“If not now, when?” asked Viki Harrison of the good government group Common Cause. “If this isn’t the time to get serious, when is it?”
Harrison was noticeably frustrated. Secretary of State Dianna Duran had just resigned and pleaded guilty to several criminal counts, including two felonies, for using campaign donations to feed a gambling addiction.
Months earlier Sen. Peter Wirth, D-Santa Fe, and Rep. Zack Cook, R-Ruidoso, had sponsored a constitutional amendment to put the question of an ethics commission before voters. But, despite New Mexico’s dubious distinction as one of only eight states without a panel, the 2015 proposal suffered the same fate as others over the years.
“That never got a hearing,” she said. “It’s not been a priority for people. We’re asking people in power to voluntarily give some of it up. That’s a tough sell.”
Noting New Mexico’s decreasing voter turnout, Harrison, a longtime lobbyist, attributed the trend in part to people’s distrust of public officials.
“They’re losing faith in government,” she said. “They’re registered, they’re not coming to the polls. If people aren’t voting they have no skin in the game.”
Harrison’s frustration late last year came at the end of a benchmark 12 months for corruption in New Mexico. In March, New Mexicans watched a powerful state senator–Phil Griego–resign in the middle of the legislative session for allegedly using his elective office for personal gain. Five months later, the state’s Attorney General accused Duran of violating the very laws she was tasked with enforcing.
The cases are the latest in a decade-long series of similar high-profile scandals that have included two former state treasurers and a former high-powered legislative leader going to federal prison for corruption. Others officials have resigned in disgrace. With so many scandals, it’s not surprising that a January 2015 poll by Research & Polling, Inc. for Common Cause found that 61% of New Mexicans strongly support the creation of an independent state ethics commission, with another 25% somewhat supportive. And that was before the cases of Griego and Duran became public.
In November a national investigative news organization, the Center for Public Integrity (CPI), found that New Mexico ranks 45th nationally in state ethics in general and last in enforcement of existing public integrity laws.
Despite the scandals, findings and polls, the state Senate has repeatedly stonewalled calls for an independent state ethics commission.
Even if lawmakers don’t favor the idea of a state ethics commission, the Legislature as a body seems disinterested in grappling with the underlying problem — a series of public officials who flout rules for their own personal gain — in an effective way.
The Enforcement Gap
The Center for Public Integrity’s 2015 State Integrity Investigation found that New Mexico has the highest “enforcement gap” of any state in the nation. The organization arrived at this conclusion by juxtaposing laws on the books with how things work in practice. CPI scored states on a range of issues, such as campaign finance laws, lobbying disclosure, executive and legislative accountability, ethics enforcement, among others.
When CPI compared the average in scores for the two categories, it found that New Mexico had the widest gulf, an average of 17.8 percent across all of the categories.
In other words, New Mexico does a poor job enforcing or adhering to the spirit of laws on the books meant to ensure public integrity.
Currently, authority to enforce and educate state employees and officials about ethics rules is dispersed within various state agencies, and the enforcement gap illustrates a lack of systematic checks and balances.
A proposal to create an independent state ethics commission focused on the executive and legislative branches first gained prominence in 2006, almost a year after then-state Treasurer Robert Vigil resigned to avoid facing possible impeachment by the New Mexico House of Representatives. A state task force recommended its creation. Subsequent ethics committee legislation passed the state House of Representatives four times, but has withered in the state senate.
Wirth, a long-time sponsor of good government bills in the State Senate, says a key benefit of an independent ethics commission would be its educational function.
“If we are going to reduce ethical violations, we have to increase education about existing laws, rules and regulations,” he told NMID in an email. “One of the things about an ethics commission I have always championed, is that it would be a body that could answer potential ethical questions on the front end.”
Setting up an Effective Commission
While the vast majority of states have ethics commissions, many of them are ineffective because they’re not fully funded, lack subpoena power, or aren’t independent from the political apparatus within their state. In fact, a key finding of the 2015 State Public Integrity Project is that “most ethics entities are toothless and underfunded.”
Wirth said several questions need to be resolved before an independent ethics commission gets traction at the state Legislature, including the need for sufficient funding; the question of jurisdictional oversight; the makeup and size, along with who appoints the positions; and satisfactory due process provisions to guard against “politically motivated witch hunts.”
That an ethics commission could be used to damage state officials politically seems to be a real sticking point, Harrison acknowledged.
“We live in a hyper partisan world today, it’s even worse than it was when we started advocating years ago,” she said. “You talk to the public, they don’t care. But we have a lot of really good legislators, we want to make sure we don’t ruin people’s reputations.”
For that reason, Harrison said, protecting appointed and elected officials from false, partisan attacks is of utmost importance when constructing a commission. One easy way to do that, she said, is to ensure that the complaints are thoroughly vetted and investigated, and that nothing moves forward in the process, including making complaints public, until that happens.
Another big issue is cost.
“One of the concerns is that it’s going to cost money that we don’t have” said Harrison. “In the past it’s been floated that it would cost in the range of $700,000–$1 million. But in just the one scandal we have with Dianna Duran, they appropriate a quarter million to start an investigation of one person.”
Harrison is correct. Legislators allocated $250,000 for impeachment proceedings and spent slightly more than $17,000 on legal fees, mileage and other expenses before Duran resigned. But it wasn’t the first time state legislators were willing to spend large sums in response to a public scandal. The Legislature set aside a total of $1.6 million to pay for impeachment investigations in 2005 against then-State Treasurer Robert Vigil and in 2011 against then-Public Regulation Commissioner Jerome Block Jr., according to the Legislative Council Service (LCS). The Legislature has spent nearly a quarter of a million dollars over the last decade on all three cases, including Duran’s expenses, $22,600 on Block Jr. and $203,000 on Vigil. The amounts for Block Jr. and Vigil don’t include per diem and mileage expenses.
The state’s top officials appeared reluctant to talk about ethics with New Mexico In Depth. Senate Majority Leader Michael Sanchez, House Majority Leader Nate Gentry, Speaker of the House Don Tripp, and Governor Susana Martinez did not agree to interviews for this article despite phone call requests. It remains to be seen if state lawmakers will treat the topic of ethics with seriousness during the 2016 legislative session.
The state’s top prosecutor agrees with Harrison about the need for an independent ethics commission.
“An ethics commission is long overdue,” Attorney General Hector Balderas said. “However, it must be fully funded, be independent, and have real authority in order to be effective. I strongly support a proposal to add a constitutional amendment to allow the citizens of the state, those people most affected by ethical breaches, to express their views at the ballot box to mobilize the political will to move forward.”
Editor’s Note: This story has been corrected to reflect Nate Gentry’s correct title, House Majority Leader. In the original story NMID called him the House Majority Whip. We apologize for the error.