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“Ethics Commission hobbled by short statute of limitations”
by Trip Jennings, Mid-week newsletter, New Mexico in Depth
May 15, 2024
The State Ethics Commission can look two years into the past to determine whether a public official acted unethically. If an ethics complaint is filed more than two years after the alleged unethical act, it is timed out and the commission is powerless to act, except in limited circumstances.
Is a two-year statute of limitations a realistic timeline for holding public officials accountable for unethical behavior?
It’s a question worth pondering given the recent dismissal of a 2023 ethics complaint against Democratic Sen. Daniel Ivey-Soto. The hearing officer threw out the complaint based on legal analysis by the independent ethics commission’s general counsel, Walker Boyd. In his analysis, Boyd concluded at least three acts that formed the basis for allegations against Ivey-Soto, including one of the most serious lodged against him, happened more than two years before the complaint was filed, and fell beyond the commission’s reach. No complicated legal analysis, just a check of the calendar.
A fourth allegation, similarly, couldn’t be pursued because of a different time constraint enshrined in state law. The commission can’t investigate any conduct by public officials prior to July 1, 2019.
The three allegations rendered moot by the two-year statute of limitations involve accusations that Ivey-Soto “sexually assaulted a fellow senator in 2019,” “bullied a fellow senator” in March 2021 and took actions to benefit an employee who worked for his law firm.
The fourth timed-out allegation accused Ivey-Soto of not properly disclosing his employment with a firm he incorporated the year before on his financial disclosure form, potentially violating the state’s Financial Disclosure Act.
Those timed-out allegations represent only a portion of the accusations Santa Fe attorney Daniel Yohalem leveled against Ivey-Soto in his complaint that claimed Ivey-Soto had violated the Governmental Conduct Act, Lobbyist Regulation Act, Financial Disclosure Act, and Procurement Code during his eleven and a half years as a state senator.
With respect to some of the non timed-out allegations, Boyd found Yohalem had pinpointed acts involving Ivey-Soto’s role as a state lawmaker and, therefore, were out of the commission’s jurisdiction.
A quick note: Article four, section 13 of the New Mexico Constitution contains what experts call the “speech and debate clause,” which grants lawmakers broad latitude when doing the public’s business. A legislator can be prosecuted for non-legislative acts while in office as former state Sen. Phil Griego discovered years ago, but untangling legislative from non-legislative acts can be complicated business. For other allegations, Boyd found no probable cause. Had Boyd found probable cause, it likely would have resulted in a public hearing for those allegations in front of the hearing officer.
Personal Corner
The dismissal of Yohalem’s complaint against Ivey-Soto arrives as the veteran lawmaker is in a fight to keep his job. Heather Berghmans is challenging Ivey-Soto in next month’s primary election. Early voting started earlier this month.
I came away from reading Boyd’s 27-page legal analysis thinking the resolution of the case was not the clean bill of health Ivey-Soto wants given the timed-out allegations nor was it the slam-dunk blemish Berghmans desires. Perhaps the dismissal will factor into the contest, but neither candidate can claim a clear victory.
Mostly, however, I wondered if two years is an adequate period for the State Ethics Commission to identify unethical conduct. The two-year statute of limitations strikes me as a short leash on a government watchdog. Particularly in a state rocked by numerous political scandals. Two state treasurers, a deputy insurance commissioner, a secretary of state, a member of the Public Regulation Commission and two former state senators have spent time behind bars since I got to New Mexico in 2005.
In criminal cases, New Mexico prosecutors work with a two-year statute of limitations for misdemeanors, among the smallest, least consequential offenses. Perhaps it’s unfair to look for an analogy in the criminal statutes, but after covering so many political scandals in New Mexico, I can’t help but wonder if many state lawmakers think of ethical lapses as merely technical violations, easy to dismiss.
To be fair, a longer statute of limitations probably would have doomed the legislation that created the ethics commission several years ago. A truism about legislators is that they often have trouble legislating themselves.
That said, New Mexico’s state lawmakers have on occasion changed the statute of limitations that apply to crimes. They should do the same for ethical lapses by public officials by lengthening the statute of limitations.