Doña Ana County Treasurer David Gutierrez is facing a felony charge after admitting that he offered to pay a female employee for sex in 2014.
The office of District Attorney Mark D’Antonio announced the fourth-degree felony charge — and his intent to seek an indictment — Tuesday in a news release.
“After a thorough investigation, I decided there is enough evidence to present this case to a grand jury,” D’Antonio said.
The charge is using public office to obtain personal benefit, or, in the alternative, failure of a public official to conduct one’s self in a manner that justifies public confidence, or, in the alternative, failure of a public official to disclose conflict of interest, according to the criminal complaint filed in magistrate court. All are fourth-degree felonies that carry a maximum prison sentence of 18 months.
D’Antonio launched his investigation at the request of Commissioner Billy Garrett and others last month. Commissioners had already taken the only steps they could against the independently elected official — calling for Gutierrez to resign and voting to not allow him to use a county vehicle or be in county offices except between the hours of 8 a.m. and 5 p.m.
The county has already settled for $68,000 a lawsuit with the female employee, who Gutierrez admitted he offered $2,000 and the erasure of a disciplinary write-up in exchange for sex in a hotel room. The woman still works for the county but has been transferred out of Gutierrez’s department.
D’Antonio said his office is continuing to investigate civil proceedings that could result in Gutierrez’s removal from office. Under New Mexico law, the district attorney is authorized to investigate and bring civil action to remove a county official accused of unethical conduct.
In addition, convicted felons can’t hold elected office in New Mexico, so a felony conviction any time this year would also result in Gutierrez being removed from office before his term expires on Dec. 31.
Gutierrez, 61, is in the last year of his second consecutive term as treasurer. Term limits prohibit him from seeking re-election this year.