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Mixed ruling on state’s ethics law

Copyright © 2020 Albuquerque Journal

SANTA FE – The state Court of Appeals has ruled that part – but not all – of New Mexico’s anti-corruption law is too vague to be enforced.

In a complex ruling Friday, the court ordered the reinstatement of at least one ethics charge against three defendants – former Doña Ana County Treasurer David Gutierrez, 6th Judicial District Attorney Francesca Estevez and former San Juan County Magistrate Judge Connie Lee Johnston.

The judges didn’t rule on the defendants’ guilt or innocence, just that charges could proceed.

By contrast, the court dismissed a series of other charges against them and against former Taxation and Revenue Secretary Demesia Padilla.

Attorney General Hector Balderas said the ruling demonstrates the need for legislative action.

“I am grateful that the Court upheld that it is illegal for public officials to misuse a public office for personal gain,” Balderas said in a written statement. “However, the Court also made it clear that the legislature must clarify and strengthen public corruption laws to protect the public trust.”

Paul Kennedy, an attorney for Padilla, said he and his client “are of course happy with the Court’s decision. Frankly, it wasn’t a close call.”

The opinion focuses on whether public officials can face criminal prosecution for violating parts of the Governmental Conduct Act.

A three-judge panel of the Court of Appeals upheld one section of the law but struck down two others.

The court ruled that prosecutors may bring charges against officials who use their power or resources to “obtain personal benefits or pursue private interests” in violation of the act.

The judges ordered lower courts to reinstate charges under that section of the law against Gutierrez, Estevez and Johnston. Padilla wasn’t charged under that part of the law.

The Court of Appeals, however, ruled that two other sections of the law are too vague for criminal charges. Those parts of the law call for public officials to conduct themselves in a way that justifies the “confidence placed in them by the people” and for officials to make reasonable efforts to avoid undue influence and abuse of office.

The court upheld the dismissal of those charges against all four defendants. The opinion touched on cases against:

• Gutierrez, who was accused of pursing an unwanted sexual relationship with one of his employees.

• Estevez, who was accused of using her position to manipulate or intimidate officers investigating whether she had improperly used a state-owned vehicle.

• Johnston, accused of illegally recording communications of her colleagues in secure areas of a court building.

• Padilla, accused of using her position to access tax records of her old accounting firm and records of former clients.

The Court of Appeals upheld the dismissal of some ethics charges against Padilla. But still pending against her are allegations of engaging in an official act for personal financial gain, embezzlement and computer access with intent to defraud or embezzle.

The 35-page opinion was written by Judge Julie Vargas, with concurrence by two pro tem judges, retired Supreme Court Justice Richard Bosson and retired Appeals Court Judge Michael Bustamante.

The decision can be appealed to the Supreme Court.

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