The New Mexico Ethics Commission last Friday, Feb. 5, notified state Representative Rebecca Dow (R-District 38) and her Democratic general election opponent Karen C. Whitlock that its general counsel will investigate allegations against Dow filed by Whitlock that fall within the commission’s jurisdiction.
Dow declined to comment to the Sun on this development. Whitlock said that the decision to investigate certain of her allegations supported her belief that they were credible and serious.
Whitlock’s complaint, filed with the ethics commission on Sept. 14, during the run-up to last November’s election, alleged that Dow had violated the Governmental Conduct Act, Procurement Code and the Financial Disclosure Act.
In a press release announcing the complaint’s filing, Whitlock claimed, “Since taking office in 2017, Representative Dow has secured state contracts directing more than $5 million to the company she founded, Appletree Education Center.”
“In order to prevent self-dealing, it is illegal under the Governmental Conduct Act (10-16-9 NMSA 1978) for a legislator or their family members to solicit government contracts without proper disclosure and compliance with the procurement code,” the press release stated. “Yet, while in office, Representative Dow has applied as a contractor for millions in state contracts, while repeatedly signing certifications that she was not a legislator. Moreover, as CEO of the company, she appears to have never disclosed her financial interest.”
Dow vociferously denied the alleged violations at the time. A Silver City Daily Press article published Sept. 15, 2020, paraphrased her, stating: “Appletree is a nonprofit in which neither she nor members of her family have a ‘substantial interest,’ as defined by the Governmental Conduct Act.”
Quoted directly in the article, Dow maintained: “The contractor is Appletree. I am not Appletree. I am not the contractor.”
WHY THE COMMISSION WAITED TO DECIDE TO INVESTIGATE
Whitlock, who lost her bid to oust incumbent Dow, filed the complaint during the “blackout period”—within 60 days of an election—during which the Ethics Commission’s rules forbid it to take up a complaint against a candidate.
Following that rule, the ethics commission did not consider Whitlock’s complaint until Feb. 5. That day, Walker Boyd, the commission’s general counsel, sent a letter to both Whitlock and Dow informing them that the “Commission voted to instruct me to continue my investigation of the complaint.”
According to its rules, the commission must inform the complainant and accused if it will or will not investigate a complaint within 90 days of the complaint’s filing. Taking into consideration the blackout period that ended Nov. 3, Boyd’s letter was sent close to the 90-day deadline.
HOW JURISDICTIONAL ISSUES AFFECTED THE COMMISSION’S DECISION
Represented by Attorney Patrick J. Rogers of Albuquerque, Dow filed a motion to dismiss on Sept. 29, 2020, claiming the ethics commission didn’t have jurisdiction to rule on the issues raised. The motion also argued that Whitlock “failed to state a claim upon which relief can be granted”—that is, even if the facts in the case were true, they didn’t amount to a violation of the law.
Ethics Commission rules allow the executive director to decide matters of jurisdiction, but not to determine if the facts prove violations of law. Jeremy Farris, the commission’s executive director, took up the jurisdiction issues, sending a letter to Whitlock and Dow on Oct. 21, 2020, dismissing parts of Whitlock’s complaint.
Whitlock’s complaint cited contracts awarded to Appletree that were all signed by Dow prior to July 1, 2019. Farris dismissed those parts of the complaint as outside the ethics commission’s jurisdiction. Another ethics commission rule states its purview began when it was formed on July 1, 2019; therefore, it examines conduct occurring after that date, not before.
Farris forwarded the remaining issues to the ethics commission. These included Dow’s Jan. 30, 2020, financial disclosure statement, which Whitlock claimed was deficient, in violation of the Financial Disclosure Act and the Governmental Conduct Act.
Farris also forwarded what remained of Dow’s motion to dismiss—that Whitlock’s facts did not amount to violations of the law.
The letter delivered to Whitlock and Dow on Feb. 5 did not specifically state what issues the ethics commission instructed its general counsel to continue to investigate.
Whitlock submitted the following statement in response to the Sun’s request for comment on the Feb. 5 letter:
“I believe that this letter indicates the allegations that were made, backed by evidence, are serious and they are taking these allegations seriously,” Whitlock stated in an email Feb. 7. “I appreciate this, since these allegations are serious and credible, and I would have never filed this complaint had it not been in an effort to address the integrity of our elected officials.
“The claims that were dismissed were not due to lack of credibility, but were dismissed because the Ethics Commission lacked jurisdiction. But, it was important to include those claims prior to July 2019 because they show a pattern of behavior. This is why I also filed a complaint with the Attorney General’s office.”