44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO JOINT POWERS AGREEMENTS; AUTHORIZING PUBLIC AGENCIES TO ENTER INTO JOINT POWERS AGREEMENTS WITH INDIAN NATIONS, TRIBES OR PUEBLOS TO COORDINATE AND FACILITATE JOINT PROVISION OF GOVERNMENTAL SERVICES; DECLARING AN EMERGENCY.

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

Section 1. Section 3-18-1 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-17-1, as amended) is amended to read:

"3-18-1. GENERAL POWERS--BODY POLITIC AND CORPORATE POWERS.--A municipality is a body politic and corporate under the name and form of government selected by its qualified electors. A municipality may:

A. sue or be sued;

B. enter into contracts or leases;

C. acquire and hold property, both real and personal;

D. have a common seal [which] that may be altered at pleasure;

E. exercise such other privileges that are incident to corporations of like character or degree that are not inconsistent with the laws of New Mexico;

F. protect generally the property of its municipality and its inhabitants;

G. preserve peace and order within the municipality; [and]

H. establish rates for services provided by municipal utilities and revenue-producing projects, including amounts [which] that the governing body determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facilities; and

I. enter into agreements with Indian nations, tribes or pueblos located within or adjacent to the municipality pursuant to the Joint Powers Agreements Act to further coordinate services to provide for public health, welfare and safety, unless otherwise explicitly restricted by statute. Nothing in this subsection is intended to expand the existing jurisdiction of the state or its political subdivisions."

Section 2. Section 9-1-5 NMSA 1978 (being Laws 1977, Chapter 248, Section 5) is amended to read:

"9-1-5. SECRETARY--DUTIES AND GENERAL POWERS.--

A. The secretary is responsible to the governor for the operation of the department. It is his duty to manage all operations of the department and to administer and enforce the laws with which he or the department is charged.

B. To perform his duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division [therein] is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in [this] the Executive Reorganization Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as he deems necessary and appropriate, clearly delineating [such] the delegated authority and the limitations thereto;

(3) organize the department into those organizational units he deems will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge his duties;

(5) take administrative action by issuing orders and instructions, [not inconsistent] consistent with the law, to assure implementation of and compliance with the provisions of law [with the administration or execution of which he is responsible] that are his responsibility to administer and execute and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(7) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs with the objective of improving the operations and efficiency of administration;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies and adjunct agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies;

(10) appoint, with the governor's consent, a "director" for each division [a "director"]. These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary;

(11) give bond in the penal sum of twenty-five thousand dollars ($25,000) and require directors to each give bond in the penal sum of ten thousand dollars ($10,000) conditioned upon the faithful performance of duties, as provided in the Surety Bond Act. The department shall pay the costs of [such] those bonds; and

(12) require performance bonds of [such] those department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of [such] those bonds.

C. The secretary may apply for and receive, with the governor's approval, in the name of the department any public or private funds, including but not limited to United States government funds, available to the department to carry out its programs, duties or services.

D. Where functions of departments overlap or a function assigned to one department could better be performed by another department, a secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable and procedural rules [and regulations] as may be necessary to carry out the duties of the department and its divisions. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by him. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule, proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act.

F. To further the administration and enforcement of a law for which the secretary or the department is charged by specific statute, and in the absence of explicit statutory directive to the contrary, the secretary or his designated representative is authorized to enter into agreements with Indian nations, tribes or pueblos pursuant to the Joint Powers Agreements Act. Nothing in this subsection is intended to expand the existing jurisdiction of the state or its political subdivisions.

[F.] G. If this section conflicts with the powers and duties specifically given by statute to a particular secretary, the specific powers and duties shall control. If this section conflicts with other statutes specifically limiting the powers of a secretary, the specific limitations shall control."

Section 3. Section 11-1-4 NMSA 1978 (being Laws 1961, Chapter 135, Section 4) is amended to read:

"11-1-4. TERMS AND CONDITIONS OF JOINT AGREEMENTS.--

A. Every agreement executed by one or more public agencies shall clearly specify the purpose of the agreement or for any power [which] that is to be exercised. The agreement shall provide for the method by which the purpose will be accomplished and the manner in which any power will be exercised [under such] pursuant to the agreement.

B. The parties to the agreement may provide [therein] in the agreement that:

(1) contributions from the funds of the public agencies may be made for the purpose set forth in the agreements; [or]

(2) payments of public funds may be made to defray the cost of [such] the agreements; or

(3) advances of public funds of the public agencies be made for the purpose set forth in the agreement and that [such] the advances be repaid as provided in [such] the agreement.

C. The agreement may provide that funds be paid to and disbursed by the agency agreed upon by the public agencies under the terms of the agreement.

D. The agreement shall provide for strict accountability of all receipts and disbursements.

E. The agreement may be continued for a definite term or until rescinded or terminated and may provide for the method by which it may be rescinded or terminated by any party.

F. The agreement shall provide for the disposition, division or distribution of any property acquired as the result of the joint exercise of powers and shall further provide that after the completion of the agreement's purpose any surplus money on hand shall be returned in proportion to the contributions made.

G. If the purpose set forth in the agreement is the acquisition, construction or operation of a revenue-producing facility, the agreement may provide for:

(1) [for] the repayment or return to the parties of all or any part of any contributions, payments or advancements made by the parties pursuant to [such] the agreements; and

(2) [for] payment to the parties of any sum derived from the revenues of [such] those facilities.

H. Payments, repayments or returns to a public agency shall be made at the time and in the manner specified in the agreement.

I. Joint powers agreements to provide governmental services funded by state appropriations entered into between public agencies and Indian nations, tribes or pueblos or organizations created by one or more Indian nations, tribes or pueblos are not subject to the provisions of the Procurement Code."

Section 4. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.