New Mexico Administrative Code › Title 2 - PUBLIC FINANCE › Chapter 82 - EDUCATIONAL RETIREMENT › Part 1 - GENERAL PROVISIONS › Section 2.82.1.10 - SANCTIONS AND ENFORCEMENT

Current through Register Vol. 35, No. 13, July 16, 2024
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, 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, 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, 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, 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, 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, the secretary of public education or the secretary
				of higher education.