On July 7, three term Republican State Representative Rebecca Dow of Truth or Consequences announced that she is running for the Republican nomination for Governor. In her announcement, she vowed to address “hard truths” related to the state’s high unemployment rate, low education rankings and chronic child welfare issues. She is a former early child care professional. Dow in her announcement immediately attacked Governor Lujan Grisham and described the governor as a “power hungry” career politician whose policies have hurt New Mexico and said:
“As a state, we have never experienced more dire conditions than we are currently struggling through right now.”
DOW HIT WITH ETHICS COMPLAINT
Before the 2020 general election, an ethics complaint was filed against Rebecca Dow by her Democratic opponent Karen Whitlock. Dow won reelection by a 16% margin.
Parts of the ethics complaint were dismissed with the remaining allegations including accusations that Dow violated the state Financial Disclosure Act by failing to report over $5,000 in gross income from AppleTree Educational Center in 2019 and by not disclosing the nature of her work for the center. Dow is the founder and a former CEO of AppleTree, a nonprofit that serves children and families in Sierra County. Much of its revenue comes from state grants and contracts.
According to a January 13, 2022 front page story in the Albuquerque Journal:
“[Dow] vigorously fought subpoenas issued as part of the investigation into whether she properly disclosed income from a nonprofit group she founded … For almost two months … she refused to sit for a court-ordered deposition a conflict that resulted in sanctions of $50 a day.”
On Friday, January 6, hundreds of pages of documents became public automatically after Ethics Commission General Counsel Walker Boyd found “probable cause” to support allegations that Dow had violated state laws on financial disclosure and governmental conduct. More documents were released to the Albuquerque Journal pursuant to a request for public records.
Dow flatly disputes the allegations and contends that she is not only in compliance with the law, but also that she voluntarily amended financial disclosure documents to address concerns raised by the ethics commission. Dow had this to say:
“I have publicly disclosed – over disclosed – all the details of my work and very modest payment for an important nonprofit in my district. … [The Ethics Commission staff] is way out of bounds, and continues to invent new claims of violations as old ones are abandoned. … For years, the radical Democrats have tried to scare me out of running with bogus complaints. … They haven’t scared me yet. And they won’t.”
The link to full Albuquerque Journal article is here:
DOW VIOLATES COURT ORDER
According to District Court pleadings filed, the New Mexico Ethics Commission last year subpoenaed Dow’s financial records and scheduled her deposition which is allowed under the law. Dow and her attorneys contested the agency’s demand for her sworn testimony, arguing the subpoenas were flawed and violated the rules of civil procedure or court rules. The Ethics Commission went to court to enforce the subpoena. The ethics commission secured a court order from State District Court Judge James T. Martin of the 3rd Judicial District compelling Dow to produce the financial documents and appear for her deposition. Dow refused to comply with the court order, did not produce the financial documents and failed to appear for her scheduled deposition. The Ethics Commission went back to court to get a court order.
According to court documents filed in August, State District Court Judge James T. Martin issued another order finding Dow in Contempt of Court and making findings that Dow violated the earlier court order by failing to appear at a scheduled deposition and not producing financial documents that had been subpoenaed by the Ethics Commission. Judge Martin found that the failure to produce the documents and to appear for the deposition “lacks a justification.” Judge Martin ordered fines of $50 a day until she complied with the court order for a deposition. According to the court filings, Dow paid $4,115. The amount paid included reimbursing the State Ethics Commission for costs incurred when she did not appear at the scheduled deposition. Dow has yet to give a reason for failing to appear for her deposition.
DOW’S OBJECTIONS OUTLINED
According to the Journal report, Ethics Commission documents released describe Dow’s legal objections as follows:
“[Dow’s] attorney, Lucas Williams, said the commission had improperly refused to identify what it was investigating and that its written questions to Dow exceeded its legal authority to subpoena information. He responded to a host of written questions, anyway.
Williams also said the commission’s subpoenas had “foundational errors.” They were filed in the wrong court, failed to match the format required by law and represented an attempt to “engage in unauthorized ex parte proceedings” … .
[Williams] disputed that Dow was in violation of a court order when she didn’t immediately sit for a deposition. When Dow finally appeared at the deposition late last year, she defended herself.
[Dow] said she had worked diligently to comply with the state’s ethics and disclosure laws, and thought she had addressed the ethics commission’s concern when she voluntarily amended a disclosure report listing her income sources.
Dow also told the commission’s staff that she had started volunteering her time rather than receiving pay, and curtailing some activity because of the unfair scrutiny brought about by her role as a legislator. [Dow] said in her deposition:
“I stepped down from every board that receives any state or federal funding because I wouldn’t want to put anybody through this.”
The link to quoted news source material is here:
CREATION, POWERS AND DUTIES OF THE ETHICS COMMISSION
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.
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.”
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.
The law establishing the State Ethics Commission keeps all investigations confidential unless there’s a probable cause finding to support the allegations. Someone who files a complaint is free to make the allegations public. Under law enacted, ethics complaints must be made public 30 days after “probable cause” is found to proceed with an investigation.
The case against Dow is the very first to be made public by the Ethics Commission after a finding of probable cause. The definition of “probable cause” is that the evidence gathered makes it more likely than not that an ethics violation has occurred.
Links to New Mexico Ethics Commission related websites are here:
Ethics Commission General Counsel Walker Boyd summarized the dispute with Dow in his findings and recommendations to the Ethics Commission as follows:
The Ethics Commission General Counsel offered to settle the case in January, 2021 if Dow paid a $250 civil fine and acknowledged her responsibilities under state law. She did not respond to the settlement offer, but she later filed an amended financial disclosure statement that did not entirely address the potential violations.
The Ethics Commission secured court approval to issue subpoenas for Dow’s testimony and other information. Dow and her attorney contested the subpoenas. The matter was appealed to the New Mexico Supreme Court which dismissed Dow’s petition for review.
Dow was eventually ordered by District Judge Martin to sit for a deposition, but she refused and was later held in contempt of court. She paid about $4,115 “in compensatory and coercive sanctions” for failing to comply with the court order, until she sat for a deposition in October, 2021.
Boyd found probable cause to support allegations that Dow had represented AppleTree before state agencies, in violation of the Governmental Conduct Act. State law restricts when legislators may represent a client before a state agency.
Boyd took note of the legal conflict in his report finding probable cause to the New Mexico Ethics Commission. In his report Boyd said it was Dow’s own “refusal to acknowledge apparent violations. … These actions [by Dow] are not consistent with a good faith willingness to provide evidence to the Commission or correct good-faith mistakes …[ that brought about the litigation].
DOW RESPONDS TO ETHICS CHARGES
In her response to the ethics charges, Representative Dow contends she consulted with attorneys for the Legislative Council Service on how to file her disclosure forms. According to Dow, she was told she did not need to list AppleTree. She said she is entitled to represent nonprofit groups and others as constituents in her district.
Dow also argues that she made so little as a consultant to AppleTree that she wasn’t required to report it and said:
“This is a nonprofit … that addresses the needs of families and their young children in crisis. … I used to run a nonprofit that does a great service for my community. … I’m not apologizing for trying to help my community EVER.”
ETHICS COMPLAINT MOVES FORWARD
Boyd’s finding of probable cause is not a final decision on the charges. The ethics complaint has now been assigned to retired U.S. Magistrate Judge Alan C. Torgerson who will serve as a hearing officer to consider the allegations. The final decision of Torgerson appealable to the entire ethics commission. Dow for her part said she looks forward to clearing her name in a public hearing.
STATE ETHICS COMMISSION PROPOSES NEW DISCLOSURE ACT
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:
COMMENTARY AND ANALYSIS
To quote Republican State Representative Rebecca Dow in her announcement for Governor, the “hard truths” are that she is faced with some very serious charges of ethics violations that are still pending and her viability as a candidate for Governor has been tainted. The hard truth is that she was found in contempt of court violating a court order and she was fined as provided by law.
Ignoring a court order and Dow’s accusation that “… the radical Democrats have tried to scare me out of running with bogus complaints. … They haven’t scared me yet. And they won’t” is nothing more than an expression that she has distain for ethics laws and our courts and feels she is above the law and felt she could ignore a court order. Her actions are identical to Washington Republicans resisting court orders and subpoenas relating to the January 6 capital riot.
It is highly likely that the Dow ethics complaint is one of the major reasons why the New Mexico Ethics Commission is seeking enactment of the new disclosure act. Another hard truth is that there is absolutely no doubt that the ethics complaint now pending against New Mexico State Representative Rebecca Dow will become a major issue during the 2022 New Mexico Legislative session as the legislature considers the passage of the financial Disclosure Act for legislators and lobbyists.
Simply put, the New Mexico Ethics Commission is doing its job and handling the complaint against Republican State Representative Rebecca as provided for and envisioned under the new law. It would be a damn shame if the New Mexico legislature does not have the stomach nor the backbone to consider the proposed changes and enact the new financial disclosure act. It would also be a damn shame if the legislature even attempted to gut the New Mexico Ethics Commission by not fully funding it.
The proposed new act is long overdue and needed. The Governor and both Democrat and Republican leadership need to make enactment of the Disclosure Act a top priority as well as fully funding the Ethics Commission.
Links to related blog articles are here: