Committee Substitute for HB0008JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 8

48th legislature - STATE OF NEW MEXICO - first special session, 2007

AN ACT

RELATING TO ETHICS; ENACTING THE STATE ETHICS COMMISSION ACT; CREATING THE STATE ETHICS COMMISSION; PROVIDING POWERS AND DUTIES; PROVIDING FOR ANNUAL ETHICS TRAINING AND THE PUBLICATION OF AN ETHICS GUIDE; GRANTING SUBPOENA POWER; ALLOWING ISSUANCE OF ADVISORY OPINIONS RELATED TO CERTAIN ETHICS VIOLATIONS; PROVIDING FOR THE FILING OF COMPLAINTS AGAINST STATE OFFICIALS, STATE EMPLOYEES, GOVERNMENT CONTRACTORS AND LOBBYISTS FOR CERTAIN ETHICS VIOLATIONS; ESTABLISHING INVESTIGATIONS OF COMPLAINTS FOR CERTAIN ETHICS VIOLATIONS; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "State Ethics Commission Act".

Section 2. DEFINITIONS.--As used in the State Ethics Commission Act:

A. "campaign contribution" means a gift, subscription, loan, advance or deposit of money or other thing of value, including the estimated value of an in-kind contribution, that is made or received for a political purpose, including payment of a debt incurred in an election campaign. "Campaign contribution" does not include the value of services provided without compensation or unreimbursed travel or other personal expenses of persons who volunteer a portion or all of their time on behalf of a candidate or political committee;

B. "commission" means the state ethics commission;

C. "ethics violation" means any action that amounts to a violation of the Governmental Conduct Act, Procurement Code, Lobbyist Regulation Act, Financial Disclosure Act or Chapter 1, Article 19 NMSA 1978;

D. "government contractor" means a person who has a contract with a state agency pursuant to the Procurement Code. "Government contractor" also includes any person who has submitted a competitive sealed proposal or competitive sealed bid for a contract with a state agency;

E. "lobbying" means attempting to influence:

(1) a decision related to any matter to be considered or being considered by the legislative branch of state government or any legislative committee or to any legislative matter requiring action by the governor or awaiting action by the governor; or

(2) an official action;

F. "lobbyist" means a person who is compensated for the specific purpose of lobbying; is designated by an interest group or organization to represent it on a substantial or regular basis for the purpose of lobbying; or who, in the course of the person's employment, is engaged in lobbying on a substantial or regular basis. "Lobbyist" does not include:

(1) a person who appears on the person's own behalf in connection with legislation or an official action;

(2) an elected or appointed officer of the state, a political subdivision of the state or an Indian nation, tribe or pueblo who is acting in the officer's official capacity;

(3) an employee of the state or a political subdivision of the state, specifically designated by an elected or appointed officer, who appears before a legislative committee or in a rulemaking proceeding only to explain the effect of legislation or a rule on that employee's agency or political subdivision; provided that the elected or appointed officer keeps the designation for public inspection and files it with the secretary of state;

(4) a designated member of the staff of an elected state official; provided that the elected state official keeps the designation for public inspection and files it with the secretary of state;

(5) a legislator or legislative staff member;

(6) a witness called by a legislative committee or administrative agency to appear before it in connection with legislation or an official action;

(7) a person who provides only oral or written public testimony in connection with a legislative committee or in a rulemaking proceeding and whose name and the interest on behalf of which the person testifies have been clearly and publicly identified; or

(8) a publisher, owner or employee of the print media, radio or television, while gathering or disseminating news or editorial comment to the general public in the ordinary course of business;

G. "official action" means an action or nonaction of a state official or state agency, board or commission acting in a rulemaking proceeding;

H. "political purpose" means influencing or attempting to influence an election or pre-primary convention, including a constitutional amendment or other question submitted to the voters;

I. "respondent" means a state official, state employee, government contractor or lobbyist who is the subject of a complaint filed with the commission;

J. "state agency" means any department, commission, council, board, committee, institution, legislative body, agency, government corporation, educational institution or official of the executive, legislative or judicial branch of government of the state;

K. "state employee" means an employee of the executive, legislative or judicial branches of the state. "State employee" does not include a judge or justice, whether elected or appointed, of any court; and

L. "state official" means a person elected or appointed to an office of the executive or legislative branch of the state.

Section 3. STATE ETHICS COMMISSION CREATED--MEMBERSHIP--TERMS--REMOVAL.--

A. The "state ethics commission" is created as an adjunct agency. The commission consists of the following ten members:

(1) four members appointed by the governor, no more than two of whom shall be of the same political party;

(2) two members appointed by the president pro tempore of the senate, who shall not be of the same political party;

(3) two members appointed by the speaker of the house of representatives, who shall not be of the same political party; and

(4) two members appointed by the chief justice of the supreme court, who shall not be of the same political party.

B. Members of the commission shall be appointed for staggered terms of four years. Upon initial appointment of the commission, the members shall draw lots to determine which three members will serve an initial term of two years, which three members will serve an initial term of three years and which four members will serve an initial term of four years; thereafter, all members will serve four-year terms. A person shall not serve as a commission member for more than two consecutive terms.

C. Appointments shall be made in a manner that meets the following requirements:

(1) at least five members shall be appointed from the five public regulation commission districts; and

(2) no more than five members shall be registered members of the same political party within the year prior to their appointment.

D. The commission shall select a chair, vice chair and other officers it deems necessary.

E. Six members of the commission constitute a quorum for the transaction of business. No action may be taken by the commission unless at least six members concur.

F. A vacancy on the commission shall be filled by appointment of the appointing authority for that member's position for the remainder of the unexpired term. A commission member may only be removed for incompetence, neglect of duty or malfeasance in office. The supreme court of the state of New Mexico has exclusive jurisdiction over proceedings to remove commission members, and its decision shall be final. A member shall be given notice of hearing and an opportunity to be heard before the member is removed.

G. During a member's service, a member shall not:

(1) hold or seek an elective public office, an appointed public position or an office in a political party; or

(2) be a state employee, a government contractor or a lobbyist.

H. Members shall recuse themselves from a commission proceeding that involves the appointing authority who appointed the member to the commission and in order to avoid the appearance of impropriety or a conflict of interest.

I. For a period of one calendar year immediately preceding a member's term and immediately following the expiration of a member's term, the member of the commission shall not:

(1) hold or seek an elective public office, an appointed public position or public employment;

(2) represent a person or entity who appears before the commission, unless appearing on the member's own behalf; or

(3) accept employment or otherwise provide services to a person or entity who appears before the commission during the year.

J. Members are entitled to receive per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

K. The commission shall meet as necessary to carry out its duties pursuant to the State Ethics Commission Act.

Section 4. COMMISSION--POWERS--DUTIES.--

A. The commission shall:

(1) receive and investigate complaints alleging ethics violations against state officials, state employees, government contractors and lobbyists;

(2) report findings of probable cause that a respondent's conduct constituted an ethics violation to the respondent's appointing authority, employer or appropriate state agency;

(3) compile, maintain and provide public access to an index of all advisory opinions, complaints and reports required to be made public pursuant to the State Ethics Commission Act;

(4) compile, adopt, publish and provide to all state officials, state employees, government contractors and lobbyists an ethics guide that clearly and plainly explains the ethics requirements set forth in state law;

(5) compile, adopt, publish and provide to all state officials, state employees, government contractors and lobbyists a business ethics guide that clearly and plainly explains the ethics requirements set forth in state law as they relate to conducting business with the state;

(6) provide annual ethics training to all state officials, state employees, government contractors and lobbyists;

(7) develop, adopt and promulgate all rules necessary to implement and administer the provisions of the State Ethics Commission Act, including rules of procedure for investigations conducted by the commission;

(8) employ an executive director; (9) submit an annual report of its activities, including any recommendations regarding state ethics laws, or the scope of its powers and duties, in December of each year to the governor, the legislature and the chief justice of the supreme court; and

(10) promulgate rules for the recusal of members to avoid the appearance of impropriety and conflicts of interest.

B. The commission may:

(1) recommend disciplinary actions for ethics violations in accordance with the provisions of the State Ethics Commission Act;

(2) subpoena and require the attendance of witnesses and the production of accounts, books, papers, records and other documents relevant to an investigation conducted by the commission;

(3) issue advisory opinions to state officials, state employees, government contractors and lobbyists in accordance with the provisions of the State Ethics Commission Act; and

(4) contract for the provisions of goods and

services.

Section 5. EXECUTIVE DIRECTOR--DUTIES--EMPLOYMENT.--

A. The executive director of the commission shall:

(1) be employed by, report directly to and serve at the pleasure of the commission;

(2) hire a general counsel for the commission and all other personnel as may be necessary to carry out the responsibilities of the commission;

(3) perform all investigations on behalf of the commission;

(4) bring complaints and investigation results before the commission;

(5) prepare an annual budget for the commission and submit it to the commission for approval; and

(6) make recommendations to the commission of proposed rules or legislative changes needed to provide better administration of the State Ethics Commission Act.

B. The executive director of the commission may administer oaths and take depositions to the same extent and subject to the same limitations as would apply if the deposition were held pursuant to the discovery rules in a civil action in the district court.

C. For a period of one calendar year immediately preceding the term of an executive director and immediately following the expiration of the term of an executive director, the executive director shall not:

(1) hold or seek an elective public office, an appointed public position or public employment;

(2) represent a person or entity who appears before the commission, unless appearing on the executive director's own behalf;

(3) accept employment or otherwise provide services to a person or entity who appears before the commission during the year;

(4) hold or seek an office in a political party; or

(5) be a state employee, a government contractor or a lobbyist.

Section 6. COMMISSION--ADVISORY OPINIONS.--

A. The commission may issue an advisory opinion to a state official, state employee, government contractor or lobbyist on matters relating to a specific set of circumstances involving ethics violations. Unless amended or revoked, an advisory opinion issued by the commission shall be binding on the commission in any subsequent commission proceedings concerning the person who requested the opinion; provided that the person acted in good faith and in reliance upon the opinion.

B. The commission shall promulgate rules for issuing advisory opinions; provided that:

(1) advisory opinions shall be requested in writing and identify a specific set of circumstances involving an ethics issue;

(2) all requests to the commission for advisory opinions are confidential; and

(3) the commission may publish an advisory opinion after omitting the name of the requesting state official, state employee, government contractor or lobbyist.

Section 7. COMMISSION--COMPLAINTS--INVESTIGATIONS--FINDINGS AND RECOMMENDATIONS--REPORTS REQUIRED--CRIMINAL REFERRAL REQUIRED.--

A. A person who has actual knowledge of an alleged ethics violation committed by a state official, state employee, government contractor or lobbyist may file a complaint with the commission. The complaint shall be signed under penalty of false statement and set forth in detail the specific charges against the state official, state employee, government contractor or lobbyist and the factual allegations that support the charges. Together with the complaint, a person shall submit to the commission any evidence that the person has that supports the complaint. Evidence may include documents, records and the names of witnesses. The commission may prescribe the forms on which complaints are to be filed.

B. Upon receipt of a complaint filed pursuant to this section, the executive director of the commission shall review the complaint and make an initial determination whether the conduct alleged in the complaint is within the jurisdiction of the commission. If the executive director determines that the alleged conduct is not within the commission's jurisdiction, the executive director shall recommend to the commission that it dismiss the complaint. The commission may dismiss the complaint upon the recommendation of the executive director or instruct the executive director to initiate an investigation of the complaint.

C. If the commission decides to investigate the complaint or the executive director determines that the alleged conduct is within the commission's jurisdiction, the executive director shall initiate an investigation to determine whether probable cause may exist to believe the respondent's alleged conduct constituted an ethics violation. As soon as practicable, the executive director shall notify the person who filed the complaint and the respondent of the disposition of the complaint. The executive director shall also notify the respondent of the general nature of the complaint and the investigation.

D. As part of the investigation, the executive director may interview witnesses and examine books, documents, records and papers reasonably related to the complaint. All testimony in an investigation shall be under oath and the respondent shall have the right to be represented by legal counsel. If the executive director determines that the testimony of any person or the production of books, documents, records or papers is required in the investigation, the executive director shall request that the commission issue the appropriate subpoena.

E. The commission may issue subpoenas for the attendance and testimony of witnesses or the production of books, documents, records and papers reasonably related to the complaint. Subpoenas may be signed by any member of the commission and shall state with reasonable certainty the nature of the investigation, the nature of the information to be produced, the time and place where the information shall be produced and the consequences of failure to obey the subpoena. After service of the subpoena upon the person, if the person neglects or refuses to comply with the subpoena, the commission may apply to a district court for an order compelling compliance.

F. The executive director shall present a written report of the investigation to the commission. The respondent and the respondent's legal counsel may attend the meeting, and the executive director shall provide reasonable notice to the respondent in writing of the date, time and place of the meeting. Notwithstanding the provisions of the Open Meetings Act, meetings of the commission held for the purpose of an investigation conducted pursuant to this section are closed to the public. Except as otherwise provided in Subsections G and I of this section, all complaints, communications, records or other information related to an investigation shall be confidential.

G. If the commission finds that, based on the facts in the investigation report and the facts alleged in the complaint, probable cause exists to believe that the respondent's alleged conduct constituted an ethics violation, the commission shall report its finding in writing to the respondent's appointing authority, employer or appropriate state agency. The written finding may include recommendations for disciplinary action or further proceedings against the respondent. The commission shall also provide the respondent's appointing authority, employer or appropriate state agency with all evidence collected during its investigation; provided that the receiving authority, employer or state agency agrees that the evidence remain confidential until such time as it is offered into evidence at any subsequent proceeding instituted against the respondent by the authority, employer or state agency. A commission finding reported pursuant to this subsection shall not be public.

H. If the commission finds that, based on the facts in the investigation report and the facts alleged in the complaint, probable cause does not exist to believe that the respondent's alleged conduct constituted an ethics violation, the commission shall dismiss the complaint and notify the respondent in writing of the dismissal no later than five days after the finding is made. Following a dismissal and upon the request of the respondent, the commission shall provide a report of its finding in writing to the respondent. A commission finding issued pursuant to this subsection shall not be public except upon the request of the respondent; provided that the finding shall not disclose any confidential communications, records or other information collected during the investigation.

I. If the commission finds at any time that the respondent's conduct may amount to a criminal violation of state law, the commission shall immediately refer the matter to the attorney general or an appropriate district attorney. The commission shall provide the attorney general or district attorney with all evidence collected during its investigation that may be used in a criminal proceeding. Nothing in this subsection shall prevent the commission from taking any action otherwise provided in this section.

J. No complaint shall be filed pursuant to this section later than three years after an alleged ethics violation was committed.

Section 8. COMPLAINTS AND INVESTIGATIONS--TIME LIMITATIONS.--If the commission has not scheduled a meeting concerning the disposition of a complaint within ninety days after the complaint is received by the commission or has not disposed of the complaint within six months after the complaint was received, the commission shall dismiss the complaint and notify the respondent in writing of the dismissal. A dismissal of a complaint pursuant to this section shall not be public except upon the request of the respondent; provided that the finding shall not disclose any confidential communications, records or other information collected during the investigation of the complaint.

Section 9. PROHIBITED ACTIONS.--A person shall not take or threaten to take any retaliatory, disciplinary or other adverse action against another person who in good faith:

A. files a complaint with the commission alleging an ethics violation against a state official, state employee or lobbyist; or

B. provides testimony, records, reports or other information to the commission during an investigation conducted pursuant to the State Ethics Commission Act.

Section 10. APPROPRIATION.--Five hundred thousand dollars ($500,000) is appropriated from the general fund to the state ethics commission for expenditure in fiscal year 2008 to carry out the provisions of the State Ethics Commission Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2008 shall revert to the general fund.

Section 11. APPLICABILITY.--The provisions of the State Ethics Commission Act apply to a state official, state employee, government contractor or lobbyist who commits an ethics violation on or after July 1, 2007.

Section 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.

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