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Legislature, AG fight over records on ex-senator

SANTA FE – The New Mexico Legislature’s administrative arm has refused to turn over records related to former state Sen. Phil Griego that the Attorney General’s Office subpoenaed earlier this month.

The AG’s Office is now asking a judge to order the Legislative Council Service to do so.

Attorney General Hector Balderas sought the records for his office’s criminal case against Griego, who was recently charged with nine crimes – including bribery, fraud and perjury – that allegedly stem from the former senator’s role in a 2014 real estate deal involving a historic state-owned building.

After the Legislative Council Service filed a motion last week objecting to the March 3 subpoena on the grounds that state law and the New Mexico Constitution make certain records confidential, the Democratic attorney general responded Monday by asking a district judge to order that the documents be turned over.

Specifically, three AG’s Office attorneys claimed the council service does not have the “absolute privilege” to withhold potential evidence that could shed light on Griego’s actions.

“This is inconsistent with United States Supreme Court precedent and the state’s power to ‘investigate and prosecute’ crimes by legislators,” the AG’s Office said in its motion.

The requested records include a file of correspondence pertaining to the drafting of the 2014 property sale legislation and documents from a Senate ethics subcommittee that looked into a complaint against Griego.

Under the Legislature’s current system, ethics complaints are reviewed and investigated confidentially in a closed-door process. In its Monday filing, the AG’s Office said it does not know how often the subcommittee met or what its members discussed.

The Legislative Council Service did release findings from the ethics subcommittee after Griego abruptly resigned from the Senate in March 2015.

At the time, Griego, a Democrat from San Miguel County, was facing the prospect of an open hearing – and possible disciplinary actions – over his role in the sale of the state-owned building near downtown Santa Fe to a private buyer.

The AG’s Office claimed that because the findings were publicly released, the rest of the subcommittee’s records should be released too.

“In this case, the most significant part of the investigation – its outcome – was already released by both Griego and (the council service),” the AG’s Office attorneys wrote in their Monday motion. “The remainder of the investigative file is therefore no longer confidential.”

But the Legislative Council Service, in refusing to release the records, argued in court that communications between ethics subcommittee members and staff are constitutionally protected from disclosure under a so-called “speech and debate” privilege.

The council service is the Legislature’s drafting and legal research agency. Its staffers are instructed to work for lawmakers without regard to their political affiliation.

During this year’s 30-day legislative session, lawmakers considered a proposal to create a state ethics commission that would have held public hearings on non-frivolous complaints against legislators, other elected officials and lobbyists.

But the ethics commission proposal died because its sponsor, Rep. Jim Dines, R-Albuquerque, pulled his support after a Senate panel proposed sweeping revisions that he said would have rendered the body a “toothless tiger.”

Meanwhile, Griego has yet to make a court appearance in response to the nine charges filed against him on Feb. 29.

Already, three judges in the Santa Fe-based 1st District Court have recused themselves from the case. It is currently assigned to Judge Matthew Wilson.

Griego, a rancher who had served in the Senate for 18-plus years at the time of his resignation, has previously maintained he was unaware of a constitutional provision against lawmakers profiting from legislation passed during their term in office.

The 2014 property sale had to be approved by the Legislature, but Griego didn’t disclose any financial interest when lawmakers were voting on it. He later received a $50,000 broker’s fee for monitoring the sale proceedings.

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