Is the State Ethics Commission more bark than bite?

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Jul. 24—In the 2 1/2 years the State Ethics Commission has existed, the government watchdog agency has had its hands full.

The commission, which oversees the state's governmental conduct, procurement and campaign disclosure laws, has investigated 106 administrative cases alleging violations of various statutes since January 2020.

It also has issued 26 advisory opinions, forced a dark money group that spent more than $260,000 to influence a ballot question to reveal its donors, provided staff support to the Citizen Redistricting Committee and conducted trainings statewide, among other accomplishments.

But after a high-profile ethics complaint filed nearly two years ago against state Rep. Rebecca Dow resulted in a $500 civil penalty for two violations of the Governmental Conduct Act last week, a question has emerged: Is the agency more bark than bite?

From one vantage point, the commission is only as effective as the statutes it administers, said commission Executive Director Jeremy Farris, who had choice words for weaknesses in New Mexico's ethics laws and called the current Financial Disclosure Act "a fake Financial Disclosure Act."

"Some of these statutes have real penalties, and others the penalties need to be updated," he said. "But from another vantage, the ethics commission is very much a watchdog. Part of the deterrent ability of a state agency that prosecutes violations of the [law] is simply the ability to bring the case. I mean, to wrap somebody up in the time and expense of litigating an ethics case or an administrative case or a piece of civil litigation is itself a deterrent power. That is very real."

But Farris said changes are in order to ensure the agency is truly a watchdog and not just a safety valve, including doubling the number of staff (the commission will be hiring its fifth attorney later this summer) and increasing penalties for violations.

"The civil penalties for the Governmental Conduct Act is $250 per violation for a maximum of a $5,000 civil penalty," he said. "That is not enough to deter noncompliance with the state's public trust and conflict of interest laws. ... It's so low as to be a transaction cost."

Farris said the commission will continue to recommended amendments to the law and also push for a new Financial Disclosure Act.

He said the law is "so undemanding as to be completely ineffective in the identification of whether or not members of the Legislature and officials in the commanding heights of state government have conflicts of interest," he said.

Although reforms are necessary, Farris said the state is better off since the commission was created.

"So far, I think that we're kind of living up to the aspiration of the constitutional amendment," he said.

Fielding the complaints

Senate Bill 668 created the independent state agency overseen by seven commissioners with power to investigate and enforce compliance with laws on governmental conduct, election campaigns, lobbyists, gifts and financial disclosures by state officers, employees and contractors, among others.

While open government groups laud the work of the commission — though most matters are handled confidentially — some lawmakers complain the agency has been "weaponized" for political purposes.

To date, the agency has tackled high-profile cases involving some of the state's most prominent politicians.

In addition to Dow, Gov. Michelle Lujan Grisham, House Speaker Brian Egolf and outgoing state Rep. Georgene Louis have been subjected to reviews.

One of the complaints against Lujan Grisham accused the Democratic governor of violating campaign finance laws by spending $6,000 on hair and makeup services provided by one of her daughters.

The complaint was lodged by John Block, editor of the Piñon Post, a conservative news website. Block, who called the hair and makeup costs an inappropriate use of campaign dollars, said the commission dismissed the complaint.

The commission "has been used in a partisan way to punish Republicans while letting Democrats slide and unfortunately, if the Legislature gives it any more power, it will just continue to cripple our state and the open government that we need," said Block, the Republican nominee for House District 51.

State Sen. Jacob Candelaria, an Albuquerque independent, said the commission has failed to demonstrate it should be entrusted with more power until it adopts a code of ethics for itself.

Candelaria pointed to a September 2021 blog post in which Commissioner Jeff Baker, an Albuquerque attorney, criticized Candelaria and questioned whether his vote even mattered in a chamber where Democrats hold majority control.

"My question is this: How can an ethics commission have any integrity or anyone believe that the decisions coming out of that commission are anything other than political when you have commissioners who still see fit to make such really offensive and derogatory and insulting and very clearly homophobic statements about elected officials and those persons they have oversight over?" said Candelaria, who is gay.

Efforts to reach Baker for comment were unsuccessful. Farris said he has not spoken with Baker about his "missive" on Candelaria, which appeared in a political blog.

Other lawmakers also questioned whether the agency has been effective.

"I think it has been weaponized," said House Minority Leader Jim Townsend, R-Artesia. "I was worried about that from the beginning, that it would be utilized in this matter, so unfortunately — and I mean this because I had high expectations for them — I wanted them to be effective, but I think they have been horribly ineffective."

Minority Whip Rep. Rod Montoya, who helped craft the enacting legislation for the commission, echoed the sentiment.

"In debate I warned that an ethics commission could be used in an unethical manner," he said in a statement. "Unfortunately, the lack of consistency in case management, the leaking of unsubstantiated complaints, and their lawyers constantly moving the target in investigations is earning the commission a reputation of being a political weapon. New Mexicans wanted honesty in government, instead we got a tool for partisans to use against their political opponents."

Unseen, unknown

Much of the commission's work remains behind the scenes. That's because both the complainant and the government official being investigated would have the right to inform the public about the process, but the commission itself only releases information when it determines there is probable cause for an investigation.

That's a provision some good-government groups have an issue with, even as they express support and admiration for the commission's work.

"If a complaint is filed, we want it to be transparent," said Melanie Majors, interim executive director for the Foundation for Open Government. "The bill came out that only when there is a finding do they release it. I understand where people are coming from on both sides. But there's always room for more transparency. And it is funded with taxpayer money, so it should be transparent."

Farris said the Legislature, not the commission, established the rules.

"It's not a completely transparent process, and the Legislature didn't intend it to be one," he said.

Judy Williams of the League of Women Voters of New Mexico understands the frustration with limited transparency but said "there is a decent argument for not naming people" until probable cause has been established. She said anyone can file a frivolous complaint against a civic leader or worker, just as they can in the court system.

By statute, the commission cannot impose fines of more than $5,000 on those it finds culpable of unethical or improper behavior.

While Dow, R-Truth or Consequences, had to pay more than $4,000 in sanctions for delaying a deposition in addition to the $500 civil penalty, Louis, D-Albuquerque, paid just $250 to the commission in advance of the commission filing a civil enforcement action against her.

In that case, the commission said Louis had violated the state Governmental Conduct Act when she told a police officer who pulled her over on suspicion of drunken driving that she was a state lawmaker — suggesting she was trying to influence the officer.

Heather Ferguson, executive director of Common Cause New Mexico, said she would like to see the range of fines raised to as much as $20,000. She said lawmakers and open-government groups should revisit the fine scale in the future with an eye toward imposing higher fees.

She said the very presence of the commission can be enough to deter political figures from engaging in unethical or improper behavior. But she added it is not a guarantee.

"I think that the presence of accountability and enforcement will never be able to stop all improper conduct," Ferguson said. "That would be an impossible task. There are some individuals who will seek to circumvent the law."

Ferguson disagrees with the notion commissioners are engaged in politics.

Members have "approached their work in a fair and nonpartisan manner," she said. "They have gone after both high-profile Democrats with improper payouts at the Governor's Office as well as Republicans. They have been truly doing the job with all of the authority they were given by the Legislature."

She said the commission's issuing of opinions — ranging from campaign finance guidelines for lawmakers and candidates to the question of whether lawmakers can apply for Small Business Recovery Act loans (the answer is no) — also plays a role in holding public officials accountable.

Those opinions explain to both the public and elected officials "what behavior will be crossing the line before it happens," she said.

Ferguson, Majors and Williams all said they are satisfied with the commission's progress and work to date. Given the statutory limitations the Legislature imposed on the commission — it cannot look into cases involving local municipal workers, sheriffs or county commissioners — they noted any sort of expansion of those oversight duties needs to come with increased funding and staffing.

But the commission does not yet have the staff to take on a bigger workload. In a state with 33 counties and "hundreds of officials," such additional investigative duties could create a mess, Williams said.

Regarding the commission's current status and whether it's doing enough to carry through its responsibilities, Majors said people have to take the long view.

"Every marathoner starts out with baby steps," she said.