June 7, 2017

‘Enforcement gap’ persists in NM ethics laws

Laura Paskus

Corruption has long been endemic to New Mexico government. And today, even when people ferret out potential problems or ethical lapses, there’s still a significant gap between the laws meant to protect people and the ability or willingness of state agencies to enforce them.

In January, for example, conservation groups wrote to the state purchasing agent and director, asking him to look into a political donation from a company with a lucrative state contract. The company had contributed $1,000 to Gov. Susana Martinez’s political action committee during a time when the state’s Procurement Code prohibits political contributions, when proposals are being evaluated for the awarding of contracts.

Months passed, and the activists didn’t hear back from the state purchasing agent or from the agency that had issued the contract, the New Mexico Interstate Stream Commission (ISC). The activists also notified State Auditor Tim Keller, whose office wrote a letter to the ISC in February.

Related story: State approves contract change after Gila diversion plans shift again

In that letter, Keller pointed out that the Special Investigations Division had received information alerting them to a potential weakness in the agency’s internal controls for procurement practices related to campaign contribution disclosures. The sequence of events, wrote Keller, “exposes a weakness in the ISC’s internal controls for Procurement Code compliance.”

The consequence of a violation, a mandatory cancellation of the contract, is “severe and potentially quite expensive to the state,” Keller wrote, and asked the ISC to review the matter, plan to correct the problem, strengthen its internal controls and inform his office.

The ISC didn’t respond to Keller’s office nor to the conservation groups.

Then in May, the groups appealed to New Mexico Attorney General Hector Balderas.

Aside from acknowledging receipt of their letter, they didn’t hear back from the attorney general either.

In May and June, NM Political Report repeatedly reached out to the attorney general’s spokesman to ask about the issue. James Hallinan responded last Friday via text message that the agency will issue a determination by June 16.

According to the ISC’s public information officer, Melissa Dosher-Smith, the agency is in the process of responding to Keller’s letter.

With silence from almost all the agencies involved, the issue has merely simmered—without resolution for the company nor those who raised the issue of an ethical lapse.

This isn’t unusual.

“While the State Auditor’s Office plays an important role in identifying potential violations, it is ultimately the responsibility of those charged with governance to take corrective actions,” Keller told NM Political Report.

The office’s primary mission is to enhance government accountability and transparency through financial audits, special investigations and the state’s Government Accountability Office, Keller explained.

They can ask government agencies and managers to take corrective action, or if it’s a criminal matter, work with law enforcement. Or, they can reveal what’s happening behind the scenes at state agencies by issuing public reports and press releases and talking with reporters.

In recent years, for example, the office has brought a number of issues to the public’s attention, including the state’s backlog of over 5,000 untested rape kits, alleged abuses by the now-former secretary of Taxation and Revenue Department and the likely embezzlement of $200,000 from a high-level employee from Northern New Mexico College.

“In each case though, it was our office shining a light and the entity taking action,” Keller said, “as we did not have the power to ‘force’ any of these outcomes.”

New Mexico historically has had an “enforcement gap” between the laws on the books concerning conduct of state officials and other similar areas like transparency and openness, says Douglas Carver, executive director of New Mexico Ethics Watch, a nonpartisan group.

He compares the group to the New Mexico Foundation for Open Government, which fields calls from the public and offers trainings on the state’s open records and open meetings laws. “We do for government ethics what FOG does for open meetings and public records.”

New Mexico has good ethics laws, Carver said, but they’re not enforced. There is a history in the state of the three agencies involved, New Mexico Secretary of State, Office of the Attorney General and Office of the State Auditor, he said, “either turning a blind eye or not being aggressive enough in enforcement.”

That can change in the course of an election cycle: “The present auditor and present secretary of state, they’ve really picked up the mantle and are doing the job as designed,” he said.

Neither of those offices has enforcement capabilities, however.

“The buck should stop with the attorney general’s office on all these issues, ultimately,” Carver said. “When matters are brought to their attention, they need to aggressively investigate.” The lack of enforcement isn’t new or unique to Balderas, who has been the state’s Attorney General since 2015.

“Whether that’s a staffing issue, a budget issue, or something else, it’s hard to say,” he said.

Meanwhile, as the state considers creation of a new ethics commission, Carver hopes it won’t just be “one more black hole of ethics complaints in the state.”

In March, the New Mexico State Legislature passed a bill that will allow voters to weigh in during the 2018 election on a constitutional amendment creating a state ethics commission.

If voters approve the measure, the ethics commission would include one commissioner appointed by the governor and four by the state Legislature; those four commissioners would select two additional members.

Related story: Voters to decide on ethics commission

The commission, while a potential step forward, won’t automatically solve the state’s challenges with ethics and enforcement.

“Like any other state agency, the devil will be in the details,” Carver emphasized.

The members of the commission will affect its success. And so will the power and scope given to the commission by the Legislature, he said.

To shift the ethical culture in New Mexico government, Carver said it’s important for the public to stay engaged and hold people accountable, including the secretary of state, attorney general, state auditor, legislators and the governor.

“We hope the people of the state will demand more of these offices that are supposed to be looking at our welfare,” he said. “It’s not wrong for you to say: what’s going on?”