2020 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 11 - Retirement of Public Officers and Employees Generally
Section 10-11-3 - Membership; requirements; exclusions; termination.

A. Except as may be provided for in the Volunteer Firefighters Retirement Act [Chapter 10, Article 11A NMSA 1978], the Judicial Retirement Act [Chapter 10, Article 12B NMSA 1978], the Magistrate Retirement Act [Chapter 10, Article 12C NMSA 1978], the Educational Retirement Act [Chapter 22, Article 11 NMSA 1978] and the provisions of Sections 29-4-1 through 29-4-11 NMSA 1978 governing the state police pension fund, each employee and elected official of every affiliated public employer shall be a member of the association, unless excluded from membership in accordance with Subsection B of this section.

B. The following employees and elected officials are excluded from membership in the association:

(1) elected officials who file with the association a written application for exemption from membership within twenty-four months of taking office;

(2) elected officials who file with the association a written application for exemption from membership within twenty-four months of the date the elected official's public employer becomes an affiliated public employer;

(3) employees designated by the affiliated public employer as seasonal or student employees or as trainee participants of the federally funded and state-funded senior employment trainee program, administered by the aging and long-term services department;

(4) employees who file with the association a written application for exemption from membership within thirty days of the date the employee's public employer becomes an affiliated public employer;

(5) employees of an affiliated public employer that is making contributions to a private retirement program on behalf of the employee as part of a compensation arrangement who file with the association a written application for exemption within thirty days of employment, unless the employee has previously retired under the provisions of the Public Employees Retirement Act;

(6) employees of an affiliated public employer who have retired under and are receiving a pension pursuant to the provisions of the Educational Retirement Act; and

(7) retired members who return to work pursuant to Section 10-11-8 NMSA 1978 and are exempted from membership by the provisions of that section.

C. Employees designated as seasonal and student employees shall be notified in writing by their affiliated public employer of the designation and the consequences of the designation with respect to membership, service credit and benefits. A copy of the notification shall be filed with the association within thirty days of the date of employment.

D. An exemption from membership by an elected official shall expire at the end of the term of office for which filed.

E. Employees and elected officials who have exempted themselves from membership may subsequently withdraw the exemption by filing a membership application. Membership shall commence the first day of the first pay period following the date the application is filed.

F. The membership of an employee or elected official shall cease if the employee terminates employment with an affiliated public employer or the elected official leaves office and the employee or elected official requests and receives a refund of member contributions.

History: Laws 1987, ch. 253, § 3; 1992, ch. 116, § 2; 1993, ch. 160, § 2; 1995, ch. 114, § 1.; 2004, ch. 68, § 2; 2009, ch. 137, § 1.

Repeals and reenactments. — Laws 1987, Chapter 253 repealed former 10-11-3 NMSA 1978, as enacted by Laws 1967, ch. 25, § 1, relating to exemption of national guard employees, and enacted a new section effective July 1, 1987.

The 2009 amendment, effective June 19, 2009, in Paragraph (3) of Subsection B, after "student employees", added the remainder of the sentence.

The 2004 amendment, effective March 4, 2004, amended Paragraphs (1) and (2) of Subsection B to extend the time period for filing an application for exemption from membership from 30 days to 24 months and added Paragraph (7) of Subsection B.

The 1995 amendment, effective June 16, 1995, added Paragraph (6) in Subsection B, and made minor stylistic changes in Paragraphs (4) and (5) in Subsection B.

The 1993 amendment, effective June 18, 1993, in Subsection B, deleted Paragraphs (1) and (5), which read: "elected officials who are not members on June 30, 1987" and "employees on June 30, 1987 who have been excluded from membership as a consequence of being in a part-time or temporary occupational classification", respectively, redesignated the remaining paragraphs accordingly, substituted "thirty" for "ninety" in Paragraphs (1) and (2), and rewrote Paragraph (4); added "of the date of employment" to the end of Subsection C; and rewrote Subsection F.

The 1992 amendment, effective July 1, 1992, added all of the language of Subsection B(7) beginning with "unless" and made minor stylistic changes throughout the section.

Exemption of elected official. — A person who was a contributing member of the retirement association at the time of taking office as an elected official has the right to exempt himself as an elected official. 1957 Op. Att'y Gen. No. 57-90.

An elected official who has been a member of the association for one elected term of office may choose to exempt himself from membership when he commences serving a successive term of that elective office. However, the official may not "retire," resume office under a successive term to which he has been re-elected, and attempt to invoke the "elected official" exception to membership and benefit suspension. 1989 Op. Att'y Gen. No. 89-25.

An elected official who is exempt from membership on June 30, 1987 must file an exemption from membership with respect to that official's successive term of office to remain exempt from membership. 1989 Op. Att'y Gen. No. 89-25.

Person appointed to fill unexpired term of elected official. — A person appointed to fill an unexpired term of an elected official may exempt himself from membership in the association for the remainder of that term. 1989 Op. Att'y Gen. No. 89-25.

An "appointee" to an elective office is an "elected official" for purposes of Subsection B's membership exemption option. 1989 Op. Att'y Gen. No. 89-25.

Employees exempted from membership. — Full-time city public school teacher who was a member of the educational retirement system, and who was simultaneously employed on a part-time basis by the city, was not required to be a member of the Public Employees Retirement Association. 1988 Op. Att'y Gen. No. 88-70. (decided prior to 1995 amendment).

Benefits under Volunteer Firefighters Act precluded. — A Public Employees Retirement Act member, having entitlement to PERA retirement benefits upon meeting the necessary age and service requirements, may not also participate in and receive benefits under the Volunteer Firefighters Act. 1987 Op. Att'y Gen. No. 87-75.

Benefits suspended upon employment by entity covered by Educational Retirement Act. — A Public Employees Retirement Act retiree who returns to employment with a governmental entity whose employees are covered exclusively under the provisions of the Educational Retirement Act for retirement purposes may not continue to receive PERA benefits. Such retiree's benefits must be suspended. That retiree is employed by an affiliated public employer and his "membership," within the meaning of that term, is not provided for in the PERA. 1987 Op. Att'y Gen. No. 87-79. (decided prior to 1995 amendment).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 67 C.J.S. Officers and Public Employees § 246; 81A C.J.S. States §§ 46, 112 to 119.