IS-2538 Signature Authority and Approval

Introduction

This procedure provides guidelines for the appropriate delegation of signature authority and approval for all Central New Mexico Community College (CNM or the College) legal agreements, contracts or other written instruments (Agreements). The proper authority for execution of all Agreements is mandatory to minimize financial, legal, operational, and compliance-related risks for the benefit of the institution. This procedure also outlines the College's recommended contract and grants language for key provisions of legal agreements.

1. Scope and Exclusions

1.1

This procedure applies to all College employees including full-time or part-time staff, faculty, administrative officers and student employees. Independent contractors and consultants do not have the authority to bind the institution. An employee who signs an Agreement that s/he is not authorized to sign may be subject to disciplinary action.

1.2

The signature authority and approval levels in this procedure identify minimum review and approval processes, but in no way relieve any academic or administrative department from ensuring that any unusual or unique Agreements are properly reviewed and authorized by appropriate levels of CNM administration.

1.3

Agreements come in various formats such as Joint Power Agreements (JPAs), Memorandum of Understanding (MOU), Memorandum of Agreement (MOA), and procurement contracts, etc. Signature authority and approval levels apply to the total amount for all years included in the Agreement, rather than the amount for an individual period or year. For example, a five-year $100,000 per year Agreement is a $500,000 Agreement for purposes of the approval authority noted.

2. Conflict of Interest

2.1

It is the responsibility of all CNM employees to ensure that the College does not knowingly enter into contracts or agreements that present impermissible conflicts of interest. Employees must exercise their authority in a manner consistent with applicable conflict of interest policies. 

3. Signature Authority and Delegation

3.1

The College has a coordinated system of signature authority. The Governing Board has delegated general signature authority to the President, who has delegated portions of that authority as detailed in the matrix below. Although under limited circumstances these positions may further delegate that authority in writing or electronically, delegations require approval by the President and should be used only when necessary and not defeat the intent of this procedure.

Individuals with signature authority are responsible for completing a detailed review prior to signing. In cases of unusual complexity, the Vice President of Finance & Operations or designee may authorize legal counsel review. Approval is required prior to seeking legal counsel review.

3.2

The following table provides signature authority guidance for common Agreements.

Category	Authorized Signature	Comments
Academic Matters
1. Academic articulation agreements	VPAA
2. Academic Clinical Agreements	COM
3. Non-Mandatory Program Agreements	VPAA
4. Academic Transfer Agreements	VPAA
Personnel Matters
5. Collective Bargaining Agreements	PRES, LRO, UREP and GBD
6. Contracts for Employment	PRES
7. Offer Letters	HIRO/HR/DES	Human Resources will provide a letter template.
8. Tax Documents (Example: Affordable Care Act forms)	HR/DES
Finance, Budget, and Inventory Matters
9. Bank Checks	VPFO	VPFO signature defaults on printed checks
10. Wire or ACH Transfer of Bank Funds	GBD	See Governing Board Handbook Section 8.01(E).
11. Investments (day-to-day)	COM
12. Tax Documents (non-benefits)	COM
13. Budget Requests, Adjustments and Some Reports (i.e. Operating Budget, Capital Outlay Plan, Mill Levy)	GBD/VPFO or DES	Submitted to NM Higher Education Department (HED)
14. Debt Instruments	GBD
15. Tuition and Fee Rates	GBD
16. Inventory and Disposition of CNM Property	Varies	See Governing Board Handbook Section 8.05 for guidance.
Administrative, Legal and Planning Matters
17. Proposal to Issue Bonds	VPFO and GBD	HED approval is required
18. New or Revised College Policy	GBD
19. Emergency Operations Plan	EXEC
20. Reorganizations (non-academic)	EXEC	Includes department name changes
21. Master Plans and Capital Projects	GBD	See Governing Board Handbook Section 8.02 Master Plan and Capital Outlay Projects.
22. Naming of College Facilities	GBD	See Employee Handbook Section 12.18.
23. Use of CNM logos	MCO
24. Settlement Agreements	PRES and VPFO
Contracts and Agreements
25. Procurement Contracts under $60,000 including issuance of Purchase Orders	BUY or SBUY
26. Procurement Contracts greater than $60,000 but less than $100,000	SBUY or CPO
27. Procurement Contracts greater than $100,000	CPO
28. Purchase Requests greater than $100,000	VPFO
29. Cooperative Agreements, MOU’s and MOA’s	PRES/ VPFO/VPAA/COM
30. Intergovernmental Agreements	VPFO or DES
31. Advertising or Sponsorship Agreements	EXEC or DES	See Employee Handbook Section 12.15
32. Real Estate Transactions	VPFO or DES
33. Rental Agreements (CNM as Lessor or Lessee)	PRES/VPFO or DES	May be subject to Higher Education Department (HED) and NM State Board of Finance (SBOF) approval. Needs GB Approval for HED/SBOF
34. CNM Facility License/Rental Agreements (including film industry)	ING
35. Lease Agreements (Ingenuity on behalf of CNM)	ING	Exec Team approval. Leases may be subject to NM State Board of Finance Approval if over 5 years or $25,000/yr. revenue.
36. Partnership agreements involving CNM property	ING OR COM	Exec Team approval is required.
37. Contract/Grant Proposals	COM	Must have Exec approval of Grant Impact Form
38. Contract & Grant Awards	COM (if necessary)
39. Non Procurement Financial Contracts/Agreements	COM or DES
40. Letter of Support and/or Commitment	PRES or DES
41. Data Sharing Agreements	EXEC
42. Partnerships (Ingenuity; CNM Foundation etc.)	PRES or DES
43. MOA with Related 501c3	GBD and BOD

Key

BOD = Board of Directors for 501c3
BUY = Buyer
COM = Comptroller
CPO = Chief Procurement Officer
DES = designee
EXEC = Executive Team
GBD = CNM Governing Board
HIRO = Hiring Official
HR = Executive Director of Human Resources
ING = Executive Director Ingenuity
LRO = Senior Labor Relations Officer/Chief Negotiator
MCO = Marketing and Communications Office
PRES = CNM President
SBUY = Senior Buyer
UREP = Union President or Representative
VPAA = Vice President, Academic Affairs
VPFO = Vice President, Finance & Operations

4. Language Recommendations for Key Provisions

4.1 Indemnification

CNM is a public educational institution created by the New Mexico Legislature. As a state entity, it is prohibited by law from creating certain liabilities through indemnification clauses as explained in (a), (b) and (c) below.

• a) First, Section 23-1-5 NMSA 1978 prohibits CNM, as an entity empowered to direct and spend public money, from contracting any debt, liability or expense that might exceed authorized expenditures. Indemnification and hold-harmless clauses create potentially unlimited contractual liability and expense and thus are prohibited by Section 23-1-5 NMSA 1978.
• b) Second, the Anti-Donation Clause of the New Mexico Constitution, Article IX, Section 14, prohibits CNM from pledging or lending its credit, directly or indirectly. Indemnification clauses are widely interpreted as such improper pledges of credit. A 1997 Attorney General Opinion expressly provides that the Anti-Donation Clause applies to educational institutions like the College. Op. N.M. Att'y Gen. 1997-02.
• c) Third, according to an Attorney General opinion issued in 2000, the New Mexico Tort Claims Act (the "Act") prohibits contractual indemnification provisions. Under the Act, governmental entities can be liable only within the specific limitations of the Act. In other words, the Act limits the potential tort liability of CNM to that expressly waived by the Act. Thus, a governmental entity cannot waive its sovereign immunity, assume tort liability for third parties, or otherwise expand its potential tort liability beyond what the Legislature has permitted. The Attorney General's opinion on this matter states that an indemnification clause with a private entity is impermissible because it requires the public body to assume tort liability outside that allowed under the Act. Op. N.M. Att'y Gen. 2000-04.

4.2 Liability - Recommended Language

“As between the parties, each party acknowledges that it will be responsible for claims or damages arising from personal injury or damage to persons or property to the extent they result from its negligence. The liability of Central New Mexico Community College will be subject in all cases to the immunities and limitations of the New Mexico Tort Claims Act, Section 41-4-1 et seq. NMSA 1978, as amended.”

4.3 Termination Clause – Recommended Language

Either entity may terminate this Agreement at any time by giving at least thirty (30) days’ notice [or number of days, as appropriate for specific agreement] in writing to the other party.

4.4 Appropriations Clause – Recommended Language

The terms of this [Agreement] are contingent upon sufficient appropriations and authorization being made by the legislature of the State of New Mexico or by CNM’s Governing Board for the performance of this Agreement. If sufficient appropriations and authorization are not made, this [Agreement] shall terminate immediately upon written notice being given by CNM to [Name of Party]. CNM's decision as to whether sufficient authorizations or appropriations are available shall be accepted as final.

5. Mandatory Contract Review

5.1

Prior to signing an Agreement, the Agreement must be sent to the Purchasing Department via e-mail at contracts@cnm.edu for review. After review by the Purchasing Department, a unique number will be assigned to the Agreement.

5.2

The unique number assigned to the Agreement must be included in the lower right corner of the final, fully executed contract or agreement.

6. Record Retention

6.1

A copy of the signed Agreement shall be kept on file using CNM’s official records management system (currently OnBase). Departments and may also keep an electronic copy for reference on CNM’s intranet. The Purchasing Department will work with Records Management to ensure the Agreement is kept on file in accordance with the State of New Mexico’s record retention guidelines.

Forms

N/A

Support Materials

N/A

Reference Materials

• Governing Board Handbook Section IV, Fiscal Management
• Employee Handbook 10.02, Examination/Release of College Records
• IS-2026, Conflict of Interest