New Mexico’s lawmakers over the last decade have balked at creating an independent ethics commission even as a parade of elected and appointed public officials stood accused of corruption and, in some cases, were convicted of crimes.
Viki Harrison, executive director of Common Cause New Mexico and a perennial supporter of ethics legislation, reached back to 1990s American cinema for an analogy: Groundhog Day, a 1990s comedy classic in which the main character is forced to repeat the same day over and over again.
“We are freakin’ Bill Murray,” Harrison said.
Harrison hopes 2017 will break the cycle, however, and on the surface the odds in Santa Fe appear favorable.
New Mexico’s lawmakers convene for the 2017 60-day legislative session with two supporters of the ethics legislation — Sen. Peter Wirth and Rep. Brian Egolf – in powerful leadership posts. Egolf is the new Speaker of the House and Wirth is Senate Majority Leader after Sen. Michael Sanchez lost his re-election in November. Many viewed Sanchez as resistant to ethics reform.
But appearances can deceive.
As in years past, the path for ethics legislation will traverse obstacle-rich territory. Many lawmakers regardless of party have never warmed to the idea of an independent body monitoring their behavior. Add the state’s financial woes and the question from some is “How do you pay for a new independent body with staff to run it in these cash-strapped times?”
Harrison and other supporters hope to have a persuasive answer at a time when New Mexico is reeling from lagging revenue because of the struggling oil and gas industry, on which the state is hugely dependent.
Think of an ethics commission as an economic development tool helping to diversify the state’s economy over the long term, they said.
“We are not going to fix our budget, or bring jobs to New Mexico if we don’t have an ethical state and show that we care about things like transparency and accountability,” Harrison said.
Republican Rep. Jim Dines of Albuquerque, who plans to re-file a proposal killed by a state Senate committee last year that would have amended the constitution to create an independent commission, agreed.
New Mexico needs to help foster “an atmosphere to lessen the public’s view of New Mexico as a very corrupt state,” he said. Out-of-state businesses are hesitant to move here and, as for those within, “we know businesses are leaving New Mexico.”
The emphasis on corruption as detrimental to economic growth is not new. Studies have linked unethical behavior in government to economic growth, rates of trust in government and participation in elections. In fact, one 2010 academic essay titled “Corruption is bad for growth (even in the United States)” that ran in a peer-reviewed journal found that corruption has a negative and significant effect on growth in U.S. states.
Harrison and Dines also cite a February 2015 survey that found three-quarters of New Mexico business leaders supporting the creation of an independent ethics commission. And more than 8 in 10 considered the behavior of New Mexico officials over the past 20 years a serious issue.
“They want to know they are not getting screwed by a bigger donation down the street,” Harrison said.
Wirth, himself a sponsor of an ethics commission proposal in 2015, said ethics legislation needs to be considered “and I really want something to pass.”
But at a time when the state must balance the budget with little in financial reserves — lawmakers drained them during a special session – asking whether New Mexico can afford a commission isn’t a scheme to delay an unpopular idea with many lawmakers, he said.
“This is a very serious funding question,” Wirth said. “When we’re short $130 million for 2017 and another $130 million in 2018 and no reserves, where’s the money gonna come to do this?”
How We Got Here
New Mexico is one of nine states without an independent ethics commission, not for lack of trying.
Since 2006, when a task force recommended the creation of an ethics commission in response to two indicted state treasurers who later went to federal prison, New Mexico lawmakers have rejected 20 or so attempts to create an independent ethics commission.
In that time, six elected or appointed officials have gone to prison or jail for corruption. Two others have resigned under a cloud of suspicion. And one, Democratic Gov. Bill Richardson, withdrew his nomination to serve on President Obama’s cabinet because of a federal investigation. The probe yielded no indictments but a federal prosecutor concluded pressure from the governor’s office had corrupted the state’s procurement process.
Meanwhile, the Legislature has spent nearly a quarter of a million dollars on committees empaneled by the House of Representatives to determine whether to draw up articles of impeachment for Democratic state Treasurer Robert Vigil, Democratic Public Regulation Commission member Jerome Block, Jr. and Republican Secretary of State Dianna Duran.
Duran pleaded guilty in late 2015 to six criminal charges, including two felony counts of embezzlement.
All resigned before the committee completed its work.
And there are continuing political troubles.
Democratic Sen. Phil Griego, who resigned in 2015 because of alleged corruption, awaits trial on criminal charges centered around his helping to guide through the Legislature a bill that authorized the sale of a state-owned building for which he profited as the broker.
And last month 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.
It is with this backdrop that lawmakers will take up the debate over ethics reform, with multiple proposals driving the discussions.
If past debates are any guide lawmakers will focus on who appoints commission members, whether it should have subpoena power (39 of 41 states with ethics commissions give them subpoena power) and whether it can adjudicate complaints itself instead of handing findings over to state courts.
One of ethics reform’s biggest challenges, which arises from one of the most persistent fears among lawmakers, is that complaints would go public and be used against them politically. However, supporters of the legislation say that is already happening during elections.
Proof of that concern can be found in a provision of a bill Democratic Sen. Linda Lopez of Albuquerque sponsored in 2016. It would have allowed penalties of up to $35,000 for a person publicly disclosing a confidential complaint made to the hypothetical state ethics commission. That’s larger than the fines and restitution former Secretary of State Dianna Duran was ordered to pay after pleading guilty to felony embezzlement of her campaign funds.
Following last year’s 30-day session, New Mexico state lawmakers made a show of promising to work on ethics legislation during 2016 after Dines’ constitutional amendment died in the state Senate.
But vetting ethics reform appeared not to be a priority. No interim legislative committee took it up until after the November election.
“Everybody is busy with election season” and “some of the other parties have not been available,” Lopez said a few days before the election when asked why no legislation had been considered earlier in the year.
What critics say
Senate Rules, which Lopez chaired for years, has become a de facto killing ground for ethics proposals, systematically dismantling bills or letting time run out on them as the session ends. It was there that Dines’ proposed constitutional amendment met its demise in the last days of the 2016 regular legislative session.
The proposal would have given an independent commission general oversight of ethics in government and subpoena power and authority to adjudicate its own cases, in contrast to New Mexico’s current practice. Currently, the state parcels out oversight of public officials to legislative ethics committees, the New Mexico Attorney General, inspector generals at various state agencies and the Office of the Secretary of State.
“It was one-stop shopping,” Dines said of his proposal.
Other proposals will compete with Dines’ constitutional amendment during the 2017 session, including an idea from Democratic Sen. Daniel Ivey-Soto of Albuquerque for a Public Accountability Board.
Unlike Dines’ proposal which would amend the state constitutional if approved by voters, Ivey-Soto’s proposal would become law if approved by the Legislature and signed by Gov. Martinez. The board could not issue subpoenas itself but could request a state court judge issue subpoenas if needed, Ivey-Soto said.
Lopez and others like Republican Sen. Minority Leader Stuart Ingle of Portales have said the current system works, particularly the part that allows lawmakers to police themselves using secretive legislative committees.
It was senators sitting on the 16-member Interim Legislative Ethics Committee, after all, who helped persuade Griego to resign in the middle of the 2015 legislative session for allegedly using his elective office for personal gain.
But other than Griego, it’s unclear how often state lawmakers have taken action against one of their own since the committee began in 1993, a year after the House censured Democratic Rep. Ronald Olguin for “improper conduct.” A jury later convicted him of criminal behavior.
The committee’s activities are not public.
Other critics say many ethics commissions in other states are ineffective. In fact, the 2015 State Public Integrity Project by the Center for Public Integrity in Washington, D.C. found that “most ethics entities are toothless and underfunded.”
One study, indeed, has questioned the measureable effects such commissions have on corruption. But in concluding the authors acknowledged the possibility “that state ethics commissions serve a more symbolic purpose or achieve some outcome that is difficult to directly measure.”
Supporters have blamed ineffectiveness on the inadequate funding from states.
Some critics have argued an ethics commission is unnecessary because the public oversees officials, although they acknowledge it requires those who are “willing to stand up and come forward with a complaint,” as Lopez put it last year.
But New Mexico is stingy with certain information, making public oversight next to impossible.
For instance, lobbyists who work in the Roundhouse — unlike in other states — don’t have to report what pieces of legislation, let alone issues, they push for during a legislative session.
And unlike in Colorado and other states, lobbyists — many of them former state lawmakers or legislative staff — don’t have to disclose what they are paid by their clients or provide a detailed accounting of how much they and their employers spend on individual public officials.
Meanwhile, the lack of disclosure rules in New Mexico makes it difficult to understand relationships between people, such as lawmakers, lobbyists and their employers.
And following money in the state’s political system is next to impossible. Even getting good information on campaign contributors is difficult.
All the challenges don’t dampen supporters’ hopefulness that 2017 will finally break the cycle of rejection after repeated rejection, however.
“I’m feeling really good about it,” Harrison said. “We’ve got so many new legislators. New legislators are the best. They have been out campaigning. They have heard the public talk trash about politicians. They haven’t been up there long enough to hear about all the reasons to not do it. We got to quit screwing around.”