Competing ethics proposals raise questions of secrecy and oversight

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Last week marked the start of the 12th installment of a long-running debate among New Mexico state lawmakers.

In previous years the discussion could be summed up in two questions: Should the Legislature create an independent ethics commission; and, if so, what form should it take?

The perennial answer to the first question was “no ethics commission this year,” rendering moot the second as to the shape and form it would take.

This year, unlike in previous sessions, however, state lawmakers will be able to debate both questions at once.

With positive votes from the House State Government, Indian & Veterans’ Affairs committee on Jan. 26, the panel of lawmakers approved bills with competing visions on how to oversee public officials.

The two proposals offer a study in contrasts during a period when a series of scandals over the last decade involving a dozen or so high-level government officials have diluted the public’s trust in government.

One proposal — House Joint Resolution 8 – would ask voters in 2018 to change the state constitution to create a new independent ethics commission. State lawmakers for the first time would be subject to punishment by an outside entity for ethical lapses. And ethics complaints against state lawmakers would become public.

The other proposal – House Bill 10 would create in state law a Public Accountability Board. It would open lawmakers to an investigation by an outside agency but because the state constitution bars anyone other than the Legislature from punishing legislators for ethical lapses it would keep the secretive system state lawmakers currently use to punish their own. And, instead of creating more openness, confidentiality would increase.

Viki Harrison, executive director of Common Cause New Mexico, which has pushed for an ethics commission for years, said her organization supported both proposals.

“We would like it to go further,” Harrison said of House Bill 10. But in a nod to political realities of the New Mexico Legislature, she added: “When you hear for a decade that the state Senate will never pass a state ethics commission you have to try something different.”

Passage of House Joint Resolution 8 would place the issue on a statewide ballot for voters to decide. Passage of House Bill 10 would need the signature of the governor to become law.  The governor’s office, contacted Wednesday, did not say which proposal Gov. Susana Martinez favored.)

Public supports ethics reform

New Mexicans over the years in poll after poll have supported ethics reform, including an independent commission. Nothing has changed.

Nine-in-ten voters surveyed by Albuquerque-based Research & Polling Inc. statewide Jan. 5 to Jan. 9 said they supported the creation of an independent ethics commission, according to Common Cause, which commissioned the survey. The poll had 4.6 percent margin of error.                                                                   

And in September of last year a survey conducted by the Robert Wood Johnson Foundation Center for Health Policy at University of New Mexico found 72 percent of more than 1,500 respondents supported the creation of an independent ethics commission. That survey had a 2.5 percent margin of error.

Since 2006 when a task force first recommended the creation of such a panel, state lawmakers have rejected 20 or so ethics commission proposals.

In that time six elected or appointed officials have gone to prison or jail for corruption. Another, former Democratic state Sen. Phil Griego, is awaiting trial on criminal charges. And in December Republican Gov. Susana Martinez’s Taxation and Revenue secretary, Demesia Padilla, abruptly resigned one day after Attorney General investigators raided the state agency’s offices as part of an ongoing criminal investigation involving her and her husband.

Chances for ethics reform in 2017

The two bills, as well as other pieces of ethics legislation already introduced or soon to be, have set the stage for a robust debate.

The proposal most favored by good-government and openness advocates House Joint Resolution 8 — proposes centralizing in the independent Ethics Commission the oversight function currently handled by several state agencies such as the Attorney General and Secretary of State.

Sponsored by Republican Rep. Jim Dines of Albuquerque and a number of his Democratic House colleagues, the legislation would enshrine in the New Mexico constitution a seven-member independent Ethics Commission charged with keeping a watchful eye on the state’s public officials.

In 2015, an investigation of all 50 U.S. states found New Mexico to have the largest “enforcement gap,” the gulf between the laws that are on the books and how vigorously they’re enforced.  The enforcement gap led the Center for Public Integrity, a Washington, D.C. nonpartisan nonprofit media outlet, to conclude that bad actors can more easily get away with breaking ethics and campaign finance rules in New Mexico.

The commission proposed in House Joint Resolution 8 could issue subpoenas, a fact-finding tool given to most of the more-than 40 state ethics commissions across the country.

Once it completed investigations and found an ethical lapse, the commission could levy fines on all of those covered by the commission: the governor; officials at executive branch agencies; state contractors, and lobbyists.

State lawmakers, too.

That is a key distinction between the independent Ethics Commission and the Public Accountability Board called for in House Bill 10. Sponsored by Democrats Sen. Daniel Ivey Soto and Rep. Damon Ely, both of the Albuquerque area, House Bill 10 takes a more-cautious approach to overseeing the ethics of state lawmakers.

Like the independent Ethics Commission proposed in House Joint Resolution 8, the Public Accountability Board could investigate complaints against public officials, although it would have to go to a state judge who would issue subpoenas for the panel. The Board could investigate a governor, executive branch officials, state lawmakers, even court employees who are not judges.  

And as with the independent Ethics Commission the Board could levy fines against most of those officials as well as legislative candidates and state lawmakers whose behavior occurred while they were actively campaigning for office.

But — and it’s a big but — the Board couldn’t levy fines or other punishments against lawmakers whose actions occurred in their capacity as a legislator. The Board could only recommend punishments to the Legislature’s Ethics Committee. That entity would then choose to act on the recommendation or not.

Constitutional change required for outside agency to levy fines against lawmakers

While lawmakers have long cited fear of politically motivated public attacks as a primary reason for their resistance to an independent ethics commission, there’s also a constitutional barrier, Ivey Soto and other lawmakers say. Specifically, Section 13 of Article IV of the state Constitution. It says lawmakers “shall not be questioned in any other place for any speech or debate or for any vote cast in either house.”

That portion of the “speech or debate” clause has been interpreted to extend to any actions taken by a legislator that aren’t criminal in nature or don’t occur while he or she is a political candidate. It figured prominently in last year’s court fight between the Attorney General and the Legislative Council Service. The AG subpoenaed confidential documents the Legislative Council Service had in its possession in its criminal investigation of Griego.

The constitutional prohibition against fining legislators for ethical lapses would become moot if House Joint Resolution 8 cleared the Legislature and voters enshrined it in the state constitution. But the prohibition would remain if House Bill 10 cleared the state Legislature and the governor’s pen to become state law. 

Fears of political attacks fuel secrecy

The two proposals also differ in the amount of secrecy that surround their respective panels’ investigations.

As envisioned now, Ivey Soto said, the Public Accountability Board would not make complaints against anyone it investigates public unless an investigation finds a breach of conduct by the official or until a public hearing is held — or if the person against whom the complaint is filed consents to its public release.

One of the biggest challenges to ethics reform over the years has been a persistent fear among lawmakers that complaints, even frivolous ones, would go public and be used against them politically.

House Bill 10 reflects that concern. 

But House Bill 10 would also add secrecy where none currently exists, critics say.

Currently, complaints against political candidates filed with the Secretary of State’s office are public. But under the Public Accountability Act, those complaints would become confidential according to Section 12 of the legislation.

Laura Paskus, president of the Rio Grande Chapter of the Society of Professional Journalists, read a statement from the organization’s board during the committee hearing that criticized the bill’s taking “enforcement of the state’s Campaign Reporting Act away from the Secretary of State’s Office — where complaints are public when filed.”

Peter St. Cyr, Executive Director of the New Mexico Foundation for Open Government, found that provision objectionable, too, he told lawmakers.

St. Cyr also objected to a provision that would enable the dismissal of “frivolous” complaints without disclosing the complaint’s allegations or explaining the rationale for the dismissal. A decision behind closed doors could raise questions about the standard board members used to decide what meets the threshold and what doesn’t as well as board members’ relationships to the accused, if any.

Also of concern, he said, was a section that would allow the Public Accountability Board to accept a pre-public hearing settlement by the board’s director and the person against whom the complaint is made. It appears that agreement would remain secret.

Unlike House Bill 10, House Resolution 8 would require the new Ethics Commission to make public any complaint after the subject of the complaint had a chance to respond, Dines said. It also would make public complaints that are dismissed as ‘frivolous’ as well as the rationale for their dismissal, Dines said.

Ivey Soto said he understood the critics’ concerns of House Bill 10 but it represented an improvement over the current situation where state lawmakers control all aspects of an inquiry. House Bill 10 would allow an outside agency — in this case, the Public Accountability Board — to conduct the initial investigation even if it had to recommend and not impose penalties.

It is difficult to handicap either bill’s chances this session. The idea of an independent Ethics Commission has high-profile supporters such as House Speaker Brian Egolf and Sen. Majority Leader Peter Wirth, both Democrats from Santa Fe.  

But many state lawmakers have never warmed to an idea of an outside agency monitoring their behavior. And some have argued the current internal legislative ethics committee through which legislators investigate and hold accountable their own, if necessary, has demonstrated success.

It was state senators sitting on the 16-member Interim Legislative Ethics Committee who helped persuade then state Sen. Phil Griego to resign in the middle of the 2015 legislative session for allegedly using his elective office for personal gain.

But it is a process shrouded in secrecy. For example, a small group of lawmakers sitting on the Legislative Ethics Committee found the case against Griego had merit and an investigation launched.

And other than Griego, it’s unclear how often state lawmakers have taken action against one of their own. The legislative ethics committee’s activities are not public.

2 thoughts on “Competing ethics proposals raise questions of secrecy and oversight

  1. To reiterate: Passage of House Joint Resolution 8 would place the issue on a statewide ballot for voters to decide. Nine-in-ten voters surveyed by Albuquerque-based Research & Polling Inc. statewide Jan. 5 to Jan. 9 said they supported the creation of an independent ethics commission.

    Let’s get this done.

  2. Thank you, Mr. Jennings, for an informative and clear presentation of legislation that New Mexico voters should weigh in on to their representatives. We are in an important state in the current political seas that stir ethical buoys, but it is for us, the people, to pay heed to the bells and put our hands on the tiller and not allow those in better position — but not necessarily our betters — to tell us our necessary course.

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