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. On March 15, 2019, the New Mexico State legislature enacted legislation creating a new, independent ethics commission. 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 following guest column, submitted by New Mexico Secretary of State Maggie Toulouse Oliver and all members of the Ethics Commission was submitted to the Pete Dinelli blog for publication:
A GUIDE FOR EXPENDITURES OF CAMPAIGN FUNDS
“As New Mexico enters another election season, candidates from all corners of the state will collectively raise and spend millions of dollars to get elected. And whether they’re a first-time candidate or a seasoned campaigner, they will all repeatedly face a particular question, “Can we use campaign funds for this?” The New Mexico Campaign Reporting Act (CRA) governs how funds raised by a campaign can be spent and explicitly states they can be used towards: “expenditures of the campaign”; performing certain duties of their office; and donations to other political campaigns, the state general fund, or certain charitable organizations. While the CRA enumerates limitations on use and the Secretary of State’s Candidate Campaign Finance Reporting Guide (SOS Guide) provides a practical interpretation and some common examples, gray areas invariably arise that may require campaigners to self-evaluate or otherwise seek guidance to maintain compliance with the law regarding their use of campaign funds.
For expenditures solely dedicated to furthering a campaign and that could not be attributed to any other purpose, it’s common sense that most are permissible. However, certain expenditures permissible under the CRA are nevertheless prohibited by the Election Code—namely, those that benefit potential voters so as to influence their votes. Think, for example, of expenditures for gift cards, bus passes, and meals that suggest an intent to purchase votes. To avoid this issue, candidates should ask themselves “Could a reasonable person perceive this expenditure as made to induce the recipient to vote in a particular way?”
At the other end of the spectrum are expenditures that are clearly impermissible. For example, a personal trip to a ski resort or a spa, payments towards personal credit card debt, or a new watch. The common trait that makes expenditures like these stick out is that they are all personal and have nothing to do with a campaign. To avoid these expenditures, the filtering questions are “Would the candidate make this expenditure if they were not in or running for office?” or “Is the candidate receiving some personal gain from this expenditure?” If the answer is yes, the expenditure would likely be considered personal and an impermissible use of campaign funds.
But what about expenditures that clearly support a campaign but also have a personal component, such as a laptop, phone, or tank of gas? The tank of gas is simple—the New Mexico Administrative Code (NMAC) already outlines a system for tracking campaign-related mileage and reimbursement. However, the other examples depend on whether an expenditure will ever entail personal purposes. The SOS Guide and 188.8.131.52 NMAC state that permissible expenditures of the campaign are “reasonably attributable to the candidate’s campaign and not to personal use or personal living expenses….” In contrast, if an “expense would exist even in the absence of the candidacy, or even if the legislator were not in office” then it would not be considered related to the campaign.
Thus, if a laptop was bought initially for a campaign but later kept for personal use, it would not meet both criteria under the CRA. A campaigner would need to buy the laptop from the campaign with personal funds for the original purchase price if they wanted to keep the device for personal use. Similarly, a candidate could not use campaign funds to pay for his or her regular phone bill because it is a personal expense that would exist otherwise. However, buying an additional phone used exclusively for campaigning or paying for an overage due to the campaign would likely be permissible.
State law provides for transparency, guidance, and enforcement of these issues. The Secretary of State administers the campaign finance reporting system used by candidates to disclose the use of their campaign funds. The public can search this information at https://login.cfis.sos.state.nm.us/#/index. The Secretary of State’s Office educates candidates on the CRA and seeks voluntary compliance from candidates required to comply with the CRA spending limitations. And, for expenditures that fall into a gray area, candidates and campaign treasurers may seek advisory opinions from the Secretary of State or the State Ethics Commission. Finally, the Commission investigates, adjudicates, and enforces violations of the CRA.”
Secretary of State Maggie Toulouse Oliver and State Ethics Commissioners William Lang (Chair), Jeff Baker, Stuart Bluestone, Garrey Carruthers, Ronald Solimon, Judy Villanueva, and Frances Williams
To learn more visit: https://www.sec.state.nm.us/
PETE DINELLI BLOG 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 Susana Martinez, 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
The Ethics Commission as well as New Mexico Secretary of State Maggie Toulouse Oliver have made major inroads into restoring faith in our election process and to free it from corruption. The guest column is a good example of their work and they have even more work ahead.
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 or campaign finance law violations. 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.
ETHICS COMMISSION EXPLAINED
The New Mexico Ethics Commission is empowered to oversee state public officials, including state lawmakers, state employees and constitutionally elected officials, including the governor. The seven-member commission 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.
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.
An Ethics Case before the Commission can begin in 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.
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.
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”.
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.
NO JURISDICTION OVER 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 60 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.”
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.