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NM legislator system in spotlight

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Former state Sen. Phil Griego sits in court during a public corruption trial against him in Santa Fe on Oct. 31. (Eddie Moore/ Albuquerque Journal)

Copyright © 2017 Albuquerque Journal

SANTA FE – The corruption trial of former state Sen. Phil Griego has put the spotlight on New Mexico’s system of citizen legislators – where lawmakers aren’t paid a salary but instead have day jobs or other careers.

Jurors last week heard Griego himself, in a recorded interview, explain why he didn’t believe it was a conflict for him to earn a $50,000 commission on the sale of an historic state building – a transaction that was made possible after his colleagues voted to authorize it.

“This is what I do for a living, bro,” the ex-lawmaker said in a 2014 interview with Peter St. Cyr, the journalist who broke the story in the Santa Fe Reporter. “If they don’t want us to do business, pass a constitutional amendment to allow the Legislature to be paid.”

The potential for conflicts between legislators’ private jobs and their public office is, of course, a major theme of the trial.

Prosecutors for the state Attorney General’s Office allege that Griego used his influence as a legislator to push for the sale, then collect the $50,000 commission as a real-estate broker. He is charged with violating laws on bribery, fraud and ethical misconduct.

Griego and his attorneys, in turn, say he didn’t commit a crime – that it’s natural for lawmakers with day jobs to face potential conflicts.

In any case, they say, Griego didn’t actually vote on the legislation or apply any political pressure. And his role as a broker didn’t come about until later, after the legislative session concluded, they say.

Potential conflicts

New Mexico is the only state in the nation where legislators don’t draw a salary.

“We’re not professional politicians,” Senate Majority Leader Peter Wirth, D-Santa Fe, told the jury when prosecutors called him as a witness in the Griego trial.

New Mexico lawmakers do, however, receive “per diem” payments for each day attending the legislative session or committee meetings between sessions, mileage traveling to and from meetings, and other expenses.

They receive about $160 a day for lodging, meals and incidental expenses, based on the federal reimbursement rate for work in Santa Fe.

Over the course of a year, lawmakers can end up taking home $20,000, though it varies widely, depending on a member’s committee assignments and how far their home district is from the Capitol.

This system – where lawmakers are generally either retirees or working regular jobs when the Legislature isn’t in session – inevitably leads to questions about potential conflicts, legislators say.

Wirth, who works as a lawyer, said it’s important to err on the side of disclosure. He told jurors, for example, that he once announced in a committee meeting that he wouldn’t vote on a measure because a client of his law firm was advocating in favor of it.

And he said he has seen other senators who are lawyers ask to be excused from participation in floor votes because they have a client or pending case that might be affected.

“I’ve always taken the position of disclosure first, and then figuring out where to go once that disclosure has happened,” Wirth said.

As for Griego, Wirth said he would have asked a lot more questions and slowed down the approval process for the building legislation if he’d known his colleague would later make a commission on the transaction.

Griego, a San Jose Democrat, was on the Senate floor during the debate but left before the vote, without disclosing any involvement in the deal.

His defense contends he didn’t have a role in the deal at that point – that it was only later that he would become a broker for the company buying the building.

Under questioning from Griego’s defense team, Wirth and state Rep. Jim Trujillo, D-Santa Fe, acknowledged to the jury that individual legislators may interpret the need for disclosure differently.

“It’s kind of subjective,” said Trujillo, a retiree who once owned a convenience store and also worked for the state.

Wirth said disclosure is obvious in some cases, such as a direct financial stake in a vote.

“I think there’s necessarily some judgment involved in each senator’s response to how they (interpret) the rules,” he said. “It’s up to each senator to make that disclosure.”

Public trust

In the Senate, where Griego served for 18 years, members are required to vote on every question they’re present for, unless they have a personal or monetary interest in the outcome. There’s also a provision allowing a senator to ask for permission to be excused, with an explanation of why.

But in practice, it isn’t uncommon for a lawmaker to “take a walk” and avoid voting on something, whether for a legitimate reason or not.

There’s also a lengthy rule outlining a variety of ethical responsibilities, including the treatment of the office as a public trust – a rule Griego acknowledged violating.

Shortly before his resignation in 2015, he signed a four-page agreement that says he agreed to help the company that wanted to buy the state building before the 2014 legislative session and that he initiated the legislative approval process by getting someone else to introduce a resolution to authorize the sale. The company eventually paid $50,000 to the company Griego worked for as a real-estate agent.

The agreement also says Griego had never before been accused of ethical misconduct and that he was unaware of a provision in the state Constitution prohibiting lawmakers from having an interest in any state contract authorized by laws passed during their tenure.

His attorneys have suggested that Griego signed the agreement so he could move on from the controversy, and they steadfastly argue that he didn’t commit a crime.

The state Energy, Minerals and Natural Resources Department wanted to sell the building – without any political pressure from Griego – and the sale was vetted by other agencies, the Griego defense team has argued.

Public vs. private

Griego, in the recorded interview played for the jury, said lawmakers can’t entirely separate their public and private lives.

Public school teachers and administrators and lawyers serve in the Legislature, he pointed out.

And educators typically vote on the state budget, which provides money for schools, while lawyers vote on statutes that affect their law practices, Griego said.

That isn’t so different from his own work as a real-estate agent, he told St. Cyr, then a freelance writer for the Santa Fe Reporter.

“What’s the difference? They benefit from that,” Griego said. “This is a citizen Legislature, my friend.”

The question will soon be in the hands of jurors. The trial, which began on Halloween, is expected to end this week.

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