On November 5, 2018, New Mexico voters, with a 75% majority, voted for a constitutional amendment to establish an independent statewide ethics commission with subpoena power. New Mexico was one of only 6 states without an independent ethics commission.
Passage of the constitutional amendment was the result of a 40-year push to establish an independent agency with jurisdiction over allegations against legislators, candidates, lobbyists and others. 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 final House vote was an impressive 66-0 vote in favor of passage. The State Senate voted to accept the final version and the bill was signed by Governor Michelle Lujan Grisham in March.
AGENCY UP AND RUNNING
On January 4, 2020, a little more than 10 months since the NM Legislature enacted the creation of the Ethics Commission, it was reported that the Ethics
Commission is fully operational and accepting complaints to investigate.
State law authorized the commission to begin accepting ethics complaints on January 1, 2020. The Commission plans to meet every other month, although it can meet as often as it wants depending on the volume of complaints and related work, including issuing rules and regulations.
The Commission has established a website and according to news reports, it may issue its first advisory opinion next month. The commission has office and meeting space in Albuquerque, although it has held meetings in other parts of the state.
The New Mexico Legislature funded the ethics commission with $500,000 in the state budget for the fiscal year that began on July 1, 2019. The commission is seeking a supplemental appropriation of $385,000 to $400,000. For the 2020-2021 fiscal year, the agency is requesting a little over $1.1 million.
https://www.abqjournal.com/1406564/new-state-watchdog-ready-to-investigate-ethics-complaints.html
COMMISSION MEMBERS IDENTIFIED
The New Mexico Ethics Commission consists of 7 members, all political appointments. The 7 commissioners are as follows:
Hon. William F. Lang, Chair, appointed by Governor Michelle Lujan Grisham,
Initial term expires: June 30, 2022
Jeff Baker, Member Legislatively-Appointed Commissioner,
Initial term expires: August 14, 2020
Stuart M. Bluestone, Member, appointed by Speaker of the House, Brian Egolf, Initial term expires: June 30, 2023
Hon. Garrey Carruthers, former New Mexico Governor, Member, appointed by Minority Floor Leader of the Senate, Stuart Ingle. Initial term expires: June 30, 2023
Ronald Solimon, Member, appointed by Legislature. Initial term expires: August 14, 2020
Dr. Judy Villanueva, Member, appointed by Minority Floor Leader of the House, James Townsend. Initial term expires: June 30, 2021
Frances F. Williams, Member, appointed by President Pro Tempore of the Senate, Mary Kay Papen. Initial term expires: June 30, 2021.
COMMISSION STAFF MEMBERS APPOINTED
In September, 2019, Jeremy Farris, the former chief legal counsel at the state Department of Finance and Administration was appointed Executive Director. On January 5, 2020, the Albuquerque Journal published a guest column written by Jeremy Farris entitled “States Ethics Commission Starts Work In New Year“. You can read the full column in the postscript below to this article followed by the link to the article.
The Commission has hired Walker Boyd, who previously worked at an Albuquerque law firm, as its first general counsel.
The commission has appointed and entered employment contracts with retired New Mexico State Supreme Court Justice Edward L. Chávez and retired U.S. Magistrate Judge Alan C. Torgerson as hearing officers.
DEVIL IN THE DETAILS OF THE ETHICS COMMISSION
The enacted legislation creates an ethics commission that is empowered to oversee state public officials, including state lawmakers, state employees and constitutionally elected officials, including the governor. A seven-member commission was created and is empowered to fine public officials if they are found by the commission to have violated civil provisions of state laws. There is no authority to suspend or remove from office elected officials.
Anyone who files a complaint must secure a notary public and attest to the truth of the allegations in the complaint under penalty of perjury. Although the Ethics Commission accepts only signed complaints, it can also initiate its own complaints with approval from 5 of the 7 commissioners. It can also accept referrals from other agencies.
The attorney appointed as “general counsel” by the seven-member commission serves as an investigator and prosecutor. The commission’s general counsel determines whether a complaint warrants investigation and if so, the general counsel will investigate the allegations made.
The Ethics Commission “hearing officers” are appointed to adjudicate the cases where evidence suggests there is an ethical violation. The hearing officers are required to use the legal standard of “preponderance of evidence” to make the determination if there was an ethical violation and must make 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 are given the right to appeal the ruling to the seven-member ethics commission.
Ethics complaints are be made public 30 days after probable cause is found to proceed with an investigation. The ethics commission is 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 is required to turn over its findings to the Legislature, which would then in turn determine the legislator’s punishment.
A very significant provision included in the commission powers is authority over 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. However, the ethics commission has 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 New Mexico 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.
POWERS AND DUTIES OF THE COMMISSION
Under the New Mexico Ethics Commission Act, the commission:
“may initiate, receive, investigate and adjudicate complaints alleging violations of, and issue advisory opinions concerning, standards of ethical conduct and other standards of conduct and reporting requirements, as may be provided by law, for state officers and employees of the executive and legislative branches of government, candidates or other participants in elections, lobbyists or government contractors or seekers of government contracts and have such other jurisdiction as provided by law.”
Additionally, the Ethics Commission:
“may require the attendance of witnesses or the production of records and other evidence relevant to an investigation by subpoena as provided by law and shall have such other powers and duties and administer or enforce such other acts as further provided by law.”
Powers and duties of the commission also include the power to develop, adopt and promulgate the rules necessary to implement and administer the provisions of the State Ethics Commission Act.
Absent from the enabling legislation creating the ethics commission is any authority to suspend or remove elected or appointed officials for nefarious or unethical conduct.
https://www.ncsl.org/research/ethics/50-state-chart-state-ethics-commissions-powers-a.aspx
JURISDICTION OF COMMISSION
According to its website, the Commission has “jurisdiction to enforce the civil compliance provisions of eight statutes and one constitutional provision for public officials, public employees, candidates, persons subject to the Campaign Reporting Act, government contractors, lobbyists and lobbyists’ employers”.
The statutes are:
Campaign Reporting Act (1-19-25 to 1-19-36, NMSA, 1978)
Financial Disclosure Act (10-16A-1 to 10-16A-7, NMSA 1978)
Gift Act (10-16B-1 to 10-16B-4 NMSA 1978)
Lobbyist Regulation Act (2-11-1 to 2-11-9 NMSA 1978)
Voter Action Act https://www.nmlegis.gov/sessions/03%20Regular/FinalVersions/HB0420.pdf
Governmental Conduct Act (10-16-1 to 10-16-18 NMSA 1978)
Procurement Code (13-1-28 to 13-1-117 and 13-1-118 to 13-1-199)
State Ethics Commission Act https://nmlegis.gov/Sessions/19%20Regular/bills/senate/SB0668EDS.pdf
Article 9, Section 14 of the Constitution of New Mexico.”
https://www.sec.state.nm.us/faqs/#Section02
Allegations of criminal conduct are referred to law enforcement agencies. The 8 statutes the Ethics Commission is authorized to enforce are strictly civil in nature and provides for civil penalties and fines. The one power or penalty the Ethics Commission is not granted is the power to suspend or remove an elected or public official.
OFFICIALS NOT SUBJECT TO THE COMMISSION’S JURISDICTION
According to its website, the Ethics Commission has limited jurisdiction and only over certain individual as follows:
“LOCAL OFFICIALS AND EMPLOYEES
The Commission’s jurisdiction is limited. … it cannot hear complaints alleging violations by local elected officials or local public employees such as county commissioners or municipal employees.
CRIMINAL CONDUCT
The Commission does not hear complaints alleging violations of state or federal criminal laws. The Commission will refer any complaint alleging criminal conduct to the Attorney General, the appropriate District Attorney, or the federal prosecutors. Such a referral does not prevent the Commission from pursuing civil enforcement, either through an administrative hearing or a civil action in state court.
LAWS OUTSIDE THE COMMISSION’S JURISDICTION
The Commission lacks jurisdiction to adjudicate complaints alleging violations of any law that is not expressly provided for in the State Ethics Commission Act including … the Human Rights Act, the Open Meetings Act, the Inspection of Public Records Act, the Extra Compensation Clause of Article IV, Section 27, or the Emoluments Clause of Article XX, Section 9.
LIMITATIONS BASED ON TIME
Three time-based constraints limit the Commission’s jurisdiction.
First, the Commission cannot adjudicate a complaint alleging conduct that occurred more than two years in the past or more than two years after the alleged conduct could reasonably have been discovered.
Second, the Commission lacks jurisdiction over a complaint that is filed against a candidate sixty days before a primary or general election for the pre-election period, unless the complaint alleges a violation of the Campaign Reporting Act or the Voter Action Act.
Third, the Commission lacks jurisdiction over conduct occurring on or before July 1, 2019.”
https://www.sec.state.nm.us/faqs/#Section02
ONLY 3 WAYS A COMPLAINT CAN BE BEGIN
An Ethics Case before the Commission can begin only one of three ways:
1. A complainant may file a complaint with the Commission.
2. Another agency may refer a complaint filed originally with that agency to the Commission.
3. The Commission may initiate a complaint with the approval of at least five Commissioners.
WHAT HAPPENS AFTER A COMPLAINT IS FILED
The Ethics Commission website gives the following succinct explanation on what happens after a complaint and a response to the complaint are filed:
REVIEW FOR JURISDICTION
After a complaint is filed, the Executive Director or their designee will notify the person against whom the complaint is filed (the Respondent). The Respondent has the opportunity to file an answer and/or a motion that the complaint should be dismissed. The Executive Director will review the complaint and any response from the Respondent to determine whether the Commission has jurisdiction.
REVIEW FOR PROBABLE CAUSE
If the Executive Director determines that the Commission has jurisdiction over the complaint, the complaint is forwarded to the General Counsel for investigation. The General Counsel investigates a complaint to determine if its allegations are supported by probable cause. The General Counsel’s investigation might include taking depositions of witnesses under oath and requesting documents. If a person refuses to comply with the General Counsel’s investigation, the Commission can petition a court for a subpoena to compel a witness to testify or to deliver documents.
PUBLIC HEARING
If the general counsel finds that a complaint is not supported by probable cause, the complaint is dismissed, and the case is over. If, however, the general counsel finds that a complaint is supported by probable cause, the Executive Director will appoint a hearing officer to hold a public hearing. The hearing officer will be either a licensed attorney or a retired judge. The public hearing is governed by the rules of evidence that apply in state courts, and both parties may present evidence to make their case. After the public hearing, the hearing officer will decide whether the respondent violated the law. The hearing officer’s decision may be appealed to the full Commission.
APPEAL
Except where a complaint is dismissed for lacking probable cause, either the Respondent or the Complainant may appeal the hearing officer’s decision. The full Commission will receive briefs and, upon request, will hold another hearing. On appeal, the Commission will only hear oral arguments and will not receive evidence nor hear witness testimony. The Commission will issue a final decision on appeal. Either the Complainant or the Respondent may seek judicial review of the Commission’s final decision.
SETTLEMENT
At any point in an administrative case, the General Counsel may reach a settlement with the Respondent on the matters alleged in the complaint. The Commission must approve the settlement. If the Commission approves a settlement, both the complaint and the terms of the settlement are subject to public disclosure.
REPRESENTATION
At all times, from the filing of the complaint to the Commission’s final decision on appeal, both the Complainant and the Respondent may be represented by a licensed attorney. Alternatively, both the Complainant and Respondent may represent themselves. If the Respondent is a state employee or a state official, the Risk Management Division of the General Services Department will likely provide the Respondent with an attorney.
WEBSITE LINK WITH INSTRUCTIONS
The link to the website can be found here:
The website contains a section where the public can sign up for updates from the commission including pending cases and advisory opinions. The website also gives a detail explanation on how a complaint can be filed, gives instructions on how to file an ethics complaint, provides forms and outlines what the complaint needs to allege, including laws believed to have been violated, witnesses and evidence relied upon. The website also provides a guide to respondents and what they must do to respond.
COMMENTARY AND ANALYSIS
New Mexico has had more than its fair 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, 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.
One area that merits serious consideration by the New Mexico Legislature is to empower the Ethics Commission with the authority to suspend or remove a public official or give the Commission the authority to seek from a District Court or Supreme Court the suspension or removal from office elected officials who have been found to have engaged in nefarious or unethical conduct. Further, the Ethics Commission should be given authority over local elected officials such as Mayors and City Councilors.
The statewide Ethics Commission should help rebuild trust in a state government that has experienced way too much corruption through the years. However, it will be able to do so only if it is empowered with real authority to suspend or remove someone for nefarious or unethical conduct. Otherwise, the Commission will be an exercise in futility to hold nefarious and unethical officials actually accountable for their actions short of criminal prosecution, forced resignations or awaiting that they be voted out of office.
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POSTSCRIPT
On January 5, 2020, the Albuquerque Journal published the following guest column written by Jeremy Farris, the Executive Director of the States Ethics Commission:
HEAD LINE: STATE’S EHTICS COMMISSION STARTS WORK IN NEW YEAR
“In a November 2018 referendum, New Mexicans voted by a more than 75% margin to approve an amendment to the state Constitution creating an independent ethics commission. With the advent of the new year, the State Ethics Commission begins its work.
Since Hawaii created the first state ethics commission in 1968, 48 states have established an ethics commission. While their powers vary across the states, these oversight agencies all work to foster public trust in government and to prevent government from being captured by private interests. Ethics commissions attempt to solve the old paradox: quis custodiet ipsos custodes – who guards the guardians?
In building the State Ethics Commission, New Mexico has learned from the experience of other states in at least two ways: First, New Mexico’s commission is not a creature of statute or executive order, able to be stricken by subsequent legislative amendment or the governor’s pen. Instead, New Mexicans cemented the Commission into the state Constitution.
Second, the seven commissioners who oversee the commission’s work are appointed in a way that ensures the commission is independent and impartial. The governor appoints the chair, who must be a retired judge. The Legislature’s majority and minority leadership appoint four more commissioners. The legislatively appointed commissioners in turn appoint two more commissioners. Any commission action requires the agreement of at least two Democrats and two Republicans. Together, these requirements ensure that no political party or branch of government can control the commission’s decisions.
These guarantees of independence and impartiality matter because New Mexicans and the Legislature have given the commission broad powers. The commission has the power to enforce the civil provisions of several governmental conduct and disclosure laws by imposing civil penalties and recommending disciplinary action, including impeachment.
But the commission can never become a star chamber, arbitrarily exercising its power. The law limits the commission’s work. For example, complaints must be signed and notarized. The commission cannot act on anonymous complaints or on a complaint that fails to allege a specific violation of the law, as opposed to a vague allegation that a state employee’s conduct is immoral or unethical. The commission has the authority only to decide whether a respondent’s conduct is illegal, not whether it is morally wrong.
The law protects the rights of respondents in several other ways. First, the commission and its staff must keep complaints confidential, at least until the commission’s staff determines a complaint is substantial enough that it requires a public hearing. Second, the commission’s jurisdiction does not reach conduct that occurred before July 1, 2019. And, third, public officials and state employees appearing before the commission have the right to counsel provided by the state.
In addition to its enforcement role, the commission has an equally important advisory role. The commission is authorized to issue advisory opinions explaining whether something does or does not violate the law. The commission is also tasked with drafting a model code of conduct for state agencies, offering ethics guides and training, and making annual recommendations to the Legislature and the governor regarding potential amendments to New Mexico’s ethics laws.
Over time, the commission’s work should lead to improved laws, better enforcement and a deeper reservoir of public trust; in short, better government. The new year is a time for hope. In that spirit, New Mexico’s ethics commission starts its work. For more information, see the commission’s website: www.sec.state.nm.us.”
The link to the Albuquerque Journal guest column is here:
For a related blog article see: