Is it ‘Groundhog Day’ for ethics reform in NM?

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This commentary is part of New Mexico In Depth’s weekly newsletter.

Trip Jennings, NMID executive director

2019 is beginning to feel a lot like the 1990s Bill Murray movie “Groundhog Day.”

Twelve years ago, at about the same time in the legislative session as we are now, I reported that ethics reform efforts were on life support.

I’m not ready to make the same call in 2019. But with four weeks to go in this year’s session, agreement on a bill to flesh out the powers, funding and operations for a seven-member independent ethics commission added to the state Constitution by 75 percent of voters in November isn’t looking quite as inevitable as it once did.

As of today, there are competing ethics commission bills. And neither has received a hearing before a legislative committee, mostly because both were introduced this week near the halfway point in this year’s 60-day session.

Like 12 years ago, ethics legislation in 2019 seems to be in a race against time in a legislative body that’s as prone to kill good government ideas as approve them.

In 2007, driving the push was a scandal that eventually sent two former state treasurers to federal prison.

This year, it’s a litany of scandals since 2007 that have put several more former New Mexico elected and public officials behind bars.

The vote to add an independent ethics commission to the Constitution charged the Legislature with figuring out the details of how the entity will operate.

With each passing day, those chances dim, based on experience.

State lawmakers must make a lot of decisions on what kind of state ethics commission they want. And the two bills filed so far – HB4 by Rep. Damon Ely and SB619 by Sen. Linda Lopez, both Democrats – offer different visions and demonstrate some of the decisions.

Sen. Linda Lopez, D-Albuquerque
Daymon Ely, D-Corrales

The ethics commission Lopez envisions in her bill would be weaker, less well-funded and require a higher threshold for an ethics violation than Ely’s.

For example, Ely’s legislation empowers the ethics commission to issue subpoenas to prise loose information in an investigation, while Lopez’s bill does not. Her proposal would let the commission petition a state court for subpoenas. Ely’s bill would rely on a state court to enforce a commission’s subpoena.

Lopez and Ely also propose different legal thresholds for a finding of ethical violation. Ely uses the civil standard of preponderance of evidence while Lopez’s wants clear and convincing evidence, a standard higher than preponderance but lower than beyond a reasonable doubt, the standard used in criminal cases.  

In the areas of punishment, again Lopez’s bill is weaker. It allows the commission to censure or reprimand a public official who violates ethical rules, but requires the commission to defer to the Legislature or whatever agency oversees the official to determine punishment.

In comparison, Ely’s legislation gives the commission power to fine public officials guilty of ethics violations under several statutes.  

As she has in past efforts, Lopez’s bill this year would punish leakers of information much more harshly than public officials guilty of violating ethics rules. A provision in her bill would require a fine and possible imprisonment of up to a year for anyone who discloses confidential matters before the commission. The fine can be up to $10,000. In addition, a court may impose a penalty of up to $25,000.

In funding the commission, Lopez wants $200,000, whereas Ely requests $1 million.  

These are just some of the decisions state lawmakers must make over the next 30 or so days.

Given that the Legislature has deliberated creating an independent state ethics commission for a dozen years without doing it yet, 30 days might seem a short period.

But who knows, state lawmakers might surprise me. After all, three of every four New Mexicans who voted in November supported the idea of an independent ethics commission. The question is, does that public mandate matter in the Roundhouse.

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