Good Government in Practice: New Mexico Ethics Commission

Ethics Commission

February 28, 2020 – Senior producer Matt Grubs sits down with the executive director of the New Mexico Ethics Commission, Jeremy Farris. Decades in the making, the commission began its work in January of this year. The interview is part of the Your NM Government project, a partnership with KUNM radio and the Santa Fe Reporter.

Guest:
Jeremy Farris, executive director, New Mexico State Ethics Commission 

Transcript:

>>GRANT: WHAT EXACTLY DOES GOOD GOVERNMENT LOOK LIKE? IN PRACTICE THAT IS WHAT THE NEW MEXICO ETHICS COMMISSION DETERMINES.  THE NEW BODY OPENED ITS DOORS THIS YEAR AFTER VOTERS OVERWHELMINGLY APPROVED CREATION OF THE WATCHDOG AGENCY. IT WAS DECADES IN THE MAKING BUT ALREADY HAS HAD TO FIGHT FOR ITS EXISTENCE AS LAWMAKERS  WERE SLOW TO APPROVE WHAT THE COMMISSION CONSIDERED TO BE FULL FUNDING FOR ITS FIRST FULL YEAR. WHAT IS AHEAD? NMIF PRODUCER MATT GRUBS ASKED EXECUTIVE DIRECTOR JEREMY FARRIS TO COME IN FOR A CONVERSATION.

>>GRUBS: JEREMY FARRIS, THANKS FOR COMING IN. I APPRECIATE IT.

>>FARRIS: THANKS FOR INVITING ME. IT IS GOOD TO TALK ABOUT THE ETHICS COMMISSION.

>>GRUBS: ABSOLUTELY. LET’S DO SOME OF THE NUTS AND BOLTS STUFF WE HAVE BEEN TALKING ABOUT. THE ETHICS COMMISSION IS SEVEN COMMISSIONERS. JUST EXPLAIN, IF YOU WOULD, SORT OF HOW THEY FIND THESE POSITIONS AND HOW THEY ARE SELECTED?

>>FARRIS: THE GOVERNOR APPOINTS THE CHAIR. THE CHAIR HAS TO BE A RETIRED JUDGE. THEN THE LEGISLATURE APPOINTS FOUR OTHER COMMISSIONERS. THE LEADERSHIP IN BOTH THE SENATE AND HOUSE ON BOTH SIDES OF THE AISLE, BOTH APPOINT A COMMISSIONER. SO, UNDER THE STATUTE THE FOUR LEGISLATIVELY APPOINTED COMMISSIONERS THEN APPOINT THE FINAL TWO COMMISSIONERS. THE COMMISSION HAS THREE DEMOCRATIC APPOINTEES, THREE REPUBLICANS AND ONE INDEPENDENT. AND THAT IS IMPORTANT BECAUSE A QUORUM FOR ANY COMMISSION ACTION HAS TO BE CONDUCTED BY THE CONSENT OF TWO DEMOCRATS AND TWO REPUBLICANS. THAT IS PART OF WHAT KEEPS THE COMMISSION ACTION INDEPENDENT.

>>GRUBS: CAN YOU EXPLAIN SORT OF WHY AN ETHICS COMMISSION IS IMPORTANT FOR A HEALTHY STATE GOVERNMENT.

>>FARRIS: NEW MEXICO IS A LITTLE LATE TO THE GAME WITH THE DEVELOPMENT AND CREATION OF AN ETHICS COMMISSION. BUT, IN THIS INSTANCE, NEW MEXICO’S LATE MOVE STATUS I THINK PUTS IT IN A STRONG POSITION. NEW MEXICO IS ABLE TO LEARN FROM A LOT OF EARLY MISSTEPS IN OTHER STATES WITH THE STRUCTURE OF ETHICS COMMISSIONS. SO, ONE THING THAT NEW MEXICO DID, WHICH WAS CENTRAL, WAS DOING THIS BY CONSTITUTIONAL AMENDMENT. THE ETHICS COMMISSION IS CEMENTED INTO THE CONSTITUTION, SO IT CAN’T BE UNDONE BY STATUTE OR BY THE GOVERNOR’S EXECUTIVE ORDER AS IT MAYBE CAN IN OTHER STATES. THAT IS THE FOUNDATION OF THE COMMISSION’S INDEPENDENCE. THE STATUTE IS REALLY WELL THOUGHT OUT AS WELL. PARTICULARLY WITH RESPECT TO THE APPOINTMENT OF THE COMMISSIONERS, YOU KNOW, THEY ARE APPOINTED BY DIFFERENT BRANCHES OF GOVERNMENT, BY THEMSELVES, THE APPOINTMENTS STRUCTURE ENSURES THAT NEITHER THE GOVERNOR OR THE LEGISLATURE OR EITHER BRANCH OR PARTY IN THE LEGISLATURE CAN EVER CONTROL THE COMMISSION.

>>GRUBS: IS THERE A FEELING AMONG THE COMMISSIONERS AND YOURSELF AS TO HOW THIS SHOULD OPERATE? ARE YOU SORT OF CRUSADING LOOKING FOR CORRUPTION LIKE ELLIOT NESS? ARE YOU WAITING FOR FOLKS TO FILE REQUESTS OR COMPLAINTS? HOW DOES THIS WORK BEST AND HOW IS IT WORKING NOW?

>>FARRIS: THE CRUSADING ISN’T BEGINNING YET. THE FIRST THING THE COMMISSION HAD TO DO BECAUSE OUR JURISDICTION FOR ADMINISTRATIVE COMPLAINTS BEGAN ON JANUARY 1. SO, THE VERY FIRST THING THE COMMISSION HAD TO DO WAS SET UP THE RULES OF PROCEDURE AND THE BASIC INSTITUTIONAL CAPACITY TO HANDLE ADMINISTRATIVE COMPLAINTS THAT MAY BE FILED WITH THE COMMISSION. THAT IS KIND OF LIKE A JUNIOR VARSITY COURT SYSTEM WHERE A COMPLAINANT FILES AN ADMINISTRATIVE COMPLAINT AGAINST A RESPONDENT.  UNDER THE STATUTE, THE EXECUTIVE DIRECTOR ENSURES THAT THE COMPLAINT IS WITHIN THE JURISDICTION OF THE AGENCY. IF IT IS, THE GENERAL COUNSEL WILL DETERMINE, AFTER INVESTIGATION, IF THERE IS PROBABLE CAUSE. IF THERE IS PROBABLE, CAUSE TO SUPPORT THE COMPLAINT, AT THAT POINT THE COMPLAINT AND ALL THE MATERIALS ARE NO LONGER CONFIDENTIAL, THEY ARE MADE PUBLIC, AND THE CASE IS ASSIGNED TO A HEARING OFFICER. THE COMMISSION HAS A CONTRACT WITH FORMER SUPREME COURT JUSTICE ED CHAVEZ TO SERVE AS A HEARING OFFICER. AND ANY APPEALS FROM THE HEARING GO TO THE FULL COMMISSION. SO THAT IS KIND OF LIKE THE JUNIOR VARSITY COURT SYSTEM AND MANY ADMINISTRATIVE AGENCIES HAVE ADJUDICATORY ARMS. IN ANOTHER WAY THE COMMISSION IS ALSO AUTHORIZED TO FUNCTION AS A KIND OF JUNIOR VARSITY ATTORNEY GENERAL FOR THE STATUTES THAT ARE WITHIN THE COMMISSION’S JURISDICTION AND THE ANTI-DONATION CLAUSE OF THE CONSTITUTION, ONE CONSTITUTIONAL PROVISION FOR WHICH THE COMMISSION HAS JURISDICTION. WHAT I MEAN BY THAT IS THE ETHICS COMMISSION IS AUTHORIZED TO FILE CIVIL COURT ACTIONS. SO IN THAT POSTURE IT WOULDN’T BE COMPLAINANT VERSUS RESPONDENT IN THE STATE ETHICS COMMISSION, IT WOULD BE STATE ETHICS COMMISSION AS PLAINTIFF VERSUS A DEFENDANT IN STATE COURT.

>>GRUBS: OKAY.

>>FARRIS: SO THAT MIGHT GET TO THE ELLIOT NESS CRUSADING COMMENTS THAT YOU MADE. BUT, FOR THAT, THE COMMISSION NEEDS TO PUT TOGETHER A POLICY WHICH WILL GUIDE DETERMINATIONS FROM INITIAL ASSESSMENTS TO INVESTIGATION TO THE COMMISSION’S AUTHORIZATION OF A CIVIL COURT ACTION AND THAT IS IMPORTANT BECAUSE THIS CAN NEVER BE DESIGNED IN A WAY TO WHERE IT COULD BE EMPOWERED TO BE A POLITICAL WITCH HUNT IN ANYBODY’S HANDS. SO WE NEED TO PUT ALL OF THE POLICIES AND ALL THE RULES AND THE REGULATIONS IN THE ADMINISTRATIVE CODE TO ENSURE THE COMMISSION’S DECISIONS ARE ALWAYS ONES THAT ARE BASED ON THE FACTS, ON THE INVESTIGATION AND AREN’T POLITICALLY MOTIVATED. SO THE COMMISSION STILL HAS TO DO THAT POLICY MAKING PIECE BEFORE IT CAN PROPERLY THINK ABOUT FILING CIVIL COURT ACTIONS. BUT THAT IS PART OF THE INSTITUTION BUILDING THE COMMISSION HAS TO DO.

>>GRUBS: OKAY. I WANT TO GET TO SOME OF THE SERIES OF FIRSTS FOR THE COMMISSION. ONE OF THEM IS YOU HAVE FILED IN A COURT CASE INVOLVING FORMER SECRETARY OF TAXATION AND REVENUE, PADILLA, ASKING AN APPELLATE COURT TO, IS IT REINSTATE SOME OF THE CHARGES THAT WERE DISMISSED?

>>FARRIS: NOT PRECISELY. MS. PADILLA’S CASE, PART OF THE COUNT IN THE ATTORNEY GENERAL’S SECOND AMENDED CRIMINAL INFORMATION ARE OPINION APPEAL WITH THE COURT OF APPEALS AND THOSE COUNTS ARE COUNTS IN WHICH THE STATE BROUGHT CRIMINAL ENFORCEMENT ACTIONS FOR A CERTAIN PROVISION OF THE GOVERNMENTAL CONDUCTS ACT SECTION 10-16-3. IN THE DISTRICT COURT THE DISTRICT COURT HELD THAT THOSE PROVISIONS OF THE GOVERNMENTAL CONDUCT ACT ARE NOT ENFORCEABLE, THEY ARE NOT CRIMINALLY ENFORCEABLE. MS. PADILLA HAS ARGUED IN HER PAPERS THAT — HER ATTORNEYS HAVE ARGUED THEY ARE NOT ENFORCEABLE BECAUSE THEY ARE IMPERMISSIBLY VAGUE.  THE LANGUAGE IN THAT PART OF THE STATUTE ACCORDING TO MS. PADILLA IS THAT AND THE COURT SO FOUND. THE DISTRICT COURT SO FOUND, WAS THAT THE LANGUAGE IS TOO VAGUE TO BE CONSTITUTIONALLY ENFORCEABLE. THE JUDGE DISMISSED THOSE COUNTS AND THE ATTORNEY GENERAL APPEALED THAT DISMISSAL AND IT IS NOW PENDING IN THE COURT OF APPEALS.  MS. PADILLA IS THE FOURTH IN A LINE OF CASES ABOUT THAT PARTICULAR PROVISION OF THE GOVERNMENTAL CONDUCT ACT, 10-16-3 AND ALL OF THOSE CASES ARE CURRENTLY PENDING IN THE COURT OF APPEALS. WHAT THE ETHICS COMMISSION DID WAS FILED A MOTION FOR LEAVE TO PARTICIPATE AS AN AMICUS CURIAE, AS A FRIEND OF THE COURT. AND THE ETHICS COMMISSION FILED AN AMICUS BRIEF IN WHICH THE COMMISSION ARGUED THAT THAT PROVISION OF THE GOVERNMENTAL CONDUCT ACT CREATES REAL ENFORCEABLE DUTIES. THAT PROVISION OF THE GOVERNMENTAL CONDUCT ACT APPLIES TO LEGISLATORS, STATE EMPLOYEES, PUBLIC EMPLOYEES AND STATE OFFICIALS AND PUBLIC OFFICIALS. IT PROHIBITS THOSE PERSONS, LEGISLATORS, PUBLIC OFFICIALS, PUBLIC EMPLOYEES FROM USING THE RESOURCES OF PUBLIC OFFICE TO PURSUE A PRIVATE INTEREST ONLY OR FROM ABUSING THEIR OFFICE WHILE IN PUBLIC SERVICE. OR FROM NOT DISCLOSING CONFLICTS OF INTEREST. THE ETHICS COMMISSION BELIEVES THAT PROVISION IN THE GOVERNMENTAL CONDUCT ACT IS REALLY CENTRAL. IT IS ONE OF THE FEW THAT APPLIES TO LEGISLATORS AND IT IS THE ETHICS COMMISSION’S VIEW THAT LANGUAGE IN THAT STATUTE CREATES REAL ENFORCEABLE DUTIES UNDER THE GOVERNMENTAL CONDUCT ACT AND THEY ARE NOT SO VEGAS TO BE UNENFORCEABLE.

>>GRUBS: YOU HAVE ALSO ISSUED YOUR FIRST ADVISORY OPINION. THIS IS A CASE IN WHICH SOMEONE CAME TO YOU AND AT LEAST MY UNDERSTANDING OF THE ADVISORY OPINION IS THAT THE COMMISSION FOUND THAT IT NEEDS SOME SPECIFICITY WHEN IT IS GETTING ASKED TO ISSUE AN ADVISORY OPINION ON SOME THINGS. CAN YOU EXPLAIN THAT A LITTLE BIT TO ME?

>>FARRIS: THAT IS ALMOST RIGHT. YOU ARE RIGHT THAT REQUEST IS FOR ADVISORY OPINIONS. THEY HAVE TO BE WITHIN THE JURISDICTION OF THE COMMISSION. WE DON’T PROVIDE FREE LEGAL ADVICE TO EVERYBODY BUT THE LEGISLATOR, STATE EMPLOYEES, CANDIDATES, LOBBYISTS, LOBBYIST EMPLOYERS, THOSE THAT ARE SUBJECT TO THE PROCUREMENT CODE, THOSE BIDDING ON INVITATIONS TO BIDS OR RESPONDING TO REQUEST FOR PROPOSALS, THAT UNIVERSE OF PEOPLE WHICH IS 45 TO 50,000 PEOPLE WITHIN THE COMMISSION’S JURISDICTION. ANYONE IN THAT UNIVERSE CAN REQUEST AN ADVISORY OPINION FROM THE COMMISSION. THE COMMISSION WILL ISSUE ADVISORY OPINIONS AS TO WHETHER OR NOT A SPECIFIC IF THE FACTUAL PREDICATES IN THE REQUEST VIOLATE, YOU KNOW, A LAW THAT THE REQUEST ASKS ABOUT. SO, THE FIRST REQUEST ASKED WHETHER A STATE EMPLOYEE, WHO IS WORKING FOR THE STATE, IF THAT STATE EMPLOYEE IS ALSO RECEIVING A SALARY FROM A POLITICAL ORGANIZATION OR A POLITICAL CAMPAIGN COMMITTEE, DOES THE RECEIPT OF THAT SALARY VIOLATE, AND THE REQUEST LISTED A NUMBER OF ACTS THAT THE COMMISSION HAS JURISDICTION OVER, DOES IT VIOLATE THE GOVERNMENTAL CONDUCT ACT, VIOLATE THE GIFT ACT, FINANCIAL DISCLOSURE ACT, ET CETERA. THE MERE FACT THAT A STATE EMPLOYEE IS RECEIVING A SALARY FROM A POLITICAL CAMPAIGN, THAT ALONE, THOSE FACTS ALONE, DON’T ESTABLISH A VIOLATION OF THE LAW WAS MORE OR LESS THE ANSWER THAT THE ADVISORY OPINION GAVE. THE ABANDONMENT OF DUTY STATUTE THAT THE STATE HAS CONTEMPLATES STATE EMPLOYEES CAN HAVE OTHER JOBS AND THAT DOESN’T CHANGE IF THE OTHER JOB IS WORKING FOR A CAMPAIGN COMMITTEE. SO, FOR EXAMPLE, THERE IS NO VIOLATION IF A STATE EMPLOYEE IN THE EVENING, YOU KNOW, DOES GRAPHIC DESIGN WORK FOR A POLITICAL CAMPAIGN. THAT IS NOT A VIOLATION OF THE LAW. SO, THE ADVISORY OPINION RIGHTLY ANSWERED THE QUESTION, NO, THOSE MERE FACTS DON’T ESTABLISH A VIOLATION OF THE LAW. THE ADVISORY OPINION DID POINT OUT PROVISIONS OF THE LAWS THAT MIGHT BE IMPLICATED. IT CAN’T BE THE CASE THAT A STATE EMPLOYEE USES THE RESOURCES IN THEIR STATE OFFICE TO WORK FOR A POLITICAL CAMPAIGN CANDIDATE WHILE THEY ARE AT WORK NOR CAN A STATE EMPLOYEE TAKE SOME ACTION IN EXCHANGE FOR, YOU KNOW, PAYMENT FROM — AN OFFICIAL ACTION IN EXCHANGE FOR PAYMENT FROM A POLITICAL CAMPAIGN COMMITTEE, BUT THAT IS KIND OF SIGNALING LIKE THE CONTEXT, LEGAL CONTEXT IN WHICH THE QUESTION IS SITUATED. WHAT IS REALLY GOING ON IS THAT THE COMMISSION WILL FOCUS VERY CLEARLY ON WHAT THE REQUEST IS AND WHAT THE FACTUAL POSTURE IN THE REQUESTS ARE. AND THE COMMISSION’S ANSWERS ARE GOING TO BE TAILORED TO SPECIFICALLY WHAT THE QUESTION IS. THE COMMISSION CAN’T BE IN THE BUSINESS OF GUESSING AT WHAT THE REQUESTER MIGHT BE GETTING AT FROM WHAT PERHAPS IS GOING ON IN NEWSPAPER REPORTS. THE COMMISSION’S OPINIONS ARE GOING TO BE TAILORED TO THE FACTS THAT ARE PRESENTED IN THE REQUEST.

>>GRUBS: WE ARE ALMOST OUT OF TIME. I WILL ASK YOU TO STICK AROUND AND TALK WITH US AFTERWARDS. WE’LL PUT IT UP ONLINE ABOUT THE IDEA OF TAKING A LOOK AT STATE OFFICIAL SALARIES. THE LAST THING I WANT TO GET TO FOR OUR ON-AIR PART IS TALKING ABOUT THE COMPLAINT YOU RECEIVED. THERE IS A SYSTEM IN PLACE THAT PROTECTS THE PEOPLE WHO FILE THOSE COMPLAINTS. ONE OF THE THINGS THAT I SAW AS I LOOKED AT THE ETHICS COMMISSION’S WEBSITE IS YOU ARE CREATING A SYSTEM THROUGH WHICH PEOPLE CAN ACTUALLY FOLLOW THEIR COMPLAINT IN A CONFIDENTIAL MANNER. YOU HAVE CREATED A SYSTEM BY WHICH THEY CAN FILE A COMPLAINT ONLINE ALREADY. THE COMPLAINT THAT YOU HAVE GOTTEN, WHAT IS THE PROCESS FOR THAT AS IT MOVES FORWARD?

>>FARRIS: SO, FOR ANY COMPLAINT THAT WE RECEIVE, ALL OF THE MATERIALS AND DECISIONS THAT RELATE TO COMPLAINTS ARE CONFIDENTIAL UP UNTIL THE POINT THE GENERAL COUNSEL MAKES A PROBABLE CAUSE DETERMINATION AND THE COMPLAINT IS KIND OF GIVEN OVER TO A HEARING OFFICER FOR A HEARING. BUT FOR ANY COMPLAINT WHEN A COMPLAINT IS FILED, THE RESPONDENT HAS AN OPPORTUNITY TO RESPOND, TO FILE A MOTION TO DISMISS FOR LACK OF JURISDICTION OR ANOTHER APPROPRIATE MOTION. RESPONDENT CAN HAVE AN ATTORNEY AS CAN THE COMPLAINANT. ALL OF THOSE MATERIALS, EXECUTIVE DIRECTOR, UNDER THE STATUTE, FIRST REVIEWS TO DETERMINE IF THERE IS JURISDICTION. IF THERE IS JURISDICTION FOR THE COMPLAINT, THEN THE GENERAL COUNSEL BEGINS AN INVESTIGATION INTO THE FACTS THROUGH INTERVIEWS. THEY CAN ASK FOR A SUBPOENA. IF THE COMPLAINT IS SUPPORTED BY PROBABLE CAUSE, IF THE GENERAL COUNSEL BELIEVES THAT THERE IS ENOUGH IN IT TO THINK THAT THE COMPLAINT IS SUPPORTED BY PROBABLE CAUSE, THEN IT GOES OVER TO A HEARING AND THERE IS A PUBLIC HEARING AND THEN FROM A PUBLIC HEARING THERE IS AN APPEAL TO THE FULL COMMISSION. THAT IS THE ROUGH PROCEDURE FOR A COMPLAINT. WE ARE BUILDING AN ONLINE ELECTRONIC FILING SYSTEM, CASE MANAGEMENT  SYSTEM THAT WILL BE FULLY OPERATIONAL LATER THIS FISCAL YEAR, LATER THIS SUMMER, BUT THE RULES OF PROCEDURE ARE IN PLACE. THEY ARE IN THE NEW MEXICO ADMINISTRATIVE CODE 1.8.3 AND THAT IS WHAT GOVERNS THE ADJUDICATION OF COMPLAINTS.

>>GRUBS: JEREMY FARRIS, THANK YOU FOR COMING IN AND SPENDING TIME WITH US. WE APPRECIATE IT.

>>FARRIS: THANK YOU.

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