On January 18, the 2022 New Mexico legislature will convene for its 30 day legislative sessions known as the “short session.” The 30 day sessions are dedicated to budget legislation and the agenda is set by the “Governor’s Call”, meaning the Governor dictates was legislation can be considered.
The State Ethics Commission is a 7 member, independent, bipartisan group created in 2019 by the New Mexico State legislature. It became fully operational on January 4, 2020. Under the law creating the Ethics Commission, it issues a report each year recommending amendments to New Mexico’s ethics laws. The Ethics Commission is asking the 2022 legislature for an expansion of its powers, enactment of a legislature Disclosure Act and for additional funding.
NEW DISCLOSURE ACT REQUIREMENTS OF LEGISLATORS
In its 2021 annual report released in December, the State Ethics Commission, called the state’s existing disclosure law for income received by public officials “vague and undemanding.” As it stands now, state lawmakers face broad requirements for disclosing income sources over $5,000. Many draw income from a law firm, farming and ranching, or similarly general categories. The commission now wants to repeal the old law and replace it with the commission’s proposed Disclosure Act.
Specifically, the Ethics Commission is asking for changes to state law that would require New Mexico’s citizen legislators to release more information about their sources of personal income and business relationships. It is also asking for increased transparency requirements for lobbyists. The Ethics Commission wants disclosure of what bills lobbyist are working on and if they are advocating for or against the legislation.
Under the requested changes, any lawmaker to whom it would apply, would have to disclose before voting if any family member lobbied on any bill. Currently, a number of legislators are married to lobbyists thus creating appearance problem to what extent they are influencing any pending vote.
The new Disclosure Act proposed outlines in great detail requirements for the disclosure of personal assets, personal debts, sources of family income over $600, including any spousal and dependent children. The new act would also require disclosure of real property or land holding ownership and values.
The new disclosure requirements will cover membership in corporations and nonprofit groups, gifts of $50 or more from lobbyists and work done by the official or their spouse involving public agencies. Elected state officials, heads of state agencies, candidates and others would have to file annual disclosure statements.
NEW DISCLOSURE ACT REQUIREMENTS OF LOBBYISTS
The new Disclosure Act requirements are designed to shed light on potential conflicts of interest given the fact lobbyists play a crucial role in shaping legislation.
A report by New Mexico Ethics Watch released in 2020 found that 34 former legislators who either retired or who were defeated worked as lobbyists and that another six lobbyists were spouses or relatives of legislators.
Under the new law, lobbyists would have to file 2 separate reports during legislative sessions outlining what bills they are working on, their position on the bills and specific provisions they supported or opposed within the legislation.
The Ethics Commission is proposing a two-year ban on ex-legislators and other state officials from becoming paid lobbyists after they leave public service. “Revolving door” bans have failed to get legislative approval for many years.
STRONG SUPPORT EXPRESSED
Ethics commission spokesman Sonny Haquani said the agency worked with the offices of the Secretary of State, the Attorney General and State Auditor, on the proposed Disclosure Act and had this to say:
“[The new disclosure act] … would enable the public to identify conflicts of interest and deter violations of the public trust.”
Heather Ferguson, the executive director of the nonpartisan Common Cause New Mexico, says her organization strongly supports the new law, especially with the gifts to legislator provisions in the new act. Ferguson noted lawmakers are barred from accepting gifts exceeding $250 in value from donors, but the rules are sometimes skirted by deliberately undervaluing some gifts. Ferguson put it this way:
“Over the years, several ethics violation cases have tarnished New Mexico’s reputation and most of them could have been prevented with heightened disclosure laws. … The $250 gift threshold has been flouted openly over the years, especially with the gift passes given to legislators for activities such as multi-area skiing or golf courses throughout the state that are reported to value at just under… the individual threshold. … These questionably valued gifts raise the public’s concerns every year. A lower threshold with increased penalties will help to curb this activity.”
Secretary of State Maggie Talouse Oliver, Attorney General Hector Balderas and State Auditor Brian Colon have all announced support of the new Disclosure Act.
OTHER EXPANDED POWERS
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 last 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 2021 approved budget. 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.
Links to quoted source material are here:
NEFARIOUS HISTORY OF CORRUPT NEW MEXICO LEGISLATORS
New Mexico has had more than its fair share of public corruption scandals over the years involving State Legislators. The rogue’s gallery of unethical conduct, fraud, theft and abuse of power and influence by New Mexico legislators includes both State Representatives and State Senators. Following are the most notable:
SENATOR ANTHONY LUCERO
Anthony Lucero was an Albuquerque area state senator. In 1974, Lucero, D-Albuquerque, was convicted by a Santa Fe County jury of taking bribes to help people obtain contractor licenses from the state Construction Industries Division.
SENATOR EDDIE BARBOA
Eddie Barboa was an Albuquerque area state senator. In 1975, Barboa, D-Albuquerque, was charged in federal court with possession of heroin with intent to distribute it. The government said that Barboa tried to set up a large sale of heroin with a man he thought was a New York underworld figure, but who was actually an undercover agent. Barboa said that he was trying to stop drug traffic in Albuquerque’s South Valley when he met the agent. But in two trials, Barboa got hung juries. After the second trial, federal prosecutors decided not to retry Barboa.
REPRESENTATIVE RON OLGUIN
Ron Olguin was an Albuquerque area State Representative. In 1992, Olguin was sentenced to 18 months in prison after he was convicted in state District Court of soliciting a $15,000 bribe in exchange for obtaining $100,000 from the Legislature for an Albuquerque crime counseling program. Refusing to resign, he faced censure by the State House of Representatives.
SENATOR MANNY ARAGON
State Senator Manny Aragon was president pro temp of the New Mexico Senate and for decades was considered one of the most powerful and influential state senators in the state history. Aragon pleaded guilty in federal court in 2008 to three felony counts of conspiracy and mail fraud and was sentenced to five and half years. All counts were related to a scheme to defraud the state of nearly $4.4 million in the construction of the Bernalillo County Metropolitan Courthouse in Albuquerque. The crimes took place while Aragon was serving as state Senate president pro-tem. In addition to his prison sentence, Aragon was fined $750,000, most of which he’d already forfeited to the government before he was sentenced, and ordered to pay at least $649,000 in restitution. He was released from federal prison in 2013.
SENATOR PHIL GRIEGO
Phil A. Griego was a New Mexico State from 1996 to 2015. The 69 year old was accused of using his elected position and acumen as a real estate broker to guide the sale of a state-owned building in downtown Santa Fe through various approvals without properly disclosing his financial interest. Griego maintained he did nothing wrong in earning a $50,000 commission from buyers of the property. He resigned from the Legislature in 2015. He was convicted of fraud, bribery and felony ethical violations stemming from allegations that he used his position for personal gain has been sentenced to 18 months in prison. Griego was sentenced to a 12-year-prison sentence, but all was waived except 18 months, and he was ordered to pay $47,225 in fines and was sentenced to serve five years of supervised probation upon his release from prison.
REPRESENTATIVE SHERYL WILLIAMS STAPLETON
On September 21, 2021, former state Rep. Sheryl Williams Stapleton was indicted on 28 criminal charges including racketeering, money laundering and fraud charges in connection with what prosecutors have called an elaborate scheme to financially gain from a deal she helped broker with a Washington, D.C.-based company through her position as the head of the Career and Technical Education department at Albuquerque Public Schools, her employer. According to an affidavit filed in the case, the money amounted embezzled is $954,386.04. The Former House Majority Leader could face 79 years in prison if convicted on all 28 criminal counts. She was fired from the school district. All but two of the charges are felonies, and four charges carry a sentence of nine years of imprisonment and fines up to $10,000. Many of the others carry a basic sentence of 18 months and fines not to exceed $5,000.
Links to 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 more than just state lawmakers. It includes two former Democrat State Treasurers, Michael Montoya and Robert Vigil, former Republican Secretary of State Dianna Duran, 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.
The fact that the 2022 New Mexico Legislative session is a 30 short session dictates that the New Mexico legislature may not have the stomach to consider the proposed changes. The short session makes it difficult to believe that the legislature will make enactment of the proposed Disclosure Act a priority.
Notwithstanding, the proposed new act is long overdue and needed. The Governor should place it on her call list and the Legislature should make it a top priority. If it fails to make it through, he 2022 session, it should be introduced in the 2023 session to be enacted and signed into law.
The link to a related blog article is here:
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 individuals. 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.