| Date ________________________
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0022|
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0023|
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0024| The roll call vote was 6 For 0 Against
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0025| Yes: 6
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0001| No: None
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0002| Excused: Aragon, Eisenstadt, Ingle, Lyons, McKibben
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0003| Absent: None
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0004|
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0005|
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0006| S0618FC1
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0007| FORTY-THIRD LEGISLATURE
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0008| FIRST SESSION
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0009|
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0010|
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0011| February 28, 1997
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0012|
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0013|
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0014| SENATE FLOOR AMENDMENT number _______ to SENATE BILL 618
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0015|
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0016| Amendment sponsored by Senator Don Kidd
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0017|
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0018|
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0019| 1. On page 2, line 6, strike the semicolon and insert in
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0020| lieu thereof a period.
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0021|
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0022| 2. On page 2, between lines 6 and 7, insert:
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0023|
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0024| ""Institution" does not include an institution with assets
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0025| of more than ten million dollars ($10,000,000) and that is
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0001| organized and operated for private educational purposes;".
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0002|
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0003|
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0004|
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0005|
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0006|
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0007|
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0008| __________________________
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0009| Don Kidd
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0010|
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0011|
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0012|
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0013| Adopted ___________________ Not Adopted _______________________
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0014| (Chief Clerk) (Chief Clerk)
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0015|
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0016|
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0017| Date _________________
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0018| State of New Mexico
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0019| House of Representatives
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0020|
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0021| FORTY-THIRD LEGISLATURE
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0022| FIRST SESSION, 1997
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0023|
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0024|
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0025| March 14, 1997
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0001|
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0002|
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0003| Mr. Speaker:
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0004|
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0005| Your TAXATION AND REVENUE COMMITTEE, to whom has
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0006| been referred
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0007|
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0008| SENATE BILL 618, as amended
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0009|
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0010| has had it under consideration and reports same with
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0011| recommendation that it DO PASS, and thence referred to the
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0012| APPROPRIATIONS AND FINANCE COMMITTEE.
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0013|
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0014| Respectfully submitted,
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0015|
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0016|
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0017|
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0018|
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0019| Jerry W. Sandel, Chairman
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0020|
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0021|
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0022| Adopted Not Adopted
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0023|
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0024| (Chief Clerk)
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0025| (Chief Clerk)
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0001|
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0002| Date
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0003|
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0004| The roll call vote was 11 For 0 Against
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0005| Yes: 11
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0006| Excused: Sandoval, Stell
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0007| Absent: None
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0008|
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0009|
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0010| G:\BILLTEXT\BILLW_97\S0618 State of New Mexico
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0011| House of Representatives
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0012|
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0013| FORTY-THIRD LEGISLATURE
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0014| FIRST SESSION, 1997
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0015|
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0016|
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0017| March 20, 1997
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0018|
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0019|
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0020| Mr. Speaker:
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0021|
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0022| Your APPROPRIATIONS AND FINANCE COMMITTEE, to
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0023| whom has been referred
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0024|
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0025| SENATE BILL 618, as amended
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0001|
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0002| has had it under consideration and reports same with
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0003| recommendation that it DO PASS.
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0004|
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0005| Respectfully submitted,
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0006|
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0007|
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0008|
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0009|
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0010| Max Coll, Chairman
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0011|
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0012|
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0013| Adopted Not Adopted
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0014|
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0015| (Chief Clerk)
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0016| (Chief Clerk)
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0017|
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0018| Date
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0019|
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0020| The roll call vote was 14 For 0 Against
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0021| Yes: 14
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0022| Excused: Knowles, Marquardt, Wallace
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0023| Absent: None
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0024|
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0025|
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0001| G:\BILLTEXT\BILLW_97\S0618
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