February 25, 2023

Bill to end gag on ethics complainants clears committee

The New Mexico State Capitol, or Roundhouse Wikicommons.

The Senate Rules Committee passed a bill that will, if enacted, allow a complainant who files an ethics complaint to speak publicly by a vote of 9-1 on Friday.

HB 169, Disclosure of Legislative Ethics Complaints, would fix a constitutional issue in a law enacted in 1993, bill sponsor state Rep. Reena Szczepanski, D-Santa Fe, said. The current law prohibits both the complainant and committee staff from speaking publicly about a complaint even though the respondent to a complaint can speak publicly, she said. Szcepanski said the current law has “an uneven requirement,” and that passing HB 169 would make the law more equitable and restore the complainant’s constitutional right to free speech.

The bill generated a discussion around the constitutional right to free speech. Expert witness Matthew Beck, an Albuquerque attorney, said that members of the government, including legislators when they are acting as a member of a committee, do not have the same constitutional right to free speech because the government can “prohibit itself from speaking.”

“The free speech rights apply to the individual. The individual person can speak for their self. The individual always has the right under the First Amendment to free speech. The government does not have the right to free speech. If a person is acting as a committee member, the government can always prohibit itself from speaking,” Beck said.

Minority Floor Leader Gregory Baca, R-Belen, was the sole vote against the bill. He argued that he is not a member of the government and that since legislators are citizen legislators and unpaid, they are not the same as government employees and, therefore, their right to free speech should not be restrained.

“I better be careful myself. It’s very unclear where I sit,” he said. “Sitting on this committee we do not have that freedom to say what we want. We’re the opposite of a government entity. We’re a public entity, I would argue…I’m not sure this piece of legislation gets us where we want to go.”

Expert witness Marianna Anaya spoke on behalf of the bill. Anaya filed a sexual harassment complaint last year against state Sen. Daniel Ivey-Soto, D-Albuquerque. Ivey-Soto stepped down from his position as head of the powerful Senate Rules Committee after the allegations and shortly before the Senate Committee’s Committee met to determine if he should remain in the position. State Sen. Katy Duhigg, D-Albuquerque, replaced him.

Anaya said she was barred from speaking publicly while Ivey-Soto spoke to the press.

“There is more freedom to speak before the complaint process; the process as it currently stands limits the ability to speak,” Anaya said.

Duhigg said the Senate rules are archaic.

“The Senate rules still have in there a prohibition for the complainant to speak. There are consequences. They can be reprimanded, fined monetarily. The Senate rules need to catch up with the constitutional rights we are ensuring with this bill,” Duhigg said.

State Sen. Jerry Ortiz y Pino, D-Albuquerque, said he was worried that a person might file an unfounded complaint against a member of the legislature if this bill passed.   

“It leaves the public official extremely vulnerable if a case is made against them and the ethics committee goes the other way, they’re still painted in the public eye as having committed the offense no matter what,” he said.

State Sen. Mark Moores, R-Albuquerque, argued that the Democrats passed the current law, which was enacted in 1993, despite Republicans complaints.

“This issue could have been fixed if the majority had listened to us. We clearly stated this law was unconstitutional,” Moores said.

Szczepanski said she researched the current law’s history but, because it was enacted so long ago, she wasn’t sure of the law’s original intent.

The bill heads next to the House Judiciary Committee.