New Mexico Register / Volume XXXIV,
Issue 12 / June 27, 2023
This is an amendment to
1.8.1 NMAC, Section 7, adding new Sections 10 through 13, and renumbering old Sections
10 through 16 to Sections 14 through 20 (with no changes), effective 7/1/2023.
1.8.1.7 DEFINITIONS:
A. “Administrative
complaint” means an allegation of an actual or potential violation of
ethics laws in a sworn complaint, as fully described in Subsection D of Section
10-16G-2 NMSA 1978.
[A] B. “Advisory opinions” are opinions written by the commission
responding to questions presented by persons authorized under Paragraph 1 of
Subsection A of Section 10-16G-8 NMSA 1978 about how laws within the
commission’s jurisdiction apply to specific fact
situations.
C. “Commission”
means the State Ethics Commission.
D. “Ethics
laws” means Article IX, Section 14 of the New Mexico Constitution and the
statutes set out in Subsection A of Section 10-16G-9 NMSA 1978.
E. “Government
agency” means an instrumentality of the United States or an agency of a
state, county, or municipal government.
F. “Informal
complaint” means an allegation of an actual or potential violation of
ethics laws from a person, which is not an administrative complaint.
[B] G. “Interagency agreement” means an agreement between the commission
and another state or federal agency, including memoranda of understanding,
joint powers agreements, and services agreements.
[C] H. “Joint
powers agreement” as used
in this part, has the same meaning as it does in the Joint Powers Agreements
Act, Section 1-11-1 NMSA 1978.
I. “Person”
means any natural person or organization
that is not a government agency.
J. “Referral”
means any allegation of an actual or potential violation of ethics laws
received by the Commission or its staff from a government agency that is not an
administrative complaint.
[D] K. Other words and phrases used in this
part have the same meaning as found in 1.8.3.7 NMAC or the State Ethics Commission Act, Sections 10-16G-1
to -16 NMSA 1978.
[1.8.1.7 NMAC-N,
1/1/2020; A, 10/27/2020; A, 7/1/2023]
1.8.1.10 INFORMAL
COMPLAINTS; ASSESSMENTS:
A. Upon receipt of an informal complaint or a referral,
the director shall assess whether the informal complaint alleges a violation of
the ethics laws and is supported by sufficient evidence for a reasonable person
to conclude that a violation has occurred.
B. To
complete the assessment provided in Subsection A of this section, the director
may seek information, proactively or in response to investigative leads,
relating to activities that constitute violations of the ethics laws. In making an assessment, the director may seek
and review information that is available to the public. For example, the director may review public
social media accounts, make written requests for records under the Inspection
of Public Records Act, and interview witnesses.
Assessments may result in:
(1) An investigation pursuant to 1.8.1.11 NMAC;
(2) A request for the Commission’s approval to commence a
civil action pursuant to 1.8.1.12 NMAC; or
(3) A determination of no further action pursuant to
1.8.1.13 NMAC.
C. Before initiating an assessment, the director must
determine whether the proposed assessment is based on factors other than
activities protected by the First Amendment of the United States Constitution
or the race, ethnicity, national origin, religion, political affiliation, or
other protected status of the assessment’s subject.
[1.8.1.10 NMAC-N, 7/1/2023]
1.8.1.11 INVESTIGATIONS;
SUBPOENAS:
A. The director may initiate an investigation if there is
an articulable factual basis that reasonably indicates that the subject of the
investigation has violated or in the immediate future will violate the ethics
laws and the investigation is a reasonable use of Commission resources and
personnel. Investigations may result in:
(1) a request for the Commission’s approval to commence a
civil action pursuant to 1.8.1.12 NMAC; or
(2) a determination of no further action pursuant to 1.8.1.13
NMAC.
B. In
performing an investigation, the director may take any action available to the
director when making an assessment, interview witnesses, and petition a
district court for leave to issue and serve subpoenas for evidence pursuant to
Paragraph 2 of Subsection C of Section 10-16G-5 NMSA 1978 and Subsection D of
this Section.
C. Upon
approval of the Commission, the director may file an action in district court
for the issuance, service, and enforcement of subpoenas requiring the
attendance of witnesses and the production of books, records, documents or
other evidence relevant or material to the investigation. The civil action provided for in this
paragraph shall be filed under seal in the district court in the county where a
witness resides. If a witness neglects
or refuses to comply with a subpoena, the director may apply to the district
court for an order enforcing the subpoena and compelling compliance. The district court may impose sanctions or
other relief permitted by law, including contempt, if a person neglects or
refuses to comply with an order enforcing the subpoena and compelling
compliance.
[1.8.1.11 NMAC-N, 7/1/2023]
1.8.1.12 CIVIL
ACTIONS:
A. If, after an assessment pursuant to 1.8.1.10 NMAC or
an investigation pursuant to 1.8.1.11 NMAC, the director concludes that the
subject of the investigation has violated or will violate the ethics laws, the
director shall ask the Commission to approve the initiation of a civil action
under Subsection F of Section 10-16G-9 NMSA 1978 and any other applicable
statutory authority or a referral to the house of representatives for
impeachment proceedings under Subsection C of Section 10-16-14 NMSA 1978.
B. The
approval of the Commission is required to initiate a civil action or to refer a
matter to the house of representatives for impeachment proceedings.
C. In
seeking approval from the Commission to initiate a civil action or refer a
matter for impeachment proceedings, the director shall provide a written
explanation of the factual basis for the proposed civil action and the list of
remedies sought. In seeking approval
from the Commission to refer a matter to the house of representatives for
impeachment proceedings, the director shall provide a written explanation of
the factual basis for the proposed referral and explain why a referral under
Subsection C of Section 10-16-14 NMSA 1978 is appropriate.
[1.8.1.12 NMAC-N, 7/1/2023]
1.8.1.13 NO
FURTHER ACTION ON INFORMAL COMPLAINT:
If the director determines
that an informal complaint is unsubstantiated, does not imply a violation of
the ethics laws, or that the assessment or investigation is not a reasonable
use of Commission resources and personnel, the director may decide to take no
further action on the informal complaint and close the matter.
[1.8.1.13 NMAC-N, 7/1/2023]
[1.8.1.10] 1.8.1.14 REFERENCE TO
OTHER DOCUMENTS: When a rule issued by the commission refers
to another rule, regulation or statute, or other document, the reference,
unless stated specifically to the contrary, is continuous and intended to refer
to all amendments of the rule, regulation, statute or document.
[1.8.1.14 NMAC-Rn, 1.8.10 NMAC, 7/1/2023]
[1.8.1.11] 1.8.1.15 INTERPRETATION
OF TERMS: Unless the context
otherwise requires:
A. Singular/plural. Words used in the singular include the plural;
words used in the plural include the singular.
B. Gender. Words used in the neuter gender include the
masculine and feminine. The personal
pronoun in either gender may be used in these rules to refer to any person,
firm or corporation.
C. Permissive/mandatory.
May is permissive; shall and must are mandatory.
[1.8.1.15 NMAC-Rn, 1.8.11
NMAC, 7/1/2023]
[1.8.1.12] 1.8.1.16 USE
OF PRESCRIBED FORMS: The director may prescribe
forms to carry out specified requirements of these rules or the state ethics
commission act. Prescribed forms, or
their substantial equivalent, must be used when available, unless these rules
state otherwise or the director waives this requirement in writing. The
director shall accept filings made on legible copies of prescribed forms.
[1.8.1.16 NMAC-Rn, 1.8.12
NMAC, 7/1/2023]
[1.8.1.13] 1.8.1.17 ADDRESS:
A. By
mail: Director, State Ethics Commission, 800 Bradbury Dr. SE, Ste. 215,
Albuquerque, NM 87106.
B. In person:
State Ethics Commission, 800 Bradbury Dr. SE, Ste. 215, Albuquerque, NM 87106.
C. By
email: ethics.commission@sec.nm.gov.
[1.8.1.17 NMAC-Rn, 1.8.13 NMAC, 7/1/2023]
[1.8.1.14] 1.8.1.18 COMMISSION
MEETINGS: The time, location, and format of commission
meetings is determined in accordance with this section.
A. Time, place, and duration. The commission chair, in consultation
with the director, shall determine the time, place, format, and duration of
commission meetings necessary to conduct the commission’s business.
B. Executive Session. Upon
motion and vote of a quorum, the commission may enter into
a closed, executive session to discuss matters that are confidential under the
State Ethics Commission Act, Section 10-16G-1 NMSA 1978, and as otherwise
permitted by the Open Meetings Act, Section 10-15-1 NMSA 1978.
C. Virtual
meetings. With the consent of the
commission chair, the commission may meet virtually via web or
teleconference. In the event the
commission meets virtually, the meeting should occur on a platform that allows
members of the public to observe and participate. At a virtual or telephonic meeting, each
commissioner participating shall be identified when speaking and all meeting
participants and members of the public attending must be able to hear every
person who speaks during the meeting.
The commission staff shall record virtual meetings and make the
recordings (except for recordings of closed executive sessions) available for
public inspection.
D. Attendance by individual commissioners. An individual
commissioner may attend a physical commission meeting virtually, through
telephone phone or web conference provided that each commissioner participating
by conference telephone can be identified when speaking, and those attending may
hear every person who speaks during the meeting.
[1.8.1.18 NMAC-Rn, 1.8.1.14
NMAC, 7/1/2023]
[1.8.1.15] 1.8.1.19 COMPUTATION
OF TIME: In computing any period of
time prescribed or allowed by these rules, the day from which the period
of time begins to run shall not be included. The last calendar day of the time period shall be included in the computation, unless it
is a Saturday, Sunday or a day on which the state observes a legal holiday or
emergency closure. In case of any such
closure, the period of time runs to the close of
business on the next regular workday. If
the period is less than 11 days, a Saturday, Sunday, legal holiday or emergency
closure day is excluded from the computation.
[1.8.1.19 NMAC-Rn, 1.8.1.15
NMAC, 7/1/2023]
[1.8.1.16] 1.8.1.20 SEVERABILITY: If any
provision of Chapter 8 of these rules, or the application or enforcement
thereof, is held invalid, such invalidity shall not affect other provisions or
applications of Chapter 8 of these rules which can be given effect without the
invalidated provisions or applications, and to this end the several provisions
of Chapter 8 of these rules are hereby declared severable.
[1.8.1.20 NMAC-Rn, 1.8.1.16
NMAC, 7/1/2023]
History of 1.8.1 NMAC:
[RESERVED]