Duran, who resigned last week and pleaded guilty to multiple counts related to her misuse of campaign donations, is expected to be able to keep her pension benefits when sentenced later this year.
The 2012 law was heralded as one that would deter would-be wrongdoers and improve New Mexico’s public image.
However, since being signed into law by Gov. Susana Martinez it has not yet been used against any state official.
“The public was misled that lawmakers had passed an aggressive statute intended to properly take away pensions from corrupt officials, yet the inadequate current law doesn’t even mention the word pension and would result in costly litigation for taxpayers,” AG’s Office spokesman James Hallinan told the Journal.
Under the law, a judge can increase the sentence of an elected official convicted of a felony offense by imposing a fine “not to exceed the value of the salary and fringe benefits paid to the offender.” It does not specifically mention pensions, though lawmakers have said that’s what they had in mind when they passed it.
But the AG’s Office says the wording of the law needs to be more clear and called on lawmakers to enact a fix during the 30-day legislative session that begins in January.
“Judges and prosecutors need the proper tools to withhold a state pension and we are requesting that the Legislature immediately create an effective criminal pension forfeiture statute for corrupt public officials,” Hallinan said.
The Governor’s Office was noncommittal this week when asked whether Martinez would consider placing any such proposal on the agenda for next year’s session.
“Governor Martinez has always been open to discussing proposals that would strengthen our laws that are already on the books,” Martinez spokesman Chris Sanchez told the Journal.
Meanwhile, Rep. Ken Martinez, D-Grants, who sponsored the 2012 bill in the House, said he recently spoke with Balderas, a first-term Democrat, about enacting changes to the law and is open to the idea.
“If it would be better to say the word (pension), maybe we need to do that,” Martinez said Tuesday. “It may be a one-word fix.”
Duran, a Republican, was accused by the Attorney General’s Office in August of using campaign money to cover gambling expenses at casinos across the state. Facing possible impeachment, she resigned as secretary of state last Friday and pleaded guilty to six of the 65 criminal counts she was facing – two felony embezzlement charges and four misdemeanors.
In remarks to reporters after leaving the 1st Judicial District courthouse in Santa Fe, Duran defended her tenure as secretary of state and said she deserves to keep her accrued pension benefits.
“I believe I am entitled to my retirement pension, as is any other elected official who has done a good job in their elected capacity,” Duran said.
Duran is covered by three different pension plans under the Public Employees Retirement Association due to her past work in the Otero County Clerk’s Office, as a state senator and as secretary of state. Since she is now retired, she could begin collecting those PERA pensions in the coming weeks.
Meanwhile, some legislators have questioned the attorney general’s interpretation that the 2012 law only allows for fines aimed at accrued pension benefits to be levied in response to a trial verdict, not a plea deal.
House Minority Leader Brian Egolf, D-Santa Fe, said he thinks it’s possible that District Judge Glenn Ellington could still decide to target some of Duran’s pension benefits – via a fine – at the Dec. 14 sentencing.