COMMENTARY: It was all bipartisan smiles and back-patting in 2012 when Gov. Susana Martinez signed a law they said would combat corruption with a threat of losing your government pension.
Heath Haussamen
Martinez said the law “sends a strong statement that corruption in New Mexico will not stand.” The bill’s primary sponsor, Republican Sen. Bill Payne, said it would “hold public officials accountable.” Democratic Rep. Ken Martinez said it would be a deterrent.
It turns out the law may not do any of that.
The pending plea agreement between former Secretary of State Dianna Duran and the Attorney General’s Office was the first chance to apply the law. Many thought Duran might lose her pension.
But neither side in that case thinks the law can be applied.
“The public was misled that lawmakers had passed an aggressive statute intended to properly take away pensions from corrupt officials,” said James Hallinan, spokesman for Attorney General Hector Balderas.
The law, Hallinan said, “doesn’t even mention the word pension and would result in costly litigation for taxpayers.”
Is anyone surprised? The Legislature has a history of resisting reform. Sometimes it has passed bills that are about making officials look like they’re transparent, accountable, and tough on corruption rather than actually being any of those things.
We’ve convicted several government officials in the last decade. Most recently, Duran has pleaded guilty to two felonies and four misdemeanors for stealing money from her campaign bank accounts.
Meanwhile, reform has been incremental, often piddly, and always hard-fought.
The flaws in the pension law are apparently many. Duran’s attorney, Erlinda Ocampo Johnson, argues that it doesn’t apply to Duran because it requires “that the felony conviction and the conduct underlying it be related directly to the defendant’s duties as a public official.”
Stealing money from a government office would relate to a government employee’s duties as a public official, Johnson told me. But stealing from her campaign donors means Duran committed crimes in her capacity as a candidate.
In addition, the law vaguely – and conveniently – mentions “fringe benefits,” not a “pension.” It uses the word “paid” to describe benefits that can be taken away, which could be read in the past-tense and not about payments a person receives going forward. There are no guidelines for calculating the “additional fine” a judge can impose.
But we knew this. Even when officials touted the law in 2012, publicly-accessible information cast doubt on whether it was enforceable.
At the time the AG’s Office called language in the bill “unclear” and said such “ambiguity creates a potential constitutional problem.” The AG recommended listing the crimes that were subject to the enhanced penalty.
The State Personnel Office questioned the meaning of the language “salaries and fringe benefits.”
That’s all in the analysis legislative staffers did before lawmakers approved the bill and the governor signed it.
Maybe policymakers didn’t know about the problems. Maybe some wanted to look tough on corruption without actually being tough on corruption.
Whatever the case, there’s an opportunity to fix this mess in January. The AG’s spokesman, Hallinan, told me Rep. Martinez is “supportive of furthering the conversation.”
New Mexicans want tough anti-corruption laws. Hallinan said judges and prosecutors “need the proper tools to withhold a state pension.”
The Legislature meets in January. The governor decides what’s on the agenda for that session. Time will tell how interested our leaders are in fixing this issue.