New Mexico
Register / Volume XXXIII, Issue 10 / May 24, 2022
This
is an amendment to 2.82.1 NMAC, Sections 8, 9, 10 and 14 effective 05/24/2022.
2.82.1.8 BOARD MEMBERS AND OFFICERS: Ex-officio members of the board shall take
office upon their qualifying for the offices enumerated in Section 22-11-3
NMSA 1978. The board member elected by the New Mexico
educational association shall be elected in the manner prescribed by the
constitution of that body and shall take office on January 1 following such
election. The board member elected by the New Mexico members of the American
association of university professors shall be elected in accordance with the
constitution of that body and shall take office on July 1 following such
election. The board member elected by the New Mexico association of educational
retirees shall be elected in the manner prescribed by the constitution of that
body and shall take office on July 1 following such election. The board
member elected by the American federation of teachers New Mexico shall be
elected in the manner prescribed by the constitution of that body and shall
take office on July 1 following such election. The board members
appointed by the governor shall take office upon their receipt of appointment.
All board members shall hold office until their successors qualify regardless
of the length of the term and office. At the regular August meeting of each
year, the members of the board shall elect a chairman, a vice-chairman, and a
secretary. The duties of the officers shall include the following.
A. The chairman
shall preside at all meetings of the board.
B. The vice-chairman
shall serve as the chairman in the absence of the chairman.
C. The secretary
shall attest to the official actions of the board when such is required. The vice-chaiman may attest to the official
actions of the board in the secretary’s absence.
[2.82.1.8 NMAC - Rp, 2.82.1.8 NMAC, 11/15/2012; A, 05/24/2022]
2.82.1.9 MEETINGS:
A. The
New Mexico educational retirement board shall hold regular meetings in the
months of February, April, June, August, October and December; provided
however, that the board may change the date of a meeting by board action, which
action shall be noted in the minutes. Special
board meetings may be held in accordance with state law at the call of the chairman
or by any three board members. Committee
meetings shall be scheduled as directed by the chairman of each committee.
B. [Four] Five
members of the board shall constitute a quorum at any regular or special
meeting.
C. Notice of all
meetings of the board and its committees shall be made in accordance with the
Open Meetings Act (Chapter 10, Article 15, NMSA 1978) and the Open Meetings Resolution
adopted by the board and shall be posted on the board’s website and distributed
as otherwise directed by the board. Notice
shall be given at least eight days in advance of any regular meeting scheduled
by the board at its last meeting. Notice shall be given at least three days in
advance of any special meeting called by the chairman or any three members of
the board.
D. The
chairman shall set the agenda of board meetings; provided however, that if the
chairman refuses to place an item on the agenda, three individual board members
may petition in writing and place an item on the
agenda without the chairman's consent. Committee
chairmen shall set the agendas of their respective committees. Notice of agendas shall be made in accordance
with the Open Meetings Act and the Open Meetings Resolution adopted by the
board and the director shall distribute board and committee agendas to board
members, post the agendas to the board’s website, and distribute the agendas as
otherwise directed by the board.
E. Board members and
their designees may attend and participate in any regular or special board
meeting by telephone or other electronic device if:
(1) the
member or designee cannot attend the meeting due to an emergency or unforeseen
circumstance;
(2) the
member or designee can clearly be heard by everyone attending the meeting and
the member or designee clearly identifies themself before speaking or
participating in a vote;
(3) the
member or designee has not attended regular meetings electronically more than twice
in a rolling 12 month period;
(4) no
more than two members or designees who otherwise qualify for participation
under this section may do so at the same meeting; and
(5) the
member or designee otherwise complies with the Open Meetings Act.
F. Failure of any
board member other than the state treasurer [or], secretary of
public education or secretary of higher education to attend four
consecutive regular meetings unless such absence is excused by the board at a board
meeting will be considered
resignation from the board by that board member. Failure of the designee of the state
treasurer [or], the secretary of public education or the secretary of
higher education, respectively, to attend four consecutive regular meetings
when the state treasurer [or], the secretary of public education or
the secretary of higher education is absent will be considered resignation
from the board by that designee. An
excused absence must be recorded in the board meeting minutes.
G. Board members not officially
assigned to the committee which is meeting may be temporarily appointed to the
committee by the committee chairperson when necessary to achieve a quorum.
[2.82.1.9
NMAC - Rp, 2.82.1.9 NMAC, 11/15/2012; A, 9/26/2017; A, 05/24/2022]
2.82.1.10 SANCTIONS AND ENFORCEMENT:
A. Any breach of a board member’s fiduciary duty or
violation of the rules or policies adopted by the board made known to the board
or of which the board becomes aware shall be reviewed by the board. If a majority of the entire board so request,
an alleged breach or violation may be investigated by an independent person or
entity not otherwise associated or affiliated with any member of the board or the
board’s staff. Such person or entity
shall be selected by at least five board members and designees, if such be
sitting for board members.
B. Any hearing addressing an alleged
breach of fiduciary duty or violation of the rules or the policies adopted by
the board shall be conducted by the entire board, excepting the member accused
of such a breach or violation, in accordance with the rule governing
administrative appeals adopted by the board prior to the alleged breach or
violation having occurred. If the rule
governing administrative appeals is amended between the time that an alleged
breach of fiduciary duty or violation of such rules or policies occurred and
the time of the hearing, the board shall conduct the hearing in accordance with
the rule that existed prior to its amendment.
C. Removal of a board member should
occur only when necessary for the board to fulfill its fiduciary duty. A decision to remove a board member should be
based on a determination that allowing the member to continue to serve on the board
would be a violation of the other board members’ fiduciary duty and would be
detrimental to the educational retirement fund and the board. Removal should not be undertaken solely to
inflict a penalty for a board member’s past action(s) unrelated to the matter
before the board.
(1) Removal is appropriate in instances
of gross misconduct, violation of the board member’s fiduciary duty, repeated
violation of the rules and policies adopted by the board, or failure to fulfill
the duties of a board member. "Gross
misconduct" is defined as violation of a clearly established rule or
policy, dereliction of duty, unlawful behavior involving matters of dishonesty
or deception, gross negligence, but not negligence or carelessness.
(2) Removal of a board member other than
the state treasurer [or], the secretary of public education or the
secretary of higher education shall occur only after a full investigation,
hearing, and an affirmative vote by not less than five board members and
designees, if such are sitting for a board member.
(3) The state treasurer [and], the
secretary of public education and the secretary of higher education
may be removed from the board only by removal from their respective offices by
an authority possessing such power. The board
may nevertheless, in compliance with the procedures set forth herein, make a
finding that the actions of a state treasurer [or], a secretary of public
education or a secretary of higher education warrant removal from the board
and report such finding to appropriate authorities. A designee of the state treasurer [or],
the secretary of public education or the secretary of higher education,
respectively, shall not participate in board discussions or votes related to
the board’s consideration of a matter pursuant to this subparagraph that involve
the board member who named that person as a designee.
(4) The designees of the state treasurer [and],
the secretary of public education and the secretary of higher education,
respectively, may be removed from the board in accordance with the procedures
set forth herein. A designee so removed
may not be reappointed as a designee by either the state treasurer [or],
the secretary of public education or the secretary of higher education.
D. Board members or designees found to
be in violation of the rules and policies adopted by the board or who fail to
fulfill their duties, or who otherwise conduct themselves in a manner that is
not appropriate for a member of a board governing a public pension fund, may be
subject to formal reprimand or admonishment by the board. Reprimand or admonishment shall be done upon
a public vote of not less than five board members and designees, if such are
sitting for board members, and shall be permanently recorded in the board
minutes.
(1) The board may choose to reprimand a board
member or designee upon determining that the member’s or designee’s violation
of the rules and policies adopted by the board or conduct as a board member
warrant censure or reproval but do not warrant removal from the board.
(2) The board may choose to admonish a board
member or designee upon determining that member or designee should be advised
or cautioned regarding actions such as a failure to fulfill the duties of a board
member or conduct that is inappropriate for a member of a board governing a
public pension fund.
E. The board may not impose a fine on a
board member or designee; however, the board may order a board member or
designee to repay expenses paid by the board on behalf of a board member or
designee for education or travel where a board member or designee did not
fulfill the purpose for which the education or travel expense was provided. In addition, a board member or designee may
be required to repay the donor of a gift accepted in violation of Section
22-11-5.1 NMSA 1978 or the rules and policies adopted by the board.
[2.82.1.10
NMAC - N, 11/15/2012; A, 05/24/2022]
2.82.1.14 INVESTMENT
COMMITTEE: The investments of the retirement
fund shall be under the [immediate] direction of an investment committee
composed of the chairman of the board, and two members of the board appointed
by the chairman and approved by the board, for terms of one year. The chairman
shall appoint two members to the investment committee at the board’s regular October
meeting each year. In the event of a vacancy on the committee, the chairman shall
appoint a member of the board to serve for the remaining portion of the one
year term. The appointment shall become effective immediately; provided,
however, that it shall be subject to the approval by the board at its first
meeting occurring after said appointment. The actions of the committee shall be
subject to applicable statutes governing investment of the educational
retirement fund, and the administrative rules and policies adopted by the board
relating to investments of the fund.
[2.82.1.14 NMAC - Rp, 2.82.1.13 NMAC, 11/15/2012; A, 12/30/2013; A,
3/14/2017; 05/24/2022]