Lawsuit challenges secrecy provision in harassment case - Albuquerque Journal

Lawsuit challenges secrecy provision in harassment case

Copyright © 2022 Albuquerque Journal

SANTA FE – A lobbyist who accused state Sen. Daniel Ivey-Soto of sexual harassment has filed a lawsuit that aims to strike down the law that prohibits her from speaking about the case.

The suit was filed Thursday on behalf of lobbyist Marianna Anaya in the state’s 1st Judicial District.

The 13-page petition asks a judge to declare that the confidentiality rule is an unconstitutional limitation on her free speech rights and that she should be allowed to speak about the case.

“Ms. Anaya has a right to speak the truth on these matters, and the public deserves to know the truth about them,” her attorney, Levi Monagle, states in the petition.

The litigation comes a day after Ivey-Soto, an Albuquerque Democrat and chairman of the Senate Rules Committee, revealed in a letter to the Journal that the investigation into Anaya’s harassment complaint against him is over and won’t proceed to public hearings that could lead to discipline.

He didn’t release details – or mention Anaya by name – and it’s unclear what precisely happened.

The recommendation of a special counsel appointed to conduct the investigation and any votes taken by the investigative subcommittee of senators remain confidential. The person who filed the complaint – Anaya, who accused Ivey-Soto of sexual harassment and abusive behavior – is likewise bound by a secrecy provision in the state law.

The Santa Fe Reporter, however, reported Thursday that it had obtained a copy of the special counsel’s report and that it recommended a determination of probable cause on two of the allegations Anaya had lodged against Ivey-Soto – one involving an accusation that he’d groped her in 2015, another centering on his behavior at a restaurant.

Ivey-Soto denied both allegations.

The newspaper also reported that the special counsel interviewed someone who said Ivey-Soto had “pinned her down” on a couch in 2019 after a consensual interaction become non-consensual and she tried to pull away. The person said Ivey-Soto didn’t stop when she asked him to, according to the documents posted by the Santa Fe Reporter.

In an interview late Thursday, Ivey-Soto said the allegation that anything non-consensual happened is false.

Furthermore, he said, the special counsel’s report omitted material facts and wasn’t endorsed by the legislative subcommittee that reviewed it.

“What the people who have leaked this report are wanting the public to do is substitute their judgment for that of the committee, without having been in the committee to hear about the defects in the report,” Ivey-Soto said.

He also accused Senate President Pro Tem Mimi Stewart, D-Albuquerque, of being linked to the release of the special counsel report. He said he had received a message that Stewart let it be known the report would be leaked if he didn’t resign from his post as chairman of the Senate Rules Committee.

Stewart said late Thursday that she had nothing to do with the release of the report. In fact, she said, she has never seen the report.

“I’ve never read it,” she said. “Shame on him.”

She confirmed that she asked him to resign from leading any Senate committees, which she said was warranted because some members say they don’t feel comfortable attending meetings he presides over.


As for the confidentiality lawsuit, Ivey-Soto doesn’t face the same restriction Anaya does. He is also empowered to waive the confidentiality provisions in the ethics law, but made it clear to the Journal – in the letter and in interviews – that he will not do so.

By law, the lawmakers serving on the Interim Legislative Ethics Committee, their staff and the person who files a complaint are prohibited from sharing any information about it – unless either the accused legislator waives confidentiality or there’s a finding of probable cause to support the allegations and move forward with public hearings.

Ivey-Soto said the investigative subcommittee did not find probable cause.

He said Thursday that he would review Anaya’s lawsuit.

“Whether it’s constitutional or not will be decided by the judge,” he said. “I appreciate that, instead of taking matters into their own hands, they’re going through the process to get a judicial order.”

Anaya’s petition contends the confidentiality provision illegally abridges her right to free speech. Her suit also contends the Interim Legislative Ethics Committee did not properly handle her harassment complaint.

She accused Ivey-Soto of sexual harassment and abusive behavior in an open letter shortly after this year’s legislative session concluded.

Ivey-Soto vigorously denied the allegations.

But neither has said much about the substance of the case since then, as Anaya filed a formal harassment complaint, triggering the confidentiality provision in the law.

Legislation expected

Even without litigation, the harassment policy and confidentiality law may face changes.

The leaders of New Mexico’s legislative ethics committee said Thursday they will push for immediate changes to how the Legislature handles harassment complaints – a process they say is prone to deadlock and unfairly limits the free speech of the person who files a complaint.

In a joint interview Thursday, state Rep. Daymon Ely, D-Corrales, and Senate Majority Whip Linda Lopez, D-Albuquerque, said parts of the harassment policy could be revised as soon as this month, while other changes would require legislation in next year’s legislative session.

Ely and Lopez spoke to the Journal before the filing of Anaya’s lawsuit.

“The process is flawed and it will change,” Lopez said. “We cannot let it stand as it is.”

Ely said the result of the law is an unfair “gag rule” on the person who files a complaint.

“I just thought Sen. Ivey-Soto’s comments were outrageous,” Ely said of Ivey-Soto’s letter to the Journal. “He basically wants to have it both ways. He wants to be able to say this is all confidential, but I’ve been vindicated.”

Ivey-Soto, in a separate interview before the filing of the lawsuit, said he took offense to that characterization. Without the limited comments he made, Ivey-Soto said, the public would have no way of knowing the case wasn’t moving forward.

Sen. Daniel Ivey-Soto, D-Albuquerque, debates an election bill during the special session in 2020. (Eddie Moore/Albuquerque Journal)

“The only thing I said was, there’s no finding of probable cause,” Ivey-Soto said Thursday. “I didn’t go beyond that. I didn’t re-litigate it. I didn’t cast any aspersions on the complainant.”

Quick changes

Ely and Lopez are co-chairs of the Interim Legislative Ethics Committee, a panel convened, in certain circumstances, when there’s a complaint against a lawmaker.

Revising the confidentiality rule, Ely and Lopez said, would require a statutory change in next year’s legislative session.

Lopez said she plans to introduce legislation revising the law – perhaps crafting something similar to how the State Ethics Commission handles complaints. Ely is retiring and won’t be part of the House next year.

The ethics commission itself faces some confidentiality restrictions, but the people involved in a complaint are free to speak about it.

Ely and Lopez also said they are examining another piece of the harassment policy – the role of four-person subcommittees divided evenly between Republicans and Democrats.

Under the harassment policy, for example, a complaint can trigger the appointment of an investigative subcommittee of four legislators to determine whether there’s probable cause to support the allegations.

But the small, even number of members, Ely and Lopez said, makes it easy for potential action to die on a 2-2 vote.

Ely suggested creating a way to break a tie, perhaps by permitting the involvement of a law school dean or someone similar.

The change would not require a statutory revision. The policy could be taken up as soon as this month by the Legislative Council, a bipartisan group of high-ranking lawmakers from both chambers.

Ivey-Soto, for his part, said he would like to see revisions to the harassment policy, too.

But the four-person subcommittees, he said, aren’t necessarily a problem. They’re designed to ensure bipartisan support before a complaint moves forward.

“If it’s a properly styled case that’s not political,” Ivey-Soto said, “it’s not going to come down on party lines.”

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