TITLE 10 PUBLIC
SAFETY AND LAW ENFORCEMENT
CHAPTER 2 DEPARTMENT
OF PUBLIC SAFETY
PART 4 LAW ENFORCMENT RETENTION FUND
REPORTING, MONITORING AND ADMINISTRATION
10.2.4.1 ISSUING AGENCY: Department of Public Safety.
[10.2.4.1 NMAC – N, 04/25/2023]
10.2.4.2 SCOPE: All law enforcement agencies eligible to
receive funding from the law enforcement retention fund for the purpose of
providing a retention differential disbursement to eligible law enforcement
officers employed by that law enforcement agency.
[10.2.4.2 NMAC -
N, 04/25/2023]
10.2.4.3 STATUTORY AUTHORITY: This rule is promulgated pursuant to Sections
9-19-6 E. and 9-19-14 NMSA 1978 of the Department of Public Safety Act. Section 9-19-14 creates a law enforcement
retention fund in the state treasury and requires the Department to develop
rules, forms, standards, procedures and related training for law enforcement
agencies to report retention information when seeking monies to provide
retention differential disbursements to eligible law enforcement officers
within the law enforcement agency’s employ.
[10.2.4.3 NMAC - N, 04/25/2023]
10.2.4.4 DURATION: Permanent
[10.2.300.4 NMAC - N, 04/25/2023]
10.2.4.5 EFFECTIVE DATE: 04/25/2023, unless a
later date is specified at the end of a section.
[10.2.4.5 NMAC -
N, 04/25/2023]
10.2.4.6 OBJECTIVE: The objective of this rule is to provide
forms, standards and procedures for law enforcement agencies to report
retention information when seeking monies from the law enforcement retention
fund, for the purpose of providing retention differential disbursements to
eligible law enforcement officers within the law enforcement agency’s employ
[10.2.4.6 NMAC -
N, 04/25/2023]
10.2.4.7 DEFINITIONS: This rule adopts the definitions found in
Section 9-19-2 NMSA 1978 and Subsection M of Section 9-19-14 NMSA 1978 , as if
fully set forth herein. In addition to
the definitions adopted, the following terms have the following meaning:
A. “Date of hire”
means the month, date and year the individual was hired by a law enforcement
agency for the purpose of serving as a law enforcement officer with that
agency.
B. “DPS”
means the department of public safety.
C. “Eligible
officer” means an officer who has remained employed as a law enforcement officer
with the same law enforcement agency one year and one day after reaching four,
nine, fourteen and nineteen years of consecutive service from the law
enforcement officer’s date of hire with that law enforcement agency.
D. “Employer tax
liability” means the employer contribution for payroll taxes outlined in
the Federal Insurance Contribution Act for Social Security and/or
Medicare. This does not include any
employer contributions for retirement or other benefit plans.
E. “Law
enforcement academy” means the New Mexico law enforcement academy created
by Section 29-7-2 NMSA 1978 or any of the satellite academies certified by the
New Mexico law enforcement academy board.
F. “Law
enforcement retention fund” means a fund in the state treasury, consisting
of money appropriated by the legislature, federal money granted to the state
for the purposes of the fund, income from investment of the fund and money
otherwise accruing to the fund. Money in
the fund does not revert to any other fund at the end of the fiscal year. The fund is administered by DPS to provide
monies to law enforcement agencies who request the funds for the purpose of
providing retention differential disbursements to law enforcement officers within
the agency’s employ who meet statutorily prescribed requirements.
G. “LERF”
means law enforcement retention fund.
H. “Portal”
means the electronic system through which law enforcement agencies annually
report to the DPS the data required by this rule in order for
the law enforcement agency to receive funding from the law enforcement
retention fund for the purpose of providing retention differential
disbursements to eligible officers employed by that agency.
I. “PRDD”
means the amount of the projected retention differential disbursement stated in
dollars and cents to be paid to the eligible officer.
J. “Reporting
fiscal year” means the fiscal year in which the law enforcement agency is
reporting to DPS the information set forth in Subsection A of 10.2.4.9 NMAC.
K. “Salary”
means the base hourly rate of pay of the law enforcement officer for two
thousand eighty hours, excluding overtime, any percentage pay increases or
multiple components of pay.
L. “Years of
service” means the number of consecutive years, months and days, beginning
with the date of hire, a law enforcement officer is employed for the purpose of
serving as a law enforcement officer with a single law enforcement agency.
[10.2.4.7 NMAC -
N, 04/25/2023]
10.2.4.8 CALCULATION OF THE PROJECTED FIVE
PERCENT RETENTION DIFFERENTIAL DISBURSEMENT
BY THE REPORTING LAW ENFORCEMENT AGENCY: The salary used by the law enforcement agency
to calculate the five percent retention differential disbursement for those
officers projected to be eligible officers in the upcoming fiscal year, shall
be the salary of the officer on the date the officer reached four, nine, 14 or
19 years of consecutive service with the law enforcement agency requesting the
retention differential disbursement.
[10.2.4.8 NMAC - N,
04/25/2023]
10.2.4.9 REPORTING REQUIREMENTS FOR
AGENCIES SEEKING RETENTION DIFFERENTIAL DISBURSEMENTS
A. Every law
enforcement agency seeking monies from the LERF for retention differential
disbursements for officers within its employ, who are projected to be eligible
officers in the upcoming fiscal year, shall annually report to DPS the
following information:
(1) The
full legal name and date of hire of the officer projected to be an eligible
officer in the upcoming fiscal year, the PRDD for that officer, the amount of
the annual salary on which the PRDD was calculated and the amount of the
employer tax liability attributable to the PRDD. The amount of the employer tax liability
shall specify the amount attributable to Social Security and the amount
attributable to Medicare;
(2) The
aggregate number of law enforcement officers employed by the law enforcement
agency during each of the five fiscal years immediately preceding the reporting
fiscal year. For any officer employed
less than a full fiscal year, the law enforcement agency shall report the
number of months and days the officer was employed, identifying the officer
without personally identifying information (e.g. Officer # 1, Officer # 2,
etc.).
(3) For
each officer included in Paragraph (2) of Subsection A above, the number of
years (or partial years) of service of each law enforcement officer with the
reporting agency.
(4) The
number of law enforcement officers that left the employ of the law enforcement
agency during the fiscal year immediately preceding the reporting fiscal
year. The number of years of service
with the reporting law enforcement agency of each departing officer and the
stated reasons why each law enforcement officer left the employ of the law
enforcement agency.
(6) The
number of applicants to the law enforcement agency for a position as a law
enforcement officer in the fiscal year immediately preceding the reporting
fiscal year, who attended a law enforcement academy.
(7) The
number of law enforcement officers within the reporting agency’s employ who
received one or more certifications during the fiscal year immediately
preceding the reporting fiscal year.
(8) The
number of law enforcement officers added to the law enforcement agency by way
of lateral transfer during the fiscal year immediately
preceding the reporting fiscal year and the years of service of each added
officer at each previous law enforcement agency if known to the reporting
agency.
(9) Any
changes to compensation, recruiting, retention or benefits of officers
implemented by the law enforcement agency during the fiscal year immediately
preceding the reporting fiscal year.
(10) The
number of officers that are projected to become eligible for a retention
differential disbursement in the upcoming fiscal year, and the projected amount
of the retention differential disbursement including any employer tax
liabilities.
(11) Any
other information requested by DPS that is used for determining retention
rates, unless disclosure of such information is otherwise prohibited by law.
B. The information
in Subsection A above shall be reported to the DPS for the upcoming fiscal year
no later than May 31.
C. The information
in Subsection A above shall be reported to the DPS through the electronic
portal, unless DPS advises the applying law enforcement agencies that a
different reporting method should be used.
[10.2.4.9 NMAC -
N, 04/25/2023]
10.2.4.10 PROCEDURE
FOR CALCULATION OF DISBURSEMENTS FROM THE LERF, SUBMISSION OF OBJECTIONS TO THE
DISBURSEMENT AND REVERSION OF UNDISBURSED FUNDS
A. Following
receipt of the information required to be reported in 10.2.4.9 NMAC, DPS shall
calculate the total amount necessary to be disbursed to each requesting law
enforcement agency to provide a retention differential disbursement to all
eligible officers employed by that law enforcement agency in the fiscal year
for which the funds are requested, plus the employer tax liability for each
PRDD.
B. Following
calculation of the PRDD and employer tax liability for each officer projected
to be an eligible officer in each requesting agency, the DPS shall determine
whether the balance in the LERF is sufficient to permit the total disbursements
calculated. If the balance in the LERF
is insufficient to pay the total amount of the disbursement to each requesting
agency, DPS shall reduce the amount to
be disbursed to each law enforcement agency on a pro rata basis to an amount
permitted by the monies available in the LERF.
C. Once the
calculation of the PRDD, employer tax liability and any necessary pro rata
deduction is complete, DPS shall issue a Notice of Intent to Disburse letter to
each agency that requested monies from the LERF. This notice shall advise the agency of the
amount DPS intends to distribute from the LERF to the agency for the PRDD and
related employer tax liability, including an explanation of the pro rata
deduction, if any. If the agency
disagrees with the amount set forth in the Notice of Intent to Disburse letter,
the agency shall have 30 days from its receipt of the letter to notify DPS of
its objection and the reasons therefor.
D. The written
Objections to the Notice of Intent to Disburse shall be sent to: DPS.LERF@dps.nm.gov.
E. DPS will respond
to all objecting agencies in writing, within 30 days of the date on which all
objections by all agencies are due. DPS will either affirm its original Notice
of Intent to Disburse letter or issue an Amended Notice of Intent to Disburse
letter. If the agency requesting monies
from the LERF remains aggrieved, the agency may proceed as provided in
10.2.4.12 NMAC.
F. DPS shall
disburse the monies to the requesting law enforcement agencies in accordance
with the Notice of Intent to Disburse letter and any amendment thereto in
accordance with the choice selected by the law enforcement agency in SHARE
Financials as State of New Mexico vendors.
Some law enforcement agencies may be set up for manual warrants.
G. DPS shall disburse
the monies to all requesting law enforcement agencies in accordance with their
respective Notice of Intent to Disburse letters and any amendments thereto, on
December 15 of the fiscal year in which the monies are projected to be
disbursed by the law enforcement agencies to the eligible officers.
H. Upon receipt of
the disbursement, the law enforcement agency shall place the monies in an
interest bearing account. Interest earned will revert to DPS as set forth in
this rule.
I. The law
enforcement agency shall disburse the PRDD to the eligible officer no sooner
than the date the officer attains eligibility and no later than 30 days
following the date of eligibility, or the law enforcement agency’s receipt of
the disbursement from DPS, whichever occurs last.
J. The law
enforcement agency shall disburse the monies attributable to the employer’s tax
liability to the appropriate taxing authority as required by law.
K. The law
enforcement agency shall report the date of disbursement of the PRDD and the
employer taxes on the same to the DPS through the portal within 30 days of
disbursement.
L. Within 60 days
after the end of the fiscal year in which PRDDs and the accompanying employer
tax liability are disbursed and paid and no later than August 31, the law enforcement
agency shall return to the DPS any monies disbursed for projected PRDDs and
employer tax liability, which were not disbursed and paid as projected,
together with any interest earned thereon , in the form of a check. The law enforcement agency returning the
monies shall include with the check, a statement of all PRDDs made and employer
tax liability paid for each officer, identified by the officer’s full legal
name, date of the disbursement and date of payment of the employer tax
liability. The law enforcement agency
shall also provide a statement of the full legal names of the officers
projected to receive a retention differential disbursement, who did not receive
a disbursement, the amount of the returned PRDD, the amount of the returned employer
tax liability and the reason the disbursement was not made. The law enforcement agency shall also include
a statement of the interest that accrued on the funds while in the agency’s
custody, that is being returned to DPS.
[10.2.4.10 NMAC -
N, 04/25/2023]
10.2.4.11 WAIVER
OF REPORTING REQUIREMENT
A. Any agency
requesting a waiver of all or a portion of the information that the law
enforcement agency is required to report under Subsection A of 10.2.4.9 NMAC,
shall file a written request for waiver no later than May 31 of the fiscal year
the report is due. The request for
waiver shall specify the section or sections of the rule for which waiver is
sought and the reason therefor.
B. DPS will respond
in writing to a request for waiver of the required reporting information within
30 days of its receipt of the request.
C. The agency’s
decision on a request for waiver is final.
[10.2.4.11 NMAC -
N, 04/25/2023]
10.2.4.12 APPEAL
PROCESS
A. There is no
statutory right of appeal from DPS’s decision on a Notice of Intent to Disburse
letter or its denial of a request to waive the required reporting information.
B. A law
enforcement agency aggrieved by a DPS decision may proceed by requesting an
applicable writ as provided by law.
[10.2.4.12 NMAC -
N, 04/25/2023]
HISTORY OF 10.2.4 NMAC:
10.2.4 NMAC - Law
Enforcement Retention Fund Reporting, Monitoring and Administration, filed and effective
on 5/5/2022 as an emergency rule, expired by operation of law.