The Bernalillo County Code of Conduct Review Board on Wednesday unanimously voted to impose a fine of $1,000 and a public censure on State Auditor and former County Commissioner Wayne Johnson for a violation during his unsuccessful run for mayor of Albuquerque last year.
The board previously found in April that Johnson violated the code by accepting a $2,500 donation from a “restricted donor,” individuals or companies doing business with or seeking to do business with the county. Restricted donors can contribute a maximum of $1,000.
Attorney Pat Rogers, representing Johnson, said the board failed to follow the law and its own rules in multiple areas and that a lawsuit is forthcoming.
The board heard the complaint in May but took no action when only three members were present. All five members were present Wednesday.
The complaint, filed by Dennis Maez, a retired U.S. Secret Service agent and Albuquerque resident, stated that Kevin Yearout, CEO and owner of Yearout Energy Service Co., a New Mexico firm also known as YESCO, contributed $2,500 to Johnson’s campaign in July 2017.
Johnson as a commissioner voted in December 2017 to enter an $14 million energy performance contract with YESCO intended to improve energy efficiency at the Metropolitan Detention Center.
“We and Mr. Maez continue to be happy with the decision of the board,” said attorney Nicholas Hunt, who was representing Maez. “We think that it was clear that auditor Johnson violated the ordinance and that the sanction was appropriate.”
Rogers again argued the county’s code of conduct doesn’t cover municipal elections.
“Basic due process protections, First Amendment rights and the rule of law were violated from beginning to end,” Rogers said in an email. “Before a rule can be violated, there must be a rule. In this case no rule barring the donation can be fairly invented from the existing county rules to prohibit the receipt of a donation in the mayor’s race. The definition of ‘restricted donors’ cannot, in any fair fashion, be re-written, modified, tortured or invented to cover the donation at issue. Lawsuits to address these violations will be filed shortly.”
Historically, the board has not imposed a sanction when a violation has occurred but remedied. Johnson can avoid the fine by returning $1,500 to Yearout within 30 days, according to the sanction order read by board member Rachel Higgins. The violation finding would stand.
The board voted to admonish Yearout for failing to appear as a witness for a prior hearing. Yearout’s attorney, Colin Hunter, argued the subpoena of Yearout was improperly served. Hunter declined comment after the hearing.
Gov. Susana Martinez appointed Johnson as state auditor in December after Tim Keller resigned before he was sworn in as mayor.
Voters will elect an auditor to a four-year term in November. Johnson, a Republican, will face Democratic nominee Brian Colón in that election.