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. The State Ethics Commission is a seven-member, bipartisan group. On March 15, 2019, the New Mexico State legislature enacted legislation creating the new, independent ethics commission. On January 4, 2020, a little more than 10 months after the NM Legislature enacted the creation of the Ethics Commission became fully operational.
ETHICS COMMISSION SEEKS EXPANDED AUTHORITY AND FUNDING
On Friday July 30, New Mexico House Majority Floor Leader Representative Sheryl Williams Stapleton abruptly resigned from the New Mexico House of Representatives ending a 27-year rise to power. On September 21, former state Rep. Sheryl Williams Stapleton was indicted on 28 criminal charges. According to the indictment, Williams Stapleton’s charges include 10 counts of 4th degree felony “official act for personal financial interest”, 5 counts of money laundering and 1 count each of racketeering and fraud.
In the wake of the indictment of Williams Stapleton, the New Mexico Ethics Commission voted and its Executive Director Jeremy Farris announced that the Commission will be asking the 2022 New Mexico legislative session that begins on January 18, 2022 to expand its powers and to increase its budget.
The Ethics Commission is asking the New Mexico legislature to expand the commissions jurisdiction to include the parts of the state Constitution that prohibits profiting from public office and that bans legislators from having an interest in contracts authorized by legislation passed during their term in office. Specifically, the expanded jurisdiction would give the commission authority in 3 major areas over constitutional provisions prohibiting:
1. Increased compensation for public officials during their term of office.
2. Legislators having an interest in any state or city contract that was authorized by law during their term or for one year afterward.
3. State officials who already draw a salary from drawing outside fees or otherwise profiting for their service in public office.
BUDGET INCREASE SOUGHT
During this year’s 2021 legislative session, the Ethics Commission’s budget was cut by 5%. The legislature also expanded the agency’s duties by directing it to handle enforcement related to notaries public. The commission is seeking an increase of 40% over what it received for the 2022 approved budget, with the fiscal year ending June 30, 2022. The agency is asking for a $1.28 million budget that would begin on July 1, 2022. The budget increase would be dedicated to increasing the commission staff from 5 to 9 employees. The additional funding will be used to hire an attorney, paralegal and database administrator and to restore a “special projects coordinator” whose funding was part of this year’s 5% budget cut.
THE COMMISSIONS DUTIES AND RESPONSIBILITIES
The postscript to the blog article outlines in great detail the powers and duties of the commission and the complaint process. Notwithstanding, the Ethics Commission’s duties include:
1. Initiating, receiving, investigate and adjudicating complaints alleging violations of, and issue advisory opinions concerning, standards of ethical conduct and other standards of conduct and reporting requirements for state officers and employees of the executive and legislative branches of government. This includes candidates or other participants in elections, lobbyists or government contractors or seekers of government contracts.
2. Initiate state court enforcement actions of ethics laws. The agency sued a political committee last year and reached settlements requiring public disclosure of campaign spending and contributions.
3. Develop, adopt and promulgate the rules necessary to implement and administer the provisions of the State Ethics Commission Act Issuing advisory opinions and educating public officials.
SLOW START FILING CASES
Since becoming up and fully running, the Ethics Commission has initiated only 3 cases. The most likely reason for that is that the legislature has failed to fully fund the commission and has cut it budget. The examination of the most recent case filed is a perfect example of the importance of the commission and the potential it has to make a difference.
On October 6, it was reported that the State Ethics Commission has authorized its staff to take legal action against former Sandoval County Assessor’s Office employee Gabriel Vargas who went to work for Double Eagle Property Tax Consultants. The action is the first civil enforcement action taken against an individual and only third taken since the commission began its work last year.
The crux of the case centers on provisions in the Governmental Conduct Act (GCA) which prohibiting ex-government employees from leaving an agency and then representing clients before the agency on a matter they have worked on when with the agency. The GCA prohibits anyone from being paid to represent anyone before the agency for a full one year after leaving the agency. Vargas for his part has said he did not do anything wrong and complied with the one-year ban.
The State Ethics Commission, in an adopted resolution, said it had reason to believe Vargas violated the Governmental Conduct Act. The main accusation to the ethics charge is that on September 1, 2020 in hearing before the valuation protests board in Sandoval County that occurred a year and a day or two after Vargas left the Sandoval Assessor’s Office. In that September 1, 2020 hearing, Vargas, working for a private company, testified against his former colleagues and presented evidence to support reducing the proposed tax assessment on an office building by Rust Medical Center in Rio Rancho.
The valuation board largely sided with Vargas and reduced the assessed value of the Presbyterian Healthcare Services property from about $14.1 million to $11.4 million. The change will reduce its annual tax bill by about $35,000, according to a subsequent lawsuit filed by Sandoval County Assessor Linda Gallegos. The Sandoval County assessor is challenging the reduced value in court, contending Vargas broke the law by participating in the hearing that even though Vargas testified a day or two after the one-year ban, he was clearly involved in working on the tax dispute before then. The county’s appeal of the assessment decision is pending in State District Court.
The lawsuit authorized by the Ethics Commission is to seek civil penalties and “disgorgement,” which is where party defendant Vargas and his employer would have to give up illegal profits, which in the case could mean millions of dollars.
The Ethics commission’s 2 other civil enforcement actions targeted groups accused of spending money to influence New Mexico elections without properly revealing their campaign finance activity. Both civil cases resulted in a settlement requiring financial disclosures.
The link to the quoted source material is here:
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. You can now add former state Representative Sheryl Williams Stapleton to the disgraced list.
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.
AGENCY FORMULA FUNDING SOURCE PROPOSED
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. It was during the 2020 New Mexico Legislature that fears emerged that the New Mexico Ethics Commission would not get enough funding to carry out its work. Those fears materialized when the State Ethics Commission requested a $385,000 “supplemental appropriation” to help carry out its work the fiscal year that ended on June 30, 2020. It was during the 2021 legislative session this year that the commission’s funding was cut by 5%.
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. 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.
EMPOWER COMMISSION WITH AUTHORITY TO SUSPEND OR REMOVE
One area that merits serious consideration by the 2022 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 is going a long way to rebuild trust in a state government that has experienced way too much corruption throughout the decades. It slightly disappointing that the NM Ethics Commission has had only 3 major cases since it began its work in January and that needs to change. The commission needs to be fully funded and its staff expanded to do it job.
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. The Commission needs to be given full authority 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 Ethics Commission 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.
The link to the Ethics Commission website can be found here: