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, 4/25/2023]
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 full-time certified law
enforcement officers employed by that law enforcement agency.
[10.2.4.2 NMAC -
N, 4/25/2023; A/E 5/10/2024]
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,
as amended by 2024 HB 193. Section
9-19-14 NMSA 1978, as amended 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 full-time certified law enforcement officers within
the law enforcement agency’s employ.
[10.2.4.3 NMAC - N, 4/25/2023; A/E 5/10/2024]
10.2.4.4 DURATION: Permanent
[10.2.300.4 NMAC - N, 4/25/2023]
10.2.4.5 EFFECTIVE DATE: April 25, 2023, unless a later date is
specified at the end of a section.
[10.2.4.5 NMAC -
N, 4/25/2023]
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, 4/25/2023]
10.2.4.7 DEFINITIONS: This rule adopts the definitions found in
Section 9-19-2 NMSA 1978, Subsection M of Section 9-19-14 NMSA 1978 and
2024 HB 193, as if fully set forth herein.
In addition to the definitions adopted, the following terms have the
following meaning:
A. “Certified”
means an individual certified as a peace officer pursuant to the Law
Enforcement Training Act, Section 29-7-1 to 29-7-16 NMSA 1978.
B. “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 full-time certified law
enforcement officer with that agency.
C. “DPS”
means the department of public safety.
D. “Eligible law enforcement agency” means an agency eligible
to receive monies from the LERF because the agency:
(1) has, prior to June 1 of the reporting
fiscal year, made a request for monies from the DPS and included in that request
the information on which the agency is required to report under Section 9-19-14
H NMSA 1978 and this rule;
(2) is, at the time of submitting the
request for monies to DPS in compliance with that portion of the Law
Enforcement Training Act that requires every law enforcement agency to submit a
quarterly report to the director of the law enforcement academy and the New
Mexico law enforcement standards and training council; and
(3) has, at the time of submitting the
request for monies to DPS, submitted the agency’s most current roster of
full-time certified law enforcement officers, including commission dates, to
the New Mexico law enforcement academy.
E. “Eligible officer” means a
full-time certified law enforcement officer employed by any law enforcement
agency, who after completing four, nine, 10, 14, or 20 or more years of service
since the law enforcement officer’s initial date of hire, remains employed for
one additional year with the law enforcement agency by whom the officer was
employed at the time the officer completed four, nine, 14, or 20 or more years
of service and who is in compliance with the in-service training and reporting
requirements of the Law Enforcement Training Act.
F. “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.
G. “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 standards and training council, its predecessors, or
successors.
H. “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 full-time certified law
enforcement officers within the agency’s employ who meet requirements
prescribed by statute and by this rule.
I. “LERF”
means law enforcement retention fund.
J. “Portal”
means the electronic system through which law enforcement agencies annually
report to the DPS the data required by this rule in order to receive funding
from the law enforcement retention fund for the purpose of providing retention
differential disbursements to eligible officers employed by that agency.
K. “PRDD” means the amount of the
projected retention differential disbursement stated in dollars and cents to be
paid to the eligible officer.
L. “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.
M. “Salary”
means the base hourly rate of pay of the full-time certified law enforcement
officer for two thousand eighty hours, excluding overtime, any percentage pay increases or multiple components of pay.
N. “Years of service” means the
number of years, months and days, beginning with the
date of hire, a full-time certified law enforcement officer is employed by a
law enforcement agency for the purpose of serving as a full-time certified law
enforcement officer with a law enforcement agency.
[10.2.4.7 NMAC -
N, 4/25/2023 ; A/E 5/10/2024]
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 or 20 or more years of [consecutive] service with the law enforcement
agency requesting the retention differential disbursement.
[10.2.4.8 NMAC -
N, 4/25/2023; A/E 5/10/2024]
1010.2.4.9 REPORTING REQUIREMENTS FOR AGENCIES
SEEKING RETENTION DIFFERENTIAL DISBURSEMENTS
A. Every law
enforcement agency seeking monies from the LERF for retention differential
disbursements for full-time certified law
enforcement 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 full-time certified law enforcement
officer projected to be an eligible officer in the upcoming fiscal year, the
PRDD for each 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 full-time certified 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 full-time certified law enforcement
officer with the reporting agency.
(4) The
number of full-time certified 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, the agency’s reason for each
involuntary departure and the officer’s stated reason, if any, for each
voluntary departure.
(6) The
number of applicants to the law enforcement agency for a position as a
full-time certified law enforcement officer in the fiscal year immediately
preceding the reporting fiscal year, who attended a law enforcement academy.
(7) The
number of full-time certified 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 full-time certified 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 full-time
certified law enforcement officers implemented by the law enforcement agency
during the fiscal year immediately preceding the reporting fiscal year.
(10) The
number of full-time certified law enforcement 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 for each eligible officer.
(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.
D. In order to receive funding for retention differential
disbursements, the law enforcement agency must, at the time of the request, be in
compliance with the in-service officer training and reporting requirements of
the New Mexico Law Enforcement Training Act set forth in Section 29-7-7.1 NMSA
1978 and 29-7-7.2 NMSA 1978.
E. In order to receive funding for retention differential
disbursements, the law enforcement agency must have submitted the agency’s most
current roster of full-time certified law enforcement officers, including
commission dates, to the New Mexico law enforcement academy no later than April
1 of the reporting fiscal year.
[10.2.4.9 NMAC -
N, 4/25/2023; A/E 5/10/2024]
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, 4/25/2023]
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, 4/25/2023]
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, 4/25/2023]
HISTORY OF 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.