What about misdeeds that aren’t crimes, guv?

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Heath Haussamen

“Corruption is a crime, not an ethical dilemma,” Gov. Susana Martinez said during her recent State of the State Address. And she has some strong ideas for combating corruption-related crime.

But what about misdeeds that aren’t crimes? There are all sorts of shenanigans in government that aren’t and maybe shouldn’t be prosecuted as crimes – and Martinez’s plan for cleaning up state government is sorely lacking when it comes to addressing such issues.

For example, when Martinez was the district attorney in Doña Ana County, an annual audit found that her office wasn’t withholding taxes from the pay of employees who used state-owned vehicles to commute to work. The IRS requires such withholdings, because the use of government vehicles for commuting is a form of compensation.

After the audit identified the problem, the situation was corrected.

Was this corruption? No evidence has been presented to suggest that. Should it have been prosecuted as a crime? No. But should Martinez and her office have known better? Absolutely.

Still, I’ll call this failure a simple mistake – one that an auditor caught, so, in this case, the system worked.

But dozens of government agencies in New Mexico don’t complete required annual audits, in violation of a state law that has no teeth. It’s one of many holes in the system that allows unethical activity to continue undetected.

Tolerance of unethical behavior that doesn’t rise to the level of criminal activity allows mischief to fester, and it eventually grows into the culture of corruption that has made headlines so often in recent years.

And Martinez has laid out no plan for structural reforms to stop such mischief. She simply says she won’t tolerate it in her administration.

Even if she lives up to that pledge, there’s a big problem with such logic: Martinez will be in office, at most, eight years. What if the next governor, like so many who have come before, does tolerate, or even engages in misdeeds that don’t rise to the level of crimes?

In addition, what about all the government agencies that aren’t under Martinez’s control?

State police unit would help

Martinez’s primary proposal this legislative session to combat corruption is her plan to create a state police unit assigned to investigate public corruption.

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That’s a fantastic idea. I covered an issue years ago in which the state auditor referred a special audit of Doña Ana County government to law enforcement. After being passed around – Martinez had to give it up because of a conflict of interest – the state police and First Judicial District Attorney essentially did nothing with it.

The state auditor had identified a procurement code violation his office thought might have been intentional. That issue was never thoroughly investigated because the probe didn’t find its way into the hands of anyone who asked the deeper question: Why would county commissioners have intentionally violated the procurement code to steer a contract to a certain architect?

A state police unit focused on asking such questions – and trained to investigate such issues – might have been very helpful in the case of the Doña Ana County procurement code violation.

More is needed

But Martinez knows from her experience as district attorney that there are misdeeds that aren’t criminal but still require attention. When scandals tainted the judiciary in Doña Ana County years ago, Martinez worked with the state’s Judicial Standards Commission to help clean things up.

Among the judges who left the bench during that time were one accused of sexual harassment and another who had run-ins with a court interpreter who beat her sister out for a court contract. Those aren’t criminal issues. But there were certainly ethical problems.

Thank goodness the Judicial Standards Commission exists to help clean up the judiciary.

And yet Martinez opposes the creation of a similar ethics commission to keep an eye on the executive and legislative branches, saying it would be nothing more than “politicians appointing other politicians to review the conduct of politicians.” In addition, her proposed budget would leave the state auditor – an official charged with weeding out ethical misdeeds – with less funding next year than his office has this year. That further reduces the auditor’s influence to pressure state agencies that aren’t completing annual audits.

In other words, Martinez has proposed no structural changes to help weed out misdeeds that aren’t criminal. Just trust her, she says. She won’t tolerate shenanigans.

Imagine if the last governor had said that. Martinez would have joined many of us in laughing out loud.

Not good enough, governor. The state needs structural reforms – not just good intentions.

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14 thoughts on “What about misdeeds that aren’t crimes, guv?

  1. There is only one solution. Again. Campaign reform. Not campaign finance reform. As long as our politicians are forced to depend on private donations, they will be corrupt. Campaigns should have equal financing of the candidates. There should be no signage or short and shallow TV commercials ,clever slogans or propaganda. Forget the parties, matanzas and all travel. Let the pols run on their record and vision only. Personal life and family are off limits. It is a simple notion that would create a true democracy representative of the people.
    I hear this complaint over and over again. Now everybody is looking at the donations to Suzanna’s big party and it is sickening to see that line up of rapists and looters.

  2. Mr. MacQuigg:

    So you did; I misread that. I’m still reticent about the idea for the same reason, in addition to a concern that turnout for such an election would be similar to the average school board race, or, were it a part of the ballot in a larger election, would likely have the same amount of voter interest as most down-ticket races. Perhaps elected to one year terms by the members of the board themselves, but not from among their number?

    gm:

    I stand by the statement about your rants being disjointed. Entirely aside from your stream-of-consciousness methodology, your ideas themselves are based upon bizarre premises that are either lacking basis in reality, or are needlessly limited in vision; that the Democratic Party in New Mexico has a hell of a lot of house cleaning to do – and that this is in large part a side-effect of near-dominance for so long a period – is hardly in dispute. That the Democratic Party of New Mexico qualifies as “liberal”, however, is laughable to any person with the ability to use a dictionary. That Democrats (as well as, for that matter, those who actually are liberal) are willing to criticize the Governor for such actions as appointing a man with no administrative experience and a refusal to accept even the most basic climate science to a job that requires both, or for wishing to reinstate the death penalty (which, in addition to being primitively barbaric is also remarkably ineffective) has less to do with politics and more to do with the fact that we actually think that her position on both issues is wrong. This is the thing that always amazes me about many modern conservatives in this country; it no longer seems to occur to them that we may oppose their positions because we actually disagree with them, rather than their strange apparent belief that we’re merely being petty.

    On a similar note, how does an ability to base actions on very clear science make someone a “bigot”?

  3. I clearly struck a nerve here and I intended to grammatically sound, disjointed, PC or not. The issue Heath raises is certainly valid but the comments here cover more than the ethics issue. My conclusion is that the best way to deal with ethics or lack thereof is to prevent one-party domination. Dems/liberals have been in control for much too long and that is why officials cut corners. Big reason Martinez is governor is Bill Richardson..However, hard core libs still hate the idea of a Republican in office and they will criticize every last move she makes and pretend all they want is honest government…..

    What gives rise to some of the comments here and the criticism of the new guv is the fact that she is a Republican and that some people have undue influence. Union lobbyists gave 1.5M to Dems last election but I don’t read any criticism. Free country and no reason why they shouldn’t contribute. But I choose businesses over unions and trial lawyers and groups that make their living off grievances like professional enviros.

    My label of green bigot is for those obsessed with the environment to the point where nothing else matters. We all care about the environment but there is a balance. The court decision being touted by some as a welcome rebuke of the guv is silly. The core issue is the ridiculous rule that led to the publishing…The idea of passing a rule to limit CO2 emissions in tiny NM or a Southwest group of states is idiocy and will be rescinded. Who cares about the publication of the rule?

  4. For the record, I suggested that only the head of the commission be elected.
    Members should be appointed by a method beyond reproach or it will
    never be trusted.

  5. I am absolutely certain that an elected ethics board would be a bad idea; the voting public can be capricious, and in the end, the members of such a board would be those whose side was the most rhetorically skilled. However, if there is to be an appointed ethics board, it should be chosen in much the same way we choose judicial selection committees; there are party-balance requirements, skill-set requirements, and they are appointed in equal proportions by multiple persons, rather than just the governor (I have admittedly over-simplified that, but the general idea remains the same).

    In an aside, in the middle of gm’s disjointed, grammatically painful, and not-particularly-accurate tirade, the only thing that really leaped out at me was “green bigots who were on the EIB”. Am I the only one who is wondering what on Earth a “green bigot” is, and whose own mind only seems willing to respond to that question with a song from Kermit the Frog…?

  6. It is interesting that if you asked average Joe, s/he would tell you that politicians and public servants are accountable to higher standards of conduct than the law. Politicians and public servants often say the same thing, we’re accountable to “higher standards” of conduct. Yet if you look for them, they aren’t there and if they are, there is no real accountability to them.

    I would like to see an independent ethics commission whose head is accountable to the people by election, maybe even on an annual basis.

  7. My only problem with having the State police do the investigations is that they are under direct control of the Governor. As we saw with the boating accident where 2 state police man were on board the vessel but failed to report it, did not conduct an investigation into whether there was drinking, and could not remember who was driving.
    With the State police under direct control of the governor I see this becoming a witch hunt brigade instead of equal prosecution.

  8. No such animal as an “independent” ethics board…A guv is going to appoint honest but not unfriendly people….You’ll always have the folks on the sidelines who didn’t like the results of the last election like we have here among those who comment…..We’ll have gossip bloggers like the one in ABQ who would have us believe that McCleskey is now the guv….And u’ll have people who would believe it…..
    I haven’t met anyone who doesn’t care about the environment but the Governor Martinez was absolutely right in firing the green bigots who were on the EIB….She will appoint people who care as much as anyone but who have a sense of balance….And why shouldn’t lobbyists, and dairy reps and oil reps weigh in on matters that affect them?….Too many journalists and many kibizters on the losing side and choking on virtue like to make mountains out of mole hills and pick fly specks out of the pepper.
    Leave either party entrenched in office like u Dems have done in NM for generations and u’ll have officials cutting corners. Where i Gary King on Rebecca Vigil Giron?….How about Smiley Gallegos?…How did Aragon operate as he did?…Robert Vigil…Michael Montoya…And we’re wrapping the hemorrhoids around the axle about McCleskey?….

  9. You’re absolutely right, Heath. There is a difference between law and justice. There is difference between committing a crime, and being unethical and corrupt in your behavior. Taking wasteful trips at taxpayer expense, or incurring unnecessary costs at taxpayer expense may be unethical but not necessarily criminal. However most taxpayers would prefer individuals given stewardship over taxpayer provided resources behave responsibly, regardless of what the law says. it’s easier to cross the line (to break the law) once you’ve played this game of cat and mouse long enough. Pretty soon the lines blur between right and wrong. The example starts at the top, not at the bottom. Leaders lead by example, not be edict. If Martinez is going to be a do as a I say, not as I do kind of governor, well then we’re back to the Richardson era. Different faces, different names, but the same arrogant attitude towards the people who elected them to do the right thing. Do the right thing…not the political thing; and like law and justice, these aren’t necessarily the same.

  10. A couple of thoughts. Many other New Mexico law enforcement agencies and state agencies do not withhold taxes from the pay of employees who used state-owned vehicles to commute to work, and if the agencies finance person brings it up they get in trouble with the bosses, who also have a take home car.
    On the Governor adding a corruption unit to state police, why should the biggest sector of government, the executive branch, be allowed to use its own agency to police itself? The Governor appoints the Chief and the Cabinet Secretary, and a handful of other positions there. The citizens have been asking for an independent ethic agency, the key word being independent, for nearly a decade and that is what we deserve.

  11. Exactly, Heath! Just look at how Richardson and his cronies just walked away from any charges related to all the “pay-to-pay” scandals. According to several news releases, “The probe centered on whether Richardson granted state contracts based on political patronage. It prompted the Democratic governor to withdraw his nomination as U.S. commerce secretary in January.”

    The releases went on to say that U.S. Attorney Greg Fouratt, in the federal investigation of Richardson, reported their decision to not bring charges was “. . . not to be interpreted as an exoneration of any party’s conduct.”, and that , “. . . a yearlong federal investigation revealed that pressure from the governor’s office resulted in the corruption of the procurement process”.

    Is this corruption, criminal activity or just unethical behavior? What penalties or consequences should government officials be held to for such actions? These are questions that need to be answered if corruption in government is to be effectively dealt with. Revamping the contract and procurement processes should be at the top of the list!

  12. Yeah, just like it may not have been a crime for her to get help from lobbyists to write an executive order.

    Oh and just like it doesn’t seem there are any firewalls preventing her political consultant and pollster from having undue influence over her administration’s activities and access to key people she has appointed. From my search on the Secretary of State’s website, the McCleskeys are not registered lobbyists.

    You have got to wonder who is influencing and if its another type of pay to play. May not be “illegal” but it sure smells funny.

  13. I am wondering if the State Police corruption unit will be fully funded.
    Under -funded oversight is hardly oversight at all. It might be worse even than not funding it at all because even underfunded oversight creates a false sense of security.
    It is hard to imagine over funding oversight since ending corruption, whatever it costs, costs less than tolerating it- the true cost of which far exceeds the cost measured in dollars alone.