2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 11 - Retirement of Public Officers and Employees Generally › Section 10-11-2 - Definitions.

As used in the Public Employees Retirement Act:
A. "accumulated member contributions" means the amounts deducted from the salary of a member and credited to the member's individual account, together with interest, if any, credited to that account;
B. "affiliated public employer" means the state and any public employer affiliated with the association as provided in the Public Employees Retirement Act, but does not include an employer pursuant to the Magistrate Retirement Act [Chapter 10, Article 12C NMSA 1978], the Judicial Retirement Act [Chapter 10, Article 12B NMSA 1978] or the Educational Retirement Act [Chapter 22, Article 11 NMSA 1978];
C. "association" means the public employees retirement association established under the Public Employees Retirement Act;
D. "coverage plan funded ratio" means the ratio of the actuarial value of the assets of a coverage plan to the actuarial accrued liability of the association for payments from the coverage plan, as determined by the association's actuaries;
E. "disability retired member" means a retired member who is receiving a pension pursuant to the disability retirement provisions of the Public Employees Retirement Act;
F. "disability retirement pension" means the pension paid pursuant to the disability retirement provisions of the Public Employees Retirement Act;
G. "educational retirement system" means that retirement system provided for in the Educational Retirement Act;
H. "employee" means any employee of an affiliated public employer;
I. "federal social security program" means that program or those programs created and administered pursuant to the act of congress approved August 14, 1935, Chapter 531, 49 Stat. 620, as that act may be amended;
J. "final average salary" means the final average salary calculated in accordance with the provisions of the applicable coverage plan;
K. "form of payment" means the applicable form of payment of a pension provided for in Section 10-11-117 NMSA 1978;
L. "former member" means a person who was previously employed by an affiliated public employer, who has terminated that employment and who has received a refund of member contributions;
M. "fund" means the funds included under the Public Employees Retirement Act;
N. "member" means a currently employed, contributing employee of an affiliated public employer, or a person who has been but is not currently employed by an affiliated public employer, who has not retired and who has not received a refund of member contributions; "member" also includes the following:
(1) "adult correctional officer member" means a member who is employed as an adult correctional officer or an adult correctional officer specialist by a state correctional facility of the corrections department or its successor agency;
(2) "adult probation and parole officer member" means a member who is employed as a probation and parole officer by the corrections department or its successor agency;
(3) "juvenile correctional officer member" means a member who is employed as a juvenile correctional officer by the children, youth and families department or its successor agency;
(4) "juvenile probation and parole officer member" means a member who is employed as a probation and parole officer by the children, youth and families department or its successor agency;
(5) "municipal detention officer member" means a member who is employed by an affiliated public employer other than the state and who has inmate custodial responsibilities at a facility used for the confinement of persons charged with or convicted of a violation of a law or ordinance;
(6) "municipal fire member" means any member who is employed as a full-time nonvolunteer firefighter by an affiliated public employer and who has taken the oath prescribed for firefighters;
(7) "municipal police member" means any member who is employed as a police officer by an affiliated public employer, other than the state, and who has taken the oath prescribed for police officers; and
(8) "state police member" means a member who is an officer of the New Mexico state police division and who has taken the oath prescribed for such officers and shall include a member who is an officer of the New Mexico state police division and who was certified and commissioned in the former motor transportation division or the former special investigations division of the department of public safety;
O. "membership" means membership in the association;
P. "pension" means a series of monthly payments to a retired member or survivor beneficiary as provided in the Public Employees Retirement Act;
Q. "public employer" means the state, any municipality, city, county, metropolitan arroyo flood control authority, economic development district, regional housing authority, soil and water conservation district, entity created pursuant to a joint powers agreement, council of government, conservancy district, irrigation district, water and sanitation district, water district and metropolitan water board, including the boards, departments, bureaus and agencies of a public employer, so long as these entities fall within the meaning of governmental plan as that term is used in Section 414(d) of the Internal Revenue Code of 1986, as amended;
R. "refund beneficiary" means a supplemental needs trust or a natural person designated by the member, in writing, in the form prescribed by the association, as the trust or person that would be refunded the member's accumulated member contributions payable if the member dies and no survivor pension is payable or that would receive the difference between pension paid and accumulated member contributions if the retired member dies before receiving in pension payments the amount of the accumulated member contributions;
S. "retire" means to:
(1) terminate employment with all employers covered by any state system or the educational retirement system; and
(2) receive a pension from a state system or the educational retirement system;
T. "retired member" means a person who has met all requirements for retirement and who is receiving a pension from the fund;
U. "retirement board" means the retirement board provided for in the Public Employees Retirement Act;
V. "salary" means the base salary or wages paid a member, including longevity pay, for personal services rendered an affiliated public employer. "Salary" shall not include overtime pay, unless the overtime payment is required for a regular scheduled tour of duty as set forth in Section 207(k) of Title 29 of the United States Code and is made on the regular payroll for the period represented by that payment, allowances for housing, clothing, equipment or travel, payments for unused sick leave, unless the unused sick leave payment is made through continuation of the member on the regular payroll for the period represented by that payment, and any other form of remuneration not specifically designated by law as included in salary for Public Employees Retirement Act purposes. Salary in excess of the limitations set forth in Section 401(a)(17) of the Internal Revenue Code of 1986, as amended, shall be disregarded. The limitation on compensation for eligible employees shall not be less than the amount that was allowed to be taken into account under the state retirement system acts in effect on July 1, 1993. For purposes of this subsection, "eligible employee" means an individual who was a member of a state system before the first plan year beginning after December 31, 1995;
W. "state system" means the retirement programs provided for in the Public Employees Retirement Act, the Magistrate Retirement Act and the Judicial Retirement Act;
X. "state retirement system acts" means collectively the Public Employees Retirement Act, the Magistrate Retirement Act, the Judicial Retirement Act and the Volunteer Firefighters Retirement Act [Chapter 10, Article 11A NMSA 1978];
Y. "supplemental needs trust" means a valid third- party irrevocable trust that is authorized by the federal Social Security Act, as amended, for the sole benefit and lifetime of a trust beneficiary who is disabled and is created for the purpose of providing, accounting for or receiving supplemental assets that do not supplant, impair or diminish any benefits or assistance of any federal, state or other government entity for which the beneficiary would otherwise be eligible; and
Z. "survivor beneficiary" means a supplemental needs trust or a natural person that receives a pension or that has been designated to be paid a pension as a result of the death of a member or retired member.
History:
Laws 1987, ch. 253, § 2; 1989, ch. 31, § 1; 1989, ch. 333, § 1; 1991, ch. 231, § 1; 1992, ch. 116, § 1; 1993, ch. 160, § 1; 1995, ch. 115, § 1; 2003, ch. 268, § 1; 2005, ch. 196, § 1; 2013, ch. 225, § 1; 2015, ch. 3, § 42; 2020, ch. 11, § 1; 2021, ch. 36, § 1; 2021, ch. 38, § 1; 2023, ch. 156, § 1.
ANNOTATIONS
Repeals and reenactments.
— Laws 1987, Chapter 253 repealed former 10-11-2 NMSA 1978, as enacted by Laws 1965, ch. 284, § 1, relating to short title of Public Employees' Retirement Act, and enacted a new 10-11-2 NMSA 1978.
Cross references.
— For county hospitals, retirement plans for employees,
see
4-48B-17 NMSA 1978.
For Sections 401(a)(17) and 414(d) of the federal Internal Revenue Code,
see
26 U.S.C. §§ 401(a)(17) and 414(d), respectively.
The 2023 amendment,
effective June 16, 2023, defined "supplemental needs trust" and revised the definition of "survivor beneficiary"; added a new Subsection Y and redesignated former Subsection Y as Subsection Z; and in Subsection Z, after "means a", added "supplemental needs trust or a natural".
2021 Amendments.
— Laws 2021, ch. 36, § 1, effective July 1, 2021, revised the definition of "state police member" as used in the Public Employees Retirement Act, to include certain state police division officers under the state police member, correctional officer member and probation and parole officer member coverage plan 1; and in Subsection N, Paragraph N(8), after the first occurrence of "New Mexico state police", added "division", after "prescribed for such officers", deleted "except that a state police member" and added "and", after "shall", deleted "not", and after "certified and commissioned", deleted "as of June 30, 2015".
Laws 2021, ch. 38, § 1, effective July 1, 2021, included overtime pay required for a regular scheduled tour of duty in the definition of "salary" as used in the Public Employees Retirement Act; and in Subsection V, added "unless the overtime payment is required for a regular scheduled tour of duty as set forth in Section 207(k) of Title 29 of the United States Code and is made on the regular payroll for the period represented by the payment".
Applicability.
— Laws 2021, ch. 38, § 7 provided that the provisions of Laws 2021, ch. 38, § 1 apply to a member's salary or wages earned on or after July 1, 2021.
Temporary provisions.
— Laws 2021, ch. 36, § 2 provided that on or before December 30, 2021, the retirement board provided for in the Public Employees Retirement Act shall conduct an election to submit to state police members currently contributing under state general member coverage plan 3 the question of adopting state police member, correctional officer member and probation and parole officer member coverage plan 1 and counting any credited service served since July 1, 2015 under state general member coverage plan 3 as credited service under state police member, correctional officer member and probation and parole officer member coverage plan 1. The election shall be conducted in accordance with procedures adopted by the retirement board, and the retirement board shall certify the results of the election to the secretary of state on or before January 1, 2022.
Laws 2021, ch. 36, § 3 provided that the state police members currently contributing under state general member coverage plan 3 adopt the question provided in Laws 2021, ch. 36, § 2, the public employees retirement association shall count credited service served under state general member coverage plan 3 between July 1, 2015 and the date the election is certified as credited service under state police member, correctional officer member and probation and parole officer member coverage plan 1.
The 2020 amendment,
effective July 1, 2020, provided definitions for "coverage plan funded ratio", "adult probation and parole officer member", and "juvenile probation and parole officer member" as used in the Public Employees Retirement Act; added a new Subsection D and redesignated the succeeding subsections accordingly; and in Subsection N, added a new Paragraph N(2) and redesignated former Paragraph N(2) as Paragraph N(3), and added a new Paragraph N(4) and redesignated former Paragraphs N(3) through N(6) as Paragraphs N(5) through N(8), respectively.
The 2015 amendment,
effective July 1, 2015, clarified that a "state police member" pursuant to the Public Employees Retirement Act does not include certain officers within the New Mexico state police division of the department of public safety, to reflect the reorganization of department of public safety; in Subsection M, Paragraph 6, after "means", deleted "any" and added "a", and after "such officers", added the remainder of the sentence.
The 2013 amendment,
effective July 1, 2013, eliminated the hazardous duty member and added the juvenile correctional officer member; deleted former Paragraph (2) of Subsection M, which defined "hazardous duty member" and added Paragraph (2) of Subsection M to define "juvenile correctional officer member".
The 2005 amendment,
effective June 17, 2005, defined "public employer" in Subsection P to include an irrigation district.
The 2003 amendment,
effective July 1, 2003, in Subsection M, inserted present Paragraph M(1) and redesignated former Paragraph M(1) as present Paragraph M(2), rewrote present Paragraph M(2), inserted present Subsection M(3) and redesignated former Subsections M(2), M(3) and M(4) to be present Subsections M(4), M(5) and M(6); and substituted "subsection" for "section" following "For purpose of this" near the beginning of the last sentence of Subsection U.
The 1995 amendment,
effective June 16, 1995, inserted Subsection L, redesignated former Subsections L through W as Subsections M through X, added "so long as these entities fall within the meaning of governmental plan as that term is used in Section 414(d) of the Internal Revenue Code of 1986, as amended" in Subsection P, added the third through fifth sentences in Subsection U, and made minor stylistic changes in Subsection P.
The 1993 amendment,
effective June 18, 1993, added Subsections D and E; deleted Subsection J, which defined "medical committee"; redesignated the other subsections accordingly; and made stylistic changes in Subsections K and P.
The 1992 amendment,
effective July 1, 1992, substituted all of the language of Subsection A beginning with "amounts" for "credit balance in a member's individual account in the member contribution fund"; added all of the language of Subsection B beginning with "but"; added Subsection D; redesignated Subsections D to G as Subsections E to H; added Subsection I; redesignated Subsection H as Subsection J; redesignated Subsection I as Subsection K, while rewriting the introductory paragraph; redesignated Subsection J as Subsection L; redesignated Subsection K as Subsection M, while deleting "pension" preceding "beneficiary"; redesignated Subsection L as Subsection N; rewrote Subsection M and redesignated it as Subsection O; deleted Subsection N, defining "retired member"; added Subsections P and Q; redesignated Subsections O and P as Subsections R and S; added Subsections T and U; and redesignated Subsection Q as Subsection V, while therein deleting "pension" preceding "beneficiary", substituting "receives" for "is being paid", and deleting ", vested former member" following "member".
The 1991 amendment,
effective June 14, 1991, inserted "water and sanitation district, water district and metropolitan water board" and made a related stylistic change in Subsection L.
"Salary".
— Injury time payments to city employees which did not exceed the difference between workers' compensation benefits and the employees' regular pay, were not "wages paid for personal services rendered" within the meaning of Subsection P. 1988 Op. Att'y Gen. No. 88-23.
Workers' compensation benefits are not "wages paid for personal services rendered", but rather are benefits to compensate the injured employee for a portion of those wages he might have earned but for his injury during the course of his employment. Thus, the benefits are not "salary" for purposes of Subsection P. 1988 Op. Att'y Gen. No. 88-23.
Subsection U's exclusion of overtime, clothing and other allowances evidences legislative intent to exclude fringe benefits. 1988 Op. Att'y Gen. No. 88-23.
Cash payments to retiring city employees for compensatory time, which were not part of the regular, periodic wages of those employees, were not "salary" for purposes of Subsection P. 1988 Op. Att'y Gen. No. 88-23.
Payments for unused sick leave, whether converted to annual leave or not, were not "salary" as defined by Subsection U. 1988 Op. Att'y Gen. No. 88-23.
Lump sum annual leave payment.
— A retired city policeman's benefits could not be calculated to include a lump sum annual leave payment for 586.56 hours where he was covered under a police officers' association's collective bargaining agreement with the city that permitted cash compensation upon termination for "any" unused vacation. 1988 Op. Att'y Gen. No. 88-23.
Law reviews.
— For note, "Community Property - Spouse's Future Federal Civil Service Disability Benefits are Community Property to the Extent the Community Contributed to the Civil Service Fund During Marriage: Hughes v. Hughes," see 13 N.M.L. Rev. 193 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Validity of statutory classifications based on population - governmental employee salary or pension statutes, 96 A.L.R.3d 538.
What constitutes "salary," "wages," "pay," or the like, within pension law basing benefits thereon, 91 A.L.R.5th 225.
Validity under § 302(c)(5) of the Labor Management Relations Act (29 USC § 186(c)(5), of trust fund eligibility provisions regarding health, compensation, and retirement benefits, 58 A.L.R. Fed. 171.
67 C.J.S. Officers and Public Employees §§ 243, 245; 81A C.J.S. States §§ 46, 112 to 119.