HOUSE APPROPRIATIONS AND FINANCE COMMITTEE SUBSTITUTE FOR
HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILLS 151 & 614
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO ETHICS; ENACTING THE STATE ETHICS COMMISSION ACT; CREATING THE STATE ETHICS COMMISSION; PROVIDING POWERS AND DUTIES; ALLOWING ANNUAL ETHICS TRAINING AND THE PUBLICATION OF ETHICS GUIDES; REQUIRING THE DEVELOPMENT OF A PROPOSED ETHICS CODE FOR THE EXECUTIVE BRANCH; GRANTING SUBPOENA POWERS; 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; PROVIDING FOR REFERRALS OF COMPLAINTS AGAINST LEGISLATORS; PROVIDING PENALTIES.
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. "commission" means the state ethics commission;
B. "commissioner" means a person appointed to the state ethics commission;
C. "ethics violation" means any action that amounts to a violation of the Gift Act, the Governmental Conduct Act, the Procurement Code, the Lobbyist Regulation Act, the Financial Disclosure Act, Chapter 1, Article 19 NMSA 1978 or any code of ethics adopted pursuant to those laws or Section 4 of the State Ethics Commission Act;
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. "legislative body" means the house of representatives or the senate;
F. "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;
G. "lobbyist" means a person who is compensated for the specific purpose of lobbying; who 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;
H. "official action" means an action or nonaction of a state official or state agency acting in a rulemaking proceeding;
I. "political party" means any qualified political party, any of whose candidates received at least five percent of the total number of votes cast at the last preceding general election for the office of governor or president of the United States, as the case may be, and whose membership totals not less than one-third of one percent of the statewide registered voter file on the day of the governor's primary election proclamation;
J. "respondent" means a state official, state employee, government contractor or lobbyist who is the subject of a complaint filed with the commission;
K. "state agency" means any department, commission, council, board, committee, institution, agency, government corporation, educational institution or official of the executive, legislative or judicial branch of government of the state;
L. "state employee" means an employee of the executive, legislative or judicial branch of the state; and
M. "state official" means a person elected or appointed to an office of the executive, judicial 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 seven commissioners:
(1) one commissioner from each of the congressional districts appointed by the governor, no more than two of whom shall be of the same political party and one of whom shall be named from a list of five names provided by the floor leaders of the house of representatives and the senate who are not members of the governor's political party;
(2) one commissioner appointed by the president pro tempore of the senate;
(3) one commissioner appointed by the minority floor leader of the senate;
(4) one commissioner appointed by the speaker of the house of representatives; and
(5) one commissioner appointed by the minority floor leader of the house of representatives.
B. Appointments shall be made in a manner that meets the following requirements:
(1) all commissioners shall be residents of New Mexico;
(2) no more than four commissioners shall be registered members of the same political party and no person whose party registration changed in the year prior to appointment shall be appointed to the commission;
(3) the appointing authorities shall give due consideration to achieving geographical representation from across the state; and
(4) each appointing authority shall file letters of appointment with the secretary of state.
C. Commissioners shall be appointed for staggered terms of four years beginning July 1, 2009. Upon initial appointment of the commission, the commissioners shall draw lots to determine which two commissioners will serve an initial term of two years, which two commissioners will serve an initial term of three years and which three commissioners will serve an initial term of four years; thereafter, all commissioners shall serve four-year terms. Members shall serve until their successors are appointed and qualified. A person shall not serve as a commissioner for more than two consecutive terms.
D. Before entering upon the duties of the office, each commissioner shall review the responsibilities of and the consequences of failure to comply with the State Ethics Commission Act and shall take the oath of office that the commissioner will support the constitution of the United States and the constitution and laws of this state, and that the commissioner will faithfully and impartially discharge the duties of the office to the best of the commissioner's ability. A record of the oath shall be filed with the office of the secretary of state.
E. The commission shall select a chair, vice chair and other officers it deems necessary.
F. Four commissioners constitute a quorum for the transaction of business. No action shall be taken by the commission unless at least four members concur, including at least two members from each of the two largest major political parties.
G. A vacancy on the commission shall be filled by appointment by the original appointing authority for the remainder of the unexpired term. A commissioner may be removed only for incompetence, neglect of duty or malfeasance in office. A proceeding for the removal of a commissioner may be commenced by the commission or by the attorney general upon the request of the commission. The supreme court of the state of New Mexico has exclusive jurisdiction over proceedings to remove commissioners, and its decision shall be final. A commissioner shall be given notice of hearing and an opportunity to be heard before the commissioner is removed.
H. During a commissioner's term, a commissioner 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, government contractor or lobbyist.
I. Commissioners shall disqualify themselves from a commission proceeding when they have a conflict of interest. Commissioners who disqualify themselves shall state the reason for the disqualification. If the propriety of a commissioner's participation in a particular matter is questioned due to a conflict of interest, the commission may disqualify that commissioner from participation in a commission proceeding. A disqualified commissioner shall not participate in any proceedings with reference to the matter from which the commissioner is disqualified, and the commissioner shall be excused from that portion of any meeting at which the matter is discussed. If four or more commissioners are disqualified from participating in a proceeding, the remaining commissioners shall appoint temporary commissioners to participate in that proceeding. Appointments of temporary commissioners shall be made by majority vote of the remaining commissioners and in accordance with the geographical representation and political party membership requirements of Subsections A and B of this section.
J. For a period of one calendar year following the expiration of a commissioner's term or following the resignation or removal of a commissioner, that commissioner shall not:
(1) hold or seek an elective public office, an appointed public position or public employment;
(2) represent a respondent, unless appearing on the commissioner's own behalf; or
(3) accept employment or otherwise provide services to a person that is a respondent, unless the commissioner accepted employment or provided services to the person prior to the filing of a complaint against the person.
K. Commissioners 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.
L. 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 based on clear and convincing evidence that a respondent's conduct constituted an ethics violation to the respondent's appointing authority, employer, appropriate state agency or appropriate legislative ethics committee;
(3) compile, index, maintain and provide public access to all advisory opinions, complaints and reports required to be made public pursuant to the State Ethics Commission Act;
(4) draft a proposed code of ethics for all state officials and state employees of the executive branch and submit the proposed code to each elected state official of the executive branch for adoption;
(5) develop, adopt and promulgate all procedural rules necessary for the commission to implement and administer the provisions of the State Ethics Commission Act, including rules of procedure for investigations, hearings and meetings conducted by the commission;
(6) employ an executive director, who shall be an attorney;
(7) 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
(8) promulgate rules for the recusal of members to avoid the appearance of impropriety and conflicts of interest.
B. The commission may:
(1) initiate complaints alleging ethics violations against state officials, state employees, government contractors and lobbyists;
(2) issue public reprimands or censures or recommend disciplinary actions in accordance with the provisions of the State Ethics Commission Act for ethics violations committed by state officials of the executive branch and state employees;
(3) pursuant to governing court rules and Section 7 of the State Ethics Commission Act, request that the district court issue subpoenas under seal as necessary to require the attendance of witnesses and the production of accounts, books, papers, records and other documents relevant to an investigation conducted by the commission;
(4) issue advisory opinions to state officials, state employees, government contractors and lobbyists in accordance with the provisions of the State Ethics Commission Act;
(5) 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;
(6) 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;
(7) offer annual ethics training to all state officials, state employees, government contractors and lobbyists; and
(8) 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) perform all investigations on behalf of the commission;
(3) bring complaints and investigation results before the commission for consideration;
(4) prepare an annual budget for the commission and submit it to the commission for approval; and
(5) 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 may hire a general counsel for the commission and all other personnel as may be necessary to carry out the responsibilities of the commission.
C. 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.
D. For a period of one calendar year immediately following the executive director's employment with the commission, the executive director shall not:
(1) hold or seek an elective public office, an appointed public position or public employment;
(2) represent a respondent, unless appearing on the executive director's own behalf; or
(3) accept employment or otherwise provide services to a person that is a respondent, unless the executive director accepted employment or provided services to the person prior to the filing of a complaint against the person.
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 any person who 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 shall be confidential; and
(3) the commission shall publish an advisory opinion after omitting the name of the requesting state official, state employee, government contractor or lobbyist.
C. An advisory opinion shall be issued within sixty days of receipt of the request; provided that if the opinion is not issued within the required time, the commission shall notify the requester of the delay and shall provide additional notification every thirty days until the opinion is issued.
Section 7. COMMISSION--COMPLAINTS--INVESTIGATIONS--FINDINGS AND RECOMMENDATIONS--REPORTS REQUIRED--CRIMINAL REFERRAL REQUIRED.--
A. A complaint of an alleged ethics violation committed by a state official, state employee, government contractor or lobbyist may be:
(1) filed with the commission by a person who has actual knowledge of an alleged ethics violation; or
(2) initiated by the commission upon receipt of evidence deemed sufficient by the commission of an alleged ethics violation.
B. A person who files a complaint with the commission shall sign the complaint 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.
C. The chair of the commission shall sign a complaint initiated by the commission, and the complaint shall 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.
D. Upon receipt of a complaint filed or initiated pursuant to this section, the executive director of the commission shall examine the complaint and make an initial determination as to whether the conduct alleged in the complaint is within the jurisdiction of the commission and warrants investigation. If a complaint is filed against a judge or justice, the complaint shall immediately be referred to the judicial standards commission. The executive director shall bring all other complaints before the commission and make recommendations to the commission regarding whether to proceed with investigations of the complaints.
E. The commission may dismiss complaints that are frivolous, unfounded or outside the jurisdiction of the commission. If the commission determines that there is sufficient cause to proceed with the investigation of a complaint, the executive director shall initiate an investigation to determine whether clear and convincing evidence may exist to believe that the respondent's alleged conduct constituted an ethics violation. If the complaint is dismissed, the executive director shall promptly notify the person who filed the complaint and the respondent. If the complaint will be investigated, the executive director shall notify the respondent of the complaint and the specific allegations. A state official or state employee who is a respondent shall be entitled to representation by the risk management division of the general services department; provided, however, that if the respondent is found to have committed an ethics violation, the respondent shall reimburse the division for the respondent's equitable share of the total reasonable attorney fees and costs expended.
F. 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 the commission to request the district court to issue the appropriate subpoena under seal.
G. In any investigation or hearing held under the provisions of this section, the commission shall have the power to administer oaths and, with the concurrence of at least four of the members of the commission, may petition a district court, under seal and, upon a showing of probable cause, to subpoena witnesses, compel their attendance and examine them under oath or affirmation and to require the production of any books, records, documents or other evidence that it deems relevant or material to an investigation. Any challenge to a subpoena shall be heard by the district court in a confidential proceeding.
H. The executive director shall present a written report of the investigation to the commission. The respondent and the respondent's legal counsel may attend and participate in 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.
I. Except as provided in Section 8 of the State Ethics Commission Act, if the commission finds that, based on the facts in the investigation report and the facts alleged in the complaint, clear and convincing evidence exists to believe that the respondent's alleged conduct constituted an ethics violation, the commission shall issue a written report of its findings. The report shall include findings of fact and conclusions of law. If the respondent is a state official of the executive branch or state employee of the executive branch, the written report may include a public reprimand or censure regarding the respondent's behavior or recommendations for disciplinary action against the respondent.
J. The commission shall publicly disclose a report issued pursuant to Subsection I of this section. The commission shall also transmit the report and provide all evidence collected during its investigation to the respondent, the attorney general and the:
(1) respondent's appointing authority if the respondent is a state official appointed to an office of the executive branch;
(2) appropriate state agency if the respondent is a state employee;
(3) respondent's employer if the respondent is a lobbyist; or
(4) state agency with which the respondent has a government contract if the respondent is a government contractor.
K. If the commission finds that, based on the facts in the investigation report and the facts alleged in the complaint, clear and convincing evidence does not exist to believe that the respondent's alleged conduct constituted an ethics violation, the commission shall dismiss the complaint and provide a report of its finding in writing to the respondent no later than five days after the finding is made. The report shall include findings of fact and conclusions of law. A commission report issued pursuant to this subsection shall not be public except upon the request of the respondent.
Section 8. COMPLAINTS AGAINST LEGISLATORS--REPORT TO APPROPRIATE LEGISLATIVE ETHICS COMMITTEE.--
A. After investigation of a complaint against a legislator, if the commission finds that clear and convincing evidence exists to believe that the legislator's alleged conduct constituted an ethics violation, the commission shall issue a confidential report to the appropriate legislative ethics committee and refer the complaint to the committee. The commission shall issue a public notice that it has referred a complaint to the appropriate legislative ethics committee, but shall not disclose the name of the legislator or the nature of the complaint.
B. After review of the commission's report, and further investigation as the appropriate legislative ethics committee deems necessary, the committee shall publish its decision in the matter, as follows:
(1) if the committee decides to recommend reprimand, censure or some other action to the legislative body, the recommendation shall be made public; and
(2) if the committee decides that the complaint and the commission's findings do not warrant action by the legislative body, it shall issue a public report describing the general nature of the complaint, the committee's decision and the identification of the members of the committee who supported or opposed the decision. The committee shall keep the legislator's name confidential unless the legislator requests otherwise.
C. If the appropriate legislative ethics committee decides to investigate the matter further, it shall report the status of its investigation to the commission within ninety days of receipt of the complaint and every twelve months thereafter until a final decision is made. The status report shall be confidential.
Section 9. COMMISSION INVESTIGATIONS--CONFIDENTIALITY.--All complaints, files, records and communications collected by the commission that pertain to investigations of ethics violations are confidential and are not subject to the provisions of the Inspection of Public Records Act. The commission or any person who receives the evidence collected in a commission investigation pursuant to Section 7 of the State Ethics Commission Act shall not disclose the complaints, files, records and communications unless:
A. disclosure is required pursuant to the provisions of the State Ethics Commission Act;
B. they are offered into evidence at any judicial, legislative or administrative proceeding;
C. disclosure is required by law or ordered by a court; or
D. the respondent files with the commission a written waiver of confidentiality.
Section 10. LIMITATIONS ON JURISDICTION.--
A. The commission shall not accept or review complaints concerning conduct that occurred more than three years prior to the day the complaint is received by the commission.
B. The commission shall not take action on a complaint filed or initiated against a candidate for public office on or after the filing date for the primary election through election day of the general election, except that the commission shall dismiss complaints that are frivolous, unfounded or outside the jurisdiction of the commission. A complainant shall be notified of this provision and shall be notified that the complainant may refer allegations of criminal conduct to the attorney general or appropriate district attorney. The respondent shall be notified that a complaint has been filed as provided in Section 7 of the State Ethics Commission Act.
C. The commission shall not investigate allegations of misconduct involving campaign advertisements.
Section 11. CONFIDENTIALITY--PENALTY.--
A. A person who discloses any confidential complaints, files, records or communications in violation of Section 9 of the State Ethics Commission Act is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one year or both.
B. In addition to a penalty imposed pursuant to Subsection A of this section, the court may impose a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each violation of Section 9 of the State Ethics Commission Act.
Section 12. CRIMINAL VIOLATIONS--REFERRAL REQUIRED.--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 section shall prevent the commission from taking any action otherwise provided in the State Ethics Commission Act nor shall it prevent the commission from deciding to hold a matter in abeyance pending referral of a possible criminal violation of state law.
Section 13. COMPLAINTS AND INVESTIGATIONS--TIME LIMITATIONS.--
A. If the commission has not scheduled a meeting concerning the disposition of a complaint within ninety days after the complaint is received or initiated by the commission, the executive director shall, as soon as practicable, report to the commission the progress and status of the investigation. The commission may dismiss the complaint or instruct the executive director to continue the investigation of the complaint. Unless the commission dismisses the complaint, the executive director shall report to the commission every ninety days thereafter on the progress and status of the investigation.
B. Upon a dismissal or decision to continue an investigation of a complaint pursuant to this section, the commission shall notify the respondent in writing of its action. The commission shall not publicly disclose its action except upon the request of the respondent.
Section 14. PROHIBITED ACTIONS.--
A. A person shall not take or threaten to take any retaliatory, disciplinary or other adverse action against another person who in good faith:
(1) files a complaint with the commission alleging an ethics violation against a state official, state employee, government contractor or lobbyist; or
(2) provides testimony, records, reports or other information to the commission during an investigation conducted pursuant to the State Ethics Commission Act.
B. Nothing in the State Ethics Commission Act precludes civil actions or criminal sanctions for libel, slander or other civil or criminal claims against a person who files a false claim under that act.
Section 15. TEMPORARY PROVISION--REPORT ON EXTENSION OF STATE ETHICS COMMISSION JURISDICTION TO LOCAL GOVERNMENTS.--By January 1, 2011, the state ethics commission shall submit a report to the governor, the legislature and the chief justice of the supreme court regarding the extension of state ethics commission jurisdiction to elected and appointed officials and employees of counties, municipalities and school districts. The report shall include and make recommendations on:
A. a detailed plan formulated by the commission for implementation of an extension of its jurisdiction, including a proposed timeline;
B. the estimated number of additional employees and the amount and type of resources needed by the state ethics commission to carry out its powers and duties if its jurisdiction were extended;
C. all estimated budget increases needed and the estimated annual budget for the state ethics commission if its jurisdiction were extended; and
D. any changes that are needed to existing law.
Section 16. APPLICABILITY.--The provisions of the State Ethics Commission Act apply only to conduct that occurs on or after July 1, 2009.
Section 17. EFFECTIVE DATE.--
A. The effective date of the provisions of Sections 1 through 5 and 10 through 16 of this act is July 1, 2009.
B. The effective date of the provisions of Sections 6 through 9 of this act is January 1, 2010.
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