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Openness advocates blast ethics panel bill

Copyright © 2019 Albuquerque Journal

SANTA FE – New Mexico’s new ethics commission would operate largely in secret and impose harsh penalties for violating that confidentiality under legislation proposed in the state Senate.

The secrecy provisions drew sharp criticism Friday from a variety of advocacy groups – including Common Cause, Ethics Watch and the New Mexico Foundation for Open Government. Common Cause, for example, described the ethics commission proposed in Senate Bill 619 as “a weak body, shrouded in secrecy with little enforcement power.”

The sponsor of the proposal, Sen. Linda Lopez, D-Albuquerque, said she is still working on the bill and seeking bipartisan input on how to proceed.

“It’ll be changing,” she said of the legislation.

As it stands now, Senate Bill 619 would impose stiffer penalties on people who violate the confidentiality provisions than it would on officials who violate ethical standards. The gag provision includes those who file a complaint.

The commission’s hearings would be closed to the public, and its documents would be confidential, except in limited circumstances.

Transparency advocates said the secrecy would undermine public confidence in the ethics process.

“Any committee created to hold our elected officials to high ethical standards can only be effective if its proceedings are as open as possible,” said Melanie J. Majors, executive director of the New Mexico Foundation for Open Government.

The debate comes as lawmakers wrestle with how to establish a state ethics commission approved by New Mexico voters last year. The board is empowered to investigate and decide on complaints alleging ethical misconduct by government officials, candidates, lobbyists, contractors and employees.

Approval of the constitutional amendment, which passed with 75 percent of the vote, followed a series of ethics scandals in New Mexico, including the 2017 conviction of a former state senator on corruption charges.

The amendment left it up to the Legislature to establish the details of how the commission would operate, and Lopez’s bill is just one proposal.

House Bill 4, sponsored by Rep. Daymon Ely, D-Corrales, outlines a less secretive process. He said it would allow people involved in ethics complaints – either the accused or the person making the allegation – to speak publicly about the matter, if they choose to.

“In no way are we abridging people’s First Amendment rights,” Ely said of his proposal.

However, the commission itself would not disclose complaints that were found to be unsubstantiated, under his proposal.

The Senate measure, meanwhile, calls for the commission to release a public report only if it finds someone guilty of an ethics violation. It could issue a public reprimand or censure and recommend disciplinary action, but it would be up to the House, Senate or other public body to determine whether to actually impose any discipline.

Disclosing a confidential ethics document could result in a year in jail or a $10,000 fine, unless a court authorizes a bigger fine, under the Senate proposal.

Heather Ferguson, executive director of Common Cause New Mexico, said the Senate proposal doesn’t match what people voted for.

“What they want is a commission that has integrity, that encourages the public to file complaints and that restores their trust in our political process,” she said. “A commission shrouded in secrecy, with high penalties for those who file complaints, will do nothing but have a chilling effect.”

Kathleen Sabo, executive director of New Mexico Ethics Watch, said the bill “fails miserably to engender public trust in the commission’s work by keeping most things behind closed doors.”

The concerns raised by Common Cause and Ethics Watch include:

⋄  The inability of the commission to punish wrongdoers beyond a reprimand or censure.

⋄  The lack of subpoena power. The commission would have to ask a state District Court to issue subpoenas to compel the testimony of witnesses or obtain documents. (Ely’s House bill would give the commission subpoena power.)

⋄  The requirement of such a high standard of proof that it would be difficult to charge and find public officials guilty of ethical violations.

⋄  The lack of public access to hearings and complaints, exemptions from the Open Meetings Act and Inspection of Public Records Act, and the institution of harsh penalties for those who release information to the public.

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