An Ethics Commission? Not quite.

Douglas Carver, NMEW Executive Director

You may have heard the news – New Mexico is getting an ethics commission!

Except not only does the commission need to be approved by the voters, but the constitutional amendment the voters will be asked to approve in November 2018 is missing essential details. There is no reason, however, why the Legislature cannot fill in those details before we vote on the commission a year and a half from now.

Yes, in the 2017 Legislative Session, the Legislature approved sending a constitutional amendment creating a state Ethics Commission to the people for a vote in the 2018 general election. Yet during the legislative process, all of the guarantees concerning the commission’s powers, scope, and jurisdiction were stripped out of it. These essential parts of what will constitute the commission were replaced with the construct “as provided by law”.

What does this mean? It means that the Legislature will put those powers in place at a later date, when they draft the enabling legislation for the constitutional provision. During the debate on the commission during the session, legislators balked at having these details protected in the constitution. Some legislators claimed such details should not be in the constitution, despite the fact that similar scope and powers are constitutionally protected for our state’s Judicial Standards Commission, one of the few New Mexico governmental entities that have national acclaim.

The one concrete part of the commission that would be protected in the constitution is the membership of the commission. This was a late change made in the typically frenetic final days of the session, and it is a change that causes great concern. As initially proposed, the seven-member commission would have had three appointees from the Governor, and four appointees from the Legislature. The membership now has six of its seven members appointed by or through the Legislature, with only one from the Governor. This unbalanced membership is problematic.

The Legislature promised that the provisions that were removed from the constitutional amendment creating the Ethics Commission – provisions concerning the commission’s transparency, openness, and independence – would be replaced in the enabling statutes that will put the powers of the commission into effect, statutes that we are told will be drafted in the 2019 Legislative Session.

But we do not have to wait until then.

The Legislature has three chances to produce the statutes that will put the Ethics Commission’s powers into effect – the 2017 interim committee period, which is about to begin; the 2018 Legislative Session; and the 2018 interim committee period.

For those unfamiliar with the interim committees (and you should know about them – the Legislature spends thousands of dollars supporting the work of these committees), they are committees made up of members of both chambers of the Legislature that meet in the summer and autumn months to learn about issues connected to the jurisdiction of the committee and – crucially, for the argument here – draft legislation to be considered during a Legislative Session. Often, at the end of an interim, a committee will endorse legislation, effectively giving its stamp of approval to the measure.

At present, there are over 25 of these committees. One in particular – the Courts, Corrections and Justice Committee, would have jurisdiction over any legislation concerning an Ethics Committee. This committee could and should schedule hearings on enabling legislation during this interim and, if necessary, in the 2018 interim, and produce a committee-endorsed bill so that the people know what powers the Legislature intends to give the proposed Ethics Commission.

There is an alternative way for the people to know what powers the Legislature intends to give the commission. The Legislature could request that the Governor to issue a message so that the enabling statutes for the proposed Ethics Commission could be considered in the 2018 Legislative Session. As that session will be a 30-day session, bills that are not revenue or appropriations will require a Governor’s message. Although the constitutional amendment for the commission will not have yet gone to the voters, there is a mechanism – called a contingent effective date – whereby the enabling statutes could be passed but would only go into effect if the constitutional provision is approved. This mechanism is used frequently, so it would not be unfamiliar to legislators. If this method was used, the enabling statutes for the commission would be locked in before we vote on the commission.

Of course, in an ideal world, there is nothing to stop the Legislature from approving a better version of the Ethics Commission in the 2018 Legislative Session – something closer to the measure that was initially introduced in the 2017 session. A potential amendment to the state constitution is passed by the Legislature under the form of a joint resolution, and joint resolutions can be introduced by the Legislature at any time in any session, and are not subject to the Governor’s wishes.

It is important that New Mexico gain a statewide Ethics Commission. It is more important, however, that the commission is not a hollow, powerless commission – that it has independence, transparency in its proceedings, and the power to independently conduct its investigations. It is vital that this is done right. The Legislature has ample time, and ample opportunity – with two interim periods and a Legislative Session – to let the people of New Mexico know what powers, duties, and scope they intend to give the commission before we enter the voting booth in November 2018.

When the Legislature stripped the protections for the commission out of the constitutional provision they approved, they said, Trust us, we will put them back in when we write the statutes. So we are asking the Legislature to show us that our trust was not misplaced. Show us what you intend before asking us to vote. Give us the whole package, so that we know what we are being asked to approve.

Don’t make us wait.

It is an Ethics Commission, after all. Let’s create it openly, transparently, and with proper deliberation.

The people of New Mexico are asking the Legislature, won’t you trust us?


Douglas H. M. Carver is the executive director of New Mexico Ethics Watch, a nonpartisan nonprofit dedicated to promoting more ethical governance in New Mexico. For five years he was a staff attorney for the Legislative Council Service, in which capacity he served on the Interim Legislative Ethics Committee and as lead staff for the Courts, Corrections and Justice Committee.

Published June 5, 2017 on NMPolitics.Net