On November 5, 2018, New Mexico voters overwhelmingly voted with a three-quarters majority for a constitutional amendment to establish an independent statewide ethics commission with subpoena power. It was left up to the New Mexico Legislature to determine the details of how the seven-member commission would operate.
On March 15, 2019, with only hours left to go in the 60-day legislative session, state lawmakers reached a compromise on creating a new, independent ethics commission. During the 60-day session, the legislation underwent multiple rewrites and changes.
The state House and Senate approved compromise was negotiated by a coalition of lawmakers, including Representative Daymon Ely, D-Corrales, Representatives Greg Nibert, R-Roswell, and Senator Daniel Ivey-Soto, D-Albuquerque. The final House vote was an impressive 66-0 vote in favor of passage. The State Senate voted to accept the final version sending the bill to Governor Michelle Lujan Grisham for signature.
DETAILS OF THE ETHICS COMMISSION
The enacted legislation creates an ethics commission that will oversee state public officials, including state lawmakers, state employees and constitutionally elected officials, including the governor. It is a seven-member commission that is empowered to fine public officials if they are found by the commission to have violated civil provisions of state laws.
Anyone who files a complaint will have to secure a notary public and attest to the truth of the allegations in the complaint under penalty of perjury.
An attorney will be appointed as “general counsel” by the seven-member commission and the general counsel will serve as an investigator and prosecutor. The commission’s general counsel will determine whether a complaint warrants investigation and if so, the general counsel will investigate the allegations made.
Ethics Commission “hearing officers” will be appointed to adjudicate the cases where evidence suggests there is an ethical violation. The hearing officers will use the legal standard of “preponderance of evidence” to make the determination if there was an ethical violation and made specific findings.
The legal term “preponderance of the evidence” means the greater weight of the evidence required for the trier of fact, the hearing officer, to decide in favor of one side or the other. “Preponderance of the evidence” is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.
The Ethics Commission through its general counsel is empowered to petition a state judge to issue subpoenas for documents and other materials as part of its work and with a judge designated to issue and grant the subpoenas on behalf of the commission itself. A public official who disputes a hearing judge’s finding will be able to appeal the ruling to the seven-member ethics commission.
In the final version of the bill passed, ethics complaints will be made public 30 days after probable cause is found to proceed with an investigation. The ethics commission will be prohibited from revealing ethics complaints that have been deemed frivolous or unsubstantiated, but the accuser or accused can publicly disclose the complaints.
The ethics commission is not empowered to investigate violations of legislative policies by legislators, such as sexual harassment policies, unless the Legislature works out an agreement for the ethics commission to investigate such complaints. Even then, if the ethics commission determines that a legislator has violated legislative policy, the ethics commission would be required to turn over its findings to the Legislature, which would then in turn determine the legislator’s punishment.
A very significant provision added to the bill was to include statewide public officials such as the governor, the lieutenant governor, attorney general, secretary of state, public land commissioner and state auditor, or candidates for those offices, to those prohibited from soliciting campaign contributions from January 1 through the end of each year’s legislative session. The ethics commission will have no authority over school board members and local officials such elected Mayors or City Councilors.
The enforcement of the state’s Open Meetings Act and Inspection of Public Records Act is left to the attorney general, and such enforcement is not made part of the duties of the Ethics Commission. State legislators are already prohibited from soliciting campaign contributions from January 1 through the end of each year’s legislative session.
The legislature funded the ethics commission with $500,000 in the state budget for the fiscal year that begins July 1, 2019. The budget for the ethics commission will in all likely have to be increased significantly during the 2020 legislative session once a general counsel, staff and hearing officers are hired and the commission is fully operational and begins its work in earnest.
COMMENTARY AND ANALYSIS
According to the National Conference of State Legislatures, New Mexico is 1 of 6 states without a statewide ethics commission. Enactment of the legislation creating an Ethics Commission is exactly how the New Mexico Legislature is supposed to work!
New Mexico has had more than its share of public corruption scandals over the years. A rogue’s gallery of unethical conduct, fraud, theft and abuse of power and influence in New Mexico politics includes Former Democrat State Senator Manny Aragon, two former Democrat State Treasurers, Michael Montoya and Robert Vigil, former Republican Secretary of State Dianna Duran, former Democrat State Senator Phil Griego, former Republican State Senator Monica Youngblood and most recently former Republican New Mexico Taxation, and Revenue Secretary Demesia Padilla.
Unproven allegations of “pay to play” plagued the 8-year tenure of Democrat Governor Bill Richardson with a federal grand jury investigation resulting in no indictments and no finding of “pay to play”. Former Republican United States Attorney for the District of New Mexico Gregg Forate, with an obvious strong Republican partisan bias, released a scathing letter of condemnation that accused the Richardson administration of “corrupting” the government contract award process.
During the 8-year tenure of former Republican Governor “She-Who-Must-Not-Be-Named”, allegations of unethical conduct and undue influence with the award of the billion-dollar, 20-year Downs Race Track Lease, dubbed the “Dirty Downs Deal”, occurred. What also occurred was a federal grand jury investigation of the Republican Governor’s number one political consultant and campaign manager relating to misuse of her inauguration funding.
A statewide ethics commission will help rebuild trust in a state government that has experienced way too much corruption through the years, but only if it is empowered with real authority and only if actually does something. One area that merits consideration by the legislature is empower the ethics commission to be able to seek and secure civil injunction relief for suspension or even temporary removal from office elected officials who have been found to have engaged in nefarious or unethical conduct. Such action could be the foundation for impeachment or removal proceedings. The Ethics Commission should be given authority over local elected officials such as Mayors and City Councilors.
Kudos are in order for Representative Daymon Ely, D-Corrales, Representatives Greg Nibert, R-Roswell, and Senator Daniel Ivey-Soto, D-Albuquerque for negotiating a compromise bill in the remaining hours of the 2019 Legislative session.
The Ethics Commission will go down as a major legacy that all three legislators will be able to point to with great pride.
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