SANTA FE – In its first court filing, the State Ethics Commission says the New Mexico Court of Appeals should reverse the dismissal of criminal charges against former Taxation and Revenue Secretary Demesia Padilla.
The Ethics Commission took no position on Padilla’s guilt or innocence. But it said the state Governmental Conduct Act established specific, mandatory duties prohibiting abuse of office that can be enforced through criminal charges.
Padilla had fair warning, the agency said, that she could face criminal enforcement if she were to abuse her office.
The filing comes after Padilla’s attorney won dismissal of five ethics charges last year, arguing that Padilla had been charged under parts of the law that are too vague to be enforced and were never meant to be used in criminal cases.
Paul Kennedy, Padilla’s attorney and a former Supreme Court justice, said Tuesday that the Ethics Commission brief “totally misses the mark.” The governmental conduct statute can be enforced civilly, he said, just not as a criminal charge.
“Our position has no effect whatsoever on whatever the Ethics Commission is supposed to be doing,” he told the Journal. “This is a good example of a state agency that obviously has too much time and too much money on its hands.”
After dismissal of the five ethics charges last year, prosecutors in the Attorney General’s Office filed an appeal, which is pending.
The Ethics Commission – an independent state agency established last year – is now seeking approval to file a friend-of-the-court brief in the case.
The Ethics Commission brief comes as judges across the state consider criminal enforcement of the Governmental Conduct Act. Lower-court rulings have poked holes in the prosecution of public officials accused of violating the act – including a former Doña Ana County treasurer, a prosecutor in southwestern New Mexico and a former magistrate judge in San Juan County.
In dismissing ethics charges against Padilla last year, state District Judge Mary Marlowe Sommer in Santa Fe said prosecutors cannot use broad language in the Governmental Conduct Act as a “kitchen-sink” approach to filing charges.
But the Ethics Commission brief contends the act is specific enough to allow for enforcement.
The parts of the law at issue, the brief says, “allow an individual of ordinary intelligence in Padilla’s shoes to know that the statutory provisions prohibit the Secretary of the Taxation and Revenue Department from misusing the powers and resources available to that office to access confidential taxpayer information for another’s private benefit, including for their spouse’s private tax-preparation business.”
Padilla, an appointee of then-Gov. Susana Martinez, was charged in 2018 with embezzling more than $25,000 from a Bernalillo-based company and using her appointed position to push for favorable tax treatment. She pleaded not guilty.