2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 16G - State Ethics Commission › Section 10-16G-10 - Complaints; investigations; subpoenas.

A. A complaint of an alleged ethics violation committed by a public official, public employee, candidate, person subject to the Campaign Reporting Act [1-19-25 to 1-19-36 NMSA 1978], government contractor, lobbyist, lobbyist's employer or a restricted donor subject to the Gift Act [Chapter 10, Article 16B NMSA] may be filed with the commission by a person who has actual knowledge of the alleged ethics violation.
B. The complainant shall set forth in detail the specific charges against the respondent and the factual allegations that support the charges and shall sign the complaint under penalty of false statement. The complainant shall submit any evidence the complainant has that supports the complaint. Evidence may include documents, records and names of witnesses. The commission shall prescribe the forms on which complaints are to be filed. The complaint form shall be signed under oath by the complainant.
C. Except as provided in Subsection H of this section, the respondent shall be notified within seven days of the filing of the complaint and offered an opportunity to file a response on the merits of the complaint.
D. The director shall determine if the complaint is subject to referral to another state agency pursuant to an agreement or outside the jurisdiction of the commission, and if so, promptly refer the complaint to the appropriate agency. If the director determines that the complaint is within the commission's jurisdiction, the director shall have the general counsel initiate an investigation.
E. The general counsel shall conduct an investigation to determine whether the complaint is frivolous or unsubstantiated. If the general counsel determines that the complaint is frivolous or unsubstantiated, the complaint shall be dismissed, and the complainant and respondent shall be notified in writing of the decision and reasons for the dismissal. The commission shall not make public a complaint that has been dismissed pursuant to this subsection or the reasons for the dismissal.
F. If the general counsel and the respondent reach a settlement on the matters of the complaint, the settlement shall be submitted to the commission for its approval, and if the matter has been resolved to the satisfaction of the commission, the complaint and terms of the settlement shall be subject to public disclosure.
G. If an independent hearing officer determines that there is probable cause, the director shall promptly notify the respondent of the finding of probable cause and of the specific allegations in the complaint that are being investigated and that a public hearing will be set. If the finding of probable cause involves a discriminatory practice or actions by the respondent against the complainant, no settlement agreement shall be reached without prior consultation with the complainant. In any case, the notification, complaint, specific allegations being investigated and any response to the complaint shall be made public thirty days following notice to the respondent. The hearing officer chosen to consider probable cause shall not participate in the adjudication of the complaint.
H. Notwithstanding the provisions of Subsections C and G of this section, the director may delay notifying a respondent and complainant and releasing to the public the complaint and related information required by Subsection G of this section if it is deemed necessary to protect the integrity of a criminal investigation. A decision whether to delay notifying a respondent shall be taken by a majority vote of the commission and shall be documented in writing with reasonable specificity.
I. As part of an investigation, the general counsel may administer oaths, interview witnesses and examine books, records, documents and other evidence reasonably related to the complaint. All testimony in an investigation shall be under oath, and the respondent may be represented by legal counsel. If the general counsel determines that a subpoena is necessary to obtain the testimony of a person or the production of books, records, documents or other evidence, the director shall request that the commission petition a district court to issue a subpoena.
J. The commission may petition the court for a subpoena for the attendance and examination of witnesses or for the production of books, records, documents or other evidence reasonably related to an investigation. If a person neglects or refuses to comply with a subpoena, the commission may apply to a district court for an order enforcing the subpoena and compelling compliance. All proceedings in the district court prior to the complaint being made public pursuant to Subsection G of this section, or upon entry of a settlement agreement, shall be sealed. A case is automatically unsealed upon notice by the commission to the court that the commission has made the complaint public. No later than July 1 of each even-numbered year, the chief justice of the supreme court shall appoint an active or pro tempore district judge to consider the issuance and enforcement of subpoenas provided for in this section. The appointment shall end on June 30 of the next even-numbered year after appointment.
K. A public official or state public employee who is a respondent who is subject to a complaint alleging a violation made in the performance of the respondent's duties shall be entitled to representation by the risk management division of the general services department.
History:
Laws 2019, ch. 86, § 10; 2021, ch. 109, § 17; 2023, ch. 164, § 2.
ANNOTATIONS
The 2023 amendment,
effective June 16, 2023, provided that probable cause determinations are to be made by an independent hearing officer, and provided that the hearing officer chosen to consider probable cause shall not participate in the adjudication of the complaint; and in Subsection G, after "If", deleted "the general counsel determines" and added "an independent hearing officer determines", and added "The hearing officer chosen to consider probable cause shall not participate in the adjudication of the complaint.".
The 2021 amendment,
effective July 1, 2021, removed the notarization requirement from a complaint of an alleged ethics violation; and in Subsection B, after "shall be signed", deleted "and sworn" and added "under oath", and after "complainant", deleted "and notarized".
Applicability.
— Laws 2019, ch. 86, § 40 provided that the provisions of the State Ethics Commission Act apply only to conduct occurring on or after July 1, 2019.
State Ethics Commission lacks jurisdiction to adjudicate an administrative complaint against a member of the legislature for claims predicated on legislative acts.
— N.M. Const., Art. IV, § 13's speech and debate clause provides members of the legislature with immunity from administrative, civil, and criminal actions, whether brought by private individuals or an executive branch agency, for legislative acts taken in the course of the members' official responsibilities, and therefore when claims alleged against a legislator are predicated on that legislator's legislative acts, Art. IV, § 13 operates as a jurisdictional bar to both judicial and administrative proceedings. The State Ethics Commission, therefore, lacks jurisdiction to adjudicate an administrative complaint that alleges a member of the New Mexico legislature violated the Governmental Conduct Act by introducing a bill, making comments related to a bill in a legislative committee or on the member's respective floor, or voting on the bill. 2021 Op. Ethics Comm'n No. 2021-12.