On Friday, August 27, Santa Fe District Judge Bryan Biedscheid reversed Albuquerque City Clerk Nathan Watson’s decision denying Sheriff Manuel Gonzales $661,000 in public financing for his mayoral campaign. The Court ruled that Watson denied Gonzales due process of law. Santa Fe District Judge Bryan Biedscheid was assigned the case by the New Mexico Supreme Court after virtually all 2nd Judicial District Court Judges for Bernalillo County recused themselves from hearing the case.
In making the ruling, Judge Biedscheid emphasized that Gonzales was denied the opportunity to answer the allegations of fraud against him in the collection of the $5 qualifying donations for public finance. Instead, the City Clerk decided to withhold certification of the funding unilaterally by interpreting and applying election rules and regulations he wrote an issued in September of 2020.
The Judge also ruled the city clerk could ultimately deny Gonzales the public financing, but to do so, the City Clerk will need to determine that Gonzales has been found to have violated regulations and make specific factual findings on those allegations. The judge further ordered the City Clerk must establish and carry out a process by next week giving Gonzales due process. The judge stressed that Gonzales has to be given the opportunity to answer the allegations against him.
In his ruling, Biedscheid announced from the bench after the hearing:
“At the very least, the candidate needs to be informed of the allegations against him or her; the candidate needs to receive an adequate explanation of the evidence against him or her, and the candidate needs to have an adequate opportunity to explain his or her position. The court understands none of that was afforded in this matter.
If the clerk does not find that Sheriff Gonzales has been found to have committed the [violations he is accused of] in a proceeding that afforded him due process or does not elect to set forth a proceeding to provide that due process on the time frame I just stated, then the clerk shall certify Sheriff Gonzales to receive public financing. ”
Judge Biedscheid gave City Clerk Watson a Monday, 5 p.m. deadline to decide which course to take. In a written statement, city clerk Ethan Watson had this to say:
“We appreciate the court’s ruling and the procedural guidance offered. We are deciding the steps forward for next week.”
Links to news sources and quotes are here:
EVIDENCE RELIED UPON BY CITY CLERK WATSON
The Keller campaign submitted to the City Clerk 149 examples of alleged forgeries on documents submitted to the City Clerk. The Keller campaign also filed signed statements from upwards of 40 people contacted by a private investigator hired by Keller campaign. Most of those contacted said the signatures on Gonzales’ nominating petition was theirs and half confirmed they had contributed $5 to Gonzales’ public financing effort. Nearly all said signatures on the $5 public finance receipts were not their legitimate signature.
The Gonzales campaign denied all wrongdoing and accused the city clerk of trying to “silence the political opposition.” The Gonzales campaign said that Gonzales submitted hundreds more $5 contributions than necessary to qualify for public financing, and the ethics complaints involve what it deemed a “small handful of alleged invalid” contributions.
The links to quoted news source material are here:
It was on June 18 that City Clerk Ethan Watson posted on the city web site his office had reviewed and verified that Gonzales submitted more than the required 3,000 signatures and more than the 3,771 qualifying donations. At issue is whether the City Clerk had the authority to deny public financing after the City Clerk found and posted that enough $5 donations were submitted ostensibly without fraud nor forgeries and before there is a decision made by the City Board of Elections and Campaign Practices as to any fraud.
Complicating things for Gonzales is he admitted that signature forgeries were on both nominating petitions and the $5.00 qualifying donations. On July 14, after repeated denials of any wrong doing by the Gonzales campaign, and in a written response to an ethics complaint filed with the Board of Ethics and Campaign Practices, Gonzales’ campaign stated.
“It does appear, upon the Gonzales campaign’s own investigation, that many of the qualifying-contribution (“QC”) receipts…were signed by someone other than the voter.”
In his letter to the Gonzales campaign deny certification for public finance, City Clerk Ethan Watson stated:
“This office cannot provide that certification because…documents presented to my Office show different signatures for the same voters on different official documents in possible violation of numerous provisions of our regulations and other laws.”
On the same day Watson denied Gonzales’ certification for public financing, he certified Mayor Tim Keller’s campaign having qualified for the public financing. The Keller campaign received the money more than a month ago.
CITY RULES AND REGULATIONS GIVING CITY CLERK AUTHORITY NOT TO CERTIFY
On September 21, 2020 and October 2, 2020, City Clerk Ethan Watson and the Chief Administrative Officer Sarita Nair, respectively, sign off on regulations for the City Clerk to administer the “Open and Ethical Elections Code” (OEEC) for the 2021 municipal elections.
The link to those regulations is here:
It is PART C of the regulations entitled QUALIFYING PERIOD AND QUALIFYING CONTRIBUTIONS that outlines the certification process relating to the $5 qualifying donations for all the candidates.
Paragraph 15 entitled “Certification of Participating Candidates for Public Financing” provides in part as follows:
“The City Clerk shall certify as a Participating Candidate, all Applicant Candidates who meet the requirements of the OEEC and submit an Application for Certification.
Applicant Candidates must submit the Application for Certification by the last day of the Qualifying Period. The City Clerk shall notify all Applicant Candidates whether they have been certified as a Participating Candidate by posting a list of certified Participating Candidates in the Office of the City Clerk and on the City Clerk’s website, and by directly notifying each Applicant Candidate.
Certification as a Participating Candidate does not eliminate or modify candidate qualification requirements of the City Charter or under New Mexico law.
a. In addition to the criteria for certification listed … upon receipt of a final Qualifying Contribution report from an Applicant Candidate, the Clerk shall determine whether the Applicant Candidate has:
ii. been found to have made a materially false statement in a report or other document submitted to the City Clerk;
iv. been found to have submitted any fraudulent Qualifying Contributions or any falsified acknowledgement forms for Qualifying Contributions or Seed Money Contributions, where the Applicant Candidate knew or should have known of the fraudulence or falsification.
b. If the Clerk makes any of the findings above, the Clerk shall not certify the Applicant Candidate as a Participating Candidate.
c. An Applicant Candidate whose certification has been denied may appeal the Clerk’s determination [within 3 business days.]
BOARD OF ETHICS AND CAMPAIGN PRACTICES RULING
Judge Biedscheid’s afternoon ruling was made within hours after a separate proceeding before the city of Albuquerque’s Board of Ethics and Campaign Practices. The Ethics Board ruled unanimously to fine Gonzales $500 for violating rules in his public financing qualifying bid. It is unclear if the Ethics Board hearing, ruling and fine can be considered as meeting Biedscheid’s requirement that Gonzales have due process.
The Keller for Mayor campaign has filed two ethics complaints against Gonzales. They allege widespread fraud and forgery. Gonzales’ campaign is accused of forging the names of more than 140 registered voters to secure public financing or providing the $5.00 qualifying donations.
The first ethics complaint includes a written statement from a voter who said Gonzales told him he did not have to submit a $5 contribution and that his campaign would pay. Gonzales for his part adamantly denies the allegation. This is the complaint that was decided by the Ethics Board on Friday, August 27.
The second ethics complaint alleges Gonzales’ campaign volunteers forged voter signatures on qualifying public finance receipts. The complaint cites disparities between signatures on $5 contribution receipts and the same voters’ signatures from other places, including on nominating petitions to get Gonzales’ name on the ballot. The second ethics complaint still pending before the Ethics Board
COMMENTARY AND ANALYSIS
WHAT A MESS!
At first blush, it appears that the City Clerk does indeed have authority to deny Gonzales the $661,000 in public finance. The rules and regulations for the election say the city clerk shall determine whether the candidate has “been found to have made a materially false statement in a report … submitted to the City Clerk” and “been found to have submitted any fraudulent Qualifying Contributions or any falsified acknowledgement forms for Qualifying Contributions or Seed Money Contributions.”
The rules are also clear “if the Clerk makes any of the findings … the Clerk shall not certify the Applicant Candidate as a Participating Candidate.”
The problem is that City Clerk Watson made his decision without any public hearing giving Gonzales an opportunity to be heard and challenge the allegations. In law school, the class would be called “Due Process 101”. As experienced attorneys, City Clerk Ethan Watson and Chief Administrative Officer Sarita Nair should have known better to allow a unilateral disqualification of $661,000 public financing after the candidate had submitted more than enough qualifying $5.00 donations. Now the City is stuck with an order to set and establish a process by Monday, August 30. In doing so, it is more likely than not the Gonzales campaign will seek to have Watson disqualified from the case based on prejudice and failure to be fair and impartial with Watson having already decided to refuse certification before without an opportunity to be heard nor a hearing.
The best option for the City, the City Clerk and the Gonzales campaign is to seek an emergency hearing on Monday, August 30, and request Judge Biedscheid to disqualify and prohibit City Clerk Ethan Watson from taking any further action. The parties should ask the Court to delegate and assign the case to the Board Of Ethics And Campaign Practices and to conduct a hearing within 5 days affording due process of law to Gonzales and allow the Ethics Board to rule on the one pending ethics case against Gonzales and also to decide if Gonzales should be certified for public finance or fined.
Still another option for the parties would be a Stipulated Order between the parties to be signed by Judge Biedscheid disqualifying City Clerk Ethan Watson from taking any further action and enter an order to the city Board Of Ethics And Campaign Practices allowing the Ethics Board to rule on the one pending ethics case against Gonzales and also to decide if Gonzales should be certified for public finance, fined or reprimanded or any other remedy.