In a November 2018 referendum, New Mexicans voted by a more than 75% margin to approve an amendment to the state Constitution creating an independent ethics commission. With the advent of the new year, the State Ethics Commission begins its work.
Since Hawaii created the first state ethics commission in 1968, 48 states have established an ethics commission. While their powers vary across the states, these oversight agencies all work to foster public trust in government and to prevent government from being captured by private interests. Ethics commissions attempt to solve the old paradox: quis custodiet ipsos custodes – who guards the guardians?
In building the State Ethics Commission, New Mexico has learned from the experience of other states in at least two ways: First, New Mexico’s commission is not a creature of statute or executive order, able to be stricken by subsequent legislative amendment or the governor’s pen. Instead, New Mexicans cemented the Commission into the state Constitution.
Second, the seven commissioners who oversee the commission’s work are appointed in a way that ensures the commission is independent and impartial. The governor appoints the chair, who must be a retired judge. The Legislature’s majority and minority leadership appoint four more commissioners. The legislatively appointed commissioners in turn appoint two more commissioners. Any commission action requires the agreement of at least two Democrats and two Republicans. Together, these requirements ensure that no political party or branch of government can control the commission’s decisions.
These guarantees of independence and impartiality matter because New Mexicans and the Legislature have given the commission broad powers. The commission has the power to enforce the civil provisions of several governmental conduct and disclosure laws by imposing civil penalties and recommending disciplinary action, including impeachment.
But the commission can never become a star chamber, arbitrarily exercising its power. The law limits the commission’s work. For example, complaints must be signed and notarized. The commission cannot act on anonymous complaints or on a complaint that fails to allege a specific violation of the law, as opposed to a vague allegation that a state employee’s conduct is immoral or unethical. The commission has the authority only to decide whether a respondent’s conduct is illegal, not whether it is morally wrong.
The law protects the rights of respondents in several other ways. First, the commission and its staff must keep complaints confidential, at least until the commission’s staff determines a complaint is substantial enough that it requires a public hearing. Second, the commission’s jurisdiction does not reach conduct that occurred before July 1, 2019. And, third, public officials and state employees appearing before the commission have the right to counsel provided by the state.