This chapter may be cited as the "Dona Ana County Code of Conduct."
[HISTORY: Adopted by the Board of County Commissioners of Doña Ana County 6-24-2025 by Ord. No. 365-2025.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 14, Code of Conduct, adopted 8-27-2013 by Res. No. 2013-81, as amended 3-26-2024 by Ord. No. 350-2024, eff. 7-1-2024; 11-26-2024 by Res. No. 2024-147; and superseded former Ch. 14, Code of Conduct, adopted 5-13-2025 by Res. No. 2025-56.
Dona Ana County seeks to foster and maintain transparency while conducting county business, creating policy and undertaking the day-to-day operation of the county. This chapter establishes minimum standards of ethical behavior and sets forth explicit standards of conduct by requiring elected officials and appointed officials to disclose personal interests, financial or otherwise, in matters of the county and to remove themselves from decision making when such interests exist.
Elected officials and appointed officials are bound to uphold the Constitution of the United States, the New Mexico Constitution, and federal, state and local laws; to adhere to the highest standards in the exercise of powers and duties of office or employment; to impartially carry out their duties; to discharge their duties of office regardless of personal considerations; and to recognize that public interest must be the prime objective.
Action based upon the application or interpretation of a county ordinance or state statute, or a proceeding, including but not limited to actions involving a license or permit, franchise or development use.
A person who is not an elected official or county employee and has been appointed by the Governing Body to serve on a county board, commission, committee, or other body established by the Governing Body, or to perform other functions at the request of the Governing Body. This includes but is not limited to the chief deputy position for the County Clerk, the Undersheriff, the Sheriff's executive assistant, and the Deputy County Treasurer and Deputy County Assessor.
Information that has been classified as confidential by law, including but not limited to information that is listed as an exception to State and Federal public records acts, information protected by HIPAA or other healthcare and medical information acts, information protected by the Privacy Act of 1974 or similar acts, and information protected by the U.S. and New Mexico Constitutions.
A situation in which a person exercising a duty has an interest, financial or otherwise, that potentially conflicts with the exercise of the duty or that may be perceived as conflicting with the exercise of the duty.
An agreement between two or more parties, whether express or arising by operation of law.
An attorney contracted by the County who will perform independent reviews of complaints, conduct investigations, gather information, draft reports and make recommendations in accordance with this chapter. The Contract Ethics Investigator (the "Investigator") will be contracted by the County Attorney's office through normal processes, in agreement with the County Manager or Chair of the Board of County Commissioners. If the County Attorney. County Manager and Chair of the Board of County Commissioners are the subject of the investigation, the Assistant County Manager(s) will work with the Human Resources Director to assign an Investigator.
A member of the Governing Body, including the County Commissioners. County Clerk, Dona Ana County Sherriff, County Treasurer, County Auditor, and any other official who is elected to office by the residents of Dona Ana County.
A non-elected person who is employed, in any capacity, by Dona Ana County Board of Commissioners.
A direct or indirect communication by or on behalf of one side only, excluding any other party, and concerning a pending adjudication
An individual's spouse, domestic partner, parent, child or step-child, sibling or child of a sibling, grandparent or grandchild, and in-laws, by consanguinity or affinity, and persons, related or unrelated, living within the household.
Any interest of an elected official or an appointed official that is: 1) an ownership interest or other interest in any contract or prospective contract with the county 2) an interest in the sale of real or personal property to or from the county; 3) a financial relationship with a person or business whose interests may be affected by the county; 4) any employment or prospective employment for which negotiations have already begun where the prospective employer has an interest in the sale of real or personal property from the county; or 5) any other interest that may be affected by the county. For the purposes of this chapter, an interest shall be one either as owner, part owner, partner, or shareholder, in which an individual owns more than 2% of the outstanding stock or more than 2% of the ownership interest of any other business that is doing business with the County in an amount in excess of $7,500 annually. An interest held by the elected or appointed official's spouse or minor children shall be considered an interest of the elected official or appointed official for purposes of this chapter.
A determination made by the Dona Ana County Code of Conduct Review Board when two or more complaints, made by an individual or entity, have been determined to be unsubstantiated and contain allegations that are found to have no factual basis.
The Dona Ana County Board of Commissioners.
Harassment consists of knowingly pursuing a pattern of conduct that is intended to annoy, alarm, bully or intimidate another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.
A person who has submitted to the county an application seeking affirmative relief; a person who has filed a formal complaint or protest; a person who is the subject of a formal complaint or investigation.
Any application, petition, complaint, protest, investigation, or other administrative adjudicatory proceeding requiring decision or action by the Governing Body, the Planning and Zoning Board, or any other board or commission established by the Governing Body.
The obtaining or promise of obtaining anything of value.
Conduct in which elected officials or appointed officials use their official positions to exercise influence on county employees, elected officials or appointed officials; the phrase includes intervention on behalf of constituents with a governmental agency, and endorsement, pledging support, or actively supporting a county governmental matter, a nominee or a candidate for public office.
A violation of this chapter verified by competent facts and that substantial evidence exists to support.
Includes all matters, whether tangible or intangible, that could reasonably be considered to be of advantage or worth, use or service to the person to whom they are conferred. This includes: 1) money; 2) products or merchandise; 3) works of art or collectibles; 4) stocks, bonds, notes or options; 5) real property or an interest in real property; 6) contracts or a promise of future interest in a contract; an interest or a promise of a future interest in a business; 7) non-alcoholic beverages; 8) a meal with a total value exceeding $50 or meals from a single person or entity with a cumulative total value exceeding $500 annually, excluding meals provided in connection with a public event where the person attending is serving in an official capacity; 9) transportation and related travel expenses with a total value exceeding $75 per trip, or transportation and related travel expenses from a single person or entity for trips with a cumulative total value exceeding $500 annually; 10) lodging; 11) services including loaned employees; 12) loans, loan guarantees or cosigning; 13) loans at below market interest; 14) forgiveness of a debt; 15) discounts or rebates not extended to the public generally, not including general discounts that are offered to all government employees at all levels of government; 16) preferential treatment; 17) tickets of admission, excluding tickets or admission provided in connection with a public event where the person attending is serving in an official capacity; 18) compensation paid by any individual, business, or entity, which is not commensurate with fair and reasonable value of services rendered; 19) free or discounted use of office equipment and facilities; 20) intentional overpayment or knowing duplicate payments for expenses or costs; 21) radio or television time which is not paid at fair market value; 22) promise or offer of present or future employment; 23) use of autos, boats, apartments, or other recreational or lodging facilities; 24) intangible rights such as a cause of action; 25) licenses, patents, intellectual property, copyrights, or an interest in them; and 26) any other item, tangible or intangible, having economic value. A "Thing of value" or "benefit" does not include political endorsements, support in a political campaign or a promise of an endorsement, political activities, or political support. Nothing in this section shall be construed to prohibit an occasional, non-pecuniary gift, insignificant in value, or an award publicly presented in recognition of public service.
A claim that is not supported by competent facts or substantial evidence or existence of facts or an allegation that is not a per se violation of this chapter.
All actions, decisions and votes on matters relating to the county government shall be on the merits. Decisions shall be made objectively, without party or partisanship considerations, and without facts which are not directly and properly related to the matter requiring action.
A.
Elected officials and appointed officials shall act according to the highest principles of representative democracy to ensure that county government is worthy of public respect, trust and support.
B.
Elected officials and appointed officials shall not engage in conduct that they know or reasonably should know is likely to create in the minds of reasonable, objective, fair-minded observers the perception that they have used their public positions improperly, unethically or otherwise have not conducted themselves in accordance with the standards of conduct of this chapter.
C.
Elected officials and appointed officials shall not provide or disseminate to the public any information or data which they should reasonably know to be untrue, inaccurate or misleading. It is incumbent upon elected officials and appointed officials to correct such information as quickly as reasonably possible.
D.
It is a violation of this chapter for elected officials and appointed officials to knowingly violate their own rules of procedure or any other law or ordinance.
A.
Elected officials and appointed officials shall avoid conduct that creates the appearance of impropriety or that is otherwise unbefitting a public official. An impropriety can mean misconduct or behavior that demonstrates an unethical process or improper influence.
B.
Elected officials and appointed officials shall not knowingly engage in conduct that violates the rights of others to be treated fairly.
C.
Elected officials and appointed officials shall refrain from engaging in conduct, even if lawful, where personal gain or advantage is involved in a way that creates a reasonable inference that such office has been used for private benefit.
A.
No elected official or appointed official may have a financial interest if the elected official or appointed official is in a decision making capacity with respect to the financial interest.
B.
Elected officials and appointed officials who have any financial interest shall disclose such interest by filing a disclosure of interest and recording the same with the County Clerk and by disclosing the interest as otherwise provided in this chapter or by law, and shall thereafter be disqualified from participating in any debate, decision or vote relating thereto.
A.
Elected officials and appointed officials shall strictly avoid transactions and relationships that create a conflict of interest. Where a conflict of interest is unavoidable, the elected official or appointed official shall disclose the conflict of interest and shall subordinate the conflicting interest to the public interest, and the disclosure shall be recorded by the Clerk as part of the minutes of the meeting at which the disclosure is made.
B.
Elected officials and appointed officials shall exercise their duties, powers and prerogatives without prejudice or favoritism to hire, promote, or simply to reward family members, relatives, friends, or political supporters, or to hinder or punish enemies and opponents.
C.
Elected officials and appointed officials shall assure that constituents and others who may be affected by decisions of the county have a fair and reasonable opportunity to express their concerns, grievances, and ideas without regard to their willingness or ability to provide benefits or political support to the elected official or appointed official.
D.
Elected officials and appointed officials shall not engage in any conduct that could create in the mind of a reasonable observer the belief that persons will receive better or different services if gifts, personal benefits or political or charitable contributions are provided.
E.
Elected officials and appointed officials shall not solicit or receive gifts, personal benefits, favors, gratuities or political or charitable contributions, or anything of value under circumstances that create a reasonable belief that special access, services, favors, or official or unofficial actions will be provided as a result. Nor may anything of value be solicited or received from a person or business doing business with the county, contracting with the county, regulated by the county, has an application pending before the county, or whose interests may be affected by the county.
F.
Elected officials and appointed officials shall not accept anything of value from a person, business, or other entity when the elected official or appointed official knows or reasonably should know that said person, business, or entity does any business with the county, desires to do business with the county, contracts with the county, is regulated by the county, has an application pending before the county, or whose interests may be affected by the county.
No elected official or appointed official shall disclose or use confidential information maintained by the county without proper authorization, and such information shall not be used to advance the financial or other private interests of said person. No elected official or appointed official shall use confidential information for personal benefit.
No elected official or appointed official shall use their position to obtain information from another entity or individual for their personal benefit. Neither shall an elected official or appointed official obtain, or attempt to obtain, information from an individual or entity on behalf of the county when the information will be used for their personal interest or benefit.
A.
An elected official or appointed official shall not use public property for any private purpose or nongovernmental purpose except as specifically provided by law. Public property includes public funds, time, facilities, property, equipment, mailing lists, computer data, services or any other governmental asset or resource. This section does not prohibit the reserving or renting of county property which is designated as either public space or public meeting space and otherwise made available to all members of the public, nor the occasional and limited use of county property and resources for personal purposes if:
B.
No elected official or appointed official shall seek, accept, use, allocate, grant or award public funds for a purpose other than that authorized by law or make a false statement in connection with a claim, request or application for compensation, reimbursement or travel allowances from public funds.
C.
Unless authorized by the Dona Ana County Code of Conduct and Dona Ana County Human Resources Policies and Procedures Manual, no county employee shall be asked or permitted to perform personal services for an elected official or appointed official. An elected official or appointed official shall not require a county employee to perform personal services or assist in a private activity except in unusual and infrequent situations where the person's service is reasonably necessary to permit the elected official or appointed official to perform official duties.
A.
No county resources, including funds, facilities and personnel, may be used for political campaign purposes or to influence an election; provided, that this shall not prohibit the use of public resources proposed for the limited purpose of educating voters about the details of a ballot question placed on the ballot as authorized by the Dona Ana County Board of Commissioners pursuant to Section 1-16-3 NMSA 1978 (as amended). An elected official shall not use or authorize the use of county funds, time, facilities, equipment, mailing lists, computer data or resources, services or other government assets for the purpose of political fundraising, campaigning, or influencing an election. This prohibition includes the use of county communication technologies, including but not limited to county websites, mailers, signage, or public service announcements, regardless of the transmission method, within 60 days of the date of the election, when the elected official is on the ballot. Nothing in this section shall be construed to prohibit the use of:
(1)
Mailing lists, computer data or other public information lawfully obtained from a government agency and available to the general public for nongovernmental purposes; or
(2)
County property or facilities designated as public space or public meeting space which are otherwise made available to the public; provided however:
(a)
All applicable reservation or rental policies of the county are observed; and
(b)
Any county property or facility designated as an early voting or election day polling place for a statewide or county election shall not be eligible for reservation or rental within 30 days of the date of the election, when the purpose is to discuss, inform, debate or confer, in any manner, about a candidate or ballot question, or engage in any activity which may influence an election outcome regarding any candidate or ballot question.
B.
A candidate, elected official, campaign committee or another person on behalf of a candidate, elected official, or campaign committee shall not solicit, accept or authorize the solicitation or acceptance of a campaign contribution in a facility or office ordinarily used to conduct county government business. This provision applies to telephone conversations, personal meetings, and solicitations by mail. If such a contribution is offered, it shall be refused or returned promptly. If an unsolicited contribution is received in the mail, or a lawfully solicited contribution is misdirected to an office ordinarily used to conduct county business, if otherwise lawful, it may be accepted, but it may not be processed in that office, and it shall be delivered promptly to an appropriate location.
C.
Campaign material, literature, placards, posters, or any other communications intended to influence an election shall not be distributed or posted in a county facility or office ordinarily used to conduct county government business or services.
D.
Nothing in this section shall preclude the placement or distribution of a nonpartisan voter guide intended as education, which contains candidate questionnaires or ballot question information that does not advocate for or against a candidate or ballot question.
An elected official or appointed official, or a former elected official or appointed official who terminated county service shall not use or disclose confidential information to obtain a benefit for any person. This section does not allow the disclosure of information made confidential by law.
A.
An elected official or appointed official shall not use, induce, cause, or encourage others to use the authority, title, official letterhead or prestige of the elected official's or appointed official's office or service for his or her own private gain or personal advantage.
B.
An elected official or appointed official shall not solicit or accept anything of value under terms and conditions where the compensation is not commensurate with the services performed or where a reasonable person would believe that the authority, title or prestige of office had been exploited. Nothing in this section prohibits the use of the official title of an elected official or appointed official as part of a political campaign or political endorsement.
A.
No elected official or appointed official shall compel, coerce or intimidate any other elected official, appointed official, or employee to make, or refrain from making, any political contribution. No elected official or appointed official shall solicit or obtain by coercion any political contribution from employees. Nothing in this subsection shall be interpreted to provide that an elected official, appointed official, or employee is precluded from voluntarily making a contribution or receiving a voluntary contribution.
B.
No employee with contract management authority, property management authority or land use authority shall serve as a paid political consultant, a campaign treasurer, or as a member of the political fundraising campaign committee of any candidate for federal, state, city or county office, or elected office.
C.
No elected officer of the county shall hold any other county office or be employed by the county during the term for which the member was elected.
D.
Nothing in this section shall be construed to prohibit the Governing Body from selecting any current or former County Commissioner to represent the county before any other governmental entity.
E.
Employees shall not perform any political activity when on duty. This does not include time used while on paid vacation in accordance with the Dona Ana County Human Resources Policies and Procedures Manual
F.
An elected official or appointed official shall not require an employee to perform political activity: 1) as part of the employee's duties; 2) as a condition of county employment; or 3) during any time off that is compensated by the county.
G.
An employee shall not be required to participate in any political activity.
H.
An employee shall not be awarded additional compensation or employment benefit in any form to engage in as a part of the employee's official county employment duties or activities that are undertaken by an employee on a voluntary basis as permitted by law.
I.
Nothing in this section prohibits an employee from engaging in political activity on behalf of the county, pursuant to § 14-13A, or engaging in voluntary political activities of the employee's choosing when not on duty.
J.
No elected official or appointed official shall engage in any conduct that would, to an objective third party, constitute an undue threat to an employee's continued employment.
K.
Employees that receive compensation or reimbursement from an elected official or political campaign on behalf of an elected official in excess of $250 shall be required to report such compensation or reimbursement to the County Manager, which shall include disclosure of the nature of the compensation or reimbursement on a form prescribed by the county.
L.
Any county employee who becomes a certified candidate for county elective office of Dona Ana County shall, upon the certification of a declaration of candidacy, take a leave of absence without pay, use accrued vacation time, or both, not later than 35 days prior to the date of the county election. If a leave of absence is requested, it shall be granted.
M.
No former County Commissioner shall be employed by the county until one year after the expiration of the term for which the member was elected.
A.
All elected or appointed officials shall be required to file a statement of economic interest with the County Clerk on a form provided by the county, as follows:
(1)
Elected officials shall file a statement of economic interest no later than the last Tuesday in January of each year;
(2)
Candidates for an elected Dona Ana County office who have not already filed a statement of economic interest in the same calendar year shall file such statement upon submission of a declaration of candidacy for the county election; and
(3)
Appointed officials shall file a statement of economic interest at the time of appointment. The statement must be renewed or re-filed no later than the last Tuesday in January of each year.
B.
Statements of economic interest shall include the following information:
(1)
A description of all parcels of real estate within the county in which the person owns any interest including an option to purchase;
(2)
All interests in any business organization, either as owner, part owner, partner, or shareholder, in which such individual owns more than 2% of the outstanding stock or more than 2% of the ownership interest of any other business that is doing business with the county in an amount in excess of $7,500 annually.
C.
Any person required to file a statement herein shall be required to file an amended statement whenever a change in that person's economic interests would require disclosure pursuant to this section. Such persons shall file the amended statement in the manner prescribed above within 30 days of the date of any change in circumstances requiring filing thereof.
D.
All persons required to file a statement hereunder shall comply with the provisions of this section as both a condition to serving in the capacity of an elected or appointed official and to remain eligible to serve in such capacity for the duration of the person's term of office or appointment.
A.
An elected official shall not, directly or by authorizing another to act on his or her behalf, state or imply that the elected official's willingness to meet with a person or organization is dependent on the person or organization making a campaign contribution, donating to a cause favored by the elected official or providing a thing of value to the elected official.
B.
An elected official shall not directly, or by authorizing another to act on the elected official's behalf:
(1)
Agree or threaten to take or withhold any county governmental action, as a result of a person's decision to provide or not provide a political contribution; or
(2)
State or imply that the elected official will perform or refrain from performing a lawful constituent service as a result of a person's decision to provide or not provide a political contribution; or
(3)
Agree to or participate in a scheme or plan intended to evade the requirements of any applicable state ethics statutes, this chapter, or another financial disclosure provision of state or county law; or
(4)
Knowingly accept a contribution given or offered in violation of any applicable state ethics statutes or this chapter.
A.
Any person may submit a complaint of unethical conduct by delivering a sworn complaint to the County Attorney's office. The sworn complaint must allege facts which, if true, would constitute a violation of this chapter. The County Attorney's office will forward all such sworn complaints to the County's Contract Investigator ("Investigator"). The Investigator will determine whether an investigation is warranted. The Investigator must collect all information and evidence pertinent to the complaint.
B.
If the sworn complaint contains sufficient facts and allegations against an elected official or appointed official to warrant an investigation, the Ethics Investigator shall investigate the complaints and make one of the following recommendations regarding the complaint:
C.
If the recommendation is "unsubstantiated claim" the Ethics Investigator shall provide the County Attorney and Chair of the Board of County Commissioners with a report containing the findings and details of the investigation, as well as copies of any evidence collected. An unsubstantiated claim shall not be forwarded to the Dona Ana County Code of Conduct Review Board ("Review Board") unless necessary for the determination of a frivolous claim.
D.
Upon the completion of an investigation, the Investigator may determine that a claim is substantiated. At such time, the Investigator will produce a report which contains his or her findings to the Review Board, along with a detailed explanation of the investigation and any evidence collected to either support or defend the claims. The Review Board shall conduct a hearing of all substantiated claims. The session shall be closed to protect the privacy of all persons involved. The Review Board shall decide, by majority vote, if a provision(s) under this chapter has been violated. Penalties shall be determined pursuant to Section 20 of this Code. The Ethics Investigator shall be present at the hearing in order to respond to questions from the Review Board regarding his or her findings. The complaining party and the respondent to the complaint shall be provided notice via certified mail, to any and all hearings. The respondent and/or their legal representative(s) shall be afforded the opportunity to respond to the complaint at the hearing. All evidence to support or defend the complaint, including documentation, names of witnesses, or other tangible evidence, must be provided to the Investigator prior to the Investigator's final determination. Any evidence not provided to the Investigator will not be considered at the hearing. Witnesses will only be allowed to testify if their names were given to the Investigator during the investigation proceedings. The opposing party will be given the opportunity to cross-examine any witnesses. The Review Board has the ability to limit the amount of witnesses for each party, as well as the time for any testimony or cross-examination.
E.
If the complaint does not contain sufficient facts and information to warrant an investigation, or if the facts and information provided do not show a violation of this chapter, the investigator may either contact the complaining party directly to request more information or return the complaint to the County Attorney's office with a written explanation as to why the complaint is being returned. The County Attorney's office will retain the claim and the claim will not be forwarded to the Review Board unless necessary for the determination of a frivolous claim.
A.
There shall be created a Dona Ana County Review Board that shall consist of no less than three members plus one alternate and no more than five members. It is desired that two Board members will be licensed attorneys. At a minimum one member of the Board shall be a licensed attorney. The members of the Board shall be appointed by the County Manager, subject to confirmation by the Governing Body. The members of the Board shall not be affiliated with county government in any capacity, including, but not limited to, employment (including employment for which the salary is in any way funded by or through the county), appointment, or election. The members of the Review Board may not hold elected public office or office with any political party within the county. Each member shall serve a term of three years, subject to reappointment thereafter. No more than two Board members will be replaced at the end of any term.
B.
The Review Board shall annually elect its own chair. If any member of the Review Board petitions the Board for a hearing and advice regarding his or her own conduct or the conduct of others, such member shall not be eligible to sit in such cases, and the alternate member shall be seated when the need arises.
C.
The jurisdiction of the Review Board is limited to acting within the scope of matters covered by this chapter, but may periodically review and recommend amendments to this chapter.
D.
The Review Board shall adopt rules of procedure for conducting hearings pursuant to this chapter. The rules of procedure shall be consistent with the rules for conducting administrative hearings in Dona Ana County and shall be reviewed by the County Attorney.
E.
The Review Board shall have the power to issue administrative subpoenas compelling attendance of witnesses at hearings and the production of documents, and the authority to seek enforcement of those subpoenas by the Third Judicial District Court.
F.
If the Review Board finds, by a preponderance of evidence and upon a majority vote, that an elected official or appointed official has violated this chapter, the Review Board may impose any of the following penalties after the written findings of fact and conclusions of law:
(1)
A civil fine not to exceed $300; or
(2)
A written finding of censure; or
(3)
A referral to the District Attorney or appropriate governmental office for commencement of criminal or other proceedings; or
(4)
A recommendation to the District Attorney that proceedings to remove the person from elected office be commenced pursuant to NMSA 1978 § 10-4-1 et seq. (as amended).
G.
No action may be taken by the Ethics Investigator or Review Board on any complaint that is filed later than one year after violation of this chapter is alleged to have occurred or that is filed more than six months from the date of the discovery of the alleged violation, upon due diligence by the complaining party, of facts constituting a violation, whichever event occurs later.
H.
No sworn complaints can be submitted, or will be accepted by the County Attorney's office, between the 56th day preceding the county's November general election and the date of the November general election.
I.
The Review Board may also provide advisory opinions regarding the applicability or interpretation of the provisions of this chapter upon the request of any elected official or appointed official and may confer or request legal interpretation from the County Attorney. The County Attorney may refer such requests to the Ethics Investigator.
J.
On an annual basis the Governing Body shall be provided with a report stating the number and type of complaints that were submitted alleging a violation of this chapter, as well as the number of hearings and their outcomes.
K.
A member of the Review Board may be removed for cause by the Governing Body at any time.
L.
A vacancy on the Review Board shall be filled in the same manner as the initial appointment and the appointment shall continue for the remainder of the unexpired term of the departing Board member.
M.
Members of the Review Board shall not receive any salary or compensation for services.
If an individual or entity files two or more unsubstantiated complaints directed at the same individual for the specific purpose of harassment or to otherwise cause the individual public shame or embarrassment, the Ethics Investigator or County Attorney will provide all information related to the claims to the Review Board. If the Review Board determines the claims may be frivolous, a closed session hearing will be conducted. Notice shall be provided to the complaining party no later than 14 calendar days prior to the scheduled hearing. The Review Board shall conduct the hearing in closed session in order to determine if the complaints are frivolous and if the complaints were intended to annoy, harass or otherwise cause the targeted individual public shame or embarrassment. If the Review Board determines by majority vote that the complaints are frivolous and intended to annoy, harass or otherwise cause the targeted individual shame or embarrassment, they may prescribe a penalty in accordance with Section 20, which may be appealed to the Third Judicial District Court.
Any decision of the Review Board finding a violation of this chapter may be appealed to the Third Judicial District Court pursuant to NMSA 1978 § 39-3-1.1 (1998, as amended).
The Governing Body does not tolerate retaliation, workforce discrimination or harassment of any kind against any person who has reported a violation of this chapter. This non-retaliation provision applies whether the complaint is ultimately determined to be unsubstantiated or substantiated. All elected official or appointed official are specifically prohibited from taking any adverse employment action, engaging in workplace discrimination or harassment of any kind, or other retaliatory action against anyone for reporting a claim of violation. Anyone who believes that they have been subject to workplace discrimination or harassment of any kind or that has been retaliated against in violation of this chapter should submit a complaint of unethical conduct to the Review Board by delivering to the County Attorney's office a sworn complaint.
A.
Ex parte communications prohibited.
(1)
An elected official or appointed official designated to hear an administrative adjudicatory matter pursuant to a County code or ordinance shall not initiate, permit or consider a communication directly or indirectly with a party or the party's representative outside of the hearing and outside of the presence of all other interested parties concerning the pending matter. A pending matter does not include an ordinance on first or second reading.
(2)
Notwithstanding the provisions of Subsection A(1) of this section, ex parte communications for procedural or administrative purposes, during emergencies, or that do not deal with the merits of the application, shall not be prohibited if the elected official or appointed official reasonably believes that no party will gain an advantage as a result of the ex parte communication and promptly notifies all other parties of the substance of the ex parte communication.
(3)
An elected official or appointed official who receives or who makes or knowingly causes to make a communication prohibited by this chapter shall disclose the communication to all parties and give other parties an opportunity to respond.
B.
Recusal.
(1)
An elected official or appointed official shall recuse himself or herself in any pending administrative adjudicatory matter in which the official is unable to make a fair and impartial decision or in which there is a reasonable doubt about whether the official can make a fair and impartial decision, including:
(a)
When the official has a personal bias or prejudice concerning a party or its representative or has prejudged a disputed evidentiary fact. For the purposes of this paragraph, "personal bias or prejudice" means the predisposition toward a person based on a previous or ongoing relationship, including a professional, personal, familial or other intimate relationship, that renders the official unable to exercise his or her functions impartially; or
(b)
When the official has a pecuniary or financial interest in the outcome of the proceeding; or
(c)
When, during the previous employment, the official served as an attorney, advisor, consultant or witness in the matter of controversy (previous employment is employment during the previous 12 months); or
(d)
When the official announced how he or she would rule on the adjudicatory proceeding or a factual issue in the adjudicatory proceeding.
(2)
An elected official or appointed official shall not be required to recuse herself or himself in any pending administrative adjudicatory matter merely because the official possesses and discusses general viewpoints on public policy that an application may raise. Similarly, an elected official shall not be required to recuse herself or himself in any pending administrative adjudicatory matter merely because the elected official made representations during a political campaign on viewpoints on public policy that an application may raise.
(3)
The elected official or appointed official recusing himself or herself shall disclose the specific reason for a recusal contemporaneous with the recusal.
(4)
If, prior to the hearing, an elected official or appointed official fails to recuse herself or himself when it appears that grounds exist, a party shall promptly notify the elected official or appointed official of the grounds for recusal. If the elected official or appointed official declines to recuse himself or herself upon request of a party, the official shall provide a full explanation in support of his refusal to recuse himself or herself.
(5)
If, during the hearing, an elected official or appointed official fails to recuse himself or herself when it appears that grounds exist, a party shall promptly notify the Chair of the grounds for recusal. If the elected official or appointed official declines to recuse herself or himself, the Chair may entertain a motion to excuse the official from further participation in the matter. If the motion is successful, the official shall be excused from further participation in the matter.
(6)
If a Review Board member is unavailable for any meeting or hearing, or if a Review Board member recuses himself or herself, the Alternate Review Board Member will take the place of that missing member. A meeting will not be held if at least three Review Board members are not available. If two or more Review Board members must recuse themselves with relation to a specific matter, the Review Board will notify the County Manager and County Attorney as soon as the issue is realized and additional alternates will be chosen by the County Manager, with approval from the Chair of the BOCC. The additional alternates will only serve for the matter(s) in which the Review Board members were recused.
The Governing Body shall not perform, collectively or individually, general executive management functions in the administration of county government; these functions shall be delegated to the County Manager including administration of the personnel system. This section shall not apply to matters of policy, the responsibility and authority of the Governing Body to approve budgets and expenditures, contracts outside the signature authority of the County Manager, and matters that, in the discretion of the Governing Body, while they may involve management issues, are of countywide importance.