And then there were two!
Yesterday, SB 619, the second piece of ethics commission enabling legislation was introduced in the Senate. The bill differs markedly from the previously-introduced HB 4. We’ll be doing a comparison of the bills as we’re able. What we’re giving you now, below, shows how the provisions of SB 619 contain or agree with the necessary elements we identified in our Essential Elements for an Independent Ethics Commission document. While the text of the bill is linked above, you can find the legislature’s page for the bill here.
LOCATION: Senate Rules Committee
SPONSOR: Senator Linda Lopez
HEARING DATE: As yet unscheduled
Here’s how SB 619 stacks up with our Essential Elements doc:
It is essential that the commission be an independent agency, not assigned to any branch of government or attached, administratively or directly, to a department of state government, and that it retains policy making and administrative autonomy from any other state agency.
Section 3(A): Sets out the composition of the “states ethics commission” as created in Article 5, Section 17 of the constitution of NM.
NMEW Discussion: SB 619 does not describe the commission as an agency of any kind. Section 2(A) defines “adjunct agency” to mean “an agency, board, commission, office or other instrumentality, not assigned to an elected constitutional officer, that is excluded from any direct or administrative attachment to a department and that retains policymaking and administrative autonomy separate from any other agency or state government”. The commission is never described as an adjunct agency within SB 619, nor as an independent agency.
a. Over Whom
The constitutional amendment approved by the voters provides for ethics commission jurisdiction “for state officers and employees of the executive and legislative branches of government, candidates or other participants in elections, lobbyists or government contractors or seekers of government contracts and have such other jurisdiction as provided by law.” NMEW believes that the commission should initially focus on the activities of those specifically named within the constitutional amendment, in order to function most effectively.
Section 5(A): Commission required to receive and investigate complaints alleging ethics violations against public officials, public employees, government contractors and lobbyists.
b. Primary Jurisdiction
NMEW believes that the commission should have primary jurisdiction in the screening and referring of complaints to the appropriate agency. Primary jurisdiction will permit commission staff to evaluate complaints, direct complaints, and avoid duplication of efforts.
Section 5(A): provides that the commission shall receive and investigate complaints alleging ethics violations against public officials, public employees, government contractors and lobbyists.
Section 13: criminal violations required to be immediately referred to the AG or an appropriate district attorney.
Section 14: commission shall not investigate allegations of misconduct involving campaign advertisements.
NMEW Discussion: Ethics violations arise from violations of existing laws, such as the Campaign Reporting Act (CRA), the Governmental Conduct Act (GCA), the Lobbyist Regulation Act (LRA), the Financial Disclosure Act (FDA), the Voter Action Act (VAA), the Gift Act, and the Procurement Code. Other agencies, such as the Secretary of State (SOS), currently have jurisdiction to enforce the provisions for civil violations of those Acts and Codes, and for the imposition of civil fines. There is no mention of any of these Acts or Codes in SB 619, and the bill does not address who will have primary jurisdiction for ethical violations arising under these Acts and Codes.
It is essential that the public be able to view the activities of the commission. While some, even the staunchest advocates of transparency, might disagree as to where in the process ethics complaints and responses be made public, NMEW believes that disclosure to the public should happen upon the filing of a complaint. Accordingly, the commission should not accept complaints during the 30-day period preceding an election.
Section 8(C): A request for an advisory opinion shall be confidential and not subject to the provisions of IPRA.
Section 11(D): The commission’s written report finding that conduct constituted an ethics violation shall be publicly disclosed by the commission.
Section 12: All complaints, reports, files, records and communications collected or generated by the commission or its director that pertain to alleged ethics violations are confidential and not subject to IPRA.
Section 16: Disclosure of confidential info in violation of the SECA is a misdemeanor w/ a fine of not more than $10,000 or imprisonment for not more than one year, or both. Court may also impose a civil penalty of $25,000 or less for each violation of Section 12.
IV. OPEN MEETINGS
NMEW believes that all commission hearings and meetings need to be open to the public and comply with the Open Meetings Act.
Section 11(F): provides that commission hearings held pursuant to Section 11 are closed to the public.
Section 17: amending Section 10-15-1 NMSA 1978 to provide that the provisions requiring all meetings of public bodies and commissions, and all minutes kept by commissions, to be public, shall not apply to meetings of the commission relating to complaints or investigations of alleged ethics violations.
From the outset, the commission needs to be appropriately funded to accomplish its mission. Often, New Mexico’s Judicial Standards Commission (JSC), with 7 FTEs and a smaller population to administer, is used as a measuring stick for funding. The JSC receives recurring funding of more than $800k per year. Given the task set out for the ethics commission, NMEW believes that, as a starting point, the commission needs to be funded at $1 Million per year, with adequate safeguards against politically-motivated defunding.
Section 19: Appropriates $200k for FY20 to carry out the provisions of the SECA.
VI. EVIDENCE STANDARD
NMEW believes that the standard of evidence to be applied in commission hearings needs to be “preponderance of the evidence”. This standard has been defined as: “the standard of proof in most civil cases in which the party bearing the burden of proof must present evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not.” Some legal scholars define the standard as requiring a finding that at least 51% of the evidence shown favors the complainant’s facts – in other words, that the burden of proof is met if there is a greater than 50% chance that, based on all of the evidence presented, the complainant’s claims are true and the respondent did in fact commit the ethical violation complained of.
Section 11(D): commission must find by clear and convincing evidence that the respondent’s conduct constituted an ethics violation.
Tangentially, NMEW believes that the Rules of Evidence should not apply to commission hearings.
NMEW Discussion: There is no guidance in SB 619 as to whether the Rules of Evidence apply in commission hearings. There is a requirement that a hearing be conducted by a retired judge, potentially indicating that the Rules of Evidence apply in a hearing, but the bill does not specifically address that.
VII. SUBPOENA POWER
It is essential that the commission be able to subpoena witnesses and documents, in order to make probable cause determinations and to conduct hearings. It is also essential that persons and entities are able to object to issued subpoenas. Upon a determination by the commission regarding the objection to a subpoena, it is essential that judicial review of that determination is provided for in the commission’s enabling legislation.
Section 9(G): Director required to ask the commission to petition a district court to issue a subpoena under seal. The commission is permitted to petition the district court. Any challenge to a subpoena is required to be heard by the district court in a confidential proceeding. If a person refuses to comply with a subpoena, the district court is required to compel compliance.
NMEW believes that the commission should have the authority to issue and enforce civil fines and to make recommendations for further action to a respondent’s superintending authority. This division will prevent separation of powers issues. Additionally, NMEW believes the commission should have the authority to require a respondent to pay for the costs of an investigation, when the respondent is found to have committed an ethics violation. The costs of investigation may also be levied upon a complainant who files a frivolous or fraudulent complaint.
Section 11(D): The written report of the commission may include a public reprimand or censure or recommendations for disciplinary action against the respondent.
NMEW Discussion: There is no indication in SB 619 that the commission will impose fines under any underlying Act describing and providing penalties for an ethical violation. Public reprimand or censure would seem to be in the realm of superintending authorities and a violation of the separation of powers.
IX. COMMISSION QUORUM
NMEW believes that commission decisions should require a quorum of at least four members, with at least two political parties needed to produce the quorum, to avoid partisan decision making by the commission.
Section 3(H): Provides that four commissioners consisting of two members of the largest political party in the state and two members of the second largest political party in the state constitute a quorum for the transaction of business.
 Merriam-Webster Dictionary