Wednesday, December 16, 2009

Roundhouse Roundup: Protect a Politician, Jail a Journalist

A version of this was published in The Santa Fe New Mexican
December 17, 2009

Here’s my nightmare of the week.
It’s the year 2011, and I’ve just gotten a hot tip that the new state Ethics Commission is investigating a state legislator on allegations that he’s running an illegal cockfighting pit with laundered campaign contributions from child porn publishers. I find a source who quietly slips me reams of documents the commission is looking at, documents that basically prove the case. I get a “no comment” from the accused’s lawyer and go to press with the story.

Then I end up in the same jail pod as the sleazy politician I wrote about.

That might sound far-fetched, but a bill to establish a state Ethics Commission, which recently received unanimous approval by a legislative interim committee, includes a provision intended to keep all material related to an investigation confidential.

Quoting from Section 16 of the proposed bill: “A person who discloses any confidential complaint, report, file, record or communication in violation of the State Ethics Commission Act is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one year or both.”


As Jim Scarantino pointed out recently in his New Mexico Watchdog blog, this prohibition of disclosure is even more broad than the laws governing grand jury secrecy.

Steve Allen, executive director of New Mexico Common Cause — who was part of the subcommittee that drafted the bill — said part of his work was to check other states that have ethics commissions.

Allen said the secrecy in this proposal goes well beyond confidentiality provisions in other states. “Confidentiality and protecting the rights of the accused is a valid concern,” Allen said Wednesday. But this bill, he said, goes much further in protecting politicians than ethics commission laws in other states.

“I am concerned this would bar reporters from publishing or broadcasting information that might be leaked from the commission,” said Sarah Welsh, executive director for New Mexico Foundation for Open Government.

Welsh told me Wednesday that if the commission wanted to keep its investigations confidential, there are other ways of doing that. They could limit the penalties to the commission staff and/or commissioners. They could make the documents confidential and not subject to public records requests.

But, Welsh added, “I don’t like to see the shadow of secrecy extended to a whole class of documents. Those provisions are rarely repealed.”

State Sen. Peter Wirth, D-Santa Fe, who co-chairs the interim committee on Courts, Corrections & Justice, which endorsed this bill, said in an e-mail this week, “The commission is set up to operate in a confidential manner until it finds that an ethics violation was committed. At that time, the report goes public. … The idea is to protect respondents from unfounded allegations that could harm their livelihoods, reputations or careers and to prevent the commission from becoming a vehicle for personal vendettas.”

Wirth continued, “Although the bill does everything it can to maintain confidentiality, there is certainly an argument that a complainant, and even more so a reporter, would be protected by the First Amendment when disclosing documents or information. At the very least, there is a tension with First Amendment rights.”

But does that mean a reporter would have to go to court to argue his First Amendment rights — praying that the judge will agree?

That sounds like a tension most of us could live without.

Hopefully our wise Legislature will see clear not to pass a bill that has foreseeable constitutional violations.

More hazy history: Political blogger Joe Monahan pointed out to me that an item last week in this column about the few New Mexico lieutenant governors who have gone on become governor had one glaring omission.

The state’s very first “lite guv,” Ezequiel C. de Baca, was elected governor in 1916 while sitting as lieutenant governor. But shortly after he was elected and took office, C de Baca died and — as I wrote last week — his lieutenant governor Washington Lindsey became governor.

Monahan’s right. I checked it out in the state Blue Book.

As previously reported, the other two lieutenant governors who became governor were Andrew Hockenhull, who became governor in 1933 when Gov. Arthur Seligman died, and Tom Bollack, who replaced Gov. Ed Mechem after Mechem resigned so Bollack could appoint him to the U.S. Senate.

Here's a copy of the proposed ethics bill: