State Ethics Commission Act (HB 4) and NMEW’s Essential Elements

Yesterday, we provided an update of where HB 4 (Rep. Daymon Ely) and SB 619 (Sen. Linda Lopez) are in the legislative system at this point.  We thought we’d see some movement with SB 619 in the Senate Rules Committee (SRC) today, but the bill was not heard nor a substitute bill introduced today.  The Albuquerque Journal took on SB 619 today.  In an editorial titled, Lawmakers need to keep your business in the light, the Journal’s editorial board wrote,

Looming large is Senate Bill 619, the State Ethics Commission Act . Things go precipitously downhill after the bill’s title. In Albuquerque Democratic Sen. Linda Lopez’s version, the ethics commission that voters overwhelmingly approved last fall would conduct its hearings and meetings in secret, keep all documents including complaints hidden from the public, require complainants to sign away their First Amendment rights, and impose harsher fines on a complainant going public than on the elected official accused of misconduct. Lopez’s Orwellian tactics should make SB 619 a non-starter, yet it is in her Senate Rules committee and may be heard today. A better version, HB 4 by Rep. Damon Ely, D-Corrales, passed the House and sits in Rules as well. It needs tweaks but comes closer to balancing the public’s right to know and elected officials’ concerns. To retain public trust, committee members should kill SB 619 and let Ely’s move forward.

[Emphasis added.]

OK, then!

Let’s move forward with seeing how Rep. Ely’s HB 4 stacks up against NMEW’s Essential Elements for an Independent Ethics Commission.  First published on January 24, 2019, NMEW’s Essential Elements document sets out nine criteria deemed essential for the commission.  These criteria were developed during the discussions and dialogue held during the Ethics Commission Working Group meetings held this past summer and fall, through the experience and wisdom of NMEW’s board and staff, through discussions with ethics commission directors around the country and national ethics experts, and through research.

Below, we’ll set out each of the nine essential elements and tell you where they can be found in the House Appropriations and Finance Committee Substitute for HB 4, as amended.  (That’s its current designation as it awaits a hearing in the SRC.)

         ESSENTIAL ELEMENTS FOR AN INDEPENDENT ETHICS COMMISSION

In November 2018, more than three-quarters of those who voted on the constitutional amendment creating an independent ethics commission in New Mexico voted to approve or ratify the amendment. New Mexicans are tired of the corruption that has plagued the state for years. New Mexico Ethics Watch (NMEW) believes the following elements are essential for a strong, independent commission, as desired by New Mexico’s citizens:

  1. INDEPENDENCE

It is essential that the commission be an independent agency, not assigned to any branch of government or attached, administratively or directly, to a department of state government, and that it retains policy making and administrative autonomy from any other state agency.

            HJC Sub for HB 4/a:

Section 3(A): independent state agency

Grade: √

  1. JURISDICTION                                                                                                                    a. Over Whom

            The constitutional amendment approved by the voters provides for ethics commission jurisdiction “for state officers and employees of the executive and legislative branches of http://nmethicswatch.org/wp-content/uploads/2019/02/NMEW-Ethics-Commission-Working-Group-Draft-Enabling-Legislation.pdf or seekers of government contracts and have such other jurisdiction as provided by law.” NMEW believes that the commission should initially focus on the activities of those specifically named within the constitutional amendment, in order to function most effectively.

            HJC Sub for HB 4/a:

                 Section 8(A): state officers and employees, candidates and other participants in                          elections, lobbyists and government contractors and seekers of government contracts

Grade: √

             b. Primary Jurisdiction

            NMEW believes that the commission should have primary jurisdiction in the screening and referring of complaints to the appropriate agency. Primary jurisdiction will permit commission staff to evaluate complaints, direct complaints, and avoid duplication of efforts.

            HJC Sub for HB 4/a:

                 Section 8(B): all complaints filed with a state agency or office regarding the statutes                    listed in Subsection A shall be forwarded to the commission

                Section 8(E): commission may elect to share jurisdiction with another state agency                    or office to investigate a complaint or an aspect of a complaint, to be formalized                              through an MOU.

Grade: √

III. TRANSPARENCY

It is essential that the public be able to view the activities of the commission. While some, even the staunchest advocates of transparency, might disagree as to where in the process ethics complaints and responses be made public, NMEW believes that disclosure to the public should happen upon the filing of a complaint. Accordingly, the commission should not accept complaints during the 30-day period preceding an election.

            HJC Sub for HB 4/a:

                        Section 10(G): After finding of probable cause, the notification, complaint,                                   specific allegations to be investigated and any response to the complaint shall be                             made public.

Section 15(B): Commission prohibited from adjudicating a complaint filed                                   against a candidate, except pursuant to the Campaign Reporting Act or Voter                                   Action Act, less than 60 days before a primary or general election. During that                                 time period, the commission may dismiss complaints that are frivolous or                                     unsubstantiated or refer complaints that are outside the jurisdiction of the                                     commission.

Grade: X

  1. OPEN MEETINGS

NMEW believes that all commission hearings and meetings need to be open to the public and comply with the Open Meetings Act.

            HJC Sub for HB 4/a:

No exception to the Open Meetings Act.

 Grade: √

  1. FUNDING

From the outset, the commission needs to be appropriately funded to accomplish its mission. Often, New Mexico’s Judicial Standards Commission (JSC), with 7 FTEs and a smaller population to administer, is used as a measuring stick for funding. The JSC receives recurring funding of more than $800k per year. Given the task set out for the ethics commission, NMEW believes that, as a starting point, the commission needs to be funded at $1 Million per year, with adequate safeguards against politically-motivated defunding.

            HJC Sub for HB 4/a:

HB 2: Appropriation of $500k for FY20. No safeguards, yet, against politically-                              motivated defunding.

 Grade: X

  1. EVIDENCE STANDARD

NMEW believes that the standard of evidence to be applied in commission hearings needs to be “preponderance of the evidence”. This standard has been defined as: “the standard of proof in most civil cases in which the party bearing the burden of proof must present evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not.”[1] Some legal scholars define the standard as requiring a finding that at least 51% of the evidence shown favors the complainant’s facts – in other words, that the burden of proof is met if there is a greater than 50% chance that, based on all of the evidence presented, the complainant’s claims are true and the respondent did in fact commit the ethical violation complained of.

            HJC Sub for HB 4/a:

Section 12(D): standard = preponderance of the evidence

Grade: √

Tangentially, NMEW believes that the Rules of Evidence should not apply to commission hearings.

            HJC Sub for HB 4/a:

                      Section 12(C): public hearing shall be pursuant to the rules of evidence that                                   govern proceedings in the state’s courts.

Grade: X

VII. SUBPOENA POWER

It is essential that the commission be able to subpoena witnesses and documents, in order to make probable cause determinations and to conduct hearings. It is also essential that persons and entities are able to object to issued subpoenas. Upon a determination by the commission regarding the objection to a subpoena, it is essential that judicial review of that determination is provided for in the commission’s enabling legislation.

            HJC Sub for HB 4/a:

                     Section 10(J): commission may issue a subpoena for the attendance and                                       examination of witnesses or for the production of books, records, documents or                               other evidence reasonably related to an investigation.

 Grade: √

VIII. ENFORCEMENT

NMEW believes that the commission should have the authority to issue and enforce civil fines and to make recommendations for further action to a respondent’s superintending authority. This division will prevent separation of powers issues. Additionally, NMEW believes the commission should have the authority to require a respondent to pay for the costs of an investigation, when the respondent is found to have committed an ethics violation. The costs of investigation may also be levied upon a complainant who files a frivolous or fraudulent complaint.

            HJC Sub for HB 4/a:

                    Section 8(A): commission has jurisdiction to enforce the applicable civil                                         compliance provisions for state officers and employees, candidates and other                                   participants in elections, lobbyists and government contractors and seekers of                                 government contracts of the 8 Acts and Code listed in the section.

                    Section 12(D): if the hearing panel finds by a preponderance of the evidence that                         the respondent’s conduct constituted a violation, the decision may include                                         recommendations for disciplinary action against the respondent, and the panel may                       impose any fines provided for by law. A finding of fraudulent or willful misconduct                         shall require clear and convincing evidence.

                    Section 32(A): (within the Procurement Code) SEC or a central purchasing office                         of a local body, after consultation with the using agency, may suspend a person                               from consideration for award of contracts if the SEC, etc., after reasonable                                         investigation, finds that a person has engaged in conduct that constitutes cause for                        debarment pursuant to Section 13-1-178 NMSA 1978.

                   Section 32(C): (within the Procurement Code) SEC or local public body, after                              reasonable notice to the person involved, shall have authority to debar a person for                        cause from consideration for award of contracts, other than contracts for                                          professional services.

Grade: √

  1. COMMISSION QUORUM

NMEW believes that commission decisions should require a quorum of at least four members, with at least two political parties needed to produce the quorum, to avoid partisan decision-making by the commission.

            HJC Sub for HB 4/a:

                   Section 3(G): Four commissioners constitutes a quorum for the transaction of                              business requiring decisions of the full commission.

                   NOTE: Article V, Section 17(A) prohibits more than 3 commissioners from being                            members of the same political party.

Grade: √

[1] Merriam-Webster Dictionary