I am writing today to announce the closure of the New Mexico Independent. After three and a half years of operation in New Mexico, the board of the American Independent News Network, has decided to shift publication of its news…
Ethics commission wouldn’t have subpoena power
That’s the question public officials and activists are grappling with as they try to gain approval for the creation of such a commission from a Legislature that is skeptical of the proposal.
At least 36 states have ethics commissions that have subpoena power, according to the National Conference of State Legislatures. But proposals to create an independent, nonpartisan ethics commission in New Mexico have fallen short in recent years despite the support of the governor and other political leaders. Under the proposal, such a commission would have the authority to investigate alleged ethical violations in all branches of government — such as the pay-to-play allegations currently dogging the Richardson administration — and to forward its findings to prosecutors. It would also have a duty to develop ethical standards and to educate public officials about them.
Of the three ethics commission bills introduced in the Legislature so far this year, the one attracting the most attention is Senate Bill 140, sponsored by state Sen. Dede Feldman, D-Albuquerque. It is part of the official slate of ethics reform proposals being pushed by Attorney General Gary King. Instead of giving subpoena power to the commission, the bill would allow the commission to “request that the attorney general issue subpoenas 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.”
But how can a commission be independent if it needs permission to do its work? Is the attempt to ensure the commission remains nonpartisan futile if the body is dependent on an elected and partisan official for help?
And, perhaps most glaring, what happens if the commission receives a complaint about the attorney general and there’s no mechanism in state law to allow the commission to use its most critical investigatory tool except asking for help from the AG?
Those are all good questions, said Steven Robert Allen, executive director of Common Cause New Mexico. He’s among a group of ethics commission supporters who are meeting with Feldman today to discuss whether to push the bill as written or try to amend it to give the commission its own subpoena power. Allen said he views putting the subpoena power in the AG’s hands as “problematic.”
“Do we want this to be an independent ethics commission or a sort of branch of the AG’s office?” Allen asked.
‘We did not have sufficient votes’
In a statement released by his office, King said he knows requiring the commission to ask the AG for a subpoena isn’t ideal, but he pointed out that the House passed the commission bill in 2008 only after amending it to take subpoena power away from the commission and put it in the hands of the AG. The Senate didn’t pass the bill at all. Commission critics in the Legislature have argued that their branch of government doesn’t need an ethics commission and said they fear such a commission would be controlled by the governor.
“We did not have sufficient votes in the Legislature (in 2008) to give subpoena authority to the commission,” King said. “Therefore, we thought the best approach (this year) was to leverage the authority the AG has already to have subpoenas issued.”
King said he expects to have discussions during committee meetings this session “to see if we have support to give the commission this power. If we have enough votes, we will insert it in the process.”
Feldman was a member of the 2006 ethics reform task force convened by Gov. Bill Richardson. She remembers hearing testimony from David Freel, executive director of the Ohio Ethics Commission, who said giving such a commission subpoena power is critical to its independence and its ability to carry out its duties. Feldman said she would prefer creating a commission that has subpoena power, but she hasn’t heard all the arguments for and against that and she admits that giving the commission subpoena power makes it a powerful organization, “so we do have to be very mindful of the importance of that decision.”
A starting point
Commissions that have subpoena power tend to wield great influence. In Ohio, then-Gov. Bob Taft pleaded no contest in 2005 to charges that he broke ethics law by failing to report gifts, and he was fined $4,000. His plea followed an investigation by Freel and the state’s ethics commission, which has subpoena power. The results of the commission’s probe were forwarded to prosecutors, who then filed charges against Taft.
Feldman said she views the bill she has introduced as a starting point, and she’s looking forward to discussing the issue today with Allen and others.
Allen said he hopes Feldman’s bill is amended to give the commission subpoena power, and he doesn’t yet know whether Common Cause will support the legislation if that doesn’t happen. He also said his concern has nothing to do with King, a former Common Cause board member of whom Allen said he is a “fan.”
“We’re talking about a structural issue, and who knows what sort of AG we’ll end up with in the future,” Allen said.
The other ethics commission bills that have been introduced are House Bill 151, a mirror of Feldman’s bill sponsored by state Rep. Al Park, D-Albuquerque, and Senate Bill 139, sponsored by state Sen. Pete Campos, D-Las Vegas. Unlike the other bills, Campos’ legislation gives the commission subpoena power. But it has another provision Allen said is “problematic.” The bill doesn’t give the House and Senate minority leaders the authority to appoint members to the commission like the Feldman and Park bills do.
In the Feldman and Park bills, authority to appoint people to the 10-member commission would be given to the governor (four appointees), Supreme Court chief justice (two), Senate president pro tem (one), Senate minority leader (one), House speaker (one), and House minority leader (one), with political balance required among the appointments. Instead of giving appointment power to the House and Senate minority leaders, Campos’ bill requires that appointments from the Senate president pro tem (two) and House speaker (two) be made “with the advice and consent” of their chamber’s minority leader.