HOUSE FLOOR SUBSTITUTE FOR

HOUSE JOINT RESOLUTION 5

52nd legislature - STATE OF NEW MEXICO - second session, 2016

A JOINT RESOLUTION

PROPOSING AN AMENDMENT TO ARTICLE 5 OF THE CONSTITUTION OF NEW MEXICO TO CREATE AN INDEPENDENT STATE ETHICS COMMISSION WITH JURISDICTION TO INVESTIGATE AND ISSUE ADVISORY OPINIONS CONCERNING, AND EXCLUSIVE JURISDICTION TO ADJUDICATE, CIVIL VIOLATIONS OF LAWS GOVERNING STANDARDS OF CONDUCT, INCLUDING ELECTION CAMPAIGNS, OF ELECTED AND APPOINTED MEMBERS OF THE LEGISLATURE AND EXECUTIVE BRANCH, LEGISLATIVE AND EXECUTIVE BRANCH STATE OFFICERS AND EMPLOYEES, GOVERNMENT CONTRACTORS AND LOBBYISTS.

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

     SECTION 1. It is proposed to amend Article 5 of the constitution of New Mexico by adding a new section to read:

          "A. The "state ethics commission" is created as an independent state agency under the direction of nine commissioners, no more than four of whom may be members of the same political party, appointed as follows:

                (1) three commissioners appointed by the governor, none of whom shall be of the same political party and with one commissioner 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 be licensed attorneys and who shall not be of the same political party and shall not be appointed from the same congressional district.

          B. At the time of appointment, a commissioner shall:

                (1) be a qualified elector of the state;

                (2) not have changed political party affiliation within the previous two years; and

                (3) not be, or within the previous five years not have been, a state officer or employee in the executive or legislative branch of government, a registered lobbyist or a state contractor. The legislature may provide by law for further restrictions on appointees to the commission.

          C. Commissioners shall be appointed for staggered terms of four years beginning July 1, 2017. The initial appointees shall draw lots to determine which three commissioners will serve an initial term of two years, which three commissioners shall serve an initial term of three years and which three commissioners will serve an initial term of four years. Thereafter, all commissioners shall be appointed for four-year terms. Members shall serve until their successors are appointed and qualified.

          D. A person shall not serve as a commissioner for more than two consecutive terms. A vacancy on the state ethics commission shall be filled by appointment by the original appointing authority for the remainder of the unexpired term.

          E. No action shall be taken by the state ethics commission unless at least six members concur.

          F. 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 state ethics commission or by the attorney general upon the request of the commission. The supreme court 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. The state ethics commission shall receive an annual appropriation by the legislature sufficient to enable it to perform its duties.

          H. The state ethics commission shall employ an executive director, who shall be a licensed attorney in the state, and other staff as necessary to fulfill its duties. The executive director shall receive a salary that is equal to the salary of a district court judge.

          I. The state ethics commission:

                (1) may initiate, and shall receive and investigate, complaints alleging violations:

                     (a) by state officers or employees in the executive or legislative branch of government of laws imposing standards of ethical conduct on state officers and employees;

                     (b) of laws imposing campaign finance restrictions or reporting requirements for candidates and other participants in campaigns for state or county elected offices;

                     (c) of registration requirements or standards of conduct for lobbyists; and

                     (d) of disclosure requirements or standards of conduct for state contractors or seekers of state contracts;

                (2) may dismiss complaints regarded as frivolous or outside of the jurisdiction of the commission. The commission shall make public complaints that have been dismissed without a hearing and the reason for the dismissal;

                (3) shall, upon the presentation of clear and convincing evidence to the commission in a public hearing:

                     (a) adjudicate complaints alleging violations for which civil penalties or sanctions may be imposed under the laws described in Paragraph (1) of this subsection and may impose such penalties and sanctions as provided by those laws; or

                     (b) refer to the appropriate prosecutorial authority complaints alleging conduct that may be criminal violations of the law;

                (4) may petition the courts for suspension or other appropriate action pending investigation by the appropriate enforcement authority for violations of the laws described in Paragraph (1) of this subsection;

                (5) may issue advisory opinions;

                (6) may promulgate rules necessary to implement and administer the provisions of this section;

                (7) may issue subpoenas requiring the attendance of witnesses or the production of books, records, documents or other evidence relevant to an investigation; and

                (8) may have such other powers and duties and administer or enforce such other acts as the legislature by law so provides.

          J. The state ethics commission shall have exclusive jurisdiction over civil violations of law that are within its jurisdiction. Commission adjudications of civil violations may be appealed to the district courts, and in all such appeals, trial shall be de novo unless otherwise provided by law.

          K. All complaints received by the state ethics commission shall be signed and not anonymous. The commission shall maintain as confidential the complaint and the response until such time as the response is filed or the date the response is due to be filed, whichever is earlier.

          L. This section is not alternative to impeachment pursuant to Article 4, Section 35 of the constitution of New Mexico, but the commission may recommend a matter to the legislature for consideration for impeachment proceedings.

          M. For the purposes of this section, "state officer or employee" means any elected or appointed official or employee of a state agency, instrumentality or institution of the state in the executive or legislative branch of government."

     SECTION 2. The amendment proposed by this resolution shall be submitted to the people for their approval or rejection at the next general election or at any special election prior to that date that may be called for that purpose.

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