The New Mexico Supreme Court in September 2022 removed the ability for prosecutors to criminally charge public officials for a range of ethics violations. Gov. Michelle Lujan Grisham’s office confirmed via email Friday afternoon that she will empower state lawmakers to consider returning that power to prosecutors in the legislative session that starts Tuesday.
Because it’s a short session, putting together the state budget takes priority, although a governor can add non-budgetary topics to the agenda. In this case, the topic will be the state’s Governmental Conduct Act, the statute affected by the 2022 court ruling.
The Supreme Court decision came out of litigation involving four separate cases featuring unethical behavior by local and state public officials between 2011 and 2018.
A Doña Ana County treasurer offered money to an employee for sex. A District Attorney in Grants used her position to intimidate officers investigating her use of a public vehicle for personal reasons. An Aztec magistrate judge was removed from the bench by the state supreme court for illegally recording her colleagues in secure areas of a court building. A New Mexico Taxation and Revenue cabinet secretary used her position to access the tax records of a previous employer. (Prosecutors alleged Demesia Padilla was trying to prevent the audit of a former client, from whom prosecutors alleged she had embezzled money. Padilla was convicted for embezzling $25,000 from her former employer but that conviction was overturned on appeal with the court saying the statute of limitations had run out.)
The public officials were hauled into court by prosecutors on a range of charges, some of which were criminal counts that they violated the state’s Governmental Conduct Act (GCA), a state ethics law that applies to all officers and employees of the state or political subdivisions of the state – like counties, boards, or commissions.
Criminal convictions under other statutes, civil convictions, removals from office, and public reproach followed. But none were criminally convicted under the ethics law, which would have subjected them to a fine up to $1,000 and up to a year in jail.
That’s because the Supreme Court held that the sections of the Government Conduct Act prosecutors sought convictions under were too vague, effectively squashing the ethics cases against the four defendants.
Those sections counsel public officials to not use their positions for personal gain and exhort public officials to act with integrity, disclosing real or potential conflicts of interest, and state that “at all times, reasonable efforts shall be made to avoid undue influence and abuse of office in public service.”
While prosecutors argued those sections of the Governmental Conduct Act were sufficient to bring criminal charges, the Court disagreed, saying the wording isn’t specific enough about what acts would actually constitute a crime. A separate provision in the ethics statute that bars bribery was not struck down. It means prosecutors can still criminally charge public officials under the ethics statute for bribery.
In the wake of the ruling, then-New Mexico Attorney General Hector Balderas dismissed ethics charges his office had brought in a separate case in Los Lunas. The Supreme Court “took away” a necessary tool, Balderas told the Valencia County News-Bulletin at the time, calling on the state Legislature to “strengthen” state ethics laws.
Balderas’ successor, Raúl Torrez, hasn’t since pursued criminal cases under those sections either.
“…our review of the Governmental Conduct Act violations since that time takes into account the Supreme Court’s opinion,” said Lauren Rodriquez, director of communications for Attorney General Raul Torrez.
Jeremy Farris, executive director of the New Mexico State Ethics Commission, bluntly characterized the Supreme Court ruling during a conversation with New Mexico In Depth last month as “gutting out” the state’s “main anti-corruption statute.”
“They held that one of the most important provisions of the Governmental Conduct Act is not criminally enforceable,” Farris said. “That’s taking it off the books for the Attorney General’s office.”
Farris said that when a court decision significantly affects a state statute, “the Legislature has to respond…and this was two or three years ago.”
Torrez’s office agrees. “By amending the statute, it would allow an assurance that there is an enforcement mechanism to guarantee that the GCA will be followed,” said Rodriquez.
Lawmakers considered a bill that would have revised the statute during last year’s 60-day session, but ran out of time after the legislation passed the House but stagnated in the Senate in the final weeks of the 60-day session. This year’s bill has yet to appear on the legislative website but will likely be very similar.
The bill last year would have revamped the Governmental Conduct Act, providing ethical principles as guidance in one section, and making clear in other sections a range of activities that would be subject to criminal enforcement. Those activities include conducting political activity while on duty or in a public building or coercing government employees to vote in a certain way.
It also would have allowed greater financial penalties for civil cases, which are currently capped at $250, a state of affairs that Farris called shocking. “Those penalty provisions are quite old now and they no longer really serve as a deterrent,” he said last week.