Sunday, February 07, 2010
Ensure Ethics Panel Can Make Difference
by Loyda Martinez, Board Member, Common Cause New Mexico
We're dipping into the last hectic days of another legislative session. As was the case last time around, we're faced with a half dozen different proposals to finally create an independent ethics commission in New Mexico. On the one hand, this is a good thing. It shows an enthusiasm among legislators to have New Mexico join 40 other states in establishing an independent, bipartisan body to field and investigate ethics complaints against public officials. Furthermore, all of the current bills are significantly better than the ethics commission bill that passed the House during the 2009 regular session.
On the other hand, the task of combining these various proposals into a single consensus bill is daunting. Luckily, Sen. Linda Lopez, who chairs the Senate Rules Committee, and Rep. Al Park, who chairs the House Judiciary Committee, seem to be up to the task. They both seek to gather the Senate and House versions of these bills, debate the fine points, and come up with one solid bill in each chamber to push through to the legislative finish line.
For good-government advocates, of course, the debate over the fine points is key. Basically, that debate comes down to balancing two equally valid values. First, the commission has to protect the due process rights of public officials accused of wrongdoing. If a commission is set up, it will inevitably receive frivolous complaints that need to be filed in the trash can where they belong. Yet at the same time, a commission must have enough teeth to launch serious investigations of nonfrivolous complaints. Otherwise, New Mexico would just be wasting money it doesn't have.
Balancing these two important values is difficult. Here are the elements Common Cause would like to see in an ideal ethics commission bill:
1) A good commission will have independent subpoena power to ensure the commission's access to key witnesses and relevant documents.
2) A simple majority quorum is the best way to ensure anything gets done. Although requiring a super-majority (or a super-super-majority) for the commission to take any action is tempting, this would be a very unusual step and might well result in a do-nothing commission.
3) Some level of confidentiality regarding ethics commission activities is appropriate to protect the right of respondents. Excessive secrecy, however, will decrease the legitimacy of the commission in the eyes of the public and make it impossible to judge the body's effectiveness. Ideally, only the initial complaint and investigation should be confidential. Once the commission determines that there is enough evidence to proceed to a formal hearing, there is no reason that the proceedings should not become public, and any ultimate finding of guilt or innocence should of course be published. A recent report from the New Mexico Foundation for Open Government does an excellent job of analyzing the issues presented by the excessive emphasis on confidentiality in the current crop of bills.
4) Several of the proposals give the accused access to legal counsel paid for by the state. Under these proposals, if the commission finds that an ethics violation has occurred, the accused has to reimburse the state for the cost of the legal defense. This sounds good on paper, but the expense to the state is unknown and could be quite substantial. By way of comparison, the New Mexico Judicial Standards Commission does not offer judges paid legal representation. It's conceivable that such a provision actually would discourage people from filing complaints with the commission because they would feel obligated to hire their own attorney to be on an equal footing with the respondent.
There are a couple other sticking points that aren't a huge concern to Common Cause but that have made it difficult to get a bill through both chambers and on the governor's desk. The big one is figuring out an appointment scheme for the commission that satisfies both the governor and the Legislature. Maybe splitting the appointments right down the middle is the best compromise — with a couple left over coming from the state Supreme Court.
In addition to investigating complaints against public officials, a good ethics commission would have several other duties. For one thing, it would be required to draft a code of ethics for the executive branch, which currently doesn't have one. A commission could also conduct trainings for officials and state employees to help instill a culture of ethics in New Mexico government. Finally, the commission would need to issue advisory opinions to answer questions by government officials about whether or not a specific kind of behavior is or isn't ethical.
Can we finally come together and get this done?