June 8, 2021

NM Senate leadership clears senator of ethics violation allegation

State Sen. Jacob Candelaria, D-Albuquerque

A dust-up between an outspoken New Mexico state senator and a state cabinet secretary over ethics related to cannabis legislation has come to a resolution, at least temporarily. 

According to a letter from Senate leadership last month, sent to New Mexico Department of Health Secretary Tracie Collins, there will be no legislative investigation of Sen. Jacob Candelaria, D-Albuquerque, over his professional involvement with a prominent medical cannabis business.  

In the letter, sent on May 19, Senate President Pro Tem Mimi Stewart, D-Albuquerque, wrote that she, Senate Majority Leader Peter Wirth of Santa Fe and Senate Minority Leader Greg Baca of Belen determined there was no reason for the Interim Legislative Ethics Committee to investigate the issue further. 

“I convened a meeting with Senators Wirth and Baca to review and deliberate the allegations and other information contained in your complaint and in the State Ethics Commission’s dismissal and referral,” Stewart wrote. “After our extensive evaluation, we have determined that the complaint and information did not warrant further investigation by the Interim Legislative Ethics Committee, and therefore the complaint is dismissed.”

Four days after this year’s regular session and six days before a special session, Collins filed an ethics complaint with the newly formed State Ethics Commission, alleging that Candelaria  violated the state Governmental Conduct Act by voting on a bill that would have limited medical cannabis patient reciprocity. Candelaria, who is also an attorney, represented medical cannabis producer Ultra Health months prior, challenging DOH over the same issue. 

In September 2020, the Medical Cannabis Program, which is overseen by DOH, issued a directive that medical cannabis reciprocity only applied to patients with authorization from their respective home state to use medical cannabis. The department was attempting to close what it saw as a loophole in which Texas residents reportedly received recommendations from doctors in California and then crossed state lines to buy medical cannabis in New Mexico. By October 2020, Candelaria, on behalf of Ultra Health, successfully petitioned a state judge to overrule the department’s emergency rule change. The judge in that case ruled that it wasn’t the rule change itself that made it invalid, but that the department did not adequately justify skipping the normal process for promulgating rules. 

The department then proposed a new set of rules, but Sen. Jerry Ortiz y Pino also sponsored legislation during the regular session that would limit patient reciprocity in statute, presumably at the request of DOH. It was during the debate and subsequent vote on Ortiz y Pino’s bill when Candelaria “utilized the position of senator to advance personal benefits, or in the alternative, pursue the private interests” of his client, according to Collins’ complaint. 

Candelaria told NM Political Report that there was no pending litigation when he voted against the bill to limit reciprocity, therefore it would not have impacted the case. 

“There was absolutely no active litigation involving myself, the department and the issue of reciprocity,” Candelaria said. “The case had been resolved at the time, and we were waiting on a new promulgation of rules. So, her allegation was that I was using my position to try to influence pending litigation. Well, there was absolutely no pending litigation.”

According to court records, the judge ruled in favor of Ultra Health in October 2020 but DOH appealed the decision and that appeal was still pending during the 2020 legislative session. But DOH was simultaneously lobbying for a change in statute while also working to promulgate rules for the same issue. 

The day before the special session where lawmakers successfully passed the Cannabis Regulation Act, which legalizes cannabis purchases, use and possession, the State Ethics Commission deemed the issue outside of its jurisdiction and forwarded the case to the Legislature. Interestingly, it was the Cannabis Regulation Act that ultimately included the same language limiting medical cannabis reciprocity for which DOH was pushing.  

DOH spokesman James Walton told NM Political Report that, “Secretary Collins does not have a comment regarding this matter at this time.”

Candelaria said he’s glad the Senate leadership decided there was no issue to investigate, but that he still plans to follow through with his intention to sue state officials for what he says is defamation. 

“I take my ethics very seriously, and I’m pleased that the leadership agreed,” Candelaria said. “I do not take lightly and do not appreciate in any way, shape, or form, such reckless, frivolous allegations against my ethics. And so I’ll see Secretary Collins and the governor in court. That will be the next step that we will be taking.”

Representatives of Lujan Grisham have repeatedly denied Candelaria’s allegations of retaliation and DOH has said it does not comment on pending litigation.

Candelaria said he was waiting for a determination one way or another from Senate leadership, but now plans to have a suit filed next month, under the relatively new act that established the Ethics Commission. 

“It’ll be the first test case under the act,” Candelaria said. “So do I think it’s a slam dunk? No.”

But, Candelaria said, he thinks it’s important to “let the courts decide if someone has the private right of action and can seek some sort of remedy in these sorts of situations.” 

He readily admits that public accusations are “the price you pay in being in an elected office” but that he thinks Collins and Lujan Grisham “overstepped the line.”

“They’ve really damaged the integrity of the process by sending a clear signal,” Candelaria said. “If it’s good enough for the chief executive to manipulate the process in this way, what kind of message does that send to other people?”