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 videoconference’s Meeting ID and Password, video link, and telephone numbers are as follows:

 

Webex meeting scheduled: Department of Finance and Administration Rulemaking Hearing - Virtual

https://protect-us.mimecast.com/s/YpjJCJ62pVTyMzxPHVZIIk?domain=nmdfa.webex.com

 

Meeting number (access code): 146 809 4756

Meeting password: 3y7CVxs5rxD

 

Friday, January 15, 2021

10:00 am  |  (UTC-07:00) Mountain Time (US & Canada)  |  5 hrs

 

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If you are an individual with a disability who is in need of a reader, amplifier, 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  Due to the age of 2.20.2 NMAC, the entire rule must be repealed and replaced in order to amend it.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.