AP NEWS

Judge drops 5 misdemeanor counts against Padilla

May 25, 2019

Former state Taxation and Revenue Secretary Demesia Padilla smiled widely in a Santa Fe courtroom Friday when a state district judge threw out five misdemeanor ethics charges in her corruption case.

However, Padilla, who was one of former Gov. Susana Martinez’s highest-profile Cabinet secretaries, still faces three felonies, including embezzlement, using her office for private gain and her access to her department’s computer system to defraud or embezzle.

Shortly after state District Judge Mary Marlowe Sommer made her ruling, Attorney General Hector Balderas said his office already had filed an appeal of the dismissals.

Even with the five misdemeanor charges dropped, Padilla faces more than 19 years in prison if convicted of the remaining counts.

Prosecutors say Padilla, a certified public accountant, stole more than $25,000 from one of her private clients, Harold’s Grading and Trucking near Bernalillo, while she headed the New Mexico Department of Taxation and Revenue.

She’s also accused of interfering in a state audit of the business. According to testimony at a preliminary hearing last year, family members who own that business said that when they confronted Padilla about transferring money from the business to her private credit card account, she claimed the firm owed her money.

At Friday’s hearing, Padilla’s lawyer, Paul Kennedy, successfully argued that his client should not have been charged under sections of the state Government Conduct Act listed in the criminal complaint. He said certain sections of the act Padilla was charged with violating are “aspirational” statements in the law and not criminal violations.

These sections include one that says public officials “shall conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.” Another section of the law that was used to charge Padilla with a misdemeanor says, “Full disclosure of real or potential conflicts of interest shall be a guiding principle for determining appropriate conduct. At all times, reasonable efforts shall be made to avoid undue influence and abuse of office in public service.”

Kennedy argued that the statute is overly broad and contains no definitions of terms used in those sections. This, he said, would make it difficult to craft jury instructions.

Prosecutors Peter Valencia and Zach Jones countered in a written response to the motions to dismiss the misdemeanors that the Government Conduct Act has a section that reads “any person who knowingly and willfully violates any provision of that act is guilty of a misdemeanor …”

Marlowe Sommer agreed with Kennedy, saying the sections of law used to charge Padilla in those counts are “ethical principles of public service” but “are not provisions the Attorney General’s Office can rely on as somewhat of a kitchen sink, so to speak.” She said other sections of the Government Conduct Act list specific prohibited acts.

Balderas, in a statement provided by a spokesman, responded, “Government officials must be held accountable to the same standards as all other New Mexicans. We are fully committed to presenting this embezzlement case at trial and have already asked the appellate courts to review the dismissal of ethical charges against public officials.”

Also at Padilla’s hearing, prosecutor Jones complained to the judge that Padilla left a message on the phone of a Taxation and Revenue Department employee who is on the attorney general’s witness list for the case.

Kennedy argued that the witness is a minor one who is expected to be called only to explain the department’s GenTax computer system for taxpayers, which Padilla is accused of illegally accessing. Kennedy said Padilla “forgot” the woman was on the witness list.

Jones said Padilla has spoken to other witnesses as well. He said this happened during last year’s preliminary hearing, where the former secretary “exchanged pleasantries” with witnesses outside the courtroom.

The prosecutor said he wasn’t asking for Padilla to be “handcuffed and jailed today,” but he asked Marlowe Sommer to modify her terms of release “to make crystal clear … no pleasantries, no business calls.”

Kennedy said he wouldn’t fight modification of Padilla’s conditions of release, which the judge agreed to do.

Padilla’s trial is expected to start this summer.

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