[Editor’s Note: For those of you unfamiliar with the legislative process – and sometimes even for those of us who are! – the process can seem like the worst way to create good legislation. There can be frustrating last-week maneuvers – like the tabling of HB 4 and the introduction of SB 668 through a dummy bill – and a flurry of amendments that can be hard to follow because they are not online and no one at the hearing, save for the legislators, has the proposed amendments in front of them, in any form. What does not show at the end, however, is the work people have done ahead of time, preparing them for these moments of chaos: whether it be advocacy groups gathering together, on the phone and in the halls of the capitol, examining how the latest suggested amendments might impact the totality of the bill and getting that information to the sponsor and others; legislators having mapped out the process they’d like to see reflected in the legislation on a white board, and then demanding that process; or sponsors working hard behind the scenes to speak with their colleagues either to understand or persuade. Many, many people who have been hoping for the best possible ethics commission enabling legislation have been keeping a close eye on – and speaking up about! – the process and the shifting sands of legislation. Despite how it may seem, the public’s interest, demonstrated by the overwhelming 75% approval for the commission, is being protected and expressed. How things work out in the end remains to be seen, however.]
Yesterday, SB 668 (a Senate Education Committee substitute amended in the Senate Judiciary Committee and then again on the Senate Floor), passed the House Judiciary Committee, and is now heading to the House floor, we think today.
What does SB 668 do that NMEW likes, thinks meets public expectations/demand, or can accept?
Jurisdiction: the bill, as amended, limits the jurisdiction of the commission to those specifically named in the constitutional amendment, rather than expand it to include school board members and charter school commissioners (SB 619), or local government officials (as the SJC amendments to SB 668 would have done as of July 1, 2021), before the commission can make and report on its judgment as to whether the expansion of jurisdiction to others is appropriate.
SB 668, as amended, also removes the newly-added requirements that the ethics commission oversee civil enforcement of the Open Meeting Act and the Inspection of Public Records Act, leaving that where it now lies, with the Attorney General’s Office, with their decades of enforcement and institutional knowledge about the application of these laws to public bodies and meetings.
The amended bill also clears up some confusing concurrent jurisdiction issues, making it easier for the public to understand the process, and the commission and agencies to agree upon sensible and appropriate divisions of labor.
Process: the bill, as amended, restores the process and separation of duties between the executive director (who determines jurisdiction and performs necessary administrative tasks), the general counsel (who investigates and adjudicates) and hearing officers.
Transparency: The bill, as amended, provides notification of the finding of probable cause to the complainant and respondent upon that finding, and requires the notification, complaint, specific allegations being investigated and any response to the complaint to be made public twenty days following notice to the respondent. The hearing is also public, and the commission is required to publicly disclose a decision, including a dismissal or terms of a settlement. Additionally, the amended bill permits either the complainant or the respondent to disclose a complaint determined to be frivolous, unsubstantiated or outside the jurisdiction of the commission.
Subpoena Power: The amended bill requires the commission to petition a district court judge, designated annually by the Supreme Court, for the issuance of appropriate subpoenas. [Editor’s Note: NMEW believes the best legislation would permit the commission to issue subpoenas without going to court. With a designated judge, however, the time delay should be less, as the judge may be familiar with the issues, have studied the laws over which the commission has jurisdiction, and be prepared to issue subpoenas. NMEW hopes that if this process proves to be too burdensome it will be amended to permit the commission to issue subpoenas.]
That brings us to today, to the House Floor, where there is a hope that the members will take note of the thoughtful process that has brought us to where this legislation is at this moment, as amended…and amended…and amended.
You can watch the House floor proceedings by going here, and clicking on the “In Progress” button next to the House proceedings title, after the House begins its session.