Senate Bill text for SB0437

SENATE BILL 437

48th legislature - STATE OF NEW MEXICO - second session, 2008

INTRODUCED BY

Sue Wilson Beffort

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 ETHICS GUIDES; REQUIRING PROMULGATION OF AN ETHICS CODE FOR THE EXECUTIVE BRANCH; 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; PROHIBITING PUBLIC EMPLOYER RETALIATORY ACTION AGAINST PUBLIC EMPLOYEES IN CERTAIN CIRCUMSTANCES; CREATING A RIGHT TO CIVIL ACTION FOR DAMAGES; 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, nor does it include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee;

B. "commission" means the state ethics commission;

C. "commissioner" means a person appointed to the state ethics commission;

D. "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 or Chapter 1, Article 19 NMSA 1978;

E. "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;

F. "legislative body" means the house of representatives or the senate;

G. "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;

H. "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;

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

J. "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;

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

L. "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;

M. "state employee" means an employee of the executive, legislative or judicial branch of the state; and

N. "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 ten commissioners:

(1) four commissioners appointed by the governor, no more than two of whom shall be of the same political party and at least one commissioner shall be appointed from each congressional district;

(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;

(5) one commissioner appointed by the minority floor leader of the house of representatives; and

(6) two commissioners appointed by the chief justice of the supreme court, who shall not be of the same political party and shall not be appointed from the same congressional district.

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 five 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; and

(3) the appointing authorities shall give due consideration to achieving geographical representation from across the state.

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

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

E. Six commissioners 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 commissioner's position for the remainder of the unexpired term. A commissioner may only be removed 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.

G. During a commissioner's service, 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, a government contractor or a lobbyist.

H. Commissioners shall disqualify themselves from a commission proceeding that involves the appointing authority who appointed the commissioner to the commission or when a commissioner has 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.

I. For a period of one calendar year following the expiration of a commissioner's term or following the resignation or removal of the commissioner, the 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 or entity that is a respondent, unless the commissioner accepted employment or provided services to the person or entity prior to the filing of a complaint against the person or entity.

J. 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.

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

(8) 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;

(9) employ an executive director; (10) 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

(11) 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 and state employees of the executive branch;

(3) 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;

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

(5) 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 for consideration;

(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 following the executive director's employment with the commission, the executive director's 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 or entity that is a respondent, unless the executive director accepted employment or provided services to the person or entity prior to the filing of a complaint against the person or entity.

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 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 whether the conduct alleged in the complaint is within the jurisdiction of the commission and warrants investigation. The executive director shall bring all 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 there is sufficient cause to proceed with the investigation of a complaint, 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.

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 that the commission issue the appropriate subpoena.

G. 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 the chair 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.

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 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. 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 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 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 legislative body, in the care of the legislative council service, if the respondent is a legislator;

(3) judicial standards commission if the respondent is a judge or a justice;

(4) appropriate state agency if the respondent is a state employee;

(5) respondent's employer if the respondent is a lobbyist; or

(6) 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, probable cause 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. COMMISSION INVESTIGATIONS--CONFIDENTIALITY.--All complaints, files, records and communications collected by the commission that pertain to investigations of ethics violations are confidential and 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 Subsection G of 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 9. 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 subsection shall prevent the commission from taking any action otherwise provided in the State Ethics Commission Act.

Section 10. 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 or has not disposed of the complaint within twelve months after the complaint was received or initiated, 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 six months 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 11. ETHICS VIOLATIONS--STATUTE OF LIMITATIONS.--The commission shall not consider a complaint against a state official, state employee, lobbyist or government contractor unless the complaint is filed or initiated within three years from the date on which the ethics violation occurred.

Section 12. 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 13. PUBLIC EMPLOYER RETALIATORY ACTION PROHIBITED.--

A. A public employer shall not take any retaliatory action against a public employee because the public employee:

(1) discloses or threatens to disclose an activity, policy or practice of the public employer that constitutes an unlawful or improper act or that the public employee believes in good faith constitutes an unlawful or improper act;

(2) provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or

(3) objects to or refuses to participate in an activity, policy or practice that constitutes an unlawful or improper act or that the public employee believes in good faith constitutes an unlawful or improper act.

B. A public employer that violates the provisions of this section shall be liable to the public employee for all relief necessary to make the employee whole, including actual damages, reinstatement with the same seniority status that the employee would have had but for the violation, two times the amount of back pay with interest on the back pay and compensation for any special damage sustained as a result of the violation. In addition, an employer shall be required to pay the litigation costs and reasonable attorney fees of the employee. An employee may bring an action pursuant to this section in any court of competent jurisdiction.

C. It shall be an affirmative defense to a civil action brought pursuant to this section that the action taken by a public employer against a public employee was due to the employee's misconduct, poor job performance or a reduction in workforce for purposes unrelated to conduct prohibited pursuant to this section.

D. The remedies provided for in this section are not exclusive and shall be in addition to any other remedies provided for in any other law or available under common law.

E. Every public employer shall keep posted in a conspicuous place on the public employer's premises notices prepared by the employer that set forth the provisions of this section.

F. As used in this section:

(1) "good faith" means that a reasonable basis exists in fact as evidenced by the facts available to the public employee;

(2) "public employee" means a person who works for or contracts with a public employer;

(3) "public employer" means:

(a) any department, agency, office, institution, board, commission, committee, branch or district of state government;

(b) any political subdivision of the state, created under either general or special act, that receives or expends public money from whatever source derived;

(d) every office or officer of any entity listed in Subparagraphs (a) through (c) of this paragraph;

(4) "retaliatory action" means the discharge, suspension, demotion or disciplining of or the threatening or taking any discriminatory or adverse employment action against a public employee in the terms and conditions of public employment; and

(5) "unlawful or improper act" means a practice, procedure, action or failure to act on the part of a public employer that:

(a) violates or is a suspected violation of a federal law, federal regulation, state law, state administrative rule or a law of any political subdivision of the state;

(b) constitutes malfeasance in public office; or

Section 14. LIMITATIONS ON ACTIONS.--

A. A civil action pursuant to Section 12 or 13 of the State Ethics Commission Act shall be forever barred unless the action is filed within three years from the date on which the retaliatory, disciplinary or other adverse action occurred.

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, 2010, 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. APPROPRIATION.--Five hundred thousand dollars ($500,000) is appropriated from the general fund to the state ethics commission for expenditure in fiscal year 2009 to carry out the provisions of the State Ethics Commission Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2009 shall revert to the general fund.

Section 17. APPLICABILITY.--

A. 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, 2008.

B. The provisions of Section 13 of the State Ethics Commission Act apply only to civil actions for damages resulting from retaliatory action that occurred on or after July 1, 2005.

Section 18. EFFECTIVE DATES.--

A. The effective date of the provisions of Sections 1 through 5, 8 and 11 through 17 of this act is July 1, 2008.

B. The effective date of the provisions of Sections 6, 7, 9 and 10 of this act is January 1, 2009.

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