2019 Legislative Priority – State Ethics Commission Enabling Legislation
LWVNM supports the establishment of an Independent Ethics Commission to oversee and enforce ethics rules and lobbying laws. This commission should be empowered to receive allegations and complaints, and to conduct investigations according to established detailed standards.
The 2018 ballot question: Consistent with its position, LWVNM supported the legislation that put the creation of an independent state ethics commission on the 2018 ballot. The voters approved it overwhelmingly in the November election. That was just the first step -
, now we have to pass effective enabling legislation. In order to be effective, the enabling legislation should have the following features:
existing lawsCurrent laws contain a patchwork of provisions for civil and criminal enforcement by the secretary of state, the attorney general and the district attorneys. The enabling legislation must address these existing provisions in a way that will prevent them from interfering with the new complaint-and-hearing procedure through which the laws will now be enforced by the commission.
Specific powers and duties of the commission, proposed
- The commission will receive complaints from any person alleging a violation by any person of any of the laws within the scope of its authority.
- The commission will review all complaints and make a prompt determination whether the complaint should be dismissed as frivolous or beyond the commission’s jurisdiction.
- Complaints not dismissed will be investigated and a determination made within a specified period of time whether probable cause existed to convene a formal hearing.
- The commission will be authorized to issue subpoenas, or to request a court to issue subpoenas, for compulsory appearance of witnesses and production of evidence.
- Following a hearing, the commission will make and publish its determination of whether a violation of the law had been established, accompanied by detailed written findings and conclusions.
- The commission will be empowered to impose sanctions on violators, including censure and public
reprimand, and to refer adjudicated cases to other agencies, employers or prosecutors for possible further disciplinary action.
- The commission will be authorized to issue advisory opinions to persons presenting legitimate questions about whether their own contemplated future conduct will violate any of the laws administered by the commission.
- The commission will have a budget sufficient to allow it to hire staff, including a director and legal counsel, to assist it in carrying out these functions.
Confidentiality of the commission’s proceedings
The commission and its staff will be subject to a duty of confidentiality at all stages of a proceeding. However, formal hearings will be conducted in public, and all formal determinations and dispositive orders of the commission will be published.
Provisions that should NOT be included
- Confidentiality requirements that extend beyond the commission and its staff and attempt to limit discussion of the case by the complainant, the press or the public.
- Provisions for sanctions against complainants that are more severe than the sanctions that may be imposed for the submission of frivolous claims or false testimony in a court of law.
- Provisions eliminating or weakening the absolute privilege that normally precludes actions for defamation based on allegations or evidence submitted to an official tribunal.
- Prohibitions against filing complaints or conducting commission proceedings during an election year, which is the period when the public is most needful of information about possible violations of government ethics and campaign finance laws.
- Provisions requiring or allowing the commission to avoid adjudicating complaints within its jurisdiction by referring the complaints to other agencies before they have been adjudicated by the commission.
- Requirements for proof of “willfulness” as a prerequisite to finding a violation, which will effectively reduce the substantive scope of all the laws the commission will be enforcing, none of which presently requires such proof except when criminal prosecution is being pursued