Category : General

TAYLOR ROGERS’ SECOND PLACE ETHICS ESSAY

What Does it Mean to be Ethical

Within our world of skeptical and moral questions, we ask amongst ourselves what is right and wrong in the play of a society that feeds on bad decisions. As a whole, the questioning of moral has become so bent, bad choices are used advantageously through politics, media, and social justice. What does this mean for the individual that serves a part of any society? Whos to say that a general ethical process is moral or immoral? General truths serve as a guide but if everyone agrees on an immoral process, then what does it mean to be ethical?

As an individual who lives and plays the roles of society, they must sustain their basic human needs regardless of the circumstances as well as function in society such as working for currency to pay for the basic human needs and pleasures, abiding by the law, and contributing to the system by paying taxes or volunteering in a community. But what if the job one work at, works for a man using this person’s skills to harm others, and the taxes one pays go to upper class, and the volunteer service someone has done is against other people’s morals like building a satanic temple of worship. You can’t necessarily quit your job because, how will you pay for your basic human needs. You can not quit paying taxes because it is against the law, and the satanic temple you built is not wrong to you because of your subjective upbringing. Ethics are subjective to everyone. A child could be raised to believe stealing in any means necessary is completely moral. We know that’s wrong but to this child, it is not. This applies to a society where everyone pays a small portion to benefit a person of higher power and continuing the suffrage of everyone else. The rest of society does not necessarily disagree with the awful things are being done in the hands of powerful people to whom we work for, because the rest of society has to sustain life somehow, but at the cost of conformity to the system because the system works to sustain this. I suppose it would be ethical for the individual in this scenario, to simply comply and live to help others in need. As for the unethical people in charge however, they have a say in how the rest of the individuals will work to benefit them. Would it be wrong then for the individual to challenge the hands of power? I suppose it’s dependent on how everyone else feels about your challenge against the corrupt system of which everyone lives in.

If being ethical means to be fair, moral, and consistent with the struggles of good and bad in order to make the righteous pathway in life, how can this be applicable in a society where these mindsets are bent because everyone agrees on things that are toxic and vile. With ethics, we balance the pros and cons of decisions in order to make the righteous choose. Variables create the pros and cons and the decisions are biased based on the balance of what appears to be good and bad. If I lived in society as I described, I know my actions in order to function within that society would be immoral and because of my upbringing, I would work to form a new system that complies with everyone’s needs even if it was against the law to do so because it is wrong to the people. Now in order for my new system to work, others have to agree and as a whole population comes to agree on the fairest, just, and moral system, there is still the question of what is truly right and wrong. Being ethical is not only fair but is also having the ability to challenge right and wrong not only for one’s self but for everyone. Being ethical means to be able to discuss these terms because everyone holds a bias of what right and wrong and if everyone finds a way to benefit themselves and everyone else at the time, an ethical perfection is achieved.

As far as being ethical in means that is applicable to this very moment, I would listen to what others have to say in order to help them in a fair manner. Whether or not they pay you back for what you have done does not matter to someone who lives ethically because they know it is the right thing to do regardless. So even in a broken and corrupt society, the moral question is a guide to live in what perhaps is enlightenment but with that being said, would it be ethical to somehow share ethical living with everyone? I suppose that decision is not quite agreed upon.

TINA MEMARIAN’S THIRD PLACE ESSAY

What does being ethical mean to you?

According to Merriam Webster the word ethical comes from ethics and means a set of moral principles : a theory or system of moral values. This definition can describe anything that happens in society. When people make decisions, the actions that come in to play are directed by ethics. Many respond that the term ethical means doing what is right, however, what people consider right is different from everyone. Doing what is right can be based off emotions and intuition, however, it can sometimes be misleading. In society people listen to their conscience and believe in the concept of ethics when making a decision. People should not lie or cheat but should always be truthful and genuine in their actions. The term not only means doing what is right, but doing what is right in terms of morality, justice, and duties. When deciding to do what is ethical, it should be done by deciding on doing the right thing not only for yourself but for those around you. 

Ethics is introduced to people from the very beginning in school and in the form of books. In stories, the moral of the book is taught to teach people a lesson. A common topic regards being ethical. To kids, ethical means being honest and not deceiving someone else. Ethics helps people make decisions and is a crucial way for people to do what is right. It was shown through picture books and taught kids to be kind. It helped kids make friends .with one another and always be sympathetic. As people grew up, the meaning of being ethical has been modified by peoples thoughts. 

In the book Fahrenheit 451, author Ray Bradbury takes his readers through an uphill battle of ethics. The main character has a battle between himself and authorities. He is constantly wavering over doing what he believes he needed to do and listening to the law. Books were illegal in society, but the main character believed they were important, and he decided to fight for them. To him, ethics came to play when deciding what actions to take. He did not want to fight authority, but he wanted to read books. As the end he came to his own terms and did what he thought was right. Ethics came to play when he wanted to expose the truth and help the people. To him he thought he was doing something right, but in the end was it right for just him or the people? 

In the television series Smallville, a young boy Clark Kent risks his life to save everyone around him. He gains super hero abilities as a young boy and only uses them for good. He had multiple chances to use his powers for personal gain, however, he knew the difference between right and wrong. He could have gotten ahead in any situation, but he decided on going the ethical way. When he played football, he did not use super speed to become the star quart back, instead he worked hard and earned his way to become a good player. Throughout the series, he sacrificed himself multiple times. To him, being ethical was using his powers to save everyone: was that ethical? 

The concept of ethics comes into play when people do what is right for the common good of the people. Everyone has their own definition of doing what is right, but ethical actions become clear with selfless acts of humility and truth. I have seen countless examples of what being ethical means. I have seen it through people, film, and books, and they have all helped me form a definition of my own. Being ethical to me means committing moral principles which are founded on the idea of doing good for individuals and a community: to treat everything with civility.

First Two Ethics Commission Commissioners Are Named

The first two commissioners to the fledgling ethics commission have been named: Santa Fe Attorney Stuart Bluestone; and Frances Williams of Las Cruces. (The law enabling the commission goes into effect July 1, 2019.)

Bluestone, appointed by House Speaker Brian Egolf, is a former Chief Deputy Attorney General and Chief Counsel to then-Attorney General and now-Senator Tom Udall.  Williams, appointed by Senate Pro Tem Mary Kay Papen, was an equal opportunity manager at White Sands Missile Range, with further experience as the chairperson for the Las Cruces Review Board for Grievances and Discrimination Complaints.

The 72 -year old Bluestone and the 90-year old Williams were interviewed by the press upon appointment.  Bluestone, who advocated for a transparent commission alongside NMEW staff and board, hopes that the commission is fair and balanced and helps to educate people. “It’s really important to help show the public that the leadership in this state cares about ethics issues and has a one-stop shop available for people to ask questions and get guidance,” he said in an interview with the Santa Fe New Mexican.

Williams, in contrast, has publicly stated that much of what are now public commission proceedings under the new laws should be private. “Until it’s proven, it should not be a matter of public issue,” she said in an interview with the Santa Fe New Mexican. “… We’re messing with peoples’ lives.”

NMEW and fellow advocacy groups, alongside legislators, advocated for a fair amount of transparency in the commission’s proceedings, to provide maximum public trust in the process. (In fact, NMEW advocated for transparency from the filing of a complaint.) Rest assured that future attempts to dilute the current level of transparency will be met with a staunch defense of the current law, on behalf of the public.

First members named to New Mexico ethics commission, Santa Fe New Mexican

White Sands Missile Range Hall of Fame, Frances Williams

THE ENTRIES ARE IN!

The entries for NMEW’s inaugural ethics essay contest are in!  Many thanks to the students who took the time to explore the topic, “What does being ethical mean to you?”

We’ll be announcing our winners at an upcoming event…details to follow.

We can’t wait to announce our lucky winners!

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