A. The secretary is responsible to the governor for the operation of the department. It is the secretary's duty to manage all operations of the department and to administer and enforce the laws with which the secretary or the department is charged.

B. To perform the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

1. (1) except as otherwise provided in the Department of Health Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and rules;
2. (2) delegate authority to subordinates as the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;
3. (3) organize the department into those organizational units the secretary deems will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;
4. (4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the secretary's duties;
5. (5) take administrative action by issuing orders and instructions, not inconsistent with the law, to assure implementation of and compliance with the provisions of law for which administration or execution the secretary is responsible and to enforce those orders and instructions by appropriate administrative action in the courts;
6. (6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;
7. (7) conduct quality assurance and quality improvement activities, which may include participation in a nationally recognized accreditation program for public health agencies that is based on the ability of an agency to provide essential public health services and functions;
8. (8) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs with the objective of improving the operations and efficiency of administration;
9. (9) prepare an annual budget of the department;
10. (10) appoint, with the governor's consent, a "director" for each division. These appointed positions are exempt from the provisions of the Personnel Act [Chapter 10, Article 9 NMSA 1978]. Persons appointed to these positions shall serve at the pleasure of the secretary;
11. (11) give bond in the penal sum of twenty-five thousand dollars ($25,000) and require directors to each give bond in the penal sum of ten thousand dollars ($10,000) conditioned upon the faithful performance of duties, as provided in the Surety Bond Act [10-2-13 to 10-2-16 NMSA 1978]. The department shall pay the costs of those bonds; and

12. (12) require performance bonds of such department employees and officers as the secretary deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of those bonds.

    C. The secretary may apply for and receive, with the governor's approval, in the name of the department any public or private funds, including United States government funds, available to the department to carry out its programs, duties or services.

    D. The secretary shall be responsible for providing appropriate educational programs for all school-age persons, as defined in Section 22-1-2 NMSA 1978, who are clients, as defined in Section 43-1-3 NMSA 1978, of institutions under the secretary's authority as follows:

13. (1) the secretary shall arrange with school districts for the enrollment of all school-age residents of institutions under the secretary's authority who have been evaluated and recommended for placement in a public school according to the provisions of the Department of Health Education Act [Chapter 24, Article 3B NMSA 1978]. The secretary shall notify the secretary of public education prior to public school enrollment of any school-age resident under the secretary's authority; and

14. (2) the secretary shall provide educational programs, in accordance with the special education rules of the public education department, for school-age persons who are clients of institutions under the secretary's authority but who are enrolled in a public school by:

    1. (a) using the facilities and personnel of the department;
    2. (b) contracting with a school district for the provision of educational services; or

    3. (c) using a combination of Subparagraphs (a) and (b) of this paragraph.

       E. The secretary may make and adopt such reasonable procedural rules as may be necessary to carry out the duties of the department and its divisions. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act [Chapter 14, Article 4 NMSA 1978].

History: 1978 Comp., § 9-7-6, enacted by Laws 1977, ch. 253, § 7; 1978, ch. 211, § 5; 1991, ch. 25, § 18; 2001, ch. 119, § 1; 2017, ch. 87, § 2.

ANNOTATIONS

Cross references. — For appointment of directors, see 9-7-8 NMSA 1978.

For cooperation with federal financial or other participation in programs, see 9-7-12 NMSA 1978.

For state budgets, see 6-3-1 to 6-3-25 NMSA 1978.

For public officers and employees generally, see Chapter 10 NMSA 1978.

The 2017 amendment, effective June, 16, 2017, provided that the secretary of health’s quality assurance and quality improvement activities may include participation in a nationally recognized accreditation program for public health agencies, and made technical changes; replaced "he" or "his" with "the secretary" or "the secretary’s" throughout the section; in Subsection B, Paragraph B(1), after "personnel laws and", deleted "regulations" and added "rules", and in Paragraph B(7), after "quality improvement activities", added the remainder of the paragraph; in Subsection C, after "including", deleted "but not limited to"; and in Subsection D, Paragraph D(1), after "notify the", deleted "superintendent of public instruction" and added "secretary of public education", and in Paragraph D(2), after "rules of the", deleted "state board of" and added "public", and after "education", added "department".

The 2001 amendment, effective June 15, 2001, inserted Paragraph B(7) and renumbered the remaining paragraphs accordingly; substituted "rule" for "regulation" and "rules" for "rules and regulations" throughout the section.

The 1991 amendment, effective March 29, 1991, substituted "the Department of Health Act" for "this act" in Paragraph (1) of Subsection B; deleted former Subsection D, which read "Where functions of departments overlap or a function assigned to one department could be better performed by another department, a secretary may recommend appropriate legislation to the next session of the legislation for its approval"; redesignated former Subsections E and F as present Subsections D and E; substituted "22-1-2 NMSA 1978" for "77-1-2 NMSA 1953" and "43-1-3 NMSA 1978" for "34-2A-2 NMSA 1953" in the introductory paragraph of Subsection D; in Paragraph (1) of Subsection D, substituted "Department of Health Education Act" for "Health and Environment Department Act" in the first sentence and deleted "state" preceding "superintendent" in the second sentence; and made stylistic changes throughout Subsection B.

Exempt position provisions of Personnel Act applicable to department. — Provisions of the Personnel Act, authorizing exempt positions other than secretary and division director, are applicable to the department and may be given effect as written. 1980 Op. Att'y Gen. No. 80-38.

As sections not in conflict with Personnel Act in defining exempt positions. — In defining exempt positions only for the secretary and division heads of the department, Section 9-1-4 NMSA 1978 and Subsection B(9) (now Subsection B(10)) of this section are not in conflict with the Personnel Act, nor are they controlling with respect to the number of exempt positions authorized for the department. 1980 Op. Att'y Gen. No. 80-38.

No responsibility by state records center to determine compliance of promulgated rules with hearing and notice requirements. 1978 Op. Att'y Gen. No. 78-07.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Health §§ 1, 3, 4, 9 to 16.