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Activists worry about secrecy in ethics commission bills
The Roundhouse in Santa Fe (Photo by Peter St. Cyr)
With the proposal to create a state ethics commission under consideration in the Senate Rules Committee, activists lobbying for the bill say they’d like to see a better balance between confidentiality and the public’s right to know than would be created by some of the bills under consideration.
For example, Sen. Linda Lopez’s Senate Bill 43 would require confidentiality during the process of an investigation, and violators could be subject to a criminal misdemeanor citation or a civil fine of up to $25,000.
The New Mexico Foundation for Open Government and Common Cause New Mexico don’t like that.
“To the extent that it puts a gag order on someone submitting a complaint, or a third party such as a journalist… it’s unconstitutional,” said FOG Executive Director Sarah Welsh. “It would violate their First Amendment right.”
Common Cause Executive Director Steve Allen also expressed concern about the penalties in Lopez’s bill.
“It’s important to protect the accused, but we have to find the right balance,” he said, adding that, at the very least, there should not be a penalty for violating the confidentiality clause in the proposed law.
That would be similar to constitutional provisions governing the state’s Judicial Standards Commission, which requires confidentiality but imposes no penalties for violations.
Welsh wants lawmakers to go even further in the direction of openness. She said allegations against public officials tend to become public no matter what. Because of that, it should be as important for the accused as it is to the public that the ethics commission process be open, especially if the commission finds no violation.
“It doesn’t really make sense for the acquittal to be private when the allegation is public,” she said.
Were Welsh to have her way, the bill that emerges from the Rules Committee would keep the complaint and investigation secret until the ethics commission holds a hearing on the matter – but the hearing would be public, as would whatever action results.
Other concerns
Allen has other concerns about the proposed ethics commission bills. He said Common Cause wants to ensure that, even with the current budget crunch, the commission is fully funded. In the past the House has approved but not funded the ethics commission proposal.
Common Cause also wants the commission to have independent subpoena power.
In addition, at least one of the pending bills would have the state pay for the legal defense of public officials who have complaints filed against them. Allen called that “fairly unusual,” and noted that the state Constitution doesn’t provide for the state paying the legal fees of judges who are investigated.
Allen did say he’s glad the legislation has progressed. He said all pending ethics commission bills are better than what passed the House in the last session.
“A lot of great work has been put into these bills,” Allen said. “… I think it’s important, though, that it be done right.”
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Good, a dialog of sorts…
In Mexico, one of the most corrupt places on earth, they are quite accustomed to ‘mordita’… which roughly translates to a little bit or a little bite. Funny how you can be announced and waiting in the reception area of the Mayor’s office for the Mayor to meet with you, watch him walk past you, go into his office and the receptionist totally and completely ignore you and go so far as to tell you the Mayor is actually NOT in… until you slough some cash her way. That behavior is expected there. It runs entirely through their culture in and out of government down through the local police. The country cannot advance because everyone, when the situation presents itself, is on the take. The only question is, how much will it cost, this time. That sort of uncertainty delays and often denies better outcomes. It is what keeps them back.
Mordita exists right here in NM. It might actually be fair to say it is what powers government in too many places. “Let’s see, I do this for you and what’s in it for me?” People can be taught that is wrong and until they are, not much changes. Ethics commissions don’t reach down into the bowels of the problem. They barely hit the surface and are more about platitudes than action.
There has to be consistent and sustained training effort along with legal enforcement preceded by people being willing to step forward and report the behavior (whistleblowing) without fear of retribution for doing so.
An ethics commission is a nice-sounding idea. But I will repeat it is not the answer. It is not the answer because in the hands of those who hold the power (R or D), it has no likelihood of being used effectively for its presumed purpose.
I say those who want it are the opposite of your thought process, Ched. Those who want it do so because it will afford them the opportunity to put up a facade that ‘in the name of ethics’ appears to hit on all the right cylinders but in reality does nothing of the sort. I’ve been engaged in the subject, philosophized myself to death with it, taught it and so on for more than 30 years.
You are right though. Laws only set the minimum standards for how a society should conduct itself and ethics are higher than laws. Having said that, there are likely dozens of laws on the books that were we ever able to get people to rise to the level of accountability and transparency the public deserves from public servants… would easily mete out the necessary punishments and serve as a deterrent all by itself. That won’t happen if the enforcers (unprincipled leaders) are part of the problem… just like in Old Mejico! As one easy example, why has the current AG gone after the current Guv and a few other folks for all what has been going on over at the SIC? Not saying the current AG is on the take, but something seems to be keeping him from conducting the same investigation the AG of NY has been doing n that state that started this snowball rolling in the first place. Use the current legal system properly for this sort of thing and we don’t need an ethics commission…
Best to you, Ched.
Ethics and ethics commissions do not exist to make people “ethical” any more that laws and courts exist to make people “law abiding” The purpose is to create standards and enforce them; what is in peoples’ hearts doesn’t play.
The definition of ethical does not vary all that much. It may vary from culture to culture, but since we are only dealing with one culture, that argument is specious.
Ethics are simply a higher standard of conduct than the law; the law being clearly inadequate to protect taxpayers and their resources from public corruption and incompetence.
There is a fundamental ethic upon which every one can agree, and that is truth telling. If the Ethics Commission is truly transparent, in cannot be used to further anyone’s agenda.
If you watch and listen, you will find that most of the objection to ethics reform comes from people who want to hide the truth. I would be willing to bet that the folks who object to an Ethics Commission are the same ones who object to archiving legislative webcasts.
Enforcing a decent code of ethics will not “transform” the culture of corruption; it will end it. It is possible to make it impossibly difficult to steal – consider casinos; they don’t get stolen from, not because they have a better class of employees, but because they simply don’t allow it. It is impossibly difficult to steal their money without getting caught.
It works.
Ethics commission don’ work without a code of ethics in place to have violated! People either are or are not ethical at any given point in time and everyone’s definition of what ‘ethical’ is varies according to a lot of extenuating circumstances. Most of us think that nepotism in hiring is unethical… a widespread practice in NM that should end. In some countries, NOT hiring a relative first is considered unethical.
Ethics training is a different thing. People can be subjected to ethics training so they can understand first of all what it is in order to consciously decide if they are going to conduct themselves that way or not.
In NM all we really need is principled leadership… as opposed to what we’ve gotten out of the current administration. While some want to clean house and fire everyone in Santa Fe, others believe that people are generally good to begin with and simply need principled effective leaders to bring out the best in them. Many state employees like their jobs and want to be held accountable but it is their leaders who are the problem.
Finally, one has to be careful what one wishes for. An ethics commission in the hands of corrupt people in high office can be used to do nothing more than further their agendas.
It is noteworthy that people think that an ethics commission will transform a culture of corruption. It won’t. Therefore, they shouldn’t!