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Debate begins on details of new ethics commission

February 12, 2019

New Mexico voters spoke, overwhelmingly backing a constitutional amendment last year to create an independent ethics commission.

Now, it is up to lawmakers to decide exactly how the commission will work.

Democrats in the state House of Representatives on Monday put forward the first plan of the legislative session for setting up the ethics panel, proposing a board that would work with broad secrecy.

Confidentiality provisions immediately raised concerns from some of the biggest proponents of creating the commission. And the bill’s backers are walking a fine line as they ask lawmakers to set up the very body that will police them.

Under House Bill 4, complaints and investigations would be confidential unless the commission determines there has been an ethics violation or one of the people involved in the case chooses to release the complaint.

Rep. Daymon Ely, D-Corrales, said in an interview last month he fears making every complaint public would discourage people from coming forward with concerns about wrongdoing.

“I really feel like you will turn away people who want to make complaints,” he said.

He argued it should be up to the person filing the complaint or the person targeted by the complaint to make the matter public if a case does not go forward.

Ely said in a statement Monday the ethics commission would be a “step forward in transparency, accountability and integrity for New Mexico.”

“A state ethics commission will give New Mexicans a place to go if they have a complaint against a state official,” he said, “while creating a system that is fair and reliable.”

But one of the ethics commission’s biggest backers argued that complaints and responses filed with the commission should be public, regardless of whether the commission decides there has been a violation of ethics laws.

“That’s the only way to get around decisions being made behind closed doors,” said former state Rep. Jim Dines, R-Albuquerque.

If the public cannot see the allegations and evidence that the commission weighs in a case, the public may not trust how the commission reaches its decisions, Dines said.

“The more transparency, the more credibility this ethics commission will have with the public,” he added.

Some advocates for government transparency have feared that leaving it to lawmakers to decide how the commission will function is almost bound to lead to opacity.

“Transparency is the antidote to their concerns of frivolous complaints,” said Peter St. Cyr, founder and executive director of a new group, Open Access New Mexico. He campaigned against the amendment, arguing the commission would not be strong enough.

“This leaves far too many opportunity for things to be under the rug,” he said.

Seventy-five percent of voters in the last election supported a constitutional amendment to create an independent ethics commission — the culmination of a yearslong push by good government groups.

The vote came against the backdrop of an election in which industries and labor unions spent millions to sway New Mexicans. And it followed successive scandals that have reached the highest echelons of New Mexico government, with a former secretary of the Taxation and Revenue Department currently under indictment, a former state senator sitting in prison and a former secretary of state serving probation.

The amendment approved by voters was fairly open-ended.

It specified that the commission will have seven appointed members, with no more than three from the same political party. One is to be appointed by the governor, four by legislative leaders and the remaining two by the commissioners themselves. The amendment tasks the commission with taking complaints and investigating matters such as conflicts of interest, lobbying, campaign finances and violations of the state purchasing laws.

The Legislature was left to set up the commission, however, and figure out the details.

A bipartisan group of lawmakers, good government advocates, business boosters and policy wonks convened a series of public meetings over the last year to develop several options for how legislators might set up the commission.

Ely’s bill incorporates many of that group’s ideas.

But some proposed language the group circulated called for greater transparency by making public even the complaints that have been dismissed, along with the reasons for dismissing the complaint.

Transparency is just one major question hanging over the commission’s creation, though.

Backers have disagreed over whether the commission should have authority over local elections, for example.

Under Ely’s proposal, the commission’s authority would cover state officials, candidates for state offices, lobbyists and contractors but would not extend to local governments.

While many of the ethics complaints the Secretary of State’s Office currently receives concern local officials, such as county commissioners or even school board candidates, Ely has raised concerns that the new commission might be overwhelmed if it immediately takes on responsibility for ethics issues beyond state government.

Under House Bill 4, the commission would issue advisory opinions and take verified complaints from the public over violations of ethics laws.

A three-member panel would then determine whether the commission’s director should investigate a complaint.

Armed with subpoena power, the commission could also elect to take up investigations on its own if three-fourths of members voting on the matter agree. So, if a scandal hit the news, the commission could act without waiting for a complaint.

The commission’s staff would turn over findings from its investigation to a three-member panel. If the panel determines there has been a violation, the panel could recommend disciplinary action and impose fines allowed under law.

The full, seven-member commission would handle appeals and whether to take a case to court to pursue any civil penalties. If the commission finds there has been criminal conduct, it could refer cases to the attorney general.

“It will not solve every problem but it will go a long way to ensure accountability and restore the public’s trust in state government,” said Heather Ferguson, executive director of the advocacy group Common Cause New Mexico.

Setting up the ethics commission may be one of the biggest tasks of a 60-day legislative that already has a packed agenda.

Observers have expected that several lawmakers would file different bills putting forward contrasting visions for how the commission should operate.

And yet no one filed a bill until Monday — nearly halfway through the session, with the deadline to introduce new bills rapidly approaching on Thursday and a little more than a month left before the Legislature adjourns.

Many are bracing for an intense political fight as lawmakers design the system that will police them.

Ely’s bill will go first to the House Judiciary Committee.

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