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.
On March 15, 2019, state lawmakers reached a compromise on creating a new, independent ethics commission. The enacted legislation signed into law by the Governor creates an ethics commission that is empowered to oversee state public officials, including state lawmakers, state employees and constitutionally elected officials, including 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.
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. The Ethics Commission has been empowered to issue advisory opinions to officials as well as to educate officials regarding what is and is not permitted conduct.
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.
The state agency is led by a seven-member board and State law authorized the commission to begin accepting ethics complaints on January 1, 2020. It needs to add staff for that work after hiring an executive director in September.
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.
FEARS OF INADEQUATE FUNDING
Fears are beginning to mount that the 2020 New Mexico Legislature now under way will not be getting enough funding to carry out its work. The ethics commission is in the awkward position of having to ask lawmakers, elected officials it has jurisdiction to investigate individually, for more funding to operate.
Democrat State Representative Daymon Ely from Corrales helped craft 2019 legislation outlining the commission’s procedures and power. He said he is “hopeful” the agency will get the necessary money this year but that he is “nervous” about the funding . House Appropriations and Finance Committee is still crafting a final budget for the commission that will have to be approved by both the State House and Senate.
Ely expressed concerns about the funding by saying:
“I do think going forward, this poses a problem. … You don’t want the ethics commission that’s going to oversee the Legislature having to get out the tin cup every year – that’s a potential conflict in the system.”
The current House budget for the Ethics Commission concentrates on spending for this year and next year. The commission received $500,000 in this year’s budget to begin operations. A problem is that legislative analysts projected it would require close to $1 million to operate the commission for a full year.
The State Ethics Commission requested a $385,000 “supplemental appropriation” to help carry out its work this year and the request is backed by Governor Michelle Lujan Grisham. The budget proposal under consideration by the House Appropriations Committee does not provide for any of the “supplemental appropriation” for this fiscal year that ends June 30.
Next year’s budget is also under consideration this session. For the fiscal year starting July 1, the State Ethics Commission is requesting a little over $1.1 million in funding. The governor is recommending slightly more at $1.2 million. The budget under consideration in the House provides for about $986,000 based on a recommendation by the Legislative Finance Committee.
According to State Ethics Commission Executive Director Jeremy Farris, the agency will have a very difficult time handling ethics complaints through the end of the fiscal year which ends on June 30, with the new budget starting July 1, if it is not given the $385,000 “supplemental appropriation” . According to Farris, denying the supplemental appropriation will delay the launch and creation of the agency. The agency has startup costs, such as purchase of furniture and has work to do including developing training materials and issuing advisory opinions.
A February 3, update from the State Ethics Commission revealed that the House Appropriations and Finance Committee (HAFC) has increased the amount of supplemental funds the Commission is set to receive for FY 20 to $200,000 which is up from the Legislative Finance Committees (LFC’s) recommendation of a $0 allocation. Currently, House Bill 2 still has the Commission set to receive the Legislative Finance recommended amount of $985,000 for FY 21 which is approximately $155,000 less than the Commission’s request.
COALITION SUPPORTS FULL FUNDING
A coalition of civic groups and activists, many that worked for the last 40 years and pushed for establishment of the commission, including Common Cause New Mexico, New Mexico Ethics Watch, the New Mexico Foundation for Open Government and the League of Women Voters announced their support for fully funding the State Ethics Commission. According to Executive Director of Common Cause:
“It is an investment in good government which will pay off in many ways – increased public trust and even economic development. ”
SOURCE OF THE CONFLICT IN FUNDING
Governor Lujan Grisham wants to give the state’s independent Ethics Commission significantly more operating money than lawmakers. She is recommending the full $385,000 supplemental appropriation request to help the commission get up and running in its first few months of operation. The Legislature’s is proposing giving only half the amount. The Governor is also recommending a quarter million more for the agency in its first-full year of operation than is the Legislature, $1.24 million compared to the Legislatures $985,000 recommendation.
Executive Budget Summary at https://www.governor.state.nm.us/wp-content/uploads/2020/01/FY21-Executive-Budget-Recommendation-1.pdf , pages 18 and 49 and
House budget bill at https://www.nmlegis.gov/Sessions/20%20Regular/bills/house/HB0189.pdf pages at 43-44.)
Heather Ferguson, director of Common Cause New Mexico, had this to say about the funding conflict:
“The Legislature doesn’t want to come up with the funds to ensure that [the Ethics Commission] can fully do its job.”
Political observers and commentators believe that the major source of friction between the Ethics Commission, the Governor and the Legislature is the mission of the commission itself. Simply put, the commission’s mission it to investigate ethics complaints against elected and government officials. Many of today’s state lawmakers over the years have repeatedly opposed the creation of the commission for fear of attacks prior to elections. A critical part of ethics complaint investigations are staff hearing officers that must be hired be hired with the requested funding. The hearing offices will assume investigations in in the first months prior to the June primary election.
The competing budget proposals between the Commission, the Governor and the Legislature should not come as any surprise. Such conflicts have been problematic in other states that already have ethics commissions. Some state legislatures with ethics commissions have underfunded the agencies in order to hamper their mission or to even shut the agencies down completely with lack of funding.
According to the on line news agency “New Mexico In Depth”, a coalition of organizations that support a strong ethics commission is exploring the creation of a funding source divorced from the Legislature’s budget making authority. Such a funding source would prevent budget cuts that could easily come on a whim initiated any legislator upset with the commission and severely undermine the commission’s effectiveness.
AUTHORITY TO SET SALARY FOR LEGISLATORS PROPOSED FOR ETHICS COMMISSION
Senate Joint Resolution 7 would make the State Ethics Commission the sole authority to set the salaries of hundreds of state and county elected officials. It is proposed constitutional amendment if approved by lawmakers would go before voters on the November 5, 2020 general election ballot. Senate Joint Resolution 7 cleared the Senate Rules Committee on a 6-4 vote and has been referred to the Senate Judiciary Committee.
Albuquerque Democrat State Senator Daniel Ivey-Soto, a co-sponsor of the proposal, said it would be a way to “de-politicize” the setting of salaries and said:
“The only way for salaries to not be political is for us to be out of the salary business altogether. ”
Democrat State Senator Clemente Sanchez, Grants, objects to the proposal describing it as a “backdoor” way to create salaries for legislators, and questions whether the State Ethics Commission is the right agency for the work by saying:
“I have a problem with an outside group that’s not elected by anyone making a decision on appropriations. ”
ANALYSIS AND COMMENTARY
There is clearly a major conflict of interest or a built-in threat to the continuing functioning of a viable Ethics Commission when it is forced every year to ask for funding to continue with its existence and its work. A major guarantee for the continuation of the Ethics Commission is that it was created by a constitutional amendment with a 75% majority vote by taxpayers. Legislators cannot unilaterally repeal the amendment and as such legislators have no choice to fund it to allow it to carry out its mission.
AGENCY FORMULA FUNDING SOURCE PROPOSED
There is an urgent need for a funding source separate or independent from the Legislature’s budget making authority to prevent commission budget cuts. Given the legislature’s duties and authority over all appropriations for agencies, it will be difficult to set up such a funding source without conflict, at least not without a court challenge, but it can be done.
One option would be enacting funding legislation that would provide for ongoing and pre-approved budgets with a formula mandating a small fraction of 1% of each state approved agency budget. As each agency’s budget is approved by the legislature it would automatically approve the funding of the ethics commission without decreases or increases The financing amounts from each agency would be dedicated strictly for the Ethics Commission and would not be subject to annual review or appropriation modifications by the legislature.
Any funding not spent or in excess of what is needed would revert back to the states general fund. Such a funding formula would be similar to the principal used in development programs that mandate a certain percentage of a developments and financing be dedicated for projects that are to be used by the general populace. An amendment to this year’s budget could be added to provide the funding formula for the Ethics Commission.
LEGISLATURE SHOULD REJECT GIVING ETHICS COMMISSION AUTHORITY TO SET SALARIES
The New Mexico Legislature is one of 14 State Legislatures in the Country that is considered “part time” and with low pay. New Mexico is one of only a few states that do not pay lawmakers an annual salary. New Mexico legislators receive a $161 stipend each day they are at the Capitol or attending committee meetings. Many legislators are retired or work in careers or are self-employed that allow them to serve in Santa each year for the session.
Every year during a session almost like clock work, an attempt is made to establish salaries for the legislature. Senate Joint Resolution 7 is this years version and it calls for a voter approved constitutional amendment that would make the State Ethics Commission the sole authority to set the salaries of hundreds of state and county elected officials. The bill is shortsighted and would be a major mistake. Such authority will create conflict with virtually all legislators and elected officials who could easily harbor grudges if they feel they are not being paid enough.
What will also be problematic is that not only salaries would have to be paid, but funding for the legislators retirement fund. The truth be know, New Mexico has out grown a citizens legislature and is in need of a full time legislature, but trying to establish a pay system on the backs of newly created agency is ill advised and will be considered sneaky by the general public.
CREATION OF ETHICS COMMISSION LONG OVERDUE
When it comes to the creation of Ethics Commission, it was long overdue for decades. 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. Most recently, on December 7, New Mexico State Senator Richard Martinez, after a two-day bench trial, was found guilty of aggravated drunken driving and reckless driving. He was sentenced on January 7, 2020 to 5 days in jail, which he served and was released in time for the 2020 session. Senator Martinez refused to resign from the Senate, voluntarily resigned as Chairman of the Senate Judiciary Committee and he is seeking reelection.
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”. Then 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. Former Governor Richardson withdrew his nomination to serve in President Obama’s Cabinet because of the federal investigation.
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.
EMPOWER COMMISSION WITH AUTHORITY TO SUSPEND OR REMOVE
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 eventually help rebuild trust in a state government that has experienced way too much corruption throughout the decades. 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 hoping that they will be voted out of office.