There was plenty of outrage to go around after former Secretary of State Dianna Duran walked away from corruption convictions last year with her public pension intact. After all, lawmakers had passed a law in 2012 they said would strip state pensions from officials who use their office to break the law.
But the 2012 law turned out to be hopelessly flawed. And with only days left in the session to remedy it, the tough talk has quieted and bills that would do so have yet to make it to the floor of either chamber.
One such bill by Rep. Matthew McQueen, D-Santa Fe, never got a committee hearing and appears to be dead. A second bill, by Rep. Zach Cook, R-Ruidoso, is limping along. After being softened by the House Safety and Civil Affairs Committee last week, the bill was referred to the House Judiciary Committee, which Cook chairs. But four days later he has yet to put it on the agenda.
Cook said Monday it could get a hearing as early as Tuesday. But he also said he has yet to talk to Senate Democrats, a key step in winning quick Senate approval if it passes the House.
“We haven’t talked to those guys,” he said.
Cook’s bill proposes to allow courts to take away pension benefits of officials in positions of public trust who are “convicted of a campaign offense or a public corruption offense that was committed while the person served in a public trust position.” It defines public trust as an elected position within state government or a subdivision thereof, as well as appointed positions that require the consent of the state Senate. If it passes, it would only apply to crimes committed after its effective date of July 1.
In the bill’s first hearing last week, the House Safety and Civil Affairs Committee, chaired by Rep. Bill Rehm, R-Albuquerque, softened the language so that officials would only lose the portion of their pension accumulated in the office related to the offense.
In the case of Duran, the former Republican Secretary of State, that would mean her pension from her tenure at the Secretary of State’s Office would have been taken away while the pension she earned from her prior service as a state senator and Otero County Clerk would be safe.
The committee recommended Cook’s bill pass by a 5 to 1 vote, with Rep. Patricia Roybal Caballero, D-Albuquerque, voting against it.
Reps. G. Andrés Romero, D-Albuquerque; Sheryl Williams Stapleton, D-Albuquerque; and James Townsend, R-Artesia, excused themselves from voting on the bill.
Rep. Caballero told members she’s concerned about how the bill defines position of public trust. She said she has problems with the bill from a due-process and fairness standpoint.
“In my viewpoint, that’s why we have elections,” she said of office holders who violate the public trust. “You know, you put people into office, you take people out of office.”
What public employees should be included in the bill continues to be a sticking point, Cook said on Monday. He said he wants to include a wider range of employees and crimes, including janitors who steal money from a school or teachers convicted of sexual molesting a student.
“I don’t want to exempt them if they commit a sex crime that involves a child,” he said.
McQueen sat in the gallery and watched Cook present his bill to the committee. McQueen told The New Mexican that Cook’s bill would be something he would support.
Many people thought the pension issue had already been resolved. In 2012, lawmakers passed a similar bill to Cook’s current proposal. Sponsored by Sen. William Payne, R-Albuquerque, the 2012 bill passed both chambers without opposition and Gov. Martinez signed it into law.
But it turned out the language in that law never actually mentioned pensions and has proven ineffective.
That law allowed the basic sentence of a public official convicted of a felony relating to their elected office “to be increased by an additional fine not to exceed the value of the salary and fringe benefits paid to the offender, by virtue of holding an elected public office…” For that to happen, the law requires a “separate finding of fact” that shows “beyond a reasonable doubt” the offender is a public official who committed a crime that arises out of their office.
No state official has had their pension removed due to the law. Cook’s current bill directly mentions pensions.
State Attorney General Hector Balderas said last year through his press aide that his prosecutors did not attempt to seize Duran’s pension under that law because the statute required “findings of fact to be proven beyond a reasonable doubt at trial by a jury.”
Duran pleaded guilty to six of 65 counts, two of them felonies, in a plea deal with Balderas’ office for embezzling campaign funds to herself to cover gambling debts. She was not convicted by a jury. Balderas told media outlets that he believes lawmakers “misled” the public with the 2012 bill.
Cook’s proposal could add clarity to the current law by specifying that pensions could be taken away. But there’s no language in it that addresses the issue of whether a public official like Duran could skirt the law if they take a plea deal.
James Hallinan, a spokesman for Balderas, said in an email Monday that the 2012 law presents constitutional issues because it does not provide “any clear mechanism for prorating pension payments over an offender’s lifetime.”
“We continue to work with Rep. Cook and are currently reviewing potential options regarding pension forfeiture legislation,” he said. “There is no pension forfeiture in law right now.”
Kenneth Stalter, an assistant attorney general with Balderas’ office, testified in support of Cook’s bill in the committee last week. But he said he did not have a chance to see the committee’s substitute language.
Rehm said his committee’s members wanted to change Cook’s original proposal that would have erased all public retirement benefits as a matter of “fairness.”
Cook said he preferred his original proposal, then made a joke with his colleagues.
“Well I had a section in there about tarring and feathering,” Cook said.
Justin Horwath can be reached at (505) 986-3017 or [email protected].