Category : General

The State Ethics Commission Act is now on the governor’s desk awaiting her signature!

When, on the last day of the legislative session, the New Mexico State Senate concurred with the House Amendments to SB 668, the State Ethics Commission Act, the legislature met the demand of more than 75% of New Mexico’s voters who approved the constitutional amendment creating the State Ethics Commission last November. New Mexico voters expected results, and they got them!

During the fall and summer of 2018, New Mexico Ethics Watch (NMEW) participated in the legislature’s Ethics Commission Working Group, along with fellow advocacy groups Common Cause, New Mexico First, the League of Women Voters and the NM Foundation for Open Government, the business community and interested citizens.  Chaired by former State Representative Jim Dines and State Senator Linda Lopez, the working group discussions led to a draft bill, which became, in many respects, the model for the State Ethics Commission Act first introduced during this past session by State Representative Daymon Ely as HB 4.

Working with both determination and grace, and gaining bipartisan support in the House, Rep. Ely’s moved his bill through two House committees and the full House, before it moved to the Senate Rules Committee (SRC).  When a voting deadlock rendered HB 4 and Senator Lopez’s competing SB 619 substitute stuck in the SRC, State Senator Mimi Stewart, through use of a dummy bill, moved SB 668 through the Senate Education Committee as a substitute bill and into the Senate Judiciary Committee, where it was amended before moving to the Senate floor.  On the Senate floor, SB 668 was amended seven additional times, before it passed unanimously in the Senate, 40-0, and moved to the House Judiciary Committee.

In the House Judiciary Committee, Rep. Ely, again with bipartisan support, and the chief assistance of Rep. Greg Nibert, amended SB 668 to more closely resemble the commission structure outlined in HB 4 and to strengthen transparency safeguards.  Working closely with Senator Daniel Ivey-Soto, Rep. Ely fashioned SB 668 into legislation that all considered fair to those who would be under the jurisdiction of the commission and that would meet the public’s demand for strength, independence and transparency.

On the House floor, SB 668, the State Ethics Commission Act, was amended twice more, and then passed the House unanimously, by a vote of 66-0.  On the final day of the session, the Senate concurred with the House amendments, and the State Ethics Commission Act is now on the governor’s desk for signing into law, effective July 1, 2019.

Is it a perfect bill? No.  In fact, it does not rise up to meet several of the elements NMEW outlined in its January Essential Elements for an Independent Ethics Commission document.  But it does provide for an independent ethics commission, with a transparent process that is fair, and the ability to expand, as the commission sees fit to recommend. NMEW believes the law will meet the expectations of the public and assist in promoting a strong ethical culture in New Mexico!

Now, on to the regulatory process…

SB 668: As amended, moves to the House floor!

[Editor’s Note: For those of you unfamiliar with the legislative process – and sometimes even for those of us who are! – the process can seem like the worst way to create good legislation.  There can be frustrating last-week maneuvers – like the tabling of HB 4 and the introduction of SB 668 through a dummy bill – and a flurry of amendments that can be hard to follow because they are not online and no one at the hearing, save for the legislators, has the proposed amendments in front of them, in any form.  What does not show at the end, however, is the work people have done ahead of time, preparing them for these moments of chaos: whether it be advocacy groups gathering together, on the phone and in the halls of the capitol, examining how the latest suggested amendments might impact the totality of the bill and getting that information to the sponsor and others; legislators having mapped out the process they’d like to see reflected in the legislation on a white board, and then demanding that process; or sponsors working hard behind the scenes to speak with their colleagues either to understand or persuade. Many, many people who have been hoping for the best possible ethics commission enabling legislation have been keeping a close eye on – and speaking up about! – the process and the shifting sands of legislation.  Despite how it may seem, the public’s interest, demonstrated by the overwhelming 75% approval for the commission, is being protected and expressed.  How things work out in the end remains to be seen, however.]

Yesterday, SB 668 (a Senate Education Committee substitute amended in the Senate Judiciary Committee and then again on the Senate Floor), passed the House Judiciary Committee, and is now heading to the House floor, we think today.

What does SB 668 do that NMEW likes, thinks meets public expectations/demand, or can accept?

Jurisdiction: the bill, as amended, limits the jurisdiction of the commission to those specifically named in the constitutional amendment, rather than expand it to include school board members and charter school commissioners (SB 619), or local government officials (as the SJC amendments to SB 668 would have done as of July 1, 2021), before the commission can make and report on its judgment as to whether the expansion of jurisdiction to others is appropriate.

SB 668, as amended, also removes the newly-added requirements that the ethics commission oversee civil enforcement of the Open Meeting Act and the Inspection of Public Records Act, leaving that where it now lies, with the Attorney General’s Office, with their decades of enforcement and institutional knowledge about the application of these laws to public bodies and meetings.

The amended bill also clears up some confusing concurrent jurisdiction issues, making it easier for the public to understand the process, and the commission and agencies to agree upon sensible and appropriate divisions of labor.

Process: the bill, as amended, restores the process and separation of duties between the executive director (who determines jurisdiction and performs necessary administrative tasks), the general counsel (who investigates and adjudicates) and hearing officers.

Transparency: The bill, as amended, provides notification of the finding of probable cause to the complainant and respondent upon that finding, and requires the notification, complaint, specific allegations being investigated and any response to the complaint to be made public twenty days following notice to the respondent.  The hearing is also public, and the commission is required to publicly disclose a decision, including a dismissal or terms of a settlement.  Additionally, the amended bill permits either the complainant or the respondent to disclose a complaint determined to be frivolous, unsubstantiated or outside the jurisdiction of the commission.

Subpoena Power: The amended bill requires the commission to petition a district court judge, designated annually by the Supreme Court, for the issuance of appropriate subpoenas. [Editor’s Note: NMEW believes the best legislation would permit the commission to issue subpoenas without going to court.  With a designated judge, however, the time delay should be less, as the judge may be familiar with the issues, have studied the laws over which the commission has jurisdiction, and be prepared to issue subpoenas.  NMEW hopes that if this process proves to be too burdensome it will be amended to permit the commission to issue subpoenas.]

That brings us to today, to the House Floor, where there is a hope that the members will take note of the thoughtful process that has brought us to where this legislation is at this moment, as amended…and amended…and amended.

You can watch the House floor proceedings by going here, and clicking on the “In Progress” button next to the House proceedings title, after the House begins its session.

Onward!

 

 

SB 668: A NEW ETHICS COMMISSION BILL ARISES!

In the wake of the inability to get HB 4 and the short-lived Senate Rules Committee (SRC) Substitute for SB 619 and HB 4 out of the Rules Committee, Sen. Mimi Stewart used a dummy bill – a blank bill introduced and set aside for use in introducing legislation after the deadline for bill introduction has passed – to introduce Senate Education Committee (SEC) Substitute for SB 668 in the Senate Judiciary Committee (SJC) on Tuesday, March 12th.

Two days before this legislative session ends, SB 668 is scheduled to be heard today, Thursday, March 14th, in the House Judiciary Committee (HJC)!

After the bill was introduced in SJC, and still within that Tuesday meeting, the bill was amended, somewhat considerably.  It passed out of Judiciary by a vote of 11-0, and was debated and voted upon in the Senate, until after midnight that night, but not before the bill was amended seven more times on the Senate floor!  Following those amendments, and hours of debate – including the sharing of information that the legislature needed to pass a bill by the end of next legislative session, in 2020, per the constitutional amendment…but also statements that the legislature needed to pass a bill this session, per overwhelming public support – the Senate passed SB 668, by a vote of 40-0.

Whew – got all that?!  (It’s been a whirlwind to follow and to be a part of!)

We eagerly await the hearing and (hopefully) the continued movement of SB 668, out of the HJC and onto the House floor! (You can watch those proceedings by going here, and clicking on the “In Progress” link associated with the HJC, when it appears.)

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

State Ethics Commission Act Bills: Where Are They?

Eleven days left in the 2019 legislative session and counting!

To date, two State Ethics Commission Act bills have been introduced: HB 4 and SB 619.  Here’s what’s going on with both of them:

  • HB 4 (Rep. Daymon Ely): After a substitute bill was introduced in the House Judiciary Committee (HJC), the bill passed that committee, 8-0, and moved on to the House Appropriations and Finance Committee (HAFC).  HB 4 was amended in the HAFC, passed that committee 14-0, and moved on to the House floor, where it passed by a vote of 56 to 11.  The bill now moves over to the Senate, where it has been referred to two Senate committees, Rules and Judiciary.
  • SB 619 (Sen. Linda Lopez): The bill has received three committee referrals in the Senate: Rules, Judiciary and Finance.  SB 619 has yet to be heard in the Senate Rules Committee (SRC), despite having been scheduled for at least discussion, twice. The bill is supposedly being heard tomorrow, Wednesday, March 6th, in the SRC, although no agenda for that meeting has been posted yet, as I write.  After SB 619 moves through the committees in the Senate, there will be a Senate floor vote and then it will move to the House, where it will receive committee referrals.

What does the status of these bills mean for State Ethics Commission legislation?  That we have a long way to go before we have enabling legislation that will be sent to the governor!

The Ethics Commission Working Group that New Mexico Ethics Watch (NMEW) participated in this summer and fall was co-chaired by Sen. Linda Lopez and former Rep. Jim Dines.  That group, with the assistance of NMEW and others, put together a draft bill.  Although there were areas within the bill, such as transparency, that could not be agreed upon, much of what appears in that draft bill was discussed and a consensus among working group participants was gained.  Surprisingly, SB 619 does not approximate the working group’s draft bill, while HB 4 does.  Rep. Ely, the sponsor of HB 4, attended several working group meetings, where he actively participated.  The HB 4 substitute, as amended, meets many of the nine elements NMEW set out in its Essential Elements for an Independent Ethics Commission document, published on January 24, 2019.  SB 619 does not.

NMEW has thought from the outset that SB 619 was a placeholder for something other.  (In part because it was a rehash of Sen. Lopez’s 2017 SB 218, and in part because it did not approximate the working group’s draft bill, upon which much discussion was had and about much of which consensus was reached.) As mentioned above, the bill has yet to be even discussed, let alone voted upon by the SRC.  We’ll see if tomorrow’s SRC hearing changes that! We anticipate, though, that a substitute for SB 619 will be introduced, potentially incorporating some or many provisions of the HB 4 substitute.

In the meantime, we have the substitute for HB 4, as amended, crossing from the House to the Senate. Is it a perfect bill? No.  Does it meet or contain many of the elements NMEW identified in its Essential Elements document? Yes.

Tomorrow we’ll take an in-depth look at how the HB 4 substitute stacks up against our Essential Elements document.

SB 619: State Ethics Commission Act

And then there were two!

Yesterday, SB 619, the second piece of ethics commission enabling legislation was introduced in the Senate.  The bill differs markedly from the previously-introduced HB 4.  We’ll be doing a comparison of the bills as we’re able.  What we’re giving you now, below, shows how the provisions of SB 619 contain or agree with the necessary elements we identified in our Essential Elements for an Independent Ethics Commission document. While the text of the bill is linked above, you can find the legislature’s page for the bill here.

LOCATION: Senate Rules Committee

SPONSOR: Senator Linda Lopez

HEARING DATE: As yet unscheduled

Here’s how SB 619 stacks up with our Essential Elements doc:

I. 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.

Section 3(A): Sets out the composition of the “states ethics commission” as  created in Article 5, Section 17 of the constitution of NM.

NMEW Discussion: SB 619 does not describe the commission as an agency of any kind. Section 2(A) defines “adjunct agency” to mean “an agency, board, commission, office or other instrumentality, not assigned to an elected constitutional officer, that is excluded from any direct or administrative attachment to a department and that retains policymaking and administrative autonomy separate from any other agency or state government”. The commission is never described as an adjunct agency within SB 619, nor as an independent agency.

II. 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 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.” 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.

Section 5(A): Commission required to receive and investigate complaints alleging ethics violations against public officials, public employees, government contractors and lobbyists.

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.

Section 5(A): provides that the commission shall receive and investigate complaints alleging ethics violations against public officials, public employees, government contractors and lobbyists.

Section 13: criminal violations required to be immediately referred to the AG or an appropriate district attorney.

Section 14: commission shall not investigate allegations of misconduct involving campaign          advertisements.

NMEW Discussion: Ethics violations arise from violations of existing laws, such as the Campaign Reporting Act (CRA), the Governmental Conduct Act (GCA), the Lobbyist Regulation Act (LRA), the Financial Disclosure Act (FDA), the Voter Action Act (VAA), the Gift Act, and the Procurement Code. Other agencies, such as the Secretary of State (SOS), currently have jurisdiction to enforce the provisions for civil violations of those Acts and Codes, and for the imposition of civil fines. There is no mention of any of these Acts or Codes in SB 619, and the bill does not address who will have primary jurisdiction for ethical violations arising under these Acts and Codes.

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.

Section 8(C): A request for an advisory opinion shall be confidential and not subject to the provisions of IPRA.

Section 11(D): The commission’s written report finding that conduct constituted an ethics violation shall be publicly disclosed by the commission.

Section 12: All complaints, reports, files, records and communications collected or generated by  the commission or its director that pertain to alleged ethics violations are confidential and not subject to IPRA.

Section 16: Disclosure of confidential info in violation of the SECA is a misdemeanor w/ a fine of not more than $10,000 or imprisonment for not more than one year, or both. Court may also impose a civil penalty of $25,000 or less for each violation of Section 12.

IV. OPEN MEETINGS

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

Section 11(F): provides that commission hearings held pursuant to Section 11 are closed to the public.

Section 17: amending Section 10-15-1 NMSA 1978 to provide that the provisions requiring all meetings of public bodies and commissions, and all minutes kept by commissions, to be public, shall not apply to meetings of the commission relating to complaints or investigations of alleged ethics violations.

V. 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.

Section 19: Appropriates $200k for FY20 to carry out the provisions of the SECA.

VI. 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.

Section 11(D): commission must find by clear and convincing evidence that the respondent’s conduct constituted an ethics violation.

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

NMEW Discussion: There is no guidance in SB 619 as to whether the Rules of Evidence apply in commission hearings. There is a requirement that a hearing be conducted by a retired judge, potentially indicating that the Rules of Evidence apply in a hearing, but the bill does not specifically address that.

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.

Section 9(G): Director required to ask the commission to petition a district court to issue a subpoena under seal. The commission is permitted to petition the district court. Any challenge to a subpoena is required to be heard by the district court in a confidential proceeding. If a person refuses to comply with a subpoena, the district court is required to compel compliance.

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.

Section 11(D): The written report of the commission may include a public reprimand or censure or recommendations for disciplinary action against the respondent.

NMEW Discussion: There is no indication in SB 619 that the commission will impose fines under any underlying Act describing and providing penalties for an ethical violation. Public reprimand or censure would seem to be in the realm of superintending authorities and a violation of the separation of powers.

IX. 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.

Section 3(H): Provides that four commissioners consisting of two members of the largest political party in the state and two members of the second largest political party in the state constitute a quorum for the transaction of business.

 

[1] Merriam-Webster Dictionary

HB 4: State Ethics Commission Act

The first ethics commission enabling legislation, HB 4, was introduced on February 11th.  We’re hearing talk of a substitute bill being introduced in the House Judiciary Committee.  We’ve analyzed the bill, in depth…but, rather than spend the time to format that soon-to-be moot analysis, we’ll give you a quick thought about how the bill stacks up against NMEW’s recently-published Essential Elements for an Independent Ethics Commission.  At the end of this post, we’ll tack on our detailed analysis. While the text of the bill is linked above, you can find the legislature’s page for the bill here.

LOCATION: House Judiciary Committee

SPONSORS: Rep. Daymon Ely; Sen, Jeff Steinborn

HEARING DATE: As yet unscheduled.

Here’s how HB 4 stacks up with our Essential Elements doc:

I. 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.

Section 3(A): commission created as an independent agency

II. 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.

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

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.

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 the complaint, to be formalized through an MOU.

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.

NMEW Discussion: NMEW finds the disclosure/transparency provisions restrictive, as well as murky, unclear and convoluted.  Disclosure is addressed in Sections 8,10, 12 and 13 in HB 4.

IV. OPEN MEETINGS

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

Section 12(A)(2): hearing panel may set a public hearing

Section 12(B): [reference to a public meeting of a hearing panel]

V. 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.

Section 37: Appropriation of $1 million for FY20

VI. 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.

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

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

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

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.

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.

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.

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.

Section 33(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 33(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.

Section 22(D)(3): (amending Section 2-15-9 NMSA 1978, governing Interim Legislative Ethics Committee (ILEC) procedures and confidentiality) requires the SEC to refer to the ILEC any matter it finds to be solely under the jurisdiction of the legislature.

IX. 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.

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

[1] Merriam-Webster Dictionary

BILL SUMMARY

Synopsis: HB 4 enacts the “State Ethics Commission Act” (SECA), creating the “State Ethics Commission” as an independent state agency, with the power to: (1) enforce applicable civil compliance provisions of specified laws; (2) receive and investigate verified complaints that allege a violation of a law under its jurisdiction; (3) hold hearings when necessary to determine whether there has been a violation of a law under its jurisdiction; (4) promulgate rules necessary to implement and administer the provisions of the SECA and enforce the applicable civil compliance provisions of the specified laws; (6) establish one or more hearing panels, as needed; (6) compile, index, maintain and provide access to advisory opinions and reports required to be made public pursuant to the provisions of the SECA; (7) prepare an annual report of its activities and submit the report to the legislature and governor by December of each year; and (8) hire an executive director. (Section 6)

HB 4, Section 8(A), lists the Acts over which the commission will have jurisdiction to enforce the applicable civil compliance provisions for state officers and employees, candidates and other participants of elections, lobbyists and government contractors and seekers of contracts, as the:

  • Campaign Reporting Act
  • Financial Disclosure Act
  • Gift Act
  • Lobbyist Regulation Act
  • Voter Action Act
  • Governmental Conduct Act
  • Procurement Code
  • State Ethics Commission Act

HB 4 requires all complaints filed with a state agency or office regarding these statutes to be forwarded to the commission. The bill permits the commission to choose to act on some or all aspects of a complaint and forward other aspects of a complaint to another state agency or office with jurisdiction over the matter. HB 4 requires the complainant to be notified in writing when the complainant’s request has been forwarded to another agency or office.

HB 4 permits the commission to share jurisdiction with another sate agency or office to act on a complaint or any aspect of a complaint, such shared jurisdiction to be formalized through a memorandum of understanding entered into by all participating agencies or offices involved with the complaint and the commission’s director.

Under HB 4, the commission is permitted to file a court action to enforce the civil compliance provisions of the Acts listed in Section 8(A), in the district court in the county where the respondent resides.

HB 4, Section 10(A) permits a complainant to file a verified complaint with the commission that alleges a violation of a provision of a law under the jurisdiction of the commission committed by a:

  • candidate or person subject to the Campaign Reporting Act;
  • state officer;
  • state employee;
  • government contractor;
  • lobbyist; or
  • person appointed to a board or commission.

HB 4, Section 2(F) defines “government contractor” to mean a person who has, or submits a bid for, a contract subject to the Governmental Conduct Act with a state agency. The bill also defines “state agency” to mean an agency, instrumentality or institution of the executive or legislative branch of the state, “state officer” to mean a person elected to an office of the executive or legislative branch of the state or a person appointed to a state agency, and “verified complaint” to mean a complaint signed by the complainant and sworn before a notary public that the information in the complaint, and any attachments provided with the complaint, are true and accurate.

HB 4 requires the complaint to set forth in detail the specific allegations against the respondent and the facts that support the allegations, and requires the complainant to submit any available evidence that supports the complaint, including the names of witnesses. Under the bill, unless a delay in notification is deemed necessary to protect the integrity of a criminal investigation, the respondent is required to be notified within 7 days of the filing of the complaint and offered an opportunity to file a preliminary response on the merits of the complaint.

HB 4, Section 10(E) requires the director to investigate the complaint if the hearing panel determines there is sufficient cause to proceed with an investigation, and to promptly notify the respondent and complainant that a verified complaint has been filed and is being investigated, and of the specific allegations in the complaint and the specific violations charged in the complaint. Under the bill, the hearing panel may delay notifying a respondent if it is deemed necessary to protect the integrity of a criminal investigation. HB 4 requires a decision whether to delay notifying a respondent to be taken by a majority vote of the hearing panel and to be documented in writing with reasonable specificity.

HB 4 permits the director, as part of an investigation, to administer oaths, interview witnesses and examine books, records, documents and other evidence reasonably related to the complaint. The bill requires all testimony in an investigation to be under oath and provides the respondent with the right to be represented by counsel. (Section 10(J) provides that a state officer or state employee who is a respondent that is subject to a complaint alleging a violation made in the performance of the respondent’s duties shall be entitled to representation by the Risk Management Division of the General Services Division.)

HB 4, Section 10(I) permits the commission to 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, signed by the commission chair and commanding the person to whom it is directed to attend and give testimony or to produce and permit the inspection of books, records, documents or other evidence. The subpoena is required to state the general nature of the investigation and describe with reasonable specificity what is to be produced, the time and place where information is to be produced, and the consequences of failure to obey the subpoena. Under HB 4, if a person neglects or refused to comply with a subpoena, the commission may apply to a district court for an order enforcing the subpoena and compelling compliance.

HB 4, Section 10(D) requires the director to advise and make recommendations to a hearing panel regarding whether the conduct alleged in a complaint is within the jurisdiction of the commission and warrants further investigation. (Section 6(A)(5) requires a hearing panel to consist of at least 3 members, at least 2 of whom are commissioners.) HB 4, Section 12(A) requires the hearing panel, upon receipt of the director’s recommendation, to dismiss a complaint and notify the complainant and the respondent of the dismissal, or set a public hearing, as soon as practicable. (Section 10(E) requires a hearing panel to dismiss complaints that are frivolous or unfounded, with the director being required to promptly notify the complainant and respondent in writing of the decision and the reasons therefore.) Section 12(B) permits the hearing panel, at a public meeting of the panel, and at any time before or during a Subsection A hearing, to approve a disposition of a complaint agreed to by the director and the respondent. HB 4 prohibits the commission from making public complaints that have been dismissed and the reason for the dismissal, unless requested by the respondent or complainant.

HB 4, Section 12(C) requires the hearing provided for in Section 12(A) to be pursuant to the rules of evidence that govern proceedings in the state’s courts and procedures established by the commission. The bill permits the respondent to be represented by counsel and permits the parties to present evidence and testimony, compel the presence of witnesses and examine and cross-examine witnesses.

HB 4, Section 12(D) requires the hearing panel to issue a written decision that is required to include its reasons given. The bill provides that if the 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. Subsection F requires the commission to publicly disclose a decision issued pursuant to Subsection D. Under the bill, the commission is required to provide the decision to the respondent and specified entities constituting the respondent’s superintending authority. Subsection E permits the complainant or respondent to appeal the decision of the hearing panel within 30 days of the decision to the full commission, which is required to hear the matter within 60 days of notice of the appeal. The commission is required to uphold the decision if there is substantial evidence to support the decision in the record. HB 4 requires the commission to promulgate rules establishing procedures for hearings and appeals.

HB 4, Section 13, governing confidentiality of records, provides the following:

  • A decision that a respondent’s conduct constituted a violation shall be a public record.
  • Pleadings, motions, briefs and other documents or information related to the decision shall be a public record, except for information that is confidential or protected pursuant to attorney-client privilege, provider-patient privilege or state or federal law.
  • If a complaint is determined to be frivolous, unfounded or outside the jurisdiction of the commission, the complainant or the respondent may release the complaint.
  • Except as otherwise provided in the Acts listed in Section 8 of the SECA, all complaints, reports, files, records and communications collected or generated by the commission, hearing panel or director that pertain to alleged violations shall not be disclosed by the commission or any commissioner, agent or employee of the commission, unless: (1) disclosure is necessary to pursue an investigation by the director or the commission; (2) disclosure is required pursuant to the provisions of the SECA; or 3) they are offered into evidence by the commission, respondent or another party at a judicial, legislative or administrative proceeding, including a hearing before a hearing panel of the commission.
  • Information and reports containing information made confidential by law shall not be disclosed by the commission or its director, staff or contractors.

HB 4, Section 15 provides a three-year statute of limitations for filing a complaint, from the date on which the alleged conduct occurred. The bill also prohibits the commission from adjudicating a complaint filed against a candidate, except pursuant to the CRA or the VAA, less than 45 days before a primary or general elections. HB 4 permits the commission, during that time period to dismiss complaints that are frivolous or unfounded or refer complaints that are outside the jurisdiction of the commission. Subsection C required the complainant to be notified of the Section 15 provisions, as well as that the complainant may refer allegations of criminal conduct to the AG or the appropriate DA. Subsection D provides that when the commission action on a complaint is suspended due to the blackout period, the respondent is required to be promptly notified that a complaint has been filed and of the specific allegations in the complaint and the specific violations charged in the complaint.

HB 4, Section 16 prohibits a person from taking or threatening to take any retaliatory, disciplinary or other adverse action against another person who in good faith: (1) files a verified complaint with the commission that alleges a violation; or (2) provides testimony, records, documents or other information to the commission during an investigation or at a hearing. Additionally, the bill prohibits a respondent from communicating with a hearing officer, hearing panel member, commissioner or other person involved in a determination of the complaint. HB 4 provides that nothing in the SEC precludes civil or criminal actions for libel or slander or other civil or criminal actions against a person who files a false claim.

HB 4, Section 3 governs the creation of the commission, appointments to the commission, commission membership, vacancy and removal, and provides that four commissioners out of the 7 member commission constitutes a quorum for the transaction of business requiring decisions of the full commission. The bill requires the commission to meet at least on a quarterly basis.

HB 4, Section 4 governs the qualifications of commissioners, as well as the limitations placed upon a commissioner. Section 5 governs recusal and disqualification of a commissioner.

HB 4, Section 7 governs the qualifications, duties and powers, of the executive director, requiring the director to be a former state district court judge or an attorney licensed to practice law in NM who is knowledgeable about the laws listed in Section 8 of the SECA, appointed without regard to political party affiliation, and appointed, retained and reappointed solely on the grounds of fitness to perform the duties of the position. Subsection F prohibits the director from seeking or holding an office in a political party, whether qualified in accordance with the Election Code, or not. The bill requires a director who violates Subsection F to resign from the commission.

HB 4, Section 9 permits the commission to issue advisory opinions on issues related to the laws listed in Section 8 of the SECA, whether requested by an individual or initiated by the commission. The bill requires an advisory opinion published by the commission, unless amended or revoked, to be binding on the commission in subsequent proceedings concerning a person who acted in good faith and in reasonable reliance on the advisory opinion. HB 4 requires the commission to promulgate rules for advisory opinion requests, commission-initiated advisory opinions and the publication of advisory opinions.

HB 4, Section 11 governs the status of an investigation and reports by the director to the commission on the status, and sets out the timetable to provide that if a hearing has not been scheduled concerning the disposition of a verified complaint within 90 days after the complaint is received, the director shall report to the commission, at which time the commission may dismiss the complaint or instruct the director to continue the investigation of the complaint. Subsection B provides that if the commission has not notified a respondent pursuant to Section 10(G), because delay in notification is deemed necessary to protect the integrity of a criminal investigation, the commission shall vote on whether to notify. The bill provides that a decision whether to continue to delay notifying the defendant shall be taken by a majority vote of a quorum of the commission and shall be documented in writing with reasonable specificity.

HB 4 amends and enacts the following statutes contained in the Acts and Codes listed in Section 8:

I. Campaign Reporting Act, Section 1-19-25 NMSA 1978 et seq.

Section 1-19-32: makes technical changes and provides that an advisory opinion issued by the commission, rather than the SOS, and an arbitration decision issued by an arbitration panel and filed with the SOS or commission are public records.

Section 18 (New): on or after January 1, 2020, provides the commission with jurisdiction to investigate a complaint alleging a civil violation of a provision of the CRA, requires the SOS to forward complaints it receives alleging violations of the CRA to the commission, and provides that references to the SOS in Sections 1-19-34.4, 1-19-34.6, 1-19-34.7 and 1-19-35 NMSA 1978 shall be deemed references to the commission when necessary to carryout the provisions of Section 18.

II. Voter Action Act, Section 1-19A-1 NMSA 1978 et seq.

Section 19 (New): on or after January 1, 2020, provides the commission with jurisdiction to investigate a complaint alleging a civil violation of a provision of the VAA, requires the SOS to forward complaints it receives alleging violations of the VAA to the commission, and provides that references to the SOS in Sections 1-19A-16 and 1-19A-17 NMSA 1978 shall be deemed references to the commission when necessary to carryout the provisions of Section 19.

III. Lobbyist Regulation Act, Section 2-11-1 NMSA 1978 et seq.

Section 20 (New): on or after January 1, 2020, provides the commission with jurisdiction to investigate a complaint alleging a civil violation of a provision of the LRA, requires the SOS to forward complaints it receives alleging violations of the LRA to the commission, and provides that references to the SOS in Sections 1-19A-16 and 1-19A-17 NMSA 1978 shall be deemed references to the commission when necessary to carryout the provisions of Section209.

IV. Governmental Conduct Act, Section 10-16-1 NMSA 1978

Section 10-16-11: requires all codes of conduct to be filed with the commission, and requires all legislators to attend a minimum of 2 hours of ethics continued education and training developed and provided, in consultation with the director of the LCS, by the commission or a national state legislative organization of which the state is a member, approved by the director, biennially.

Section 10-16-13.1: provides that the commission shall advise and seek to educate all persons required to perform duties under the GCA of those duties, and provides that the commission, rather than the SOS, shall seek first to ensure voluntary compliance with the provisions of the GCA.

Section 10-16-14: permits the commission, rather than the SOS, to investigate suspected violations of the GCA, and provides that if a suspected violation involves the commission, the AG may enforce the GCA. Requires that if the commission determines that there is sufficient cause to file a complaint against a public officer removable only by impeachment, the commission shall refer the matter to the House of Representatives. Also requires the commission to make public the nature of the charges in a complaint where the merits of the charges have never been determined. Provides that complaints against state employees may also be filed with the commission, which shall determine whether to forward a complaint to the appropriate state agency or investigate the complaint on its own. Permits the GCA, subject to the provisions of Section 10-16-14, to be enforced by the commission. Includes “state employees” to the list of persons against whom a DA may also enforce the GCA.

Section 10-16-18: permits the commission to refer a matter, where the commission believes that a person committed, or is about to commit, a violation of the GCA, to the AG or a DA for enfocement, and permits the commission to institute a civil action in district court or refer a matter to the AG or a DA to institute a civil action in district court if a violation has occurred or to prevent a violation of any provision of the GCA.

V. Financial Disclosure Act, Section 10-16A-1 NMSA 1978 et seq.

Section 10-16A-1: technical amendment

Section 10-16A-5: provides that referrals to the commission for civil enforcement of the FDA shall be pursued only after efforts to secure voluntary compliance with that Act have failed.

Section 10-16A-6: provides that the commission and the SOS may conduct exams of statements and initiate investigations to determine whether the FDA has been violated. Permits a person believing the FDA has been violated to file a written complaint with the commission. Requires the commission to adopt procedures for processing complaints and notifications of violations. Provides that when binding arbitration is requested and undertaken, the arbitrator may take any action the commission is authorized to take, and that, unless otherwise provided for in Section 10-16A-6 or by rule or regulation adopted by the commission, the procedures for the arbitration shall be governed by the Uniform Arbitration Act. Permits the SOS to refer a matter to the commission, in addition to the AG or DA, for a civil injunctive or other appropriate order or enforcement.

Section 10-16A-8: permits the commission to refer matters involving violations of the FDA to the AG or a DA for enforcement, and permits the commission to institute a civil action in district court or refer a matter to the AG or a DA to institute a civil action in district court if a violation has occurred or to prevent a violation of any provision of the FDA.

VI. Gift Act, Section 10-16B-1 NMSA 1978 et seq.

Section 10-16B-1: technical amendment

Section 32 (New): permits the commission to initiate investigations to determine whether the provisions of the Gift Act have been violated, and permits a person who believes that a violation of the Gift Act has occurred to file a complaint with the commission.

VII. Procurement Code, Sections 13-1-28 through 13-1-199 NMSA 1978

Section 13-1-177: permits the commission to also suspend a person from consideration for award of contracts under specified circumstances, and to also debar a person for cause from consideration for award of contracts, other than contracts for professional services. Provides that the authority to debar shall be exercised by the commission in accordance with rules that shall provide for reasonable notice and a fair hearing prior to debarment.

Section 13-1-178: includes, within the list of causes for debarment or suspension occurring within 3 years of the date final action on a procurement is taken, violation by a bidder, offeror or contractor of contract provisions, as set forth in this paragraph, of a character that is reasonably regarded by the commission or central purchasing office of a local public body to be so serious as to justify suspension or debarment action, and any other cause that the commission or central purchasing office determines to be so serious and compelling as to affect responsibility as a contractor.

Section 13-1-196: empowers the commission to bring a civil action for the enforcement of any provision of the Procurement Code, provided that the commission may refer a matter for enforcement to the AG or the DA in the jurisdiction in which the violation occurred.

HB 4 amends the following statutes with regard to the Interim Legislative Ethics Committee:

  • Section 2-15-8 NMSA 1978: limits the issuance of advisory opinions on the interpretation and enforcement of ethical principles as applied to the legislature to those that are not under the jurisdiction of the commission, and authorized the committee to investigate referrals made by the commission.
  • Section 2-15-9 NMSA 1978: requires disqualification upon a request of a member of the committee to be approved by the appropriate appointing authority, and specifies the steps to be taken to initiate any action during the interim on alleged misconduct, as follows:
  • a legislator or member of the public may file with the director of the Legislative Council Service (LCS) a written, sworn complaint;
  • a member of the public shall file with the commission a written, sworn complaint; and
  • the commission is required to refer to the committee any matter it finds to be solely under the jurisdiction of the legislature.

Additionally, the amendment prohibits the complainant and respondent from having any ex parte communications with committee members. The amendment also permits the committee to enter into an agreement for investigation of a complaint with the commission in accordance with policies adopted by the NM LCS.

HB 4, Section 36 enacts a temporary provision requiring the commission, by October 1, 2022, to submit a report to the legislature and the governor regarding whether to extend commission jurisdiction, and specified what the report is required to address if the extension of jurisdiction is recommended.

HB 4 appropriates $1 million from the General Fund to the commission for expenditure in FY20 to carry out the provisions of the SECA, with any unexpended or unencumbered balance remaining at the end of FY20 to revert to the General Fund.

The Act provides the following effective dates:

  • July 1, 2019: Sections 1 through 5, 7 and 37 of the Act.
  • January 1, 2020: Sections 6 and 8 through 36 of the Act.

SIGNIFICANT ISSUES

1) New Mexico voters ratified the constitutional amendment proposed in 2017’s HJR 8 in November of 2018. Article V, Section 17 of the NM Constitution establishes the “state ethics commission” (commission) and provides that 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 of seekers of government contracts and have such other jurisdiction as provided by law.

HB 4 enacts the State Ethics Commission Act, providing enabling legislation for the commission.

2) Section 13(A) provides that a decision that a respondent’s conduct constituted a violation shall be a public record, and that pleadings, motions, briefs and other documents or information related to the decision shall be a public record, except for information that is confidential or protected pursuant to attorney-client privilege, provider-patient privilege or state or federal law. Subsection B provides that if a complaint is determined to be frivolous, unfounded or outside the jurisdiction of the commission, the complainant or the respondent may release the complaint. Subsection C provides that, except as otherwise provided in the Acts listed in Section 8 of the SECA, all complaints, reports, files, records and communications collected or generated by the commission, hearing panel or director that pertain to alleged violations shall not be disclosed by the commission or any commissioner, agent or employee of the commission, unless: (1) disclosure is necessary to pursue an investigation by the director or the commission; (2) disclosure is required pursuant to the provisions of the SECA; or 3) they are offered into evidence by the commission, respondent or another party at a judicial, legislative or administrative proceeding, including a hearing before a hearing panel of the commission.

It appears, therefore, that under the SECA, a complaint that is not frivolous but that does not result in a decision that the respondent’s conduct constituted a violation may never be disclosed to the public. (And a frivolous or unfounded complaint, or a complaint outside the jurisdiction of the commission, will only become public upon the request of the complainant or respondent.) HB 4 would apparently permit disclosure of all complaints, reports, files, records and communications collected or generated by the commission, hearing panel or director that pertain to alleged violations, if the Act under which the violation occurred provides for or permits disclosure. The Acts listed as being within the jurisdiction of the commission address disclosure of complaints, reports, files, records and communications, as follows:

  • Campaign Reporting Act (CRA): Section 1-19-32, as amended within the SECA, lists the documents that are public records open to public inspection. Additionally, Section 1-19-34.4 permits a person who believes that a provision of the CRA has been violated to file a written complaint with the SOS any time prior to 90 days after an election, except that no complaints from the public may be filed within 8 days prior to an election. There is no language prohibiting disclosure of these complaints, although the complaint is not listed as a public record in Section 1-19-32. Section 14-2-1 NMSA 1978, within the Inspection of Public Records Act (IPRA), provides that every person has a right to inspect public records of this state, except for specified materials, including “as otherwise provided by law.” Section 14-2-6 defines “public records” to mean

…all documents, papers, letters, books, maps, tapes, photographs, recordings and                                     other materials, regardless of             physical form or characteristics, that are used,                                     created, received, maintained or held by or on behalf of any public body and                                     relate to public business, whether or not the records             are required by law to be                                     created or maintained.

 

There is no specific exception to IPRA in the CRA for complaints and other documents.             Section 1-19-32, however, does list documents that are public records open to public             inspection. It is unclear whether complaints filed with the commission for a violation of             the CRA are public records, open to public inspection.

  • Financial Disclosure Act (FDA): Section 10-16A-6, as amended within the SECA, permits a person who believes that the FDA has been violated may file a written complaint with the commission. There is no definition or listing within the FDA of what are public records. There is no language within the FDA prohibiting disclosure of complaints. There is no specific exception to IPRA in the FDA for complaints and other documents. It is unclear whether complaints filed with the commission for a violation of the FDA are public records, open to public inspection.
  • Governmental Conduct Act (GCA): Section 10-16-14, as amended within the SECA, permits complaints to be filed against executive branch employees, legislative branch employees and state employees. . There is no definition or listing within the GCA of what are public records. There is no language within the GCA prohibiting disclosure of complaints. There is no specific exception to IPRA in the GCA for complaints and other documents. It is unclear whether complaints filed with the commission for a violation of the GCA are public records, open to public inspection.
  • Gift Act: Section 32, enacting a new section of the Gift Act, permits a person who believes that a violation of the Gift Act has occurred to file a complaint with the commission. There is no definition or listing within the Gift Act of what are public records. There is no language within the Gift Act prohibiting disclosure of complaints. There is no specific exception to IPRA in the Gift Act for complaints and other documents. It is unclear whether complaints filed with the commission for a violation of the Gift Act are public records, open to public inspection.
  • Lobbyist Regulation Act (LRA): Section 2-11-8.2 permits any person who believes that a provision of the Act has been violated may file a written complaint. . There is no definition or listing within the LRA of what are public records. There is no language within the LRA prohibiting disclosure of complaints. There is no specific exception to IPRA in the LRA for complaints and other documents. It is unclear whether complaints filed with the commission for a violation of the LRA are public records, open to public inspection.
  • Voter Action Act (VAA): Section 19, enacting a new section of the VAA provides that the commission shall have jurisdiction to investigate and adjudicate a complaint alleging a civil violation of a provision of the VAA. There is no provision within the VAA, however, providing for the filing of a written compliant for a violation of the VAA. There is no definition or listing within the VAA of what are public records. There is no language within the VAA providing for the filing of a complaint or prohibiting disclosure of complaints. There is no specific exception to IPRA in the VAA for complaints and other documents. It is unclear whether complaints filed with the commission for a violation of the VAA are public records, open to public inspection.
  • Procurement Code: The Code is silent regarding the disclosure of materials related to civil actions for suspension or debarment pursuant to the Code. It is unclear whether materials related to actions for suspension or debarment or for a civil action for the enforcement of any provision of the Procurement Code are public records, open to public inspection.

3) HB 4 acknowledges that complaints may be “frivolous of unfounded”, yet provides no penalty for the filing of a frivolous, unfounded or fraudulent complaint. (Section 16(A) provides that nothing in the SECA precludes civil or criminal actions for libel or slander or other civil or criminal actions against a person who files a false claim.) Additionally, HB 4, Section 16 governs “prohibited actions” yet provides no penalties for violation of the SECA.

4) HB 4, Section 6(A)(5) requires the commission to establish one or more hearing panels, as needed, consisting of at least three members, at least two of whom are commissioners. The SECA does not provide guidance as to who shall be the third or additional member of a hearing panel, as the Act merely requires that at least two members need to be commissioners. In addition, there is no guidance in the bill as to how the task of being part of a hearing panel shall be divvied up by the commissioners. It is also unclear whether a new, separate hearing panel, comprised of persons not members of other panels, is to be convened each time the director is required to advise and make recommendations to a hearing panel pursuant to Section 10(D). Additionally, it is unclear whether the same hearing panel that determined there was sufficient cause to proceed with an investigation under Section 10 (F) is to preside at a public hearing set pursuant to Section 12(B).

5) Section 10(D) requires the director to advise and make recommendations to a hearing panel regarding whether the conduct alleged in a complaint is within the jurisdiction of the commission and warrants further investigation. There is no timetable in the bill for how soon following the receipt of a complaint the director is to advise and make recommendations to a hearing panel. Additionally, while Section 11(A) requires the director to report to the commission every 90 days thereafter on the status of the investigation, there is no time limit governing completion of the investigation process or hearing process under the SECA.

6) Section 12(C) requires the Section 12(A) public hearing to be pursuant to the rules of evidence that govern proceedings in the state’s courts and procedures established by the commission. Section 10(H) provides that the respondent has a right to be represented by legal counsel, enabling the respondent to follow the rules of evidence. It is unclear whether a complainant will be a participant at a public hearing, or, if so, whether the complainant has a right to be represented by counsel, who would also be familiar with the rules of evidence. It is unclear who would rule on evidentiary questions, whether a member of a hearing panel, the director, or otherwise. Section 16(B) prohibits a respondent from communicating ex parte with a hearing officer and others. This is the only mention of a hearing officer within the newly enacted sections of the SECA.

7) HB 4, Section 12(E) permits the complainant or respondent to appeal a decision of the hearing panel within 30 days of a decision to the full commission. The SECA provides that the commission shall uphold a decision if there is “substantial evidence” to support the decision in the record. There is no definition of “substantial evidence” within HB 4. Section 12(D) requires a finding of a preponderance of the evidence by a hearing panel before recommendations for disciplinary action and the imposition of any fines can be made.

8) Although HB 4, Section 12(E) provides for appeal of a hearing panel decision to the full commission, there is no procedure detailed for appeal of the full commission. Section 12-8-16 NMSA 1978, within the Administrative Procedures Act, permits any party who has exhausted all administrative remedies available within the agency and who is adversely affected by a final order or decision in an adjudicatory proceeding may appeal pursuant to the provisions of Section 39-3-1.1 NMSA 1978. Section 39-3-1.1(A) NMSA 1978 provides that the provisions of this section shall apply only to judicial review of agency final decisions that are placed under the authority of this section by specific statutory reference.

9) HB 4, Section 28, amending Section 10-16A-5 within the FDA has the SOS retaining education and voluntary compliance. In contrast, the Section 24 amendment to Section 10-16-13.1 moves both the education and voluntary compliance functions to the commission, instead of the SOS.

10) HB 4, Section 21, amending Section 2-15-8 restricts the authority of the Interim Legislative Ethics Committee to issue advisory opinions to the interpretation and enforcement of ethical principles as applied to the legislature and that are not under the jurisdiction of the commission. It is unclear whether this provision would produce duplication of efforts between the committee and the commission, causing confusion as to which advisory opinion is binding.

11) HB 4, Section 22, amending Section 2-15-9 NMSA 1978, governing the procedures of the interim legislative ethics committee and confidentiality, provides in Subsection D(1) that to initiate any action during the interim on alleged misconduct, a legislator or member of the public may file a written, sworn complaint with the director of the LCS. Subsection D(2) requires a member of the public to file a written, sworn complaint with the commission. It is unclear whether these provisions are in conflict, or whether, if a member of the public files with the director of the LCS, that member of the public must also file with the commission.

12) HB 4, Section 29, amending Section 10-16A-6 within the FDA, provides joint authority to the commission and the SOS to conduct examinations of statements and initiate investigations to determine whether the FDA has been violated. Section 33 amending Section 13-1-177 provides joint authority to the commission and “a central purchasing office of a local public body”. Throughout the SECA, where joint authority and/or joint jurisdiction is granted or provided, the question arises as to whether a citizen complainant will be confused as to where to file a complaint, how the complaint will be processed, what the procedure will be for adjudicating the complaint and what agency will be responsible for moving the complaint along.

13) HB 4, Section 38 provides two separate effective dates. Sections 1 through 5, 7 and 37, govern activities that take place prior to the commission exercising its jurisdiction under Section 18, on or after January 1, 2020, and have an effective date of July 1, 2019. All other sections of HB 4 have an effective date of January 1, 2020.

14) See Essential Resources for the Establishment of an Independent Ethics Commission, http://nmethicswatch.org/wp-content/uploads/2019/02/NMEW-Ethics-Resource-Brief.pdf ; Essential Elements for an Independent Ethics Commission, http://nmethicswatch.org/wp-content/uploads/2019/01/NMEW-ESSENTIAL-ELEMENTS-FOR-AN-INDEPENDENT-ETHICS-COMMISSION.pdf ; and Principles of an Effective Ethics Commission, http://nmethicswatch.org/wp-content/uploads/2019/02/NMEW-Principles-of-An-Effective-Ethics-Comission.pdf .

TECHNICAL ISSUES

1) HB 4, Section 7(B) refers to the “director’s term of service”. There is no term of service detailed in the bill.

2) HB 4, Section 10(D requires the director to advise and make recommendations to a hearing panel. Section 12(A) details the actions a hearing panel is required to take “upon receipt of the director’s recommendation”, without reference to Section 10(D).

3) HB 4, Section 12(D) requires that the hearing panel issue a written decision “that shall include its reasons given.” It may be preferable to amend this sentence for clarity.

4) HB 4, Section 25, amending Section10-16-14(A), on line 13 refers to the “office of the state ethics commission”. Section 3 provides that the “state ethics commission” is created, not the “office of the state ethics commission”.

AMENDMENTS

1) See “Significant Issues” #3, above.

2) See “Significant Issues” #4, above.

3) See “Significant Issues” #5, above.

4) See “Significant Issues” #7, above.

5) See “Significant Issues” #10, above.

6) See “Technical Issues” #1, above.

7) See “Technical Issues” #2, above.

8) See “Technical Issues” #3, above.

9) See “Technical Issues” #4, above.

10) Requiring disclosure upon the filing of a complaint will allow for maximum transparency for the public and is essential in gaining the public’s trust in the processes outlined in the SECA. If not going to provide for disclosure upon filing, clearly require disclosure upon a finding of probable cause that a violation has occurred.

11) Assign primary jurisdiction to the commission to receive and investigate complaints concerning alleged violations, consistently.

12) Require both a respondent who is found to have committed a violation and a complainant who has filed a frivolous or fraudulent complaint to pay for the costs of investigation.

13) Provide both the complainant and the respondent with the authority to petition the district court to object to a subpoena issued by the commission.

14) Create a separate, depoliticized process for when the respondent is the governor.

ESSENTIAL ELEMENTS FOR AN INDEPENDENT ETHICS COMMISSION

At the end of last week, New Mexico Ethics Watch (NMEW) released its “Essential Elements for an Independent Ethics Commission” document, to provide guidance to the public, the press and legislators as to what elements are necessary to create a strong independent ethics commission.

The document highlights and explains the following nine elements necessary for a strong, effective, nonpartisan ethics commission: Independence; Jurisdiction; Transparency; Open Meetings; Funding; Evidence Standard; Subpoena Power; Enforcement; and Commission Quorum.

You can access the Essential Elements document here.

As NMEW board chair and Former NM Supreme Court Chief Justice Richard Bosson noted in the accompanying press release, “New Mexico needs ethics commission legislation that will increase the trust in those working for the public and seeking public office and state contracts. In the interest of fairness and accountability to New Mexico’s citizens, legislators can do their part to empower a strong ethics commission by including in enabling legislation the essential elements set out by NMEW.”

You can access the Essential Elements press release here.

Ethics Commission Funding: How Much is Enough?

When almost three-quarters of those voting on the constitutional amendment creating an independent ethics commission signaled their approval for the commission this fall, we bet they wanted the commission to be adequately funded!

It was reported today in the Albuquerque Journal that the new governor’s budget plan includes $500k to fund the independent ethics commission.

New Mexico’s Judicial Standards Commission (JSC), with a staff of 7, that is oft-recognized as a premier organization throughout the nation, has a current budget in the $800,000 range.  The JSC polices a much smaller pool of people than the ethics commission will potentially have within its jurisdiction.

While it’s true that the commission likely won’t come into being until mid-2019, thus requiring less than a full year’s funding for start-up costs, the funds that are appropriated will most likely take the form of “recurring funds” – those that are appropriated from year to year to provide sufficient funding for ongoing operations.

During the interim, it was reported that there was a one million dollar placeholder for the commission’s yearly operations.  This might be a sufficient amount of funds to enable the commission to operate effectively and with teeth.  $500k does not seem to be sufficient to fund a full year’s operation, although it would potentially adequately cover a half year’s operation.

We’ll learn more when House Bill 2 becomes public – that bill will show the amount budgeted by the legislature for the commission.  We’ll learn more still as HB 2 and enabling legislation pass through the chambers’ respective finance committees.

That number, though, and the thought behind it, are something for all of us to keep our eyes on!

If you have any comments, please visit out Facebook post.

We’re Here For You!

The legislative session is a week away!

To date, no ethics commission enabling legislation has been pre-filed.  (You can check the legislative website here to see what has been filed. Right from the home page you can enter keywords, bill numbers or see the complete list of 2019 legislation.)

At the top of our NMEW website, you’ll note a holding space for “ETHICS BILLS AS THEY ARE FILED”.  For each filed bill, you’ll be able to click on a link that will take you to information regarding bill location and, if in a committee, committee members’ names and contact info, as well as an analysis, a comparison with other filed enabling legislation bills, and common practices among the states.

In this spot, “Ethics Watch is Watching” – reached by scrolling down on the home page or clicking the ever-present “Ethics Watch is Watching” bar – you’ll find regular postings on all things ethics-related, both during the session and beyond.

We’ll continue to invite you back, especially as things heat up with legislation.  For now, let us know what you think about our website redesign and preparedness on our Facebook page post.  Many thanks!