(a) The Board shall be made up of seven members, who shall be chosen as follows: The Council shall appoint three members and the Mayor shall appoint three members. The six members so appointed shall select a seventh person to serve as Chairperson of the Board. A simple majority of members shall constitute a quorum. The appointment of a Board member by one appointing authority shall not be approved or disapproved by the other two appointing authorities. Each member shall be a qualified elector of the city, and no member shall be an official or employee of the city or the spouse, parent or child of an official or city employee.
(1) No member of the Board shall (1) have held public office as a city official or have been a candidate, as defined in Article XIII, Section 2, for a two-year period prior to appointment; (2) seek or hold an elective public office or an appointed public position while serving on the Board; (3) participate in any political campaign for a candidate who is a city official or candidate, as defined in Article XIII, Section 2, while serving on the Board; (4) be a lobbyist, or be employed by or have an equity interest or ownership interest in a lobbying organization, as defined in ROA § 2-3-3, while serving on the Board; (5) be a paid political campaign employee, or be employed by, or have an equity interest or ownership interest in, a business entity that derives any of its revenue or income from political campaign work, while serving on the Board; (6) have a contract with the city as defined in Article XIII, Section 2, while serving on the board; (7) publicly endorse or publicly oppose a ballot initiative, a candidate who is a city official or a candidate, as defined in Article XIII, Section 2, while serving on the Board; or (8) solicit funds for a Measure Finance Committee, Candidate Finance Committee, or candidate as defined in Article XIII, Section 2, while serving on the Board.
(2) A Board member who is found to have violated any of the provisions of Subsection (a)(1) of this Section shall resign from the Board, or if the Board member fails to resign the member shall be removed pursuant to Board of Ethics rules.
(3) There shall be a public comment period for any individual proposed for membership on the Board of Ethics and Campaign Practices by the Mayor, the Council and for the seventh member selected by the Board. The name and resume of any individual proposed for membership shall be posted on the city's website at least two weeks, via an agenda published by City Council or otherwise, prior to the date when final action is taken to appoint that individual. Any person shall be allowed to submit comments about the proposed member by written submission, electronically or otherwise, to the City Clerk.
(4) The members of the Board of Ethics and Campaign Practices shall receive at least six hours of training prior to acting in the capacity of a Board member. The training shall be provided by the City Attorney and shall cover the ethical responsibility of Board members and the content of the Code of Ethics and the Election Code as those codes relate to the duties of the Board. The training requirement shall not apply to any current Board member, who shall continue to serve their unexpired term, or to any Board member reappointed at the end of a term.
(b) All members shall serve terms of four years, and be eligible for reappointment for additional terms, not to exceed two terms consecutively, consisting of the initial term the member was appointed to and the second, consecutive term. Terms are staggered and shall continue with the same term cycle as currently exists. Any vacancy shall be filled for an unexpired term by the same authority that made the original selection and appointment of the member vacating his or her position. Members may continue in office after their term has expired until a successor is appointed. If a member continues to serve for more than one hundred eighty days (180) after his or her term has expired, his or her successor shall be eligible for appointment to a full four-year term.
(c) The jurisdiction of the Board is limited to acting within the scope of matters covered by the Code of Ethics, the Election Code, the Open and Ethical Elections Code, and rules promulgated by the Board and/or the City Clerk. When a complaint contains allegations outside the scope of the Board's jurisdiction, the city reserves the right to refer all or part of the complaint to any agency or law enforcement agency with competent jurisdiction for criminal or civil investigation or prosecution.
(d) No violation of the Code of Ethics, the Election Code, the Open and Ethical Elections Code, and/or rules promulgated by the Board and/or the City Clerk shall be found by the Board of Ethics and Campaign Practices except upon the concurrence of a majority of the Board.
(e) Any rules promulgated by the City Clerk for the purposes of administering the Code of Ethics shall be submitted for receipt to the City Council.
(f) The Board shall:
(1) meet as necessary;
(2) receive and investigate complaints regarding possible violations of the Code of Ethics, the Election Code, the Open and Ethical Elections Code, and/or rules promulgated by the Board and/or the City Clerk;
(3) hold hearings when necessary to determine whether there has been a breach as alleged in a complaint;
(4) contract for professional services through the City Clerk as necessary to carry out duties;
(5) provide the Mayor and City Council with a report following each municipal election year stating the number of complaints that were submitted to the City Clerk alleging a violation of the Code of Ethics, the Election Code, the Open and Ethical Elections Code, and/or rules promulgated by the Board and/or the City Clerk, the number of complaints submitted to the Board by the City Clerk, and a summary of the status of each complaint to include the date of the complaint, the date for the case to be heard, and date for possible final action. The report called for in this section shall be submitted to Council by no later than the July after each municipal election year, and shall also include any recommendations regarding amendments to city ethics or public accountability laws, and recommendations regarding the scope of the Board and/or City Clerk's powers and duties. The annual status reports must be approved by the Board and made available to the public on the City Clerk's website. Status reports may be provided to Mayor and City Councilors and their staff on an informal basis as appropriate.
(g) The Board shall have the authority to administer oaths, and power to issue administrative subpoenas to compel witnesses to testify and produce records and documents before the Board. The Board may promulgate rules and regulations establishing procedures for issuance of subpoenas. The Board may request the City Attorney to enforce such subpoenas in a court of proper jurisdiction.
(h) The Board may issue to candidates, officials, and lobbyists advisory opinions concerning the Code of Ethics, the Election Code, the Open and Ethical Elections Code, and rules promulgated by the Board and/or the City Clerk. Candidates and officials shall make all requests for advisory opinions in writing to the City Clerk. Draft advisory opinions may be prepared by Board members for consideration by the Board, or may be assigned to an outside, independent legal counsel for preparation. The City Clerk shall maintain a contract with outside, independent legal counsel during each election cycle for this purpose. Any draft advisory opinions shall be submitted to the Board of Ethics for consideration of approval within fourteen (14) days of a written request for advisory opinion being received by the City Clerk. Within thirty (30) days of receiving the proposed advisory opinion, the Board shall vote to adopt or decline to adopt the proposed advisory opinion as written. If the Board of Ethics declines the proposed advisory opinion, the Board of Ethics will either direct the City Clerk, Board member, or outside counsel to amend the proposed opinion as appropriate or to draft a new advisory opinion for consideration for adoption at its next meeting, which shall be held within fourteen (14) days. Official advisory opinions will be issued only upon the Board's approval. All timeframes noted in this subsection are mandatory unless the City Clerk or the Board notifies the requester in writing of a delay in issuance and with specificity as to that request, the reason for the delay, and continues to notify the requester in writing every thirty (30) days until the advisory opinion is issued, which in all cases shall be within one hundred eighty (180) days of the request.
An advisory opinion shall become public record at the time the Board votes on such opinion. Advisory opinions shall only concern prospective matters. Specifically, no advisory opinion shall be issued with respect to an event that has already occurred. Advisory opinions shall only be issued with respect to conduct in which the requestor of the opinion intends to engage. No advisory opinion shall be given unless approved by four members of the Board. Approved opinions shall be kept as permanent records by the City Clerk. The Board may promulgate rules and regulations establishing procedures for issuing advisory opinions and limitations on the use of advisory opinions as a defense to violations of the Code of Ethics or the Election Code. The Board may issue consent orders and may promulgate rules and regulations establishing procedures of issuance of consent orders.
(i) Limitations on Complaints.
(1) The Board will not set for hearing any complaint charging a violation alleged to have occurred more than one hundred twenty (120) days prior to the date the complaint is filed unless the facts and documentation supporting the charges alleged in the complaint were not public knowledge or available for public inspection within that time frame.
(2) In no event shall the Board hear a complaint alleging violations in which the violation occurred more than one (1) year prior to the date the complaint is filed unless the complainant also alleges fraud or purposeful misrepresentation on the part of the respondent to conceal the conduct that is the subject of the complaint.
(3) All complaints referred to the Board by the City Clerk at any time prior to sixty (60) days before election day shall be resolved, determined, or dismissed by the Board within sixty (60) days from the referral of the complaint. If the complaint is not resolved within sixty (60) days, the complaint shall be dismissed, unless delayed by the Chair of the Board upon a showing of good cause.
(4) All complaints referred to the Board by the City Clerk during the sixty (60) day period preceding election day shall be resolved, determined, or dismissed by the Board within thirty (30) days from the referral of the complaint. If the complaint is not resolved within thirty (30) days, the complaint shall be dismissed, unless delayed by the Chair of the Board upon a showing of good cause.
(5) Notwithstanding the foregoing, the Board shall not adjudicate a complaint filed against a candidate less than seven (7) days before election day. The time limitations referenced in this section (h) applicable to a complaint shall not include the seven (7) day blackout period prior to election day.
(j) A Board member who has participated in any hearing on a case concerning a complaint alleging a violation of the Code of Ethics or the Election Code shall continue to serve as a Board member on such case until the completion of the case, regardless of the expiration of that Board member's term, but only when the Board has voted on a matter concerning the case. A replacement Board member shall not serve on such cases.
(k) Board Member Conflicts of Interest and Recusals.
(1) A Board member shall not hear complaints involving candidates or Measure Finance Committees to which they have contributed within three (3) years prior to the complaint or have participated in the candidate's or Measure Finance Committee's campaign activities within three (3) years prior to the complaint. Nor shall Board members hear cases involving complaints concerning candidates and Measure Finance Committees who are in opposition to the candidates or Measure Finance Committees to which the Board member contributed or participated in their campaign activities within three (3) years prior to the complaint.
(2) A Board member is required to recuse himself or herself from an official matter that involves any individual, association, corporation or other entity that employed or did business with the Board member during the one year prior to the Board member's appointment to the Board. The recusal shall remain in effect until the Board no longer has any interest in the matter.
(3) A Board member is required to recuse himself or herself on an official matter if the member had any involvement in that matter, other than on behalf of the city, prior to the Board member's appointment to the Board. The recusal shall remain in effect until the Board no longer has any interest in the matter.
(4) A Board member must recuse himself or herself from a matter if the member has:
(a) Any financial interest, direct or indirect, that is incompatible with the discharge of the Board member's duties; or
(b) Any personal interest, direct or indirect, that is incompatible with the discharge of the Board member's duties.
(5) For purposes of (4) above, there is a rebuttal presumption that an incompatible financial or personal interest includes, but is not limited to, outside employment; a debtor/creditor relationship; a relationship involving legal representation; a fiduciary relationship; a source of income; any matter pertaining to or involving a relative or cohabitant of the member; a relationship with a person providing funds, goods or services without compensation; any matter pertaining to or involving a business associate or business investment; and a leadership role in a professional or trade organization, which interest might reasonably be expected to impair a Board member's objectivity and independence of judgment in the exercise of his or her official duties or might reasonably be expected to create an impression or suspicion among the public having knowledge of his or her acts that the member may be engaged in conduct violative of his or her trust as a Board member.
(6) An incompatible financial or personal interest may exist in other situations which are not clearly within the provisions of (4) and (5) above, depending on the totality of the circumstances. A Board member may contact the City Clerk for guidance in such cases.
(7) A Board member may seek the advice of the City Attorney or outside counsel as to the propriety of participation in a matter if any person requests that a Board member recuse himself or herself from that matter. Oral advice, followed up by a writing to be provided to the full Board, may be provided by the City Attorney or outside counsel to avoid delay.
(8) If the propriety of a Board member's participation in a particular matter is questioned on the grounds that the member has a conflict of interest and if the member refuses to recuse from participation in the matter, the Board may disqualify that member from participation in the relevant board proceeding with concurrence of a majority of members.
(I) If the Board finds, upon a majority vote of the board, that a candidate, elected official, Measure Finance Committee, or lobbyist has violated the Code of Ethics, the Election Code, the Open and Ethical Elections Code, and/or rules promulgated by the Board and/or the City Clerk, the Board may impose any of the following penalties, subject to the individual's existing rights under a collective bargaining agreement and/or the Merit System Ordinance, after the entry of written findings of fact and conclusions of law:
(1) A civil fine not to exceed the maximum set by state law;
(2) A written finding of censure;
(3) When an official or candidate has committed an act that the Board believes may constitute a violation of the State Election Code, NMSA 1978 § 1-1-1, et seq., the Board may refer the matter to the Secretary of State and/or the State Ethics Commission.
(m) Nothing in this Section shall be read to preclude the Board from referring any matter to appropriate enforcement authorities.
(n) No former member of the Board may represent any business or person, other than himself or herself, before the Board for a period of one year following the end of such member's service on the Board.
(o) Any member who misses three consecutive meetings, unexcused by the chair, shall be deemed to have resigned from the Board and may be replaced by the original appointing authority. Members may attend non-quasi- judicial hearings by phone.
(p) A recused or disqualified Board member shall not participate in any proceeding related to the matter from which the member is recused or disqualified, and the member shall be excused from that portion of a meeting at which the matter is discussed.
(q) If a majority of Board members have recused themselves or are disqualified from participating in a proceeding, the remaining members shall request the appointment of temporary members from the original appointing authorities that appointed the recused or disqualified members. Appointing authorities shall appoint temporary members within ten (10) days of the request for appointment.
(r) Ex parte communications. Members of the Board of Ethics shall not communicate ex parte with any person or party or their representative in any quasi- judicial Board matter, except upon notice and opportunity for all parties to participate. The members of the Board may severally communicate with each other, in conformity with the Open Meetings Act, and may have the aid and advice of the City Attorney, City Clerk, or other appropriate city staff or outside experts when such assistance is requested by the Board.
(Am. Ord 35-1975; Am. Ord. 77-1978; Am. Ord. 91-1980; Am. Ord. 24-1981; Am. Ord. 34-2006; Am. Ord. 29-2009; Am. Ord. 2019-030; Am. Ord. 2020-019)