Infrastructure. The word conjures up images of roads and bridges, and maybe water pipes deep underground. Allow me to offer an additional type of infrastructure for New Mexicans to consider: a government ethics infrastructure.
Such a system provides a foundation for decision-making including ground rules, boundaries between black and white, and a process for figuring out the grays. An ethics infrastructure should include systems for training, advising and enforcing an ethics code. It should strive for independence from any one official, and include a support staff and some recognition that ethics rules and personnel matters may overlap, but they do not necessarily replace one another.
Building such a structure will not turn dishonest people into saints. If a public employee or official feels compelled to violate the code to benefit himself or a friend, then stronger laws will not necessarily dissuade him. Hopefully an ethics enforcement system or other law enforcement mechanisms will derail such folks.
Having worked in a state ethics agency, let me offer a sampling of the types of issues that may arise:
• A legislator with a financial interest in a large farming operation would be impacted by legislation being considered. Is it proper for her to cast a vote on that legislation?
• A state executive branch employee is co-chairing a fundraising event for a nonprofit along with a friend who is a consultant. The friend is planning to solicit contractors who work with the employee’s department. Are there potential ethics issues raised by this? If so, how can they be avoided?
• The procurement official for a city knows that the company his wife works with can offer better pricing on items the city is purchasing. Can he redirect the contract to her company to save the city money?
• A legislator wants to know whether his serving on the board of a large firm with state contracts creates potential conflicts of interest, and if so, what is the proper way to avoid those issues?
• The ethics officer for a state agency said that an anonymous vendor left tickets to a sporting event for an employee. That employee knows the gift should not be accepted under the state ethics code. What should be done with the tickets?
Even though our ethics agency had jurisdiction only over the executive branch of state government, we still received calls for guidance from legislators as well as local officials. The courts had their own ethics system, but there was no credible infrastructure in the legislative branch nor most local governments for dealing with such issues.
The lack of an arms-length, consistent mechanism for dealing with the inevitable gray areas of government decision-making is a disservice not only to the public, but to those working on the public’s behalf. A public employee may be an expert in his or her policy area, but most are not trained for analyzing and avoiding matters that can reasonably be perceived as conflicts. Most have not thought about how to reasonably define “financial interest” – or whether even volunteer work for a nonprofit can raise questions about the public interest.
When a reporter calls a public official and questions the ethics of a given situation, that official is much better off when he can say, “Well I thought about that, too, and that is why I went to the ethics commission for advice and here is a letter from them on how I should handle it.”
Building an ethics infrastructure in New Mexico will not eliminate scandals. Bad players will still try to game the system. Good ones will make mistakes. But it should begin the process of establishing rules of conduct for public servants, help train and advise those who want to do the right thing, and build on enforcement options for those that make poor decisions.
I encourage New Mexico lawmakers to pass legislation creating an ethics commission. Let us take this important step to start building a better ethics infrastructure now.
David Maidenberg served as director of the Indiana State Ethics Commission from 1997 through 2000. He now resides in Santa Fe.
