NM Stat § 9-3-5 (2021)
2021 New Mexico Statutes|Chapter 9 - Executive Department|Article 3 - Corrections Department|Section 9-3-5 - Secretary; duties and general powers.

A. The secretary of corrections is responsible to the governor for the operation of the corrections 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 of the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall: (1) except as otherwise provided in the Corrections Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and regulations; (2) delegate authority to subordinates as he deems necessary and appropriate, clearly delineating such 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 with the law, to assure implementation of and compliance with the provisions of law for whose administration or execution he is responsible 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, 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, record-keeping and related clerical assistance to administratively attached agencies; (10) appoint, with the governor's consent, a "director" for each division. These appointed positions are exempt from the provisions of the Personnel Act [Chapter 10, Article 9 NMSA 1978]. Persons appointed to these positions shall serve at the pleasure of the secretary; (11) give bond as provided in the Surety Bond Act [10-2-13 to 10-2-16 NMSA 1978]. The department shall pay the costs of the bonds; and (12) require performance bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of the 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 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, no regulation 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, 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, proposed amendment or repeal of an existing regulation 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 [Chapter 14, Article 4 NMSA 1978]. F. Behavioral health services, including mental health and substance abuse services, provided by the department for persons under the department's supervision shall be in compliance with the requirements of Section 9-7-6.4 NMSA 1978. History: 1978 Comp., § 9-3-5, enacted by Laws 1977, ch. 257, § 6; 1979, ch. 202, § 3; 1980, ch. 150, § 5; 1981, ch. 73, § 5; 2004, ch. 46, § 4. ANNOTATIONSCross references. — For appointment of directors, see 9-3-6 NMSA 1978. For state budgets, see 6-3-1 to 6-3-25 NMSA 1978. For public officers and employees generally, see Chapter 10 NMSA 1978. The 2004 amendment, effective May 19, 2004, added Subsection F. No disparate treatment of employees in application DWI policy. — Where the employer adopted a DWI policy which required employees to self-report DWI offenses, required dismissal for a second DWI offense, and provided that discipline for DWI did not depend on conviction; plaintiff was arrested twice for suspicion of aggravated DWI after the policy became effective and self-reported the arrests; the criminal charges for both arrests were ultimately dismissed without a finding of guilt or innocence; plaintiff was dismissed after the second arrest for DWI; plaintiff claimed that the employer treated plaintiff differently than other employees; one employee had two prior DWI arrests, but only one arrest after the policy became effective; a second employee was rumored to have three or four DWIs, but never reported the DWIs and the employer had no record of the offenses; with one exception, plaintiff was treated the same as other employees who, after the policy become effective, self-reported a second DWI and were dismissed; and the one exception was an employee who was arrested twice for DWI after the policy became effective, but who was not terminated because at that time, the employer was reviewing the policy and had not determined that termination was appropriate for a second offense, plaintiff's termination was appropriate because the employer placed substantial evidence in the record to justify the action taken and to explain the alleged differences in the treatment of other employees. Sais v. N.M. Dep't of Corr., 2012-NMSC-009, 275 P.3d 104. Applicability of State Rules Act to disciplinary rules for prisoners. — Disciplinary rules promulgated by the secretary of corrections, governing the conduct of prisoners confined within a penitentiary, were not required to be filed with the state's record center in the manner required under the State Rules Act. Johnson v. Francke, 1987-NMCA-029, 105 N.M. 564, 734 P.2d 804. Status of secretary of corrections. — The secretary of corrections is not a "law enforcement officer" for purposes of the Tort Claims Act, Section 41-4-3 NMSA 1978. Anchondo v. Corrections Dep't, 1983-NMSC-051, 100 N.M. 108, 666 P.2d 1255. Rules promulgated pursuant to statutory authority may have force and effect of law. 1980 Op. Att'y Gen. No. 80-04. No responsibility by state records center to determine compliance of promulgated rules with hearing and notice requirements. 1978 Op. Att'y Gen. No. 78-07.