New Mexico has the widest gap in the country between the laws on the books and the way those laws are actually enforced, an analysis the Center for Public Integrity (CPI) found in 2015.
Meanwhile, New Mexico ranked 45th in the nation in ethics enforcement.
This week produced a twist on that storyline: a New Mexico Attorney General intent on enforcing the law but blocked by the New Mexico Legislature. Citing the same statute it has used in recent months to deny NMID’s requests to publicly release lawmakers’ individual funding allocations to capital projects, the Legislative Council Service (LCS) objected to a subpoena from the AG’s office for records.
The law –statute 2-3-13— requires a lawmaker to give permission to the Legislative Council Service before it can “reveal to any person outside of the service” any information or documents related to communications between LCS staff and the lawmaker.
But Phil Griego, the subject of the AG’s criminal probe, did not give that consent. It seems even a subpoena doesn’t compel LCS staff to allow AG investigators documents and communications the former Democratic state senator had with the legislative agency as it wrote and revised 2014 legislation at the center of the state criminal probe.
The Attorney General’s office wants to know more about the legislative body that investigated Griego as well — a Senate Investigative Subcommittee that convened to determine whether Griego had acted unethically.
“The State is unaware when it convened, why it officially convened, how often it convened, what was said at any hearing(s), what materials were reviewed or relied upon, and what findings it made,” the AG’s response to the Legislature’s objections to the subpoena reads.
In addition to the state statute, the Legislative Council Service cited a constitutional privilege that allows it to withhold whatever is in the file that’s related to the 2014 legislation.
But the Attorney General says the Legislative Council Service breached that privilege when it publicly released several exhibits from a legislative investigation following Griego’s resignation on March 14, 2015.
The Legislative Council Service’s resistance to opening its files to a criminal investigation complicates the New Mexico governing class’ already poor showing with the public. Polls show New Mexicans believe their government is corrupt.
Evidence shows that New Mexico has a terrible track record for enforcing its own laws on ethics, accountability and transparency. The secretary of state’s office rarely collects fines for violating campaign finance laws, and while the attorney general’s office recently promised to start enforcing freedom-of-information laws—it says its power to levy any fines is limited.
In the Center’s survey last year, the state also failed at freedom-of-information, oversight of money in politics and lobbying, and accountability in the executive and legislative branches.
Gov. Susana Martinez has chosen not to make ethics enforcement a priority. In the past she has said corruption is a crime, not an ethical problem. She suggested letting the state police handle it. This past session she decided to leave ethics-related bills off the agenda.
State lawmakers say that while there may be a few bad apples, the system we have is working. Senate leaders recently pointed to Griego’s resignation from the Legislature and the AG’s prosecution last year of Republican Secretary of State Dianna Duran.
But how would we know if these two are just the tip of the iceberg?
“Having a few cases where politicians have been caught red-handed is certainly evidence that the system can work, but we don’t know how many cases in which it hasn’t worked,” said UNM political science professor Michael Rocca, who has been researching the perception of corruption in state government.
That’s because unlike most other states, New Mexico doesn’t have one agency or one department that handles allegations against elected officials or government employees.
The state auditor takes complaints about fraud, the secretary of state’s office is supposed to handle problems with campaign finance, the state legislature has an ethics committee—and somewhere on the attorney general’s website is a form that accepts criminal complaints about corruption.
It’s pretty confusing for the public, which is why few people file complaints.
But the bigger problem is politics, Rocca said.
“The attorney general, the secretary of state and the legislators who serve on these committees are all popularly elected individuals,” he explains. “It means they’re going to be influenced by political parties, they’re going to be influenced by interest groups, there’s going to be pressure there to either investigate or not investigate, to either indict or not indict.”
The fault in New Mexico’s system, Rocca said, is that we rely on government to police itself.
It’s not just that there’s no one watching, but it’s not the right people. You can’t ask a legislative committee to govern its own institution,” he said.
Susan Boe of the New Mexico Foundation for Open Government agreed. NMFOG hasn’t been active in pushing for an ethics commission until this year, when it lobbied for the proposal put forward by Rep. Jim Dines, R-Albuquerque, a media lawyer and former member of the NMFOG board.
She saw a problem in something that’s normally considered a good thing: the collegiality of New Mexico’s state Legislature. Here lawmakers tend to get along pretty well. Many have served together for decades. They consider each other friends.
Sitting in Senate Rules Committee hearings on the proposed ethics commission, Boe said she noticed the way lawmakers from both parties found consensus on their dislike of the idea, working together to defeat it.
“The questioning and the hostility [toward Dines’ proposal] knew no partisan grounds,” she said. “It was both the Ds and the Rs, and it was that good-old-boys, good-old-girls club at work.”
It’s hard for most people who work in any field to imagine prosecuting friends and co-workers. But there are many public employees who are already covered by a patchwork of ethical codes and the boards and commissions that enforce them.
Take teachers, for example. They’re bound by the New Mexico Code of Educator Ethics.
Teachers who violate that code risk losing their licenses—and their careers.
But in 2015, the head of the Public Education Department’s Professional Licensure Bureau was found to have faked his own credentials to get a job as a school superintendent.
“If the people in charge of the ethics bureau violate the code of ethics, how do you resolve that?” said Goodmacher, who works for a teacher’s union and has represented educators on various sides of ethical disputes. (He has also served on the board of the New Mexico Foundation for Open Government).
In other words, who’s watching the watchers?
The state doesn’t have a clear mechanism for that. But state lawmakers have focused on the potential problems they might encounter from increased scrutiny.
In a House hearing during this year’s 30-day legislative session, Rep. Cathrynn N. Brown, R-Carlsbad, said a centralized ethics commission “…could be political napalm.” She worried that by making public all of the complaints submitted to such a commission, “We could do a lot of damage to some very good people.”
In an interview with NMID just before the end of the session, Senate Rules Committee Chair Linda Lopez, D-Albuquerque, described her concern with ceding control to an outside group.
“We are very careful at what we do because you can destroy somebody’s political life, family life and everything else,” said Lopez, who chaired the Senate subcommittee of the Interim Legislative Ethics Committee that convened to determine whether Griego had behaved unethically. “It’s just not about him. It’s about his wife. It’s about his grandchildren…”
But that kind of compassion can give the public the impression that wrongdoers are getting off easy.
“Phil Griego was indicted, but there was never any ethics violation action taken against him,” Boe said. After the Legislative Ethics Committee investigation, Griego quietly resigned and leaders in both parties, from both houses, issued statements urging their members not to publicly discuss the matter.
This isn’t the way things work for judges. The Judicial Standards Commission is made up of about a dozen people appointed by the state Supreme Court, the governor and the state bar.
The Commission takes dozens of complaints that judges have behaved improperly (for example, making sexist remarks, not hearing cases quickly enough or worse, dismissing cases for a friend). It investigates them and either clears the judges or determines punishment (diversity training, fines or forced retirement). At the end of the year it publishes an annual report.
New Mexico’s Judicial Standards Commission ranks third in the nation for judicial accountability, according to CPI’s State Integrity Investigation.
Advocates like Common Cause, the League of Women Voters and the Association of Commerce and Industry say they want something like the Judicial Standards Commission to deal with problems in the rest of state government.
A February, 2016 poll of 250 business leaders found 82 percent want wan independent ethics commission.
And they worked hard to persuade legislators. But as they have nearly two dozen times before, lawmakers shot down the idea.
As the Las Cruces Sun-News editorialized after the session: “The bottom line is some members are more worried about the potential of personal embarrassment to themselves than they are about the embarrassment that comes to the entire state when of our top officials are arrested.”
Editor’s Note: I was the reporter who compiled that data for the Washington-D.C.-based CPI, a nonpartisan public interest group.