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New Mexico lawmakers debate ethics secrecy

Copyright © 2018 Albuquerque Journal

SANTA FE – New Mexico voters this year overwhelmingly backed a constitutional amendment establishing an independent ethics commission.

Now state lawmakers are wrestling with how much of the group’s work should be public.

The amendment – which passed with 75 percent of the vote – left it to the Legislature to determine the details of how the seven-member commission would operate.

A working group headed by Democratic Sen. Linda Lopez and Republican Rep. Jim Dines, both of Albuquerque, has already been exploring ways to set up the commission.

But Lopez and Dines say critical questions over transparency and jurisdiction will have to be answered in the upcoming legislative session, which starts Jan. 15. They expect competing proposals to be introduced.

Dines is pushing for lawmakers to make the commission’s work as public as possible. Transparency, he said, will help build public confidence in the ethics system.

“I’ve always believed this ethics commission is a toothless tiger without as much transparency as possible,” he said Friday during a meeting of the legislative Courts, Corrections and Justice Committee.

Dines suggested, for example, that ethics complaints could be made public at the same time as the person’s formal response to the allegations.

But several lawmakers said Friday that they are struggling with what documents should be public and when.

They fear frivolous complaints will be filed as a political weapon, they said, to damage a public official’s reputation.

Senate Majority Leader Peter Wirth, D-Santa Fe, said professional complaints filed against lawyers and judges in New Mexico are made public only in certain circumstances.

“This is the piece that I’m weighing; I haven’t made a decision yet,” Wirth, a lawyer, said of the transparency question. But “I don’t think the Judicial Standards Commission is a toothless tiger.”

In New Mexico, complaints against lawyers are confidential unless the state Office of Disciplinary Counsel decides to proceed with allegations of attorney misconduct. Complaints against judges generally become public only if the Judicial Standards Commission files a case for discipline with the Supreme Court.

Dines, a retired lawyer with expertise in public records and open meetings laws, suggested the fears about frivolous complaints are overblown. People already can file public ethics complaints with the Secretary of State’s Office, he noted.

Furthermore, he said, “trust us” isn’t usually a winning argument by government agencies that want to operate in secrecy.

“If you’re going to balance something,” Dines said, “balance it in favor of openness.”

Friday’s back-and-forth was a preview of what will be some of the Legislature’s most critical work in the 2019 session. But Dines may not be part of that next year. He lost his re-election bid in a race so close that it triggered an automatic recount, which was ordered by the State Canvassing Board on Friday.

The constitutional amendment adopted by voters this year broadly outlines the ethics commission’s composition, subpoena power and authority to issue advisory opinions. It’s also empowered to investigate and decide on complaints alleging ethical misconduct by government officials, candidates, lobbyists, contractors and employees.

But “enabling legislation,” as it’s called, is necessary to more specifically outline how the new commission will operate.

Lopez said a variety of decisions must be made – including what sorts of discipline the commission may impose and whether its jurisdiction will extend to school board members.

Other questions include how to fund the commission’s work and whether the group would hold hearings in public when evaluating ethics complaints and whether the complaints themselves would be public.

New Mexico has been one of only six states without an ethics commission.

“This is a profound change in our state,” Lopez said.

The ethics working group, she said, will meet in Albuquerque at the State Bar of New Mexico on 10 a.m. to 2 p.m. on Wednesday.

Passage of the constitutional amendment came after a series of ethics scandals rocked New Mexico in recent years, including the 2017 conviction of a former state senator on corruption charges.

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