The Big Secret

The harassment case against state Sen. Daniel Ivey-Soto—pockmarked, now, with twists, turns and recriminations—stands as a reminder that the public is every bit as in the dark as it ever was when it comes to how Roundhouse leaders deal with allegations against their own.

A hired special counsel’s monthslong investigation into whether Ivey-Soto, an Albuquerque Democrat, sexually harassed and groped progressive lobbyist Marianna Anaya turned up probable cause to move forward on two of Anaya’s three claims, as SFR reported last Thursday. That morning, Ivey-Soto had crowed in an Albuquerque Journal op-ed piece that the case had been closed with no recommendation for punishment.

Inside the chasm between those two realities lies a riddle wrapped up in an enigma, if you’ll pardon the Churchill reference. That’s because, by design, the only person who could turn the lights on and let New Mexicans see just how this case played out is Ivey-Soto himself, and he has no plans to do so.

One thing is clear in the fog: The layers of secrecy surrounding the system New Mexico uses to determine wrongdoing by accused lawmakers is so deeply broken that, now, the courts and the Legislature itself will conduct parallel trains down separate sets of tracks toward a possible fix.

In a letter to SFR submitted Monday, outgoing state Rep. Daymon Ely, D-Corrales, and Sen. Linda Lopez, D-Albuquerque, laid out two fixes that would increase transparency and, they say, accountability in harassment cases against lawmakers.

Essentially, the legislators say a third party—a retired judge or justice, perhaps—should be empowered to break ties in votes taken by a secretive subcommittee that decides whether there’s enough evidence to proceed in harassment cases against legislators. That’s an easy fix, Lopez and Ely write: Just amend the rule at next month’s Legislative Council meeting.

Next, they say, lawmakers should support a bill in the 2023 legislative session that would change the guiding statute and allow all parties to talk about harassment cases as they proceed, the two lawmakers argue.

Both proposals would have made a difference from a sunlight perspective in the Ivey-Soto case.

As legislators grind through the details, the state’s court system has a chance to throw back the curtain as well.

Anaya’s attorney, Levi Monagle, has filed a petition in First Judicial District Court challenging the statute’s constitutionality. Monagle says the law’s secrecy provision violates his client’s right to free speech and creates an “open-ended gag order.”

Last week, SFR published findings from one of the Legislature’s go-to investigators, attorney Thomas Hnasko, who found probable cause that Ivey-Soto violated the Legislature’s anti-harassment policy twice while interacting with Anaya. Hnasko’s report also detailed other alleged incidents between Ivey-Soto and lobbyists and lawmakers.

Hours after SFR published the report, Ivey-Soto told reporters from other news organizations that he had been the victim of a shakedown by Senate President Pro Tem Mimi Stewart, D-Albuquerque, and that he filed a report with the FBI accusing Stewart of “extortion.” Ivey-Soto claims that an unidentified third party contacted him, at Stewart’s behest, to convey a message: Step down as chair of the Senate Rules Committee or Hnasko’s report would be released.

Ivey-Soto ignored SFR’s voicemails until Monday when, in a rambling, nearly hour-long telephone interview, he spent much of his time describing the minutiae of the events leading up to now: How he learned about Hnasko’s yet-to-be leaked report and where he was on a recent drive from Santa Fe to Albuquerque when he decided to contact the FBI. He tells SFR he filed a report over the phone, after showing up to the Albuquerque FBI office—where he was told they wouldn’t take a report in person.

Ivey-Soto did offer answers to some questions during the interview, including his contention that Hnasko’s report doesn’t tell the whole story. He says his attorney filed a rebuttal and Anaya’s attorney submitted a response, which a secretive, four-member subcommittee considered in addition to the special counsel’s 29-page report as it debated whether there was probable cause to recommend the case for a public hearing.

“It’s not fair to ask the public to substitute their judgment for that of the committee,” Ivey-Soto says. “And the public doesn’t have all the information the committee has.”

He also accuses Hnasko of failing in “basic investigatory practices,” including failing to record witness interviews. (It is not clear whether Ivey-Soto has similar concerns about the FBI, which has courted criticism for decades over its practice of not recording non-custodial interviews.) And he goes on to say two witnesses believed Hnasko had mischaracterized their statements in his report.

Hnasko declined to comment when SFR reached him last week.

The same statute and rules that require the entire process to be conducted in secret also allow the accused—Ivey-Soto in this case—to sign away any confidentiality.

“I could,” Ivey-Soto tells SFR, “However, Ms. Anaya has filed a lawsuit in the First Judicial District Court. I find it to be an interesting question of law as to whether or not the confidentiality provisions apply, and what applies. If I were to do that in writing right now, that would render their lawsuit moot.”

The back and forth between Stewart and Ivey-Soto is just the latest in what has become an increasingly acrimonious relationship. Last year, a handful of Democratic senators publicly came to Stewart’s defense after she accused Ivey-Soto of being abusive during a floor debate. And last week, she accused Ivey-Soto of deflecting media attention from the contents of Hnasko’s report by contacting the FBI.

Stewart, reached by telephone on Friday, tells SFR she was contacted by someone “from the large group of advocates that are upset about this,” who said they planned to release Hnasko’s report unless Ivey-Soto relinquished his committee leadership role. Stewart says she then decided to pass the message along to an intermediary in order to protect the people named in the report.

“The advocates did kind of reach out to me and say, ‘Look, what we really want is him to not be in leadership over these committees where he can lord over others. If he’ll step down from his committees, we won’t’” deliver the report to journalists, says Stewart, who adds that she had not seen the report until SFR published it. “Well, it sounded like a good deal to me. I didn’t want the report out, I didn’t know what was in it, but I did not want it out. It could only hurt people, in my estimation.”

Stewart says she passed the message along to another senator and asked that it be conveyed to Ivey-Soto.

Neither Stewart nor Ivey-Soto would name the intermediaries allegedly involved in their exchanges. Stewart also tells SFR, as of Tuesday, she has not been contacted by the FBI.

Frank Fisher, a spokesman for the local FBI office, responded to SFR’S telephone requests for comment with a text message: “The FBI can neither confirm nor deny the existence of an investigation.”

Stewart concedes that the process for dealing with alleged harassment is not working. She says lawmakers should have made adjustments to the process since the 2014 legislative investigation of former senator Phil Griego, who ultimately resigned and was sentenced to 18 months in prison over a real estate deal.

“We’re a couple years late on that. I’ll chalk it up to the pandemic,” Stewart says. “But we’re supposed to be reviewing it and we aren’t.”

Stewart supports the proposed fixes from Ely and Lopez.

“After my experience over the last six months, I’ve really come to the realization that I don’t think it’s possible for us to investigate ourselves and to make these kinds of recommendations,” she says. “I don’t think we’re the right body. We’re not objective enough. We’ve all pretty much become friends, even though we often don’t see the same way, just because we have to work together.”

Ivey-Soto, on the other hand, tells SFR that the secret process for determining probable cause is “not what’s broken.” He compares it to a grand jury process, arguing that at least some of it should be conducted behind closed doors. (Grand juries consider criminal charges, not administrative matters such as alleged violations of the Legislature’s anti-harassment policy. Further, targets of investigations typically do not have a voice in closed-door grand jury proceedings.)

The secrecy provisions in the Legislature’s rules and state law make it impossible to know what happened after Hnasko delivered his report to the Investigative Subcommittee of the Interim Legislative Ethics Committee. Without reviewing Hnasko’s report SFR would not have been able to identify its members: Sens. Linda Lopez, D-Albuquerque, Benny Shendo, D-Jemez Pueblo, Pat Woods, R-Broadview and Crystal Diamond, R-Deming.

Did the subcommittee vote to reject Hnasko’s findings? What was the outcome?

None of the four but Woods, who declined comment, responded to SFR’s requests for an interview.