Welcome to The Independent Forum. Every week we ask a different question and solicit responses from a diverse group of New Mexico thinkers, pundits and other observers of the state’s political landscape. We’ll add more responses as they come in, so keep checking back to see how the conversation progresses.

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According to an analysis released this week by the Foundation for Open Government, the current proposals for an independent state ethics commission would make virtually all of the meetings and documents of that commission confidential. The only public documents issuing from the ethics commission would be advisory opinions, annual reports and those written reports concluding that an ethics violation did occur. Complaints and allegations that are dismissed or found to be unsubstantiated would be hidden from public view, along with any related commission documents.

And that brings us to this week’s topic.

QUESTION: “Is it worth establishing an independent ethics commission if the panel’s work is secret?”

PAUL GESSING, president of the Rio Grande Foundation:

To answer this week’s question in one word, the answer is “no.” But, expanding on it somewhat, we at the Rio Grande Foundation share FOG’s desire to open New Mexico government to greater citizen oversight. It makes no sense to have an independent ethics commission if nearly all its activities are kept under wraps.

We at RGF are not big believers in ethics commissions of any sort. Transparency is extremely important, but even more important to good government is limited government. Once the government expands into so-called economic development and greater involvement in the economy (as opposed to police, fire, and roads), the potential for mischief and downright corruption is greatly enhanced.

Ultimately, if we want to reduce corruption and enhance ethics in government, we must strictly limit its activities to its basic functions.

TERRI COLE, president and CEO, Greater Albuquerque Chamber of Commerce:

It’s worth keeping all six state ethics commission bills moving forward, that’s for sure. We’re one of 10 states with no independent ethics commission to investigate allegations of misconduct by public officials. It’s time to end that run. This legislative session may be just that chance. We should not throw in the towel too soon.

Most of the sponsors of these bills know that they have constitutional issues related to confidentiality that they must deal with for their bill to pass muster. We need to strike a balance between protecting the innocent until proven guilty and the accuser from retaliation. But that balance also has to include achieving some level of transparency which will be a key component of restoring and maintaining the public’s trust. So, the job’s big. The idea is important. We need to clean up the rules in the game if our state is to move up the economic ladder. Let’s strike the right balance…nix extraordinary secrecy but provide for some justified confidentiality.

JIM BACA, blogger, former director of the U.S. Bureau of Land Management, Albuquerque mayor, state land commissioner and recently retired natural resources trustee:

I believe the panel should be established and that unsubstantiated cases should be kept confidential.  To do otherwise would turn into a feeding frenzy for the media or political parties to the detriment of innocent people.  When an accused is found guilty of ethics violations then publicity is a good thing.

SARAH WELSH, executive director of the NM Foundation for Open Government:

I do think it’s worth establishing an independent ethics commission; some of the inquiries and complaints that I receive from citizens could be forwarded to such a commission. My concern is that without reasonable transparency, the commission could be rendered ineffective in the long run. Regular people won’t bother to submit complaints unless they believe that they’ll be handled honestly, fairly and efficiently. And it’s simply harder to trust a body that operates in secrecy. That’s the whole point of open government.

Let me be clear that FOG is not advocating total openness at each step of the process. Ideally, that’s what I like to see, but I don’t want the perfect to be the enemy of the good. We’ve proposed alternative models that would provide temporary confidentiality while allowing after-the-fact oversight. Basically, the commission’s work would become public once it takes a formal action – that is, after it has investigated a complaint and decided that it’s founded or unfounded. That lets the public know what the commission is doing and why, but it also keeps accusations on the down-low until the commission has determined whether they’re junk or not.

That’s the key point – there’s a lot of fear that the accusations will grab big headlines, followed 10 months later by an acquittal story buried on page E15. That’s why the bill sponsors feel that confidentiality for the accused is paramount. And I don’t doubt that a lot of junk complaints will be submitted, whether out of malice or political bias. The big question is, how much protection do public officials, employees and lobbyists deserve? What’s the best analogy? Is the ethics commission like a grand jury? Is it like the Judicial Standards Commission? Or is it like a state disciplinary board? I strongly believe that because we are talking about public servants and the execution of their public duties, we can’t afford the kind of extraordinary secrecy granted in some parts of the judicial system. Instead, we need to handle this as we do licensees or public employees who are the subject of disciplinary complaints. In those latter cases, the final action of the public body is part of the public record.

This is new territory, and there are a lot of unknowns. Maybe a more open process would actually deter people from submitting frivolous and vengeful complaints – imagine the bad press if it became known that a particular PAC was submitting dozens of unfounded complaints and wasting the commission’s time. We just don’t know, which is why I believe we should stick with the presumption of openness that exists in state law.

STEVEN ROBERT ALLEN, executive director of Common Cause:

From Common Cause’s perspective, open government reform will always go hand-in-hand with ethics reform. To take one obvious example, increasing transparency regarding campaign contributions tends to enhance efforts to tighten campaign finance laws. Why? Well, the first type of reform makes it easier for the public to trace how money is being spent in politics. The other decreases the likelihood that this money will be spent in a manner that corrupts the democratic process. One type of reform simply can’t operate properly without the other.

It’s crucial that we flesh out this nexus as we develop a workable model for an independent state ethics commission. The New Mexico Foundation for Open Government’s excellent analysis of the confidentiality provisions in the various ethics commission bills is a probing and intelligent addition to this difficult debate. It’s worth noting that the primary objection that Common Cause had to the ethics commission bill that passed the House during the 2009 session is that its confidentiality provisions, especially with regard to legislators, were too restrictive to allow our organization to support the measure.

I agree that some level of confidentiality is necessary to protect the rights of respondents. But, as NMFOG’s report points out, several of these bills impose drastic penalties on anyone who makes a peep about the commission’s activities. These provisions almost certainly raise serious First Amendment concerns. Likewise, although the NMFOG report cites the “extreme confidentiality” of Judicial Standards Commission (JSC) proceedings, several of these bills contain measures that would create an ethics commission much more secretive than the JSC. For this proposed body to be legitimate in the eyes of the public, as well as in the eyes of respondents, it needs to be subject to a substantial degree of transparency. Likewise, I agree wholeheartedly that it will be impossible to judge the effectiveness of such a commission without some clear, sustained public view into what it’s actually doing.

So, to answer the question, if all its activities and procedures are secret, Common Cause’s position is that it would not be useful to create an ethics commission. The tougher question, however, is where to draw the line? NMFOG’s report is an excellent focal point for this crucial debate.