In a letter dated July 9, Albuquerque City Clerk Ethan Watson notified Bernalillo County Sheriff Manuel Gonzales’ that the city was denying his campaign $661,00 in public financing citing misconduct in the qualifying process and forgery of signatures on $5 qualifying donations. City Clerk Watson wrote Gonzales he could not confirm that Gonzales had complied with the city’s Open and Ethical Election Code and associated regulations. Gonzales appealed the city clerk’s denial. An all-day hearing was held on July 15.
The Keller campaign submitted to the City Clerk alleged forgeries on documents submitted to the City Clerk. The Keller campaign also filed signed statements from people contacted by a private investigator hired by Keller campaign. Most of those contacted said the signatures on Gonzales’ nominating petition was theirs. Half confirmed they had contributed $5 to Gonzales’ public financing effort. Nearly all signatures on the $5 public finance receipts were not their legitimate signature.
What complicated things is that on June 18, City Clerk posted on the city web site it had reviewed and verified that Gonzales submitted more than the required 3,000 signatures and more than the 3,771 qualifying donations. At issue is whether the City Clerk had the authority to deny public financing after the City Clerk found and posted that enough $5 donations were submitted ostensibly without fraud nor forgeries.
Gonzales’ Attorney Carter Harrison during the appeal hearing confirmed that Gonzales campaign officials had submitted forged signatures on qualifying donation reciepts but argued that forgeries are standard in political campaigns and that the Gonzales was not responsible for them and that that Gonzales had enough support to qualify for public financing even when discounting the forgeries.
During the July 16 appeal hearing Sheriff Gonzales testified that he relied on campaign staff and played no role in ensuring the propriety of the manner in collecting the $5 qualifying donation documentations and testified:
“I have no supervision responsibility. … I’m the candidate. There’s volunteers and there’s paid staff and those people have their roles.”
Assistant City Attorney Matt Jackson, attorney for the city clerk’s office, had this to say:
“Most of those contributions of issue which he now admits to be fraudulent were collected by his campaign, not by some unknown, or unknowing volunteer, but by three of the individuals designated by the campaign.”
HEARING OFFICER UPHOLDS CITY CLERK DENIAL OF PUBLIC FINANCE
On Monday July 19, city hearing officer Ripley Harwood issued his written ruling on Manny Gonzales’ appeal of the City Clerks denial of $661,000 in public finance. Harwood found Manny Gonzales had failed to prove that Clerk Ethan Watson had acted inappropriately in denying him $661,000 in public financing. Harwood specifically found that it was Gonzales’ responsibility to keep fraud and forgery in the gathering of the qualifying donations.
In his ruling upholding the city clerk, Harwood wrote:
“I reject the argument that ‘this happens in every campaign.’ It should not happen in any campaign, and I reject the corollary notion that some level of fraud and falsification is tolerable or OK. … In my view, the Clerk has the right and the duty to deny participating candidate certification whenever fraud or falsification is discovered, without the need to first quantify it.”
“I endorse the view that it is the duty of candidates to manage and oversee their campaigns in a way that assures that fraud and falsifications do not occur. I would view this as a non-delegable duty even if (Gonzales) had not signed a document acknowledging responsibility for the acts of his key subordinates. … Failing to detect and eliminate a multitude of forged qualifying contribution forms bearing the signatures of his key subordinates constitutes failure to exercise ordinary care in the management of a campaign and meets the ‘knew or should have known’ standard of [ the “Open and Ethical Elections Code” regulations.]
Harwood found that a pivotal basis for the ruling was the “Salvation Army incident,” in which the sheriff reportedly told one donor that they did not have to pay the $5 contribution. Instead, he allegedly said he would pay for it.
“It is evidence of direct knowledge of fraud or falsification. … No persuasive evidence was adduced to suggest that the contributor attesting to his conversation with the sheriff had any motive to falsify what he claims was said.”
CITY CLERK’S RULES AND REGULATIONS ON PUBLIC FINANCE CERTIFICATION
At the very core of the hearing officer affirming the City Clerk’s denial of public finance to Manny Gonzales are the Rules and Regulations and that outline the certification process relating to the $5 qualifying donations for candidates. The regulation entitled “Certification of Participating Candidates for Public Financing” provides in part as follows:
“The City Clerk shall certify as a Participating Candidate, all Applicant Candidates who meet the requirements of the OEEC and submit an Application for Certification.
a. In addition to the criteria for certification listed … upon receipt of a final Qualifying Contribution report from an Applicant Candidate, the Clerk shall determine whether the Applicant Candidate has:
i. …
ii. been found to have made a materially false statement in a report or other document submitted to the City Clerk;
iii. …
iv. been found to have submitted any fraudulent Qualifying Contributions or any falsified acknowledgement forms for Qualifying Contributions or Seed Money Contributions, where the Applicant Candidate knew or should have known of the fraudulence or falsification.
b. If the Clerk makes any of the findings above, the Clerk shall not certify the Applicant Candidate as a Participating Candidate.”
Harwood’s written ruling highlighted the Gonzales campaign’s admission that it submitted forged signatures on receipts in the public financing qualifying process. He also rejected outright the Gonzalez campaign’s argument that such incidents are standard.
Gonzales’ Attorney Carter Harrison confirmed that the campaign submitted forged signatures but argued during at the hearing that forgeries are standard in campaigns, that Gonzales was not responsible for them. He also argued that Gonzales had enough support to qualify for public financing even when discounting the forgeries on the qualifying donations.
Gonzales has the right to appeal Harwood’s decision to State District Court. It is likely that the case will also be appealed all the way to the New Mexico Supreme Court.
Notwithstanding the adverse ruling, Manny Gonzales has qualified to be on the ballot and will be allowed to private finance his campaign.
Links to quoted news source material are here:
https://www.abqjournal.com/2411125/gonzales-public-financing-appeal-denied-by-hearing-officer.html
CAMPAIGN AND ELECTION AUDITOR
The city election code as contained in the City Charter and enacted by a public vote provides for the appointment by the Board of Ethics and Campaign Practices a “Campaign and Election Auditor”.
Article XIII, Section 9 (b) of the election code provides in part as follows:
There is hereby created the position of Campaign and Election Auditor. The Auditor shall be either a Certified Public Accountant or a Registered Public Accountant and shall:
1. Be retained by the Board as an independent contractor to serve from the established date of filing of the Declaration of Candidacy for each election until ninety days following the specified final date set forth for filing of the final statement on disclosure of campaign financing; provided, that the Board in its discretion may retain the services of the Auditor at other times including elections in which only measures are to be placed on the ballot.
2. Monitor all disclosure statements to examine the accuracy and compliance by the person filing such statements with the provisions of this Election Code and with any Rules and Regulations promulgated by the Board, and provide such other services as may be required by the Board.
3. At the direction of the Board, be available to assist candidates and Measure Finance Committees in connection with this Election Code and with any Rules and Regulations promulgated by the Board, and provide such other services as may be required by the Board.
Article XIII Section 10 provides for enforcement:
(c) Upon referral of any complaint by the [Ethics Board], the Campaign and Election Auditor shall investigate the charge or charges and report to the Board.
…
(e) Should the Board find, after due hearing, that a violation of this Election Code or the Rules and Regulations of the Board has occurred, it may, for each violation, issue a public reprimand or impose a fine not to exceed the maximum amount authorized by state law, or do both.
(f) …
(g) In addition to imposing such sanctions, or as an alternative thereto, and if the violator be a successful candidate in the election, the Board may recommend to the Council that the violator be removed from office.
(h) The Council may, upon the recommendation of the Board, and after due hearing of the charge, order the suspension or removal of an elected official; provided, however, that no official shall be removed or suspended except upon the concurrence of two-thirds of the Councillors qualified to vote thereon.
The link to the election code provisions is here:
https://www.cabq.gov/clerk/documents/ARTICLEXIII.pdf
PRIOR CITY TASK FORCE FAILED TO ADDRESS SUBSTANTIVE CHANGES TO PUBLC FINANCE LAWS
In 2019, the city council convened a task force to overhaul Albuquerque’s public fiancé laws. The task force failed to advocate meaningful changes to our public finance laws in order to make making it easier for candidates to qualify for public finance. Changes rejected included expanding the time period to collect the $5 candidate qualifying donations and the number required. Albuquerque City Councillor Diane Gibson served on the task force that was supposed to come up with major changes to our public finance ordinance. Gibson actually said “it’s supposed to be hard to qualify” and said it keeps out people “who are not serious candidates”, as if she should be the one deciding who are serious candidates seeing as many of her constitutes could not take her serious for 8 years as she droned on during city council meetings. The only change agreed to was increasing the amount of public financing money candidates are given and not the process of collecting the donations to qualify and not expanding the time to collect qualifying donations. Simply put, the lack of changes to the public finance laws favors incumbents.
COMMENTARY AND ANALYSIS
The current back-and-forth exchanges of fraud, forgeries, complaints and unethical conduct over public finance between the two candidates for Mayor has highlighted the biggest deficiencies in the city’s public finance system. The purpose and intent of the city’s public finance ordinance has been severely warped with the advent of measured finance committees. Candidates play the disingenuous game of seeking public finance while their supporters form committees to raise unlimited amounts of money to trash the opponent.
MISPLACED PROPOSAL
The proposal that the Albuquerque Inspector General should take over verification of public finance donations is misplaced at best or a reflection of ignorance of the City Charter election code. The city election code already has the above cited provisions for a campaign election auditor wherein the Board of Ethics can take action.
EVEN IF GONZALES PREVAILS IN COURT ON GETS PUBLIC FINANCING AND ELECTE MAYOR, BOARD OF ETHICS COULD RECOMMEND REMOVAL AS MAYOR
What complicates everything for Manny Gonzales is that two ethics complaints are still pending before the Board of Ethics and Campaign Practices. The complaints allege widespread fraud and forgery. Gonzales’ campaign is accused of forging the names of more than 140 registered voters to secure public financing or providing the $5.00 qualifying donations.
The first ethics complaint includes a written statement from a voter who said Gonzales told him he did not have to submit a $5 contribution and that his campaign would pay. Gonzales for his part adamantly denies the allegation.
The second ethics complaint alleges Gonzales’ campaign forged voter signatures on qualifying public finance receipts. The complaint cites disparities between signatures on $5 contribution receipts and the same voters’ signatures from other places, including on nominating petitions to get Gonzales’ name on the ballot.
The Keller campaign submitted to the City Clerk 149 examples of alleged forgeries on documents submitted to the City Clerk by the Gonzales campaign. The Keller campaign also filed signed statements from upwards of 40 people contacted by a private investigator hired by Keller campaign. Most of those contacted said the signatures on Gonzales’ nominating petition was theirs and half confirmed they had contributed $5 to Gonzales’ public financing effort. Nearly all said signatures on the $5 qualifying donations were forgeries.
The Gonzales campaign denied all wrongdoing and accused the city clerk of trying to “silence the political opposition.” The Gonzales campaign said that Gonzales submitted hundreds more $5 qualifying contributions than necessary to qualify for public financing, and the ethics complaints involve what it deemed a “small handful of alleged invalid” contributions.
In the event that Gonzales exhausts all of his appeals through the courts, and is awarded the $661,000 in public finance, the two pending ethics complaints must be resolved to his benefit. The Board of Ethics could still find that the Gonzales campaign violated the process by submitting fraudulent signatures and committed fraud in gathering the qualifying donations.
In event Gonzales wins the election and becomes Mayor, as provided by the election code, the Board may recommend to the Council that Gonzales be removed from office. The Council may, upon the recommendation of the Board, and after due hearing of the charge, order the suspension or his removal from office as mayor However, he would have to be suspended or removed by a two thirds vote of the city council.
The link to the election code is here:
https://www.cabq.gov/clerk/documents/ARTICLEXIII.pdf
PROPOSED CHANGES TO PUBLIC FINANCE AND BOARD OF ETHICS AND CAMPAIGN PRACTICES
The deficiencies in the city’s public financing have been repeatedly warned about by reformers over the last 10 years but have been ignored. The system has been set up for failure, that is why so few candidates for Mayor have failed to qualify. Some of the changes advocated by reformers for the last 10 years is reducing the number of qualifying donations to a more realistic number as well as increasing the time to collect the qualifying donations. Simply put, public finance laws should not be set up to make it too difficult to qualify for public financing and should have sufficient safeguards to police and prevent fraud.
Following are recommendations for changes to the City’s public finance and election laws that are in order:
1. Allow four (4) months and two (2) weeks, from January 1 to May 15, to collected both the qualifying donations and petition signatures, and private campaign donation collection.
2. Allow the collection of the qualifying donations from anyone who wants, and not just residents or registered voters of Albuquerque. Privately finance candidates now can collect donations from anyone they want and anywhere in the State and Country.
3. A public finance candidate who fails to secure the requisite nominating petition signatures, but secures the requisite $5 qualifying donations would be disqualified from the public financing.
4. Once the allowed number of qualifying donations is collected, the public financing would be made immediately available, but not allowed to be spent until starting May 15.
5. Permit campaign spending for both publicly financed and privately financed candidates only from May 15 to the October election day.
6. Return to candidates for their use in their campaign any qualifying donations the candidate has collected when the candidate fails to secure the required number of qualifying donations to get the public financing.
7. Mandate the City Clerk to issue debit card or credit card collection devices to collect the qualifying donations and to issue receipts and eliminate the mandatory use of “paper receipts”.
8. Increase from $1.00 to $2.50 per registered voter the amount of public financing, which will be approximately $900,000, and allow for incremental increases of 10% every election cycle keeping up with inflation.
9. Allow for additional matching public financing available for run offs at the rate of $1.25 per registered voter, or $450,000.
10. Albuquerque should make every effort to make municipal elections partisan elections to be held along with State and Federal elections by seeking a constitutional amendment from the legislature to be voted upon by the public.
11. Any money raised and spent by measured finance committees on behalf a candidate should be required to first be applied to reimburse the City for any taxpayer money advanced to a public finance candidate or deducted from a publicly financed candidates account and returned to the city.
12. City of Albuquerque campaign reporting and finance ordinances and regulations need to define with absolute clarity that strictly prohibit the coordination of expenditures and campaign activities with measured finance committees and individual candidate’s campaigns in municipal elections.
13. A mandatory schedule of fines and penalties for violations of the code of ethics and campaign practices act should be enacted by the City Council.
CONCLUSION
Every effort should be made to make Albuquerque’s public financing laws for municipal elections to legally provide for a “dollar for dollar” match to privately raised funds by candidates, thereby providing a real level playing field.
The influence of big money in elections allowed by the US Supreme Court decision in Citizens United is destroying our democracy. Many highly qualified candidates for office all too often do not bother to run because of the inability or difficulty raising the necessary money to run.
Political campaign fundraising and big money influence are warping our election process. Money spent becomes equated with the final vote. Money drives the message, affects voter turnout and ultimately the outcome of an election.
A link to a related blog article is here: