State Ethics Commission Administrative Hearing Process
What is the Commission's jurisdiction?
The Commission has jurisdiction to enforce the civil compliance provisions of nine statutes and one constitutional provision for public officials, public employees, notaries public, 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.
- Revised Uniform Law on Notarial Acts (“RULONA”)
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.
The Commission does not hear complaints alleging violations of state or federal criminal laws.
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
How can I file a complaint?
To file a complaint with the State Ethics Commission, please create an account with the Commission’s online Proceedings Portal. Click Here for more information on the Proceedings Portal.
After creating an account, you may submit 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, click here.
After completing the online form, you will be able to download and print a hard copy of the complaint, which you must then sign. Once the hard copy form is signed, you may scan and upload your complaint for submission and the Proceedings Portal.
Do I need to use the Proceedings Portal to file a complaint?
While you may file a complaint with the Commission via email, or by U.S. post, you will need to register for an account on the Proceedings Portal in order to receive and file subsequent filings in the case. Therefore, the Proceedings Portal is likely the easiest to file through.
If you need assistance filing a complaint, please contact the Communications Manager.
Can complaints be filed anonymously?
No, formal administrative complaints may not be filed anonymously with the Commission.
Can I submit a tip?
Yes. You may submit a tip to the Commission which will be treated as an informal complaint.
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 to file a complaint?
No. In order to file a complaint with the Commission, you only need to have actual knowledge of misconduct. 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.
What additional information does the complaint form require?
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?
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. The Executive Director will determine whether the Commission has jurisdiction over the complaint, the complaint will be referred to the General Counsel for investigation.
Is a complaint public?
No, the State Ethics Commission initially treats all 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?
Yes, 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.
Where can I find a complaint form?
Is there a fee for filing a complaint?
No, there is not a fee to file or inquire about a complaint.
Responding to A Complaint Filed with the Ethics Commission
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 signed 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.
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 or may I represent myself?
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.The State does not provide an attorney for complainants or respondents who are not state public officials or state employees.
What happens if a respondent does not respond to a 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?
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 if the Commission does NOT have jurisdiction?
If the Commission lacks jurisdiction, the Commission will either dismiss the complaint or refer the complaint to another agency that has jurisdiction.
What happens during the General Counsel's investigation?
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?
Can a hearing officer's decision be appealed?
Yes. Both the respondent and the complainant 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.
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
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.
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?
No, 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 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?
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, 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 subpoenas sought by the Commission.
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.
For Local Governments
Who can the Ethics Commission provide legal advice to?
The Commission’s staff attorneys can provide informal letter advice on ethics issues, including about the interpretation and application of the Governmental Conduct Act and Procurement Code, to local government officials and public employees.
Unfortunately, the Commission and its staff cannot offer formal or informal legal advice to members of the public.
Can the State Ethics Commission provide trainings for local governments?
Yes, to schedule a training, please reach out to Deputy General Counsel Rebecca Branch at Rebecca.Branch2@state.nm.us.
Can the State Ethics Commission bring enforcement actions against local officials and employees?
Yes. The Commission may pursue civil enforcement actions in state court to remedy, stop, or prevent violations of the Governmental Conduct Act and Procurement Code.
What is an Advisory Opinion?
The State Ethics Commission may issue advisory opinions upon request. Advisory opinions interpret the ethics laws and apply those laws to the facts set forth in the request. There are two kinds of advisory opinions: formal advisory opinions and informal advisory opinions.
Formal advisory opinions are issued by the Commission itself based on staff recommendations and are binding on the Commission in any administrative hearing concerning a person who acted in good faith and in reasonable reliance on that advisory opinion. Because the Commission must vote to adopt a formal advisory opinion, it can take sixty days or more for the Commission to issue a formal advisory opinion after receiving a request. Formal advisory opinions are published on NMOneSource.com, New Mexico’s official database of state laws.
Informal advisory opinions are issued by the Commission’s staff attorneys. Commission staff issue informal advisory opinions on a short time frame, usually a few days after a request is received. Evidence that a requester relied on an informal opinion to make a decision is evidence of good faith efforts to comply with the law, but does not bind the Commission.
Who Can Request Advisory Opinions?
The State Ethics Commission may issue advisory opinions requested in writing by a public official, public employee, candidate, person subject to the Campaign Reporting Act, government contractor, lobbyist, or lobbyist’s employer.”
Commission staff may issue informal advisory opinions to anyone subject to the Governmental Conduct Act, which includes county and municipal employees.
How Can a Request for an Advisory Opinion Be Submitted?
Requests must be submitted by post or in writing to the Commission’s email address at firstname.lastname@example.org. Requests must identify a specific set of factual circumstances and involve a question about the applicability of one of the provisions of law over which the Commission has jurisdiction. A written request should state whether the request is for a formal or informal advisory opinion.
What Happens After an Advisory Opinion is Requested?
A request for a formal advisory opinion is typically addressed within 60 days of being received unless the Commission needs more time, in which case, the applicant will be notified every 30 days until the request is addressed.
A request for an informal advisory opinion is typically addressed within 5 business days of receipt unless Commission staff require additional time to research or write a response.
Are Advisory Requests Public?
Requests for Advisory Opinions are confidential and are not subject to the provisions of the Inspection of Public Records Act. Formal Advisory Opinions themselves are posted on the Commission’s website, but with the requester’s name and identifying information redacted.
Informal advisory opinions, which are specific to the requester and the set of facts presented in the request, are confidential and are not subject to public inspection.