Elected officials not in violation of Governmental Conduct Act

The State Ethics Commission on Friday approved an advisory opinion finding that three elected officials did not violate the Governmental Conduct Act, or misuse IPRA, the state’s Inspection of Public Records Act, in their interactions with the New Mexico Martin Luther King Jr. State Commission.

The findings were in response to a request for an advisory opinion from the MLK Commission, claiming that state Auditor Brian Colón, state Treasurer Tim Eichenberg and state Sen. Jacob Candelaria, through public comments criticizing the MLK Commission’s auditing process, exerted undue pressure on, and caused negative publicity of, the MLK Commission.

Those public comments and other actions resulted in citizens inundating the MLK Commission’s office with complaints, endangering the safety of executive director Leonard Waites and MLK commissioners, and hurting the MLK Commission’s reputation and ability to attract speakers for their events, according to the eight-page advisory opinion request.

Waites declined to comment on either the advisory request or the findings in the advisory opinion. He referred questions to MLK Commission secretary Bobbie Green, who signed the request. She did not return calls to the Journal.

Colón has been vocal and public in his criticism regarding MLK Commission audits going back to 2015, pointing to weaknesses in internal controls and a failure to provide supporting documentation for expenses. He has further criticized Waites for delays in completing the audits and failing to provide him with a written copy of policies and procedures implemented to address the audit problems.

Waites has said that MLK Commission audits were not delayed due to negligence or attempts to conceal information, but because of investigations into financial misappropriations under a former executive director and two others. They were convicted in 2019 of felony embezzlement and fraud.

The advisory opinion, posted on the Ethics Commission’s website, said, “It does not violate ‘the public trust’

for the head of an oversight agency, such as the State Auditor, to release to the public his concerns about the operation of a state agency,” or to convey that concern publicly as a way to “apply pressure” to remedy those shortcomings.

Candelaria, in his capacity as a private lawyer, filed two lawsuits alleging discrimination on behalf of clients — one former MLK Commission employee and one prospective employee — and a separate lawsuit resulting from the MLK Commission’s failure to respond to an IPRA request. In all, Candelaria filed six IPRAs. He later spoke publicly about the litigation, according to the advisory request.

State Treasurer Eichenberg, who by statute is a member of the MLK Commission, filed three IPRAs requesting documents related to employee timesheets, the worklog of the commission’s external auditor, and information related to Commemoration Grants the commission awarded in 2018 and 2019, according to the advisory request.

The advisory request questioned whether Eichenberg and Candelaria, both elected officials, were misusing IPRA to harass and interfere with the operation of the MLK Commission. The response from the Ethics Commission was that an IPRA request may be submitted by any person, and that it is not a violation of the Governmental Conduct Act “for a legislator, public officer or public employee to submit an IPRA request to a public agency.”

The MLK State Commission is a standalone state agency created in 1978 through an act of the State Legislature. Its mission is to promote Martin Luther King Jr.’s philosophy of human rights, equality and social change through various events and celebrations. It currently has an annual budget of about $356,000.

Included in the advisory opinion was a recommendation that the MLK Commission be administratively attached to an agency, such as the Office of African American Affairs.

‘They doubled down’

Colón said he was pleased with the Ethics Commission’s advisory opinion and its recommendation that the MLK Commission be attached to another agency as a way to “provide additional support and oversight,” he said.

“The work of the MLK Jr. Commission is deeply important to me, and now that it has received this opinion, I hope the executive director will shift his priorities back to addressing the numerous findings in the audit reports, while serving the mission to commemorate and celebrate Dr. King’s important philosophies and legacy.”

Candelaria also said he was pleased with the advisory opinion, noting that “We have a state agency that is not functioning,” and instead of taking action to come into compliance, “they doubled down” and made accusations against those who were trying to hold them accountable.”