Breaking Opaque

Lawmakers move toward transparency in harassment investigations and more changes may be on the way

The state Legislative Council has partially raised the curtain on how lawmakers investigate harassment and assault by their own amid outrage over the foot-dragging and secrecy surrounding allegations against state Sen. Daniel Ivey-Soto, D-Albuquerque.

There’s still more to fix—both in the state’s anti-harassment policy and in the Interim Legislative Ethics Committee’s rules—to make the process more transparent and accountable, one outgoing lawmaker who shepherded last week’s changes tells SFR. The tweaks include setting deadlines to keep investigations moving and disclosure requirements for their outcomes.

Meanwhile, there’s still a high hurdle to clear in state law: what amounts to a gag order on everyone involved in a complaint except for the accused.

Lobbyist and Ivey-Soto accuser Marianna Anaya has sued the Legislature in state District Court, arguing the statute violates the New Mexico Constitution’s free speech protections. But lawyers for Anaya and lawmakers hit the pause button late last month, filing a joint motion indicating the Legislature may fix the law before the case proceeds in court.

“Petitioner and respondents state that they are informed and believe that a legislative solution to the matters set forth in the [lawsuit] may be achieved and that no action on the [case] should therefore occur until after the 2023 legislative session,” the joint motion reads.

Incoming state Rep. and House Majority Whip Reena Szczepanski, D-Santa Fe, tells SFR she’s drafting legislation to address the confidentiality clause in statute that silenced Anaya. Szczepanski has been in talks about creating a “legislative parallel” to the state’s Judicial Standards Commission down the road. For now, she is looking to unmuzzle those who accuse lawmakers.

“I’m hoping that because the bill is very streamlined, it only addresses this one piece, that it’ll be easy to move through the process,” Szczepanski says. “There’s not going to be a lot of confusion about what it does or doesn’t do, but we’ll see. The legislative process takes a lot of twists and turns, but we just have to fix it.”

A spokesman for Senate Republicans did not respond to an inquiry about the caucus’ political appetite for such a change, and a House Republican spokesman declined to comment on account of pending litigation.

Chris Nordstrum, a spokesman for Senate Democrats, tells SFR a change to the law “is an important priority” for leadership and that Majority Leader Peter Wirth, D-Santa Fe, “is all in” on updating the statute.

For now, that statute leaves the thick curtain over the process.

“The complainant, the committee and its staff shall not publicly disclose any information relating to the filing or investigation of a complaint, including the identity of the complainant or respondent, until after a finding of probable cause has been made that a violation has occurred,” it reads. Szczepanski’s bill would strike the word “complainant” from the law.

In Ivey-Soto’s case, the law—not to mention the rules and policies—enabled him to announce in an Albuquerque Journal op-ed that the investigation of Anaya’s complaint had ended with no sanctions against the senator. In short, Ivey-Soto claimed he’d been cleared.

But the same day, SFR obtained a copy of a report by Thomas Hnasko, the independent counsel lawmakers hired for the investigation. Hnasko found probable cause for two violations of the state’s anti-harassment policy.

The disclosure prompted calls for change.

Rep. Daymon Ely, D-Corrales, proposed changes to the Ethics Committee’s rules and policy, and lawmakers voted them in 9-7 last week. The journey a future complaint takes will still be a Byzantine labyrinth of bureaucracy, but the stops along the way are, in theory, now more transparent and have outside advice, thanks to the council-approved changes.

The rules now demand a contract investigator complete an investigation within 45 days, though they allow for extensions. The investigative committee then has 15 days to come to a conclusion. If the subcommittee does not find probable cause, it is now required to “immediately close the investigation, dismiss the complaint” and report to the Ethics Committee, which in turn must issue a public report within 10 days. If the subcommittee finds probable cause to move forward, the case is referred to the hearing subcommittee, which must schedule a hearing within 45 days.

The Ethics Committee’s investigative subcommittee also now has a policy requiring retention of an attorney with “experience in harassment claims” as a fifth member, ensuring there will not be a tie vote. (It appears a 2-2 deadlock in that subcommittee is what ended the Ivey-Soto matter.)

Ely says he hopes the incoming Legislature will take up more changes to the rules and the policy. He describes his changes as “surgical,” and says limited time meant he had to tackle the obvious fixes.

“I really wanted to fix what I perceived as being the two immediate problems, the tiebreaker and the timing,” he says.

Even under the new rules, subcommittee membership is not inherently public, but Ely says in nearly every outcome, information will be made public, either through a report of no probable cause or through a public hearing.

Last week’s Legislative Council meeting provided a glimpse of potential pushback against Szczepanski’s bill, which she plans to present for the 60-day legislative session that begins Jan. 17.

In voting against Ely’s changes, Republicans insisted a tie-breaking vote would create a partisan process. They seemed more interested in clutching their pearls over how SFR got hold of Hnasko’s report.

“That shouldn’t be hard to investigate,” Sen. Craig Brandt, R-Rio Rancho, said. “And yet we’ve decided that we’re going to attack the policy, instead of looking at who actually violated the ethics rules, and leaked out a report that was supposed to be confidential.”

Should Szczepanski’s proposal fail, the courts will decide on the current law’s constitutionality via Anaya’s lawsuit. The Legislature’s choice for paid, outside representation in that case: Hnasko.

Ely and Raúl Burciaga, director of the Legislative Council Service, say the Santa Fe-based attorney’s involvement in the Ivey-Soto matter has concluded, which means there is no conflict of interest should Anaya’s case proceed.

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