Documents: Dow failed to obey court order in ethics case - Albuquerque Journal

Documents: Dow failed to obey court order in ethics case

Copyright © 2022 Albuquerque Journal

SANTA FE – An intense legal fight over the ethics investigation into state Rep. Rebecca Dow played out quietly in court last year, sealed from public view.

Dow, a Republican candidate for governor, vigorously fought subpoenas issued as part of the investigation into whether she properly disclosed income from a nonprofit group she founded, according to newly released documents.

For almost two months, in fact, she refused to sit for a court-ordered deposition – a conflict that resulted in sanctions of $50 a day, the records say.

Glimpses of the struggle are outlined in hundreds of pages of documents disclosed by the State Ethics Commission, some in response to a Journal request for public records.

Other documents became public automatically on Friday after the commission’s general counsel, Walker Boyd, found probable cause to support allegations that Dow had violated state laws on financial disclosure and governmental conduct.

Rep. Rebecca Dow

Dow, a three-term lawmaker from Truth or Consequences, flatly disputes the allegations. She contends that she is not only in compliance with the law, but also that she voluntarily amended financial disclosure documents to address concerns raised by the ethics commission.

“I have publicly disclosed – overdisclosed – all the details of my work and very modest payment for an important nonprofit in my district,” Dow said in a written statement Wednesday.

The ethics staff, she added, “is way out of bounds, and continues to invent new claims of violations as old ones are abandoned.”

Court documents show a combative behind-the-scenes legal fight. Dow and her attorneys contested the agency’s push for her sworn testimony, arguing the subpoenas had technical flaws and violated court rules.

Judge James T. Martin of the 3rd Judicial District did not see it that way. In a now-public order issued in August, he said Dow had violated an earlier court order by failing to appear at a scheduled deposition and not producing certain documents, a violation he said “lacks a justification.”

He ordered automatic fines of $50 a day until she complied with the court order for a deposition. She eventually paid about $4,115, according to documents, a figure that included reimbursing the State Ethics Commission for costs incurred when she did not appear at the scheduled deposition.

In a written response to Journal questions, Dow did not directly address why she wouldn’t sit for the deposition until sanctions were imposed.

She argues the investigation is politically motivated and without merit.

“For years, the radical Democrats have tried to scare me out of running with bogus complaints,” Dow said. “They haven’t scared me yet. And they won’t.”

Sealed litigation

Until now, conflict over the investigation occurred out of public sight.

The law establishing the State Ethics Commission keeps investigations confidential unless there’s a probable cause finding to support the allegations. Someone who files a complaint, however, is free to make the allegations public.

The case against Dow is the first to be made public by the commission after a finding of probable cause.

The State Ethics Commission began accepting complaints two years ago following voter approval of a constitutional amendment establishing the agency.

Members of the seven-member commission are appointed by the governor, Democratic and Republican legislative leaders, and the commission itself. No political party can hold more than three seats on the commission, and any action by the panel must be supported by at least two Democratic and two Republican members.

The documents released this month underscore the tension between Dow and the ethics commission.

In his findings and recommendations, Boyd, the commission’s attorney, summarized much of the dispute this way:

• He offered to settle the case in January last year if Dow paid a $250 civil fine and acknowledged her responsibilities under state law. She did not respond to the settlement offer, Boyd said, but she later filed an amended financial disclosure statement that did not entirely address the potential violations.

• The commission secured court approval to issue subpoenas for Dow’s testimony and other information. Dow and her attorney contested the subpoenas, a struggle that reached the state Supreme Court, which dismissed Dow’s petition for review.

• Dow was eventually ordered by District Judge Martin to sit for a deposition, but she refused and was later held in contempt of court. She paid about $4,115 “in compensatory and coercive sanctions,” Boyd said, for failing to comply with the court order, until she sat for a deposition in late October.

Boyd, who worked previously at the Peifer, Hanson and Mullins law firm in Albuquerque, and clerked for federal and state appeals court judges, took note of the legal conflict in his report finding probable cause.

It was Dow’s own “refusal to acknowledge apparent violations,” he said, that brought about the litigation.

“These actions are not consistent with a good faith willingness to provide evidence to the Commission or correct good-faith mistakes,” Boyd wrote.

Disputed subpoenas

Documents in the ethics file describe some of Dow’s legal objections.

Her attorney, Lucas Williams, said the commission had improperly refused to identify what it was investigating and that its written questions to Dow exceeded its legal authority to subpoena information.

He responded to a host of written questions, anyway.

Williams also said the commission’s subpoenas had “foundational errors.” They were filed in the wrong court, failed to match the format required by law and represented an attempt to “engage in unauthorized ex parte proceedings,” he said in court documents.

He disputed that Dow was in violation of a court order when she didn’t immediately sit for a deposition.

When Dow finally appeared at the deposition late last year, she defended herself.

She said she had worked diligently to comply with the state’s ethics and disclosure laws, and thought she had addressed the ethics commission’s concern when she voluntarily amended a disclosure report listing her income sources.

Dow also told the commission’s staff that she had started volunteering her time rather than receiving pay, and curtailing some activity because of the unfair scrutiny brought about by her role as a legislator.

“I stepped down from every board that receives any state or federal funding because I wouldn’t want to put anybody through this,” she said in the deposition.

Next steps

Despite the legal conflict, the ethics complaint against Dow is moving forward.

Boyd’s finding of probable cause is not a final decision. The complaint now goes to retired U.S. Magistrate Judge Alan C. Torgerson, who will serve as a hearing officer to consider the allegations.

His work can be appealed to the ethics commission.

Dow said she looks forward to clearing her name in a public hearing.

The ethics complaint was filed before the 2020 general election by Dow’s Democratic opponent that year, Karen Whitlock. Dow won reelection by 16 percentage points.

Parts of the ethics complaint were later dismissed. But the remaining allegations include accusations that Dow violated the state Financial Disclosure Act by failing to report over $5,000 in gross income from AppleTree Educational Center in 2019 and by not disclosing the nature of her work for the center.

Dow is the founder and a former CEO of AppleTree, a nonprofit that serves children and families in Sierra County. Much of its revenue comes from state grants and contracts.

Boyd also found probable cause to support allegations that Dow had represented AppleTree before state agencies, in violation of the Governmental Conduct Act. State law restricts when legislators may represent a client before a state agency.

In her own ethics filings, Dow contends she consulted with attorneys for the Legislative Council Service on how to file her disclosure forms and was told she did not need to list AppleTree. She said she made so little as a consultant to AppleTree that she wasn’t required to report it.

“This is a nonprofit,” she told the Journal, “that addresses the needs of families and their young children in crisis.”

Furthermore, Dow said, she is entitled to represent nonprofit groups and others as constituents in her district.

“I used to run a nonprofit that does a great service for my community,” Dow said. “I’m not apologizing for trying to help my community EVER.”

Dow is one of at least seven Republicans vying for the GOP nomination to challenge Democratic Gov. Michelle Lujan Grisham. The primary election is set for June 7, and the general election is Nov. 8.

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