State Ethics Commission Administrative Hearing Process
How Cases Proceed from Complaint to Final Decision
One of the State Ethics Commission’s core functions is to hear complaints alleging violations of the laws over which the Commission has jurisdiction. The Commission’s administrative proceedings are governed by the State Ethics Commission Act, NMSA 1978, Sections 10-16G-1 to –16, and part 1.8.3 of the New Mexico Administrative Code. This guide provides an overview for informational purposes only. Parties appearing before the Commission should not rely exclusively on this guide and should also consult the applicable statute and rule.
What is the Commission’s Jurisdiction?
The Commission has jurisdiction to enforce the civil compliance provisions of eight statutes and one constitutional provision for public officials, public employees, candidates, persons subject to the Campaign Reporting Act, government contractors, lobbyists and lobbyists’ employers:
- the Campaign Reporting Act;
- the Financial Disclosure Act;
- the Gift Act;
- the Lobbyist Regulation Act;
- the Voter Action Act;
- the Governmental Conduct Act;
- the Procurement Code;
- the State Ethics Commission Act; and
- Article 9, Section 14 of the Constitution of New Mexico.
What Conduct or People Are Not Subject to the Commission’s Jurisdiction?
Local officials and employees
The Commission’s jurisdiction for administrative complaints is limited. For example, it cannot hear complaints against local elected officials or local public employees such as county commissioners or municipal employees. While the Commission does not have jurisdiction for complaints against local officials and employees, the Commission can pursue civil lawsuits in state court against local officials and employees to remedy violations of the Governmental Conduct Act and the Procurement Code. If you would like to report a violation of those statutes by a local official or employee, please contact the Commission at firstname.lastname@example.org.
The Commission does not hear complaints alleging violations of state or federal criminal laws. The Commission will refer any complaint alleging criminal conduct to the Attorney General, the appropriate District Attorney, or the federal prosecutors. Such a referral does not prevent the Commission from pursuing civil enforcement, either through an administrative hearing or a civil action in state court.
Laws Outside the Commission’s Jurisdiction
The Commission lacks jurisdiction to adjudicate complaints alleging violations of any law that is not expressly provided for in the State Ethics Commission Act—including, for example, the Human Rights Act, the Open Meetings Act, the Inspection of Public Records Act, the Extra Compensation Clause of Article IV, Section 27, or the Emoluments Clause of Article XX, Section 9.
Limitations based on time
Three time-based constraints limit the Commission’s jurisdiction. First, the Commission cannot adjudicate a complaint alleging conduct that occurred more than two years in the past or more than two years after the alleged conduct could reasonably have been discovered.
Second, the Commission lacks jurisdiction over a complaint that is filed against a candidate sixty days before a primary or general election for the pre-election period, unless the complaint alleges a violation of the Campaign Reporting Act or the Voter Action Act.
Third, the Commission lacks jurisdiction over conduct occurring on or before July 1, 2019.
How Does a Case Begin?
A case before the Commission can begin in one of three ways. First, a complainant may file a complaint with the Commission. Second, another agency may refer a complaint filed originally with that agency to the Commission. Third, the Commission may initiate a complaint with the approval of at least five Commissioners.
What Happens After a Complaint is Filed with the Commission?
Review for jurisdiction
After a complaint is filed, the Executive Director or their designee will notify the person against whom the complaint is filed (the Respondent). The Respondent has the opportunity to file an answer and/or a motion that the complaint should be dismissed. The Executive Director will review the complaint and any response from the Respondent to determine whether the Commission has jurisdiction.
Review for probable cause
If the Executive Director determines that the Commission has jurisdiction over the complaint, the complaint is forwarded to the General Counsel for investigation. The General Counsel investigates a complaint to determine if its allegations are supported by probable cause. The General Counsel’s investigation might include taking depositions of witnesses under oath and requesting documents. If a person refuses to comply with the General Counsel’s investigation, the Commission can petition a court for a subpoena to compel a witness to testify or to deliver documents.
If the general counsel finds that a complaint is not supported by probable cause, the complaint is dismissed, and the case is over. If, however, the general counsel finds that a complaint is supported by probable cause, the Executive Director will appoint a hearing officer to hold a public hearing. The hearing officer will be either a licensed attorney or a retired judge. The public hearing is governed by the rules of evidence that apply in state courts, and both parties may present evidence to make their case. After the public hearing, the hearing officer will decide whether the respondent violated the law. The hearing officer’s decision may be appealed to the full Commission.
Except where a complaint is dismissed for lacking probable cause, either the Respondent or the Complainant may appeal the hearing officer’s decision. The full Commission will receive briefs and, upon request, will hold another hearing. On appeal, the Commission will only hear oral arguments and will not receive evidence nor hear witness testimony. The Commission will issue a final decision on appeal. Either the Complainant or the Respondent may seek judicial review of the Commission’s final decision.
At any point in an administrative case, the General Counsel may reach a settlement with the Respondent on the matters alleged in the complaint. The Commission must approve the settlement. If the Commission approves a settlement, both the complaint and the terms of the settlement are subject to public disclosure.
At all times, from the filing of the complaint to the Commission’s final decision on appeal, both the Complainant and the Respondent may be represented by a licensed attorney. Alternatively, both the Complainant and Respondent may represent themselves. If the Respondent is a state employee or a state official, the Risk Management Division of the General Services Department will likely provide the Respondent with an attorney.
Filing a Complaint with the State Ethics Commission
Process to File a Complaint
Any person intending to file a complaint with the State Ethics Commission should first create an account with the Commission’s online case management and filing system known as the Proceedings Portal. Click Here for more information on the Proceedings Portal.
After creating an account, you may generate a new complaint using the online form. Please note that filling out the online complaint form will require complainants to provide several different types of information and must be completed in one sitting. To view and download a hard copy of the complaint form here.
After completing the online form, you will be able to download and print a hard copy of the complaint, which you must then have notarized by a notary public. Once the hard copy form is notarized, you may scan and upload your complaint for submission and the Proceedings Portal.
Do I need to use the Proceedings Portal in order to file a complaint?
You may file a a notarized complaint with the Commission via email to Ethics.Commission@state.nm.us, or by U.S. post or hand delivery to State Ethics Commission, 800 Bradbury Dr. SE, Suite 215, Albuquerque, NM 87106. However, you will need to sign up for the Proceedings Portal in order to receive subsequent filings in the case.
If you need assistance filing a complaint, please contact State Ethics Commission staff.
Can Complaints be Filed Anonymously?
Formal administrative complaints may not be filed anonymously with the Commission. The Commission may only accept administrative complaints that are signed and notarized under penalty of false statement by the person making the complaint.
Can I Submit a Tip?
Yes. You may submit a tip to the Commission which will be treated as an informal complaint. Under Resolution 4., the Executive Director and General Counsel will review any information submitted and determine whether any primary assessment or investigation shall be conducted. Please note that this process is separate from the Commission’s adjudication of formal administrative complaints and that individuals who submit tips are not entitled to notifications related to any action or inaction arising from information shared with the Commission.
What Information is Needed on the Complaint Form?
There are two main parts to the complaint form:
Contact Information for Both Parties
The complaint must provide the contact information—including, email address and/or mailing address—of the Complainant (the person who files the complaint) and the Respondent (the person against whom the complaint is filed). The Commission will not accept a complaint that does not include this contact information. If a complaint involves multiple Respondents, provide the same kind of contact information for each additional Respondent on a separate sheet of paper attached to the complaint form.
Description of the Complaint
The Complaint Description serves as the Complainant’s preliminary argument and the information provided in this section is used to determine whether or not the Commission has jurisdiction to hear the case and to establish the basis of a possible investigation. When completing the Complaint Description, the Complainant should provide enough information for the Commission staff to:
- Understand what is being alleged in the complaint;
- How the allegations would violate the law if true; and
- Initiate an investigation.
The online complaint form includes space for this Complaint Description. A person filing out the online complaint form can also attach files to their complaint as necessary.
Do I Need to Personally Observe Ethical Misconduct in Order to File a Complaint?
No. In order to file a complaint with the Commission, you only need to have actual knowledge of misconduct. Actual knowledge means only direct and clear knowledge. This simply means “knowledge” as it is used commonly. In other words, you must know that misconduct has occurred; whether the knowledge is first-, second-, or third-hand does not prevent the filing of a complaint with the Commission.
How Do I Fill Out the Complaint Description?
The first part of the Complaint Description should be a clear statement of the facts regarding the Respondent’s conduct that establish a legal violation. This statement of facts should include the following to the best of the Complainant’s knowledge:
- The date, time, and location of the conduct;
- The specific nature of Respondent’s actions; and
- Any relevant facts that support the allegations.
The second part of the Complaint Description should list the laws which the Complainant believes the Respondent violated, as well as the specific provisions of those laws, if known. The complaint form includes check boxes on the first page which list the nine laws that are under the Commission’s jurisdiction. If the person making the complaint has no knowledge of which specific law the Respondent violated, they may still file the complaint by checking the box labeled “Unsure”.
The third part of the Complaint Description should list any witness(es) to the Respondent’s conduct or other relevant facts.
The fourth part of the Complaint Description should list and describe any relevant evidence that substantiates the Complainant’s allegations. This includes supporting documents or records of any sort. Clearly label and describe the evidence submitted with the complaint form.
Is the Complaint Form Notarized?
The complaint form must be notarized before submission to the Commission. In other words, the person making the complaint must sign and swear or affirm the contents of the complaint in front of a Notary Public. This is a statutory requirement. The Commission cannot and will not accept non-notarized complaints. A Complainant may re-submit a complaint that is rejected because the complaint was not notarized. Page 2 of the complaint form reserves a space for notarization.
Can I Use an Online Notary Service?
Yes. You may use an online notary service to notarize your complaint form. In addition to online notary services, the Governor has issued an Executive Order temporarily permitting Notary Publics to provide notary services virtually during the COVID-19 public health crisis. Click here to view the Governor’s Executive Order.
What Additional Information Does the Complaint Form Require?
Information about Related Legal Proceedings
The Complainant should specify whether or not any legal actions against the Respondent are pending in any court or adjudicatory authority for the same facts alleged in the complaint. The Complainant should also indicate if they have knowledge of any other person or entity taking legal action against the Respondent in regard to the same matter.
Number of Total Pages Attached
At the end of the first page, the complaint form provides space to list the total number of additional pages included with the form as part of the complaint description. Listing the total number of additional pages ensures Commission staff know precisely how many pages of documents accompany the two-page complaint form.
How Do I Submit the Complaint Form Online?
After completing and notarizing a complaint form, it can be submitted to the Commission through its online Proceedings Portal. Click here to learn how to create an account and submit complaints using the online Proceedings Portal.
May I Submit a Complaint Form by Mail?
Yes. Complaint forms with supporting documents may be submitted by mail to State Ethics Commission, 800 Bradbury Dr. SE, Suite 215, Albuquerque, NM 87106.
What Happens After I Submit a Complaint?
Within seven days of receiving the Complaint, the Executive Director will notify the Respondent that a complaint has been filed against them and they will have 15 days to submit a response.
Is a Complaint Public?
The State Ethics Commission treats complaints as confidential. However, the Commission will make a complaint available to the public if three conditions are met: (i) the Commission has jurisdiction over the complaint; (ii) the Complaint is supported by probable cause; and (iii) the Respondent is notified that a public hearing will be set. Alternatively, if a case is resolved via a settlement agreement that the Commission approves, the Commission will also make available to the public both the complaint and the terms of the settlement. Complaints that are found to be frivolous or unsubstantiated by the General Counsel are dismissed but not made public.
Am I Protected from Retaliation?
The State Ethics Commission Act protects Complainants from retaliation. The law also protects any person who provides testimony, records, documents or other information to the Commission during an investigation or at a hearing.
May an Attorney Help Me Complete the Complaint Form and Represent Me?
Yes. Any licensed attorney representing a party to proceedings before the Commission must file a notice of appearance with the Commission.
Will I Be Provided an Attorney or May I Represent Myself?
Complainants and Respondents may represent themselves or be represented by a licensed attorney. A state public official or state public employee who is a Respondent who is subject to a complaint alleging a violation made in the performance of their duties is entitled to representation by the Risk Management Division of the General Services Department. In other words, the State provides an attorney for state public officials and state employees who are named as Respondents in complaints filed with the Commission. The State does not provide an attorney for Complainants or Respondents who are not state public officials or state employees.
Where Can I Find A Complaint Form?
Complaint forms can be obtained online from the Commission’s website on the File a Complaint page or through the Commission’s online Proceedings Portal. Hard copies of the complaint form may be requested or obtained from the State Ethics Commission Office at 800 Bradbury Dr. SE, Suite 215, Albuquerque, NM.
Is There a Fee for Filing a Complaint?
No. The Commission does not charge any fee to file a complaint.
Responding to A Complaint Filed with the Ethics Commission
A Guide for Respondents
How and When Will a Respondent Be Notified of a Complaint Filed Against Them?
Within seven days of the Commission receiving a properly-filed complaint (a complaint that is notarized and includes contact information for all parties), the Executive Director will notify the Respondent of the complaint and direct them to view the complaint in the Commission’s Proceedings Portal. Unless a respondent has already created an account on the Commission’s Proceedings Portal, they will receive an email inviting them to create an account.
Will the Respondent Receive a Copy of the Complaint?
Yes. As a part of the notification that a complaint has been filed, the Respondent will be informed that they can view a copy of the complaint and any supporting documents that the Complainant submitted along with the complaint through the Commission’s Proceedings Portal.
Will I Be Provided an Attorney?
While both the Complainant and Respondent may either represent themselves or be represented by attorneys, if the Respondent is a state public official or a state employee, then the Respondent is entitled to representation provided by the Risk Management Division of the state’s General Services Department. Accordingly, if the Respondent is a state public official or a state employee, the Respondent should promptly notify the Risk Management Division upon receiving notification from the Commission that a complaint has been filed against them. The Risk Management Division may be contacted at: 505.827.2036.
Are Complaints Public?
The Commission treats complaints as confidential. However, the Commission will make a complaint available to the public if three conditions are met:
(i) the Commission has jurisdiction over the complaint;
(ii) the complaint is supported by probable cause; and
(iii) the Respondent is notified that a public hearing will be set.
Alternatively, if a case is resolved via a settlement agreement approved by the Commission, the Commission will make the complaint and the terms of the settlement available to the public. Complaints the General Counsel determines to be frivolous or unsubstantiated are dismissed but not made public by the Commission.
What Happens If a Respondent Does Not Respond to a Complaint?
A Respondent’s failure to respond to a properly-filed complaint will not delay the Commission’s treatment of that complaint. The Commission staff evaluates every complaint for jurisdiction and probable cause, regardless of whether the Respondent files a response. When investigating a complaint for probable cause, the General Counsel may request documents from the Respondent and may also send the Respondent a notice of a deposition. If a Respondent ignores the complaint and the General Counsel’s investigation, the State Ethics Commission Act allows the Commission to petition a specially-assigned district court judge for a subpoena to compel the Respondent’s participation.
How Do I Respond to a Complaint?
The Respondent may respond to a complaint via the Commission’s web-based case management and docketing system within 15 days from the date of receiving notification that a complaint has been filed against them.
Respondents may file a response to the factual allegations in the complaint. Respondents may also file a motion to dismiss the complaint for lack of jurisdiction, meaning that the Respondent contests the Commission’s jurisdiction over either the claims alleged in the complaint or the Respondent. Respondents may also file a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, meaning that the Respondent argues that, even assuming the truth of the complaint’s factual allegations, they do not amount to a violation of the law.
The Complainant will have an opportunity to respond to any motion to dismiss filed by the Respondent. After receiving all pertinent motions and responses, the Commission staff or, in some cases, hearing officers will determine whether or not to grant the Respondent’s motion(s) to dismiss.
How Are Briefs and Motions to Dismiss Filed?
The Commission directs both Respondents and Complainants to use the Commission’s case management and docketing system to file all case documents and actions. The case management and docketing system may be accessed through Case Login page on the Commission’s website: sec.state.nm.us. Parties may access the case management and docketing system using login credentials provided by the Commission when either a complaint is filed, in the case of Complainants, or when a person receives notification that a complaint has been filed against them, in the case of Respondents.
What Happens If the Commission Does Not Have Jurisdiction?
If the Commission determines that it lacks jurisdiction over a complaint, the Commission will either dismiss the complaint or refer the complaint to another agency that has jurisdiction.
What Happens if the Commission Does Have Jurisdiction?
If the Commission has jurisdiction over a complaint, the General Counsel will conduct an investigation to determine whether the complaint is supported by probable cause.
What Happens During the General Counsel’s Investigation?
The General Counsel’s investigations will vary according to the complexity and specifics of each case. The General Counsel may pose written questions and request the production of documents from the Complainant and the Respondent. The General Counsel may also take the statements from the Complainant, the Respondent, and other witnesses under oath. If the General Counsel deems it necessary, the Commission may seek subpoenas to compel testimony or production of documents.
What Happens if the Complaint is Frivolous or Unsubstantiated?
If an investigation into a complaint reveals that the complaint is frivolous in nature or unsubstantiated in its allegations, then the Commission will dismiss the complaint. The Commission will not make public any complaint dismissed for being frivolous or unsubstantiated.
What Happens if the Complaint is Supported by Probable Cause?
If, after an investigation, the General Counsel determines that the complaint’s allegations are supported by probable cause, the Executive Director will notify the Complainant and the Respondent (i) that the General Counsel found probable cause; (ii) that a public hearing will be set; and (iii) that the complaint, any response, and any related records (excepting records relating to any subpoenas) will be made available to the public. Please be advised, a finding of probable cause is not a determination of liability, and the General Counsel must still conduct a full investigation and a hearing must be held in order to determine the validity of the allegation(s) made or about the culpability, if any, of the Respondent.
What Happens at a Public Hearing?
If a complaint proceeds to a public hearing, the Commission will assign a hearing officer to conduct the hearing and any pertinent pre-hearing matters. The public hearing allows each party to present evidence and witnesses in defense against or in support of the allegations raised in the complaint. Witnesses may testify on behalf of one party and can be cross examined by the opposing party. After a public hearing, the hearing officer will issue findings of fact and conclusions of law, including a decision regarding whether or not the Respondent violated the law as alleged in the complaint.
Can a Hearing Officer’s Decision be Appealed?
Yes. Both the Respondent and the Complaint may appeal a hearing officer’s decision to the full Commission. To appeal a decision, the appealing party (the “appellant”) must file a notice of appeal, followed by a brief, not to exceed 10 pages. The other party (“the appellee”) may then file a response brief, also not to exceed 10 pages. The full Commission will hear oral argument on the appeal, if requested by either party or if the Commission finds oral argument useful.
After reviewing the whole record, reading the briefs and hearing argument, the full Commission will issue a final decision on appeal within 180 days of the notice of the appeal.
Can a Court Review the Commission’s Decision?
Yes. A party can seek judicial review of a final Commission decision by petitioning a district court for a writ of certiorari.
Records and Confidentiality
Learn About the Confidentiality of Complaints and Transparency of the State Ethics Commission
Are Complaints Confidential?
The Commission treats complaints as confidential. However, the Commission will make a complaint, any response, and any related records available to the public if three conditions are met: (i) the Commission has jurisdiction over the complaint; (ii) the Complaint is supported by probable cause; and (iii) the Respondent and Complainant are notified that a public hearing will be set. The Commission will make this information available to the public thirty days after the Commission notifies the parties of the public hearing. The Commission will not make public any records relating to any proceeding initiated by the Commission to obtain a subpoena unless those materials are introduced at a public hearing.
Are Dismissed Complaints Confidential?
For any complaint that the Commission dismisses for being frivolous or unsubstantiated, the Commission will not release to the public the complaint, the reason for its dismissal, or any related records.
Are Settlements Confidential?
If a case is resolved via a settlement agreement that the Commission approves, the Commission will make available to the public both the complaint and the terms of the settlement.
What if There is a Related Criminal Investigation?
The Commission may delay notifying the Respondent or releasing to the public any complaint or related information if necessary, to protect the integrity of a criminal investigation.
Who is Subject to Confidentiality Obligations?
While the Commission may have a duty to keep materials it receives confidential, the parties to a complaint are not legally obligated to keep information about the complaint confidential. The Complainant and the Respondent may freely share information regarding the complaint with the public at any time. The State Ethics Commission Act imposes duties of confidentiality on the Commission only.
Are Hearings and Appeals Open to the Public?
The Commission’s administrative hearings and oral arguments on appeal are open to the public. The Commission will make audio recordings of all hearings and appellate arguments. The Commission will make available to the public the audio records and all records related to an administrative hearing or appeal.
Where Are Public Cases Posted?
When the appropriate conditions are met and a complaint is made public, complaints and all related materials, including those related to the administrative hearings process, will be posted on the Commission’s online case management and filing system (Proceedings Portal). A list of all public cases is accessible from the Proceedings Portal login page under the tab labeled “Public Cases“. Members of the public may view these cases without creating an account.
May the Commission Obtain Subpoenas for Investigations?
Yes. Under the State Ethics Commission Act, the Commission may petition a state district court for a subpoena for the attendance and examination of witnesses or for records related to an investigation. The Commission may also seek court orders to compel compliance with a subpoena.
Which Court Issues These Subpoenas?
Under the Act, the Chief Justice of the New Mexico Supreme Court appoints an active or pro tempore district judge to consider the issuance and enforcement of subpoenas sought by the Commission. This appointment ends on June 30th of the next-even numbered year after appointment.
Who is the Judge Currently Appointed to Consider the Commission’s Requests Regarding Subpoenas?
On January 3, 2020, the Honorable Judith K. Nakamura, Chief Justice of the New Mexico Supreme Court, appointed the Honorable James T. Martin, District Judge of the Third Judicial District in Las Cruces, New Mexico to consider Commission requests regarding subpoenas. Read the Chief Justice’s Order of Appointment here.
Additional Information About Ethics Trainings and Compliance Resources
An important part of the Commission’s work is offering educational materials and trainings to state public officials, state employees, and others subject to the Commission’s jurisdiction. The Commission members and staff regularly provide presentations related to the Commission’s work. Here is a list of recent presentations and trainings:
- September 30, 2019 – NM Capitol Counsel & Consulting Presentation — The State Ethics Commission: Structure and Jurisdiction (Attorney CLE credit) (Commissioner Bluestone)
- October 24, 2019 — New Mexico Public Procurement Institute — The State Ethics Commission: Structure and Procurement Code Jurisdiction (Director Farris)
- October 27, 2019 – New Mexico Department of Finance and Administration 2019 Lunch and Learn Series — The Anti-Donation Clause’s Past, Present & Future (Director Farris)
- November 22, 2019 – General Services Department Risk Management Annual CLE — The State Ethics Commission: Structure and Jurisdiction (Attorney CLE credit) (Commissioner Bluestone & Director Farris)
- June 3, 2020 – Live Webinar on Practicing before the Ethics Commission — Filing and Litigating Complaints Before the State Ethics Commission CLE (Attorney CLE credit) (Executive Director Jeremy D. Farris and General Counsel Walker Boyd)
The Commission also plans to offer joint trainings with other state agencies, including the Attorney General’s Office, the Secretary of State, and the General Services Department. All upcoming Commission trainings and materials will be posted here.
The Commission may issue guides relating to certain statutes over which the Commission has jurisdiction or the proposed code of conduct for state agencies. Other state agencies have also produced several helpful guides, including the Attorney General’s Governmental Conduct Act Compliance Guide.
Campaign Reporting and Lobbyist Filings
In New Mexico, the Office of the Secretary of State is charged with the provision and receipt of filings required by the Campaign Reporting Act, the Lobbyist Regulation Act, the Voter Action Act and the Financial Disclosure Act. The State Ethics Commission is not the repository for these filings; rather, the Commission deals primarily in the enforcement of these statutes. For more information about how to access and file the required forms for candidates, political committees, lobbyists, legislators, agency heads and persons subject to Senate confirmation, please navigate to: http://sos.state.nm.us.