New
Mexico Register / Volume XXXV, Issue 8 / April 23, 2024
NOTICE OF PROPOSED RULEMAKING
Public Hearing:
Notice is hereby given that the New Mexico Educational Retirement Board
(hereafter, “Board”) will convene a Rule Hearing at 9:00 am (MT) on May 30, 2024,
at the Albuquerque Public Schools Headquarters, located at 6400 Uptown Blvd.
NE, Albuquerque, New Mexico 87110.
Purpose: The
purpose of the Rule Hearing is to receive public comment and to consider
adoption of the proposed repeal and replacement of 2.82.5 NMAC - Retirement
Benefits and repeal and replacement of 2.82.9 NMAC – Administrative Unit
Reports and Remittances.
Statutory Authority: Educational Retirement Act, Paragraph
(5) of Subsection A of Section 22-11-6 NMSA 1978.
Summary of Proposed Amendments:
The replacement of 2.82.5 NMAC
removes all references to the return to work program requiring a 12 month
layout period authorized under Section 22-11-25.1 NMSA 1978 because the program
is no longer available to new applicants pursuant to Subsection A of Section
22-11-25.1 NMSA 1978.
Proposed Section 15 of 2.82.5 NMAC would allow a retired member who
is otherwise qualified for a return to work program, and who returned to
employment with a local administrative unit (“LAU”) without prior Educational
Retirement Board (“ERB”) approval, to terminate employment or file an
appropriate return to work application within 30 days following the date of the
letter from the ERB notifying the retiree of their failure to file an
application. A retiree who complies with the requirements would not be suspended
and would not repay to the retirement fund any of the benefits received while
the retiree was ineligible for benefits.
A retiree who fails to file an
application would have their benefit suspended immediately, and they must
verify that they have terminated employment, and reapply for retirement.
A retiree who receives a letter from
the ERB notifying the retiree of their failure to file an application who is
not qualified to return to work under any program and who returns to work would
have their benefit suspended immediately, must repay to the retirement fund any
of the benefits received while the retiree was ineligible for benefits, must
verify that they have terminated employment, and must reapply for retirement.
The Rule clarifies that a retiree who
has satisfied the 90-day layout period required for certain return to work
programs need not complete another layout period to qualify for those
programs. Also, time of employment and
income received while employed without ERB approval would count against the
time and income caps contained in the return to work programs.
Proposed Section 15 of 2.82.5 would
also allow all retirees employed under an approved return to work program to
switch to another approved program once per fiscal year during the month of
July. The Rule would also clarify that a
retiree who wishes to provide independent contractor services to an LAU must
submit and obtain approval of an independent contractor application from ERB. A
retiree who fails to submit and obtain approval as an independent contractor
prior to providing services to an LAU may be considered employed during the
period of providing services to the LAU. Section 15 would also provide notice
that penalties for violations may be appealed.
Finally, the Rule would require each LAU to create, maintain and
publicize to its employees an internal return to work policy consistent with
the applicable statutes and rules.
A Subsection C is added to each of
Sections 16, 17 & 18 of 2.82.5 NMAC to provide that, if a retiree’s
benefits are suspended due to a violation, the retiree must certify to ERB and
provide documentation from their employer(s) verifying that they have
terminated all LAU employment and must reapply for retirement before their
benefits can resume.
The replacement of 2.82.9 NMAC
would assess a monetary penalty against an LAU for each failure to correctly
include or identify an individual as employed or to miscategorize an employee
when submitting a work report reflecting payment of wages as required pursuant
to this rule. The penalty would be payable to ERB and shall be assessed as
follows: 1st failure – five hundred dollars ($500), 2nd failure – one thousand
dollars ($1,000), 3rd and each subsequent failure – one thousand five hundred
dollars ($1,500). The ERB Executive Director can waive the penalty for a first
violation. The Board of Trustees can waive the penalty for second and
subsequent violations.
The replacement of 2.82.9
NMAC would also remove the one percent interest rate contained in Paragraph (3)
of Subsection C that is added to the state treasurer's overnight investment
program interest rate that is assessed against an LAU for submitting late
contributions.
Details for Obtaining a Copy of Proposed
Rule Amendments and Submitting Oral or Written Comments:
A
copy of the proposed rule amendments is available on the NMERB website at
https://www.erb.nm.gov. Hard copies are
available for pick up at the NMERB offices located at 701 Camino de los
Marquez, Santa Fe, NM 87505 or 8500 Menaul Blvd. NE, Suite B-450, Albuquerque,
NM 87112 during regular business hours. The proposed rule replacement
amendments are also posted on the New Mexico Sunshine Portal at
https://ssp.nm.gov. Interested individuals may provide oral comments at the
public rule hearing or submit written comments by mail to Amanda Olsen, New
Mexico Educational Retirement Board, P.O. Box 26129, Santa Fe, NM 87502 or by
email to NMERB.RuleChange@erb.nm.gov or by fax to
(505) 827-1855. Written comments must be received by 5:00 pm (MT) on May 24,
2024. All timely submitted written
comments will be posted on the NMERB website at https://www.erb.nm.gov.
Any person with a disability who needs a reader, amplifier,
qualified sign language interpreter, or auxiliary aid or service to attend or
participate in the hearing should contact Amanda Olsen at (505) 476-6133 as
soon as possible or at least ten business days before the public hearing.