New Mexico voters took an important step toward more enlightened government last November when they overwhelmingly approved a constitutional amendment to establish a state ethics commission.
They did so with the understanding state lawmakers would heed the state’s sordid history of elected-officials-turned-felons and craft enabling legislation granting a commission powers aimed at getting to the bottom of complaints and one that would do much, if not all, of its business in the open.
The two bills introduced so far can only be described as terrible, and not as bad.
The “worst of show” ribbon goes to SB 619, proposed by Sen. Linda Lopez, D-Albuquerque, whose vision would ensure ethics complaints remain secret unless the commission decides after back-room hearings there had been a violation of law or the accused signs a waiver of confidentiality. The person filing the complaint would actually have to sign a confidentiality agreement, and anyone who discloses confidential complaints or investigations could face fines up to $10,000 and up to a year in jail, and a judge could impose a civil penalty up to $25,000.
Call it the whistleblower punishment act. In the “we really do want to be a Third World country” competition, these punishments would be tougher than the penalties government officials, lobbyists or candidates would face for violating the state’s ethics laws.
Open government groups are aghast.
Melanie Majors of the New Mexico Foundation for Open Government says there is “no good explanation for why an ethics body needs such extraordinary secrecy.” Heather Ferguson, executive director of Common Cause, says the Senate proposal doesn’t match what 75 percent of voters approved – a commission that has integrity and restores their trust in our political system. She rightly states “a commission shrouded in secrecy” will have the opposite, chilling effect. New Mexico Ethics Watch, the nonpartisan group chaired by retired Chief Justice Richard Bosson, argues that independence, subpoena power and transparency are key elements of an effective commission. “New Mexico needs ethics commission legislation that will increase the trust in those working for the public and seeking public office and state contracts,” Bosson said.
That just can’t happen in the kind of punitive darkness Lopez wants to impose.
Under her plan it would still be up to the House or Senate to determine whether to impose any discipline for a violator. The commission, which also would lack subpoena power, would be a toothless tiger in the dark with only the power to growl the occasional public reprimand. It’s no secret many in the Senate of either political stripe have never really embraced this ethics idea, preferring to handle things themselves as they always have – without a roar that draws attention to lapses in judgment and responsibility.
Meanwhile, Rep. Damon Ely, D-Corrales, has filed HB 4, which is an improvement. For example, it gives the commission much more teeth, including subpoena power.
But it would prohibit the commission from disclosing complaints that are deemed frivolous and don’t warrant investigation, putting the responsibility to inform the public on the complainant or accused.
Say there are numerous complaints against a public official who has an “in” with the commission, and those complaints are summarily dismissed. Guess what never sees the light of day?
Also worrisome is Section 13 C., which lays out that with a few exceptions, “all complaints, reports, files, records and communications collected or generated by the commission, hearing panel or director that pertain to alleged violations shall not be disclosed by the commission or any commissioner, agent or employee of the commission.”
That is a blanket protection to hide from public view many records that should be open.
At least Ely would not bar people who have filed complaints or been accused of wrongdoing from talking. Perhaps he could share his copy of the First Amendment with Lopez.
Ely speculates that making complaints public earlier would discourage people from filing them – not a very compelling argument from a lawyer who knows that a legal complaint becomes public when it’s filed in court.
Ethics Watch believes complaints should be made public when filed. Other open government groups have indicated they could accept making them public at the same time an answer is filed or due – a reasonable balance that allows both sides of a story to come out at once.
Instead of ensuring a true ethics investigation, both bills, especially Lopez’, leave open the door to the patron system that has done a grave disservice to New Mexico government.
As a candidate, Gov. Michelle Lujan Grisham extolled the idea of an ethics commission. But it needs to be one that actually accomplishes the goal of promoting public trust in government. The Legislature has a historic opportunity to do that. If it doesn’t, the governor shouldn’t hesitate to veto the legislation and send it back to the drawing board.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.