State lawmakers who want to usher in a new era of ethical government are faced with a difficult task — they have to convince a majority of their colleagues to support legislation that could hold their own feet to the fire.

One potential sacrifice is transparency. The current proposals to create an independent state ethics commission would make virtually all of the meetings and documents of that commission confidential, according to an analysis by the New Mexico Foundation for Open Government.

NM-FOG Executive Director Sarah Welsh said there's a lot of fear in Santa Fe that having an independent ethics commission will open Pandora's box, unleashing a stream of false and politically motivated accusations, particularly at election time. Any bill that hopes to pass has to address that threat, she said.

"They do have to strike a balance between offering some confidentiality and protections for individuals, while also letting some sunshine in so the public can exercise its proper oversight role," Welsh said. "My concern is that these bills tip the scales entirely in favor of confidentiality. Remember that this is a taxpayer-funded agency, and there's a presumption that it should be as open as possible."

Under the current proposals, the only public documents issuing from the ethics commission would be advisory opinions, annual reports and those written reports concluding that an ethics violation did occur. Complaints and allegations that are dismissed or found to be unsubstantiated would be hidden from public view, along with any related commission documents.

"This makes it difficult for the public to gauge whether the Commission is executing its duties fairly," Welsh said. "And it runs contrary to the fundamental principle of our Open Meetings Act – that public bodies must take action in public."

Some bills take the commission's confidentiality one step further, imposing a gag order on anyone with access to commission documents. That includes the person who submits a complaint. In three of the six bills, disclosure would be punishable by up to $1,000 or one year in prison. In addition, courts could impose a civil penalty of up to $25,000.

"This provision violates the First Amendment rights of the complainant, and possibly any journalist who receives confidential documents," Welsh said. "In the end, the cure for false

or inflammatory speech is more speech, not censorship."

NM-FOG's analysis of the ethics-commission bills suggests several alternate models already in use by the state. For instance, many state processes offer temporary confidentiality until a final action is taken – such as disciplinary hearings for psychological and chiropractic licenses.

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