This is our second look at the proposed ethics commission legislation that has passed unanimously out of the Legislature’s interim committee on Courts, Corrections and Justice. Our first installment showed how the proposed ethics reforms would not have hindered Manny Aragon and other public corruption crooks. For the full text of the legislation, go here.

Deep within the legislation that would establish an ethics commission is a provision criminalizing the disclosure of information about ethics violations and corruption collected by the commission in the course of its investigation. Disclosure of even the fact that a complaint has been filed against a public official, state contractor, public employee or lobbyists would become a crime. Another provision in the legislation would deprive voters of relevant information by barring the commission from taking any actions against a candidate for office until after the general election.

An Official Secrets Act for Ethics Violations

Here’s how the proposed legislation creates this new criminal offense.

Step 1:

Under Section 12, a rule of confidentiality is established.

All complaints, reports files, records and communications collected or generated by the commission or its director that pertain to alleged ethics violations are confidential and not subject to the provisions of the Inspection of Public Records Act.

Step 2:

Section 16.A. makes disclosure of these materials illegal.

A person who discloses any confidential complaint, report, file, record or communication in violation of the State Ethics Commission Act is guilty of a misdemeanor and upon conviction whall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one year or both.

We asked State Senator Peter Wirth, the bill’s primary sponsor, to explain this provision, specifically whether it would apply to journalists who publish information covered by the rule of confidentiality. He referred our questions to legal staff for the committee on Courts, Corrections and Justice. We have received no response to our inquiries.

Who is prohibited from disclosing information about corruption and ethics violations?

The legislation says “a person” who discloses any of the covered information is subject to criminal prosecution and penalty. It does not restrict the prohibition to complainants, the commission membership, the commission’s executive director or staff. “A person” thus means “any person.” That would include journalists or bloggers who disclosed any of the information and documents deemed “confidential.” Reporting that an ethics complaint had been prepared and submitted for investigation is a prohibited disclosure. Reporting what is in a report of the investigation is a prohibited disclosure. A witness who is contacted in the course of an investigation by the commission’s staff, or who testified before the commission, would be prohibited from disclosing what was said in the course of the communication.

This secrecy provision is broader than even the secrecy rules governing criminal grand juries. The grand jurors, the prosecutors and sometimes investigators take oaths of secrecy and can be prosecuted for violating that oath. But witnesses before the grand jury are always free to discuss their testimony and communications with prosecutors and investigators. Journalists may report on proceedings of the grand jury, and can report on anything that comes to their attention, even if its disclosure to them was a breach of grand jury secrecy.

This secrecy provision is also far broader than the rules governing the City of Albuquerque’s ethics process. The filing of complaints is public information. Indeed, the entire process is aired in the light of day. The Judicial Standards Commission requires confidentiality from its members and staff, but there is no threat of criminal prosecution for anyone–including journalists and witnesses–who disclose the fact of a complaint and evidence of ethics violations under consideration by the commission. Article VI, Section 32 of the New Mexico State Constitution contains a much more restrictive confidentiality clause than the proposed ethics legislation: “All papers filed with the commission or its masters, and proceedings before the commission or its masters, are confidential.”

The proposed legislation gives these confidentiality protections to allegations of ethics violations by state contractors and lobbyists, as well as elected officials and state employees. Rules of confidentiality generally governing ethics proceedings against lawyers, doctors, and other licensed professions. But they are less restrictive than contained in this proposed legislation, and none of them are reinforced by the specter of criminal prosecution and incarceration.

The Proposed Legislation Would Deprive Voters of Relevant Information

The legislation creates a black-out period between the filing date for the primary election through election day of the general election. Under Section 14.B., during this period, the commission may take no action against a candidate for public office in response to any complaint of ethics violation. No investigation may be conducted. No hearings may be held. No decision may be reached by the commission, with one exception. The commission may dismiss complaints that are “frivolous, unfounded or outside the jurisdiction of the commission.” How the commission can determine that a complaint is frivolous or unfounded without benefit of any factual inquiry is not explained.

This section must also be read together with the criminal penalty for disclosure of confidential materials. If a complainant takes a valid complaint to the commission before the day of the general election, they cannot talk to the media about the filing of the complaint, what’s in the complaint, or the evidence they provided to the commission. Only after the election may the commission begin to take action. If it concludes an ethics violation has occurred, voters will learn of that information only well have the offender may have been elected to office.

The Albuquerque City Code of Ethics contains no similar black-out provision to deny voters information about allegations and investigations of ethics complaints, or to freeze consideration of ethics complaints until after the general election. There is no similar black-out period for action on complaints of judicial misconduct. If a judge is misbehaving, the judicial standards commission can, if appropriate, act expeditiously to remove them from the bench. But under the proposed reform legislation, an incumbent who is a candidate for re-election is immune from any action by the commission until after she may have been re-elected.

Lawyers, doctors and other licensed professionals are subject to ethics proceedings at any time, regardless of critical deadlines in their professional lives.

We asked Sen. Wirth to explain the justification for this black-out provision, but have received no response to our inquiries.