New Mexico Register / Volume XXXI, Issue 23 / December 15,
2020
NOTICE OF
PROPOSED RULEMAKING
NOTICE IS HEREBY GIVEN that pursuant
to Subsection A of 1.24.25.9 and 1.24.25.11 NMAC, the State of New Mexico
Department of Finance and Administration (hereinafter “DFA”) will hold a
rulemaking hearing on Friday, January 15, 2021 at 10:00 AM. The meeting will be held virtually via Webex. Members of
the public may attend the Webex meeting on a
computer, mobile device, or telephone. The
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If
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qualified sign language interpreter, or any form of auxiliary aid or service to
attend or participate in the meeting, please contact Andrew Baranowski at (505)
670-2285 by January 1, 2020, or as soon as possible. Public documents, including the agenda and
minutes, can be provided in various accessible formats. A copy of the agenda is also available on the
DFA website and at the office of the DFA located at 180 Bataan Memorial
Building, 407 Galisteo Street, Santa Fe, NM 87501. The agenda is subject to change up to 72 hours
prior to the meeting.
Synopsis:
DFA
will hold a hearing to repeal and replace 2.20.2 NMAC, Execution of Contracts,
Vouchers, Purchase Orders and Other Financial Commitments. Pursuant to Subsection E of 9-1-5 and 9-6-5
NMSA 1978, DFA promulgates these rules to administer the duties of the Department
and its divisions. Further legal
authority for this rulemaking can be found in the State Rules Act, Section
14-4-1 et seq. NMSA 1978. Due to the age of 2.20.2 NMAC, the entire rule
must be repealed and replaced in order to amend it.
Due
to the Governor’s declaration of a public health emergency, DFA issued an
emergency amendment effective August 25, 2020 allowing for certain documents
being submitted to DFA to be digitally, rather than just manually, signed. The emergency amendment also made associated
changes to the form of submission of documents to DFA given the acceptance of
digital signatures. The proposed
amendment of 2.20.2.7 and 2.20.2.9 NMAC consists of continuing to accept
digital signatures and the associated document submission requirements by
eliminating the public health emergency justification. Additionally, the
amendment will update 2.20.2.10 NMAC to better reflect the current composition
of state government and will clean up old formatting.
Interested
individuals are encouraged to submit comments during the Public Comment Period,
which runs from December 15, 2020 through January 14, 2021. Written comments may be submitted to Andrew
Baranowski, General Counsel, DFA, via email at Andrew.Baranowski@state.nm.us. All written comments will be posted on DFA’s
website within three days of receipt. Interested
persons may also provide data, opinion, or arguments, orally at the virtual
public rule hearing on Friday, January 15, 2021 at 10:00 AM, or in writing as
provided above.
Copies
of the proposed rule may be accessed on the Department’s website at http://www.nmdfa.state.nm.us/, or obtained
from Mr. Baranowski by emailing Andrew.Baranowski@state.nm.us or calling
(505) 670-2285.
DFA
will consider the following items of rulemaking at the hearing:
Repeal:
2.20.2
NMAC, New Mexico Administrative Code
Replace:
2.20.2
NMAC, New Mexico Administrative Code
Changes
to the affected rule are reflected as follows:
TITLE 2 PUBLIC FINANCE
CHAPTER 20 ACCOUNTING BY GOVERNMENTAL ENTITIES
PART 2 EXECUTION OF CONTRACTS,
VOUCHERS, PURCHASE ORDERS AND OTHER
FINANCIAL
COMMITMENTS
2.20.2.1 ISSUING
AGENCY: Department of Finance and Administration.
[Recompiled
10/1/2001; N/E 8/25/2020]
2.20.2.2 SCOPE: [RESERVED]
[Recompiled
10/1/2001; N/E 8/25/2020]
2.20.2.3 STATUTORY
AUTHORITY: In order to ascertain the authority and
legality of contracts, purchase orders, vouchers, travel vouchers and other
financial commitments for departments and other state agencies, pursuant to
Section 6-5-3 NMSA 1978, it is necessary to determine whether the person
executing the contract has been properly delegated the authority to bind the
department or state agency. In many
instances there is no clear statutory power granted to an officer to sign on
behalf of an agency. Generally the
person who is ultimately responsible for the administration of the law has the
implied power to execute legal documents for a state agency. Generally the power to execute may be
delegated; however, some laws may require specific officers to execute
contracts and vouchers on behalf of the agency.
In such cases, no delegation is allowed by law.
[Recompiled
10/1/2001; N/E 8/25/2020]
2.20.2.4 DURATION: Permanent.
[Recompiled
10/1/2001; N/E 8/25/2020]
2.20.2.5 EFFECTIVE
DATE: February 9, 2021, unless a later date is
cited at the end of a section. [Recompiled 10/1/2001; N/E 8/25/2020]
2.20.2.6 OBJECTIVE: The various acts creating departments
pursuant to the Executive Reorganization Acts generally provide that the
secretary of the department is responsible to the governor for the operation of
the department and shall delegate authority to subordinates as the secretary
deems necessary and appropriate, clearly delineating such delegated authority
and the limitations thereto. It is the
purpose of this rule to set forth those individuals who may legally bind state
agencies which must submit their contracts or vouchers to the department of
finance and administration.
[Recompiled
10/1/2001; N/E 8/25/2020]
2.20.2.7 DEFINITIONS: As used in this rule:
A. “authorized
officer” means a public officer or employee who is required or permitted by law
or by lawful delegation of authority pursuant to this rule to sign contracts,
vouchers, purchase orders or other financial commitments on behalf of a state
agency;
B. “contracts
officer” means an employee of the department of finance and administration
designated as contracts officer by the secretary of finance and administration;
C. “facsimile
signature” means a reproduction by engraving, imprinting, stamping, or other
means of the manual signature of the authorized officer;
D. “signed” or
“executed” means affixed with any of the following:
(1) the manual
signature of an individual; and
(2) the facsimile
signature of an individual;
(3) the
electronic signature of an individual procured through a third-party
document-signing service; or
(4) the name of an individual,
typewritten on the signature line of a document using word processing software
and accompanied with another writing confirming that individual’s approval of
such document, including without limitation an e-mail to that effect.
E. “state agency”
means the state of New Mexico or any of its branches, agencies, departments,
boards, instrumentalities, or institutions required to submit contracts or
vouchers to the department of finance and administration for approval.
[Recompiled
10/1/2001; N/E & A/E, 8/25/2020]
2.20.2.8 EXECUTION
OF CONTRACTS, VOUCHERS AND PURCHASE ORDERS - AUTHORIZED SIGNATURES:
A. The department
of finance and administration will not approve any contract, voucher, travel
voucher, purchase order or other financial commitment of any state agency
required pursuant to [DFA rule 78-6 Amendment No. 1,] 2.20.3 NMAC
and [87-1 Amendment No. 1] 2.40.2 NMAC, to submit its voucher or
contract to the department for approval unless the contract, voucher, travel
voucher, purchase order or other financial commitment has been executed by an
authorized officer of the agency.
B. The authority to
execute contracts, vouchers, purchase orders, travel vouchers or other
financial commitments may be delegated unless provided otherwise by law to any
officer or employee of the state agency, but such delegation shall:
(1) be in writing;
(2) state whether the delegated power may be subdelegated
to another officer or employee of the state agency;
(3) automatically terminate on whichever date occurs earliest;
(a) the date the term of office of the delegating secretary or
other chief financial officer ends; or
(b) annually on June 30; and
(4) be on file with the contracts officer of the department of
finance and administration (for contracts); and
(5) be on file with the financial control division of the
department of finance and administration.
C. A written
delegation of authority to execute contracts, vouchers, travel vouchers,
purchase orders or other financial commitments may contain such limitations or
conditions as the delegating authorized officer may deem appropriate.
D. No authorized
officer shall delegate to any other person authority to sign the authorized
officer’s signature.
E. Nothing in this
rule shall prevent the use of facsimile, printed or typed signature of the
secretary or chief financial officer on a copy of a contract, voucher, travel
voucher, purchase order or other financial commitment.
[Recompiled
10/1/2001; N/E 8/25/2020]
2.20.2.9 [ORIGINAL]
SIGNATURES REQUIRED [FACSIMILE SIGNATURES]:
[ A. The original and at least one copy] The two copies of every contract, voucher, travel
voucher, purchase order or other financial commitment required to be submitted
to the department shall be signed by an authorized officer. The department will retain at least one
signed copy of every contract, voucher, travel voucher, purchase order or other
financial commitment. Alternatively,
agencies may submit a single electronic version, in portable document format
(PDF) or a comparable format and in such a manner as the department may direct,
of an executed contract, voucher, travel voucher, purchase order or other
financial commitment required to be submitted to the department.
[ B. Except as provided in paragraph A of this section, all
duplicate copies of contracts, vouchers, travel vouchers, purchase orders or
other financial commitments required to be submitted to the department for
approval may be executed with a facsimile signature in lieu of the original
signature of the authorized officer.]
[Recompiled
10/1/2001; N/E & A/E 8/25/2020]
2.20.2.10 AUTHORIZED OFFICERS - DELEGATION:
A. The following
public officers are authorized to execute contracts, vouchers, purchase orders
and other financial commitments on behalf of the state agency under their
control or supervision. Signatures must
be on file at the financial control division of the department of finance and
administration.
STATE AGENCY
OFFICER AUTHORIZED
office of
the governor governor
office of
the lieutenant governor
lieutenant governor
office of
the attorney general
attorney general
secretary of
state
secretary of state
state
auditor
state auditor
[state
corporation commission
public regulation
commission commission
[insurance
department
superintendent of insurance]
state
fire [marshall] marshal state
fire [marshall] marshal
transportation
department
director
office
of the superintendent of insurance superintendent of insurance
state land
office
land commissioner
state
treasurer
state treasurer
department
of agriculture secretary of
department
N.M. livestock board
executive director
[peanut
commission
commission]
corrections
department
secretary of department
children,
youth and families dept. secretary of department
public
defender department director
juvenile
parole board board
adult
parole board
board
economic
development [& tourism ] department secretary of department
[research
and development Institute
director]
state
fair commission commission
state
racing commission commission
energy,
minerals and natural resources dept. secretary
of department
state
game commission
commission
department
of game and fish
director
[public
service commission commission]
department of finance and
administration
secretary of department
[commission
on higher education
commission]
[office
of cultural affairs cultural affairs officer]
[committee
on concerns of the director
Handicapped]
general
services department
secretary of department
state
personnel board director
state
personnel office director
[health
& environment department secretary of
department]
[health]
department of health secretary
of department
[environment]
department of environment secretary
of department
[state highway &] transportation
department secretary of department
human
services department secretary
of department
commission
on the status of women
commission
[state
agency on aging
director]
[office
of Indian affairs
commission on Indian affairs]
department
of [labor] workforce solutions secretary of department
department
of public safety
secretary of department
taxation and
revenue department secretary
of department
commission
for the blind
commission
crime
stoppers commission commission
crime
victims reparation commission commission
[state
department of] public education department [superintendent]
secretary of department
division of
vocational rehabilitation director
state
investment council
state investment officer
department
of military affairs
adjutant general
state
commission of public records state records
administrator
regulation
and licensing department superintendent
interstate
stream commission commission
office of
the state engineer
state engineer
[NM veteran service commission
commission]
institutions
of higher education boards
of regents or controllers
miners
hospital board
department
of cultural affairs secretary
of department
office of African
American affairs executive
director
tourism
department secretary
of department
Indian affairs department secretary
of department
veterans’
services department secretary
of department
aging and
long-term services department secretary
of department
public education
commission commission
higher
education department secretary
of department
department
of information technology secretary
of department
homeland
security and emergency
management department secretary
of department
state ethics
commission commission
early
childhood education and care department secretary
of department
all
executive departments not otherwise listed secretary
of department
all
commissions commission
all boards
board
all
other state agencies not otherwise listed as
provided by applicable law, regulation, or governance documents
[youth
authority children, youth and families dept. secretary of
department]
LEGISLATIVE
BRANCH
legislative
council service
director
legislative
finance committee committee
legislative
school study committee chairman of
committee
all other
vouchers
director
JUDICIAL
BRANCH
supreme
court chief
justice
compilation
commission
secretary of commission
building
commission
commission
director,
administrative office of courts supreme court
court of
appeals
chief Judge
district
courts presiding
judge
magistrate
courts
director, administrative office of the courts
district
attorneys district
attorney
judicial
standards commission
executive director
judicial
council
council
B. If the
authorized officer set forth in Subsection A of this section is a board or
commission, the power to execute contracts, vouchers, purchase orders or other
financial commitments may be delegated by a majority of a quorum of the board
or commission acting in accordance with the provisions of law.
[Recompiled
10/1/201; 8/25/2020]
HISTORY OF 2.20.2 NMAC:
Pre-NMAC
History: The material in this part was
derived from that previously filed with the State Records Center and Archives:
DFA
78-5 Execution of Contracts, Vouchers, Purchase Orders and Other Financial
Commitments, 6/30/1978.
DFA
78-5, Amendment No. 1, 12/20/1989.
History of Repealed Material: 2.20.2 NMAC, Execution of Contracts,
Vouchers, Purchase Orders and Other Financial Commitments, repealed to amend as
emergency Sections 7 and 9, effective August 25, 2020.