City of Santa Fe Ethics and Campaign Review Board met Dec. 20.

Here are the minutes provided by the board:

1. CALL TO ORDER

A meeting of the City of Santa Fe Ethics and Campaign Review Board was called to order on the above date by Justin Miller, Chair, at approximately 3:05 p.m. at a virtual meeting on Zoom.

2. ROLL CALL

Roll call indicated the presence of a quorum as follows:

Members Present:

Justin Miller, Chair

Judith Amer

Paul Biderman

Ruth Kovnat

Kristina Martinez

Members Absent:

Tara Lujan

One vacancy

Staff Present:

Kristine Mihelcic, City Clerk

Others Present:

Melissa Byers, Stenographer

3. APPROVAL OF AGENDA

MOTION: Member Kovnat moved to approve the agenda as presented. Member Biderman seconded the motion.

VOTE: The motion passed by roll call vote with Members Amer, Biderman, Kovnat and Martinez voting in favor and none voting against.

4. APPROVAL OF MINUTES: September 28, 2021

MOTION: Member Amer moved to approve the minutes of September 28, 2021, as presented. The motion was seconded by Member Kovnat.

VOTE: The motion passed by roll call vote with Members Amer, Biderman, Kovnat and Martinez voting in favor and none voting against.

5. DISCUSSION AND POSSIBLE ACTION

Chair Miller said they will handle Complaints #2021-5 and #6 sequentially. The previous complaints have required the recusal of Member Martinez.

Member Martinez said she would recuse herself from these cases for the same reasons she recused in the past. Her law firm is involved in the defense of Mayor Alan Webber.

Chair Miller noted Ms. Martinez could rejoin the Board after the three items. Member Martinez said she would be available.

a. Case #2021-4. Complaint Brought Forward by Maria Bautista – In Accordance with Section 6-16.4 SFCC 1987 “Determination of Legal Sufficiency; Setting a Hearing.” Consideration of Whether the Complaint Sets Forth Legally Sufficient Facts Which, if True Show Probable Cause to Believe There Was a Violation. (The Board May Go into Executive Session Under NMSA 1978, Section 10-15(H)(3) to Deliberate in Connection with an Administrative Adjudicatory Proceeding.)

1. Discussion of Actions.

Chair Miller described the Complaint brought by Maria Bautista. The named respondents are Alan Webber and Sasha Gwynne Anderson. The complaint is related to an interview with the Santa Fe Fuego and circumstances of the publication and distribution of that interview. The Complaint notes three sections of Code 9-2.3, (E) Definition of Campaign Materials, (I), Contributions and (M), Definition of Expenditures. The Complaint was submitted at the end of October and the Respondents have filed a Response. The Board has received materials regarding the complaint from both the Complainant and the Respondent.

He asked the representatives for the Respondents to identify themselves.

Kate Ferlic and Jeff Herrera were present to represent Mayor Webber and Ms. Anderson.

Chair Miller asked if anyone was present for the Complainant.

Clerk Mihelcic said there was an attendee, but they had not joined the meeting as a panelist and had not asked to join. Her invitations to join were not accepted.

Chair Miller outlined for the record the ECRB process and purpose. The first step is for the Board to determine if the Complaint is legally sufficient. If it is, the Board will proceed to a hearing. If not, the Complaint is dismissed, and the matter is resolved. This process is applied to all three Complaints.

Chair Miller opened the floor to Board discussion.

Members Biderman and Amer asked to hold comments until after both parties were heard.

Chair Miller noted someone had joined the meeting. He asked if that person represented Maria Bautista or wanted to speak. There was no response.

Chair Miller provided two numbers for anyone who wanted to join by phone.

Ms. Ferlic provided the response on behalf of the Respondent. She said this Complaint is the same as the earlier Case #2021-001 which was dismissed. The Complainant makes the same arguments. Particularly, that the Alan Webber Campaign had asked Ms. Encinias, the manager of the Santa Fe Fuegos, to appear in a video without informing her the video would be used for campaign purposes. The Complaint is based entirely on alleged discussion between the Complainant and Ms. Encinias.

She said ECRB rules generally require hearsay evidence be used to support or fill in the gaps of a Complaint. The affidavit of the Complainant has passive language and does not identify a specific person. Even if taken as true, it does not rise to the level of a violation. The law cited is purely definitional and does not prohibit or govern conduct of campaigns. She said the Respondent asks that the Board dismiss the Complaint.

Chair Miller recognized Nyria Quintana, Maria Bautista’s associate.

Maria Bautista said she apologized; they had received the wrong ID to check in. She was able to listen but not participate. She said she was now able to present if Chair Miller wanted.

Chair Miller asked if she had any questions about the process.

Ms. Bautista said the Board has copies of her Complaint. She spoke with Mrs. Encinias after this happened. The last page of her Complaint has the affidavit she filed supporting the Complaint. She had talked with Andrew Dunn, the owner of Santa Fe Fuego and Ms. Encinias. She was concerned that Ms. Encinias had been misdirected when she was interviewed. She thought based on what Ms. Encinias told her, it was important to bring that to the Board. There are a lot of campaigns coming up in Santa Fe with rules that all parties have to adhere to. She kept seeing banners flying across the interviews and thought it important she say something. These are City funded events that were taken advantage of for the Mayor’s campaign.

She offered to provide a copy of the video. She said the Mayor’s Campaign has been decided, but this could affect future campaigns. That is why it is important to bring this to the ECRB. The Board should send a letter and remind people there are rules. She said she didn’t list the ordinances but did cite those she thought were specific. As a citizen, she thought Ms. Encinias was taken advantage of and that was inappropriate.

A candidate has to be straight up with the community about what they are doing, and she has seen this repeated more than once.

Ms. Bautista said she had filed a complaint with the Secretary of State on June 18, 2021 because she didn’t know where to go. She received a response from the Secretary on July 2, 2021 and they informed her it is a municipal complaint. Then she went to the State’s Ethics Board who directed her to the City ECRB.

Ms. Bautista noted that the Respondent said she had “described them” but did not cite specifics. She said it is fair to say this did happen. The Board can determine the appropriate way to bring this to the attention of the Mayor Webber Campaign. She thought it a good idea to work through things and resolve issues for everyone.

Ms. Bautista offered her newspaper articles, and the interview video she had on a thumb drive. She noted that the video was released publicly on social media, even though Ms. Encinias asked that it not be. She said Ms. Encinias told her she was worried that the Mayor wouldn’t like the Fuegos and did not want the interview to be an endorsement, but that is what the interview looks like.

Chair Miller thanked Ms. Bautista. He asked if Board members had questions or comments.

Member Biderman referenced Ms. Bautista’s mention of the newspaper articles with interviews with Ms. Encinias. He asked what Ms. Encinias said in the articles that supported Ms. Bautista’s feeling Ms. Encinas was taken advantage of.

Ms. Bautista explained that she was told by Ms. Encinias that she was not aware the interview would be used as a campaign endorsement. She thought it was going to be used for public relations. It was used and released without Ms. Encinias’ knowledge, and she felt undermined. She was trying to do a good thing for her team.

Member Biderman said the closest thing he read to what Ms. Bautista stated was, “I wasn’t intending it as an endorsement but to get people excited to go to a baseball game. I never mentioned an endorsement. I never said vote for XYZ. It was more so, ‘we are opened up so let’s come out and see some baseball’.”

Ms. Bautista said that was how she ended it. The video had already been seen. What she thought would be PR was not given back to her to review before it was released. That is why Ms. Encinas felt it misrepresented her.

Ms. Bautista said she has submitted an affidavit based on her conversation with Ms. Encinias. Ms. Encinias felt bad and that she was put in a position she didn’t want to be in. She said Ms. Encinias told her, “This is the first year Alan Webber has supported the Fuegos, and we don’t want to blow it.”

Ms. Bautista said she also spoke to the Fuegos owner. And she wanted to bring this to the Board’s attention that you can’t just do these things. She said Ms. Encinias’s job as manager of the Fuegos is contingent on the direction she takes from Mr. Dunn. And she said she didn’t know; to her it was just game day.

Ms. Bautista said there have also been other incidences before the Board where city-sponsored events had overlays for the Campaign. She feels it is important to say this isn’t good. This [interview] should have been for PR with no political interjections. It was misleading and was something different.

Ms. Bautista said she has brought the Board this concern because it is important. She filed an affidavit because she talked with Ms. Encinas for a long while, and also with Mr. Dunn. She said Mr. Dunn was very uncomfortable it [the interview] was used politically instead of for a PR event.

Chair Miller asked who Ms. Encinias thought she was speaking to in the video and who she actually was speaking with.

Ms. Bautista said as far as she understood, Ms. Encinias spoke to representatives of Alan Webber’s Campaign, but she was not sure the actual person. She has listed Sasha Anderson, who was the spokesperson, but isn’t sure it was her or one of her employees working on the campaign.

Chair Miller asked if there were other questions or comments on the legal sufficiency of the Complaint.

Member Biderman said the Complaint has raised serious considerations. The Board has dealt with complaints from different parties since the elections. Those complaints did not state the section of law or rule violated, and that is clearly the case here. There are definitions cited but not violations. Without relying on the technical aspect, they should also look at the affidavit, which has a different tone and is hearsay. It has a different tone than the statements in the newspaper articles. There are two different sources that are not the same. The tone is different, things in the affidavit are not stated, or are inconsistent with statements in the article.

He said the Board cannot move ahead on a complaint like that. He was concerned that the same issues are coming up over and over and are being dismissed again. He wondered if the purpose was to use the ECRB as a sounding board for publicity, and that concerned him. That is not how the ECRB was set up and where they serve a useful purpose. They should move on from the election.

MOTION: Member Biderman moved to dismiss the Complaint for failing to state sufficient grounds for a claim. Member Amer seconded the motion.

Member Amer said the application is very different from the Complaint. Without the presence of Ms. Encinas to testify, it is hearsay and cannot be considered.

VOTE: The motion passed by roll call vote with Members Amer, Biderman and Kovnat voting in favor and none voting against.

Chair Miller informed Ms. Bautista that the Complaint does not state a claim for a violation of City ordinances and is dismissed. He thanked her for coming before the Board to describe her Complaint. He thanked Ms. Ferlic for representing the Respondent.

Chair Miller noted he mentioned Complaint #04, #05 and #06 would be handled sequentially, but Case #2021-006 is another Complaint by Ms. Bautista. He asked to hear that next.

Chair Miller asked if anyone was present for Case #2021-05. There was no response and no objection to proceed to Case #6.

Chair Miller brought forward Case #2021-006 and described the Complaint.

c. Case #2021-6. Complaint Brought Forward by Maria Bautista – In Accordance with Section 6-16.4 SFCC 1987 “Determination of Legal Sufficiency; Setting a Hearing.” Consideration of Whether the Complaint Sets Forth Legally Sufficient Facts Which, if True Show Probable Cause to Believe There Was a Violation. (The Board May Go Into Executive Session Under NMSA 1978, Section 10-15(H)(3) to Deliberate in Connection with an Administrative Adjudicatory Proceeding.)

1. Discussion of Actions.

Ms. Bautista referred to the locations [Exhibits A-E] given to the Board. She said those hired to run the Alan Webber Campaign should have informed those placing the campaign signs that they [signs] were not allowed to be placed on public property. The exhibits show they were. She said her understanding is that the Mayor had denied the allegation and wanted this dismissed. That concerned her. If the Mayor denies it, they should launch an investigation to see who placed the signs. The signs were all over Santa Fe and at every public park and public facility. The law is clear that public facilities cannot be used to support a campaign. She said citizens need to be fully informed about what happened and how the signs were placed on city property, and there is a witness. The Complaint form lists where you can get additional photographs and information. She said messing with signs is a federal offense. And if the Mayor is denying responsibility that is grounds for an investigation and goes to another level because it is federal. There should be some accountability for how so many signs were distributed.

She said this is a learning lesson. She had to go through a lot of information and research and City ordinances. That is, to lay people like her, another language. She did her best to bring this to the Board’s attention. This happens regularly and will continue to happen and is the same campaign team. The Board has already seen and heard complaints. The Board is not a sounding board, but the Board is set up for when there is a violation. She said she is not interested in calling the newspaper, she is interested in the justice end of it. She said she wants the Board to take the issue and deal with it. If any other campaign put signs in their [Board member’s] front yards, the Board would know that is not ethical. A regular person doesn’t know that. So, the Board is charged with an important legal responsibility to keep people within those parameters. They need to acknowledge this happened, and say they need to ensure everyone is following the same rule.

Ms. Bautista said this was improper campaigning, and it was unfair. Other candidates didn’t have the same opportunity to put their signs on public property. She referenced specifically the number of signs on Siler. She said it is within the Board’s realm to review these things and recognize their obligation. They are representing us.

She offered to answer any questions and said Facebook had additional photos. We need to investigate. And we need to find out who is really doing this because there is a lot of activity on our streets. Let’s get an investigation going and put a stop to this.

Ms. Bautista said that doesn’t obligate the Board to take a side; just to find out what is going on and make it a better and safer campaign.

Chair Miller offered the Respondent a chance to comment.

Ms. Ferlic said Ms. Bautista presented a number of photographs. She asked to amend the Response by asking for dismissal. There are photographs, but nothing indicating that the signs are on public property. In essence the Complainant failed to present evidence that the signs are on public property. If as stated in the Response, the signs are on public property, it is not the work of the Campaign. The Campaign took many strides to ensure compliance with the Campaign Code, including calling the Clerk’s Office to report that campaign signs were missing.

She said Member Biderman is correct that the Complaints continue. She thought these were filed for the purpose of harassment. She said in their Response they stated that a member of the campaign will check to ensure no signs are on public property.

Ms. Ferlic said Ms. Bautista alleges two violations. First a violation of the Campaign Code and she presented photos but no evidence. Secondly the Ethics Code. The Ethics Code is designed to prevent the abuse of power by someone in office. There is absolutely no evidence that Mayor Webber used his position with the campaign to have them place signs on a property, whether public or not. She said their Response was very thorough and she would be brief and stand for questions.

Chair Miller asked if there were questions from the Board.

Member Amer said she had several questions but wasn’t sure who could answer them. She looked at the photographs and couldn’t tell if it was public property. She wondered if the Complainant thought the City has a right-of-way up to the road. She said she wasn’t sure how the Complainant knows or thinks the photographs are public property. She said she is interested in Section 9-2.15 (E) that states, “The city manager shall request candidate liaisons to remove unlawful signs within 24 hours and upon failure to do so shall be fined $50 per sign per day.” She asked if any of that happened in any of these cases; if the manager requested the removal of signs and the liaison failed to do so. She asked if fines have been imposed and if so, how much; and if no, why not. She wasn’t sure who could answer those questions.

Chair Miller asked City Clerk Mihelcic if any actions were taken regarding the signs with respect to section 9-2.15.

Clerk Mihelcic said there were not. Part of their notification was that those signs were up when they were in contact with the campaigns. They sent out staff from Constituent Services to verify that the signs had been pulled. She noted specifically the Siler roundabout was mentioned. Her office received confirmation calls from the campaign team that they found no signs. She sent out the Land Use Code Enforcement team and they were unable to find any signs. There were no signs found, and no fines were issued.

Chair Miller said he was glad Ms. Amer raised that section of Code. Signs are ubiquitous during a campaign and there is a real interest in ensuring they are not violating the Code. There is a robust and fast process to deal with improperly placed signs. He thought that a better way to resolve the sign concerns as opposed to an ethics complaint with no support of the allegation.

Member Biderman said he also was going to raise that provision. The Ordinance has provided the mechanism and is explicit who should handle the issue. He thought it preempts the Board’s authority in which case, they would not have jurisdiction.

Member Kovnat said the Board could look at that. In context for the future the Board could determine the instructions for sign placement and if there is adequate guidance on placement and directions to those who place them.

Clerk Mihelcic said she could address that section relating to political temporary signs in the handbooks. They are given to all political candidates and then reviewed with their campaign teams. Land Use also attends those meetings and provides instruction on the spot.

Member Biderman asked if in fact, the Mayor’s campaign had placed signs on public property and advised to remove them, would the Mayor have been fined.

Clerk Mihelcic said she is not authorized to speak on behalf of the City Manager, but it would have been brought to her attention. She would have made a recommendation.

Member Biderman said it might be an unfair burden for the City Manager, who answers to the Mayor, to expect that. That could be an issue for Board to review to ensure the section is enforceable by anyone given that authority.

Clerk Mihelcic said the Land Use Department will verify if they receive calls on signs and they notify the liaison. When they see signs placed like in a park, they just pick it up and bring it back. She has an array of campaign signs from all of the candidates in her office that people have picked up. She said she welcomes suggestions related to that section of code.

Motion: Member Biderman moved to dismiss the Complaint subject to the stipulation offered by the Mayor’s Campaign counsel. Member Amer seconded the motion.

Member Biderman suggested the ECRB evaluate section 9 for its effectiveness.

Member Biderman thanked Ms. Bautista for bringing the issue to the Board’s attention. He said there are issues on procedure that would be helpful for the Board to discuss.

VOTE: The motion passed by roll call vote with Members Amer, Biderman and Kovnat voting in favor and none voting against.

b. Case #2021-5. Complaint Brought Forward by Save Santa Fe Culture – In Accordance with Section 6-16.4 SFCC 1987 “Determination of Legal Sufficiency; Setting a Hearing.” Consideration of Whether the Complaint Sets Forth Legally Sufficient Facts Which, if True Show Probable Cause to Believe There Was a Violation. (The Board May Go Into Executive Session Under NMSA 1978, Section 10-15(H)(3) to Deliberate in Connection with an Administrative Adjudicatory Proceeding.)

Chair Miller said he did not see anyone present to represent the Complainant, Save Santa Fe Culture PAC. The Respondent is Sasha Anderson. He summarized the Complaint alleging conflicts of interest and failure of the Respondent to file a disclosure statement with the City.

Ms. Ferlic said the Save Santa Fe Culture PAC alleges that Ms. Anderson failed to make disclosure to members of municipal commissions under the Ethics Code and is impermissibly conflicted between being a member of the Santa Fe Women’s Commission, on the school board and working as a consultant for Mayor Webber’s campaign as well as for the District Attorney’s Office. The facts are wrong and states Ms. Anderson is the campaign manager. There is no timeline. The document targets Ms. Anderson because of her association with Mayor Webber. Which seems to be a theme.

She said the Response details the actual timeline. She would argue that Ms. Anderson is a public servant by her nature. She serves on the school board and the Women’s Commission and has dedicated her life to service. Nothing in the code indicates there is a conflict of interest between her serving and the various roles. On the form, an affidavit from Ms. Anderson states affirmatively the form was filed November 2020. The form is required to be filed by mail, but no one was in the office in November 2020. Simply because an IPRA request does not produce a response, does not mean Ms. Anderson did not file.

Ms. Ferlic said the Complaint is intended to harass Ms. Anderson. The Response has a lot of evidence of that. They need to end these complaints against people who are simply associated withMayor Webber. She said a very detailed Response was submitted. She offered to answer any questions.

Member Biderman asked if the ECRB is advisory or as authority to make a recommendation.

Ms. Ferlic said it is advisory in nature. The position largely mimics what the State Commission on the Status of Women does. On occasion they look at inequities in government and determine whether women are treated equitably. In that exploration, they advise the City Council and the Mayor. The Commission is made up of unpaid individuals who meet and discuss gender justice issues.

Member Biderman asked if Ms. Ferlic interpreted this as something being wrong with a political figure that appoints political figures to commissions, because they work together.

Ms. Ferlic said it seems to be but is somewhat muddled. Their Response sets a timeline that Ms. Anderson was not working for the campaign when she was appointed. She served and resigned, before she went to work for the campaign. However, under the Ethics Code, there is no issue to work for the City and serving on this Commission.

Member Biderman said certainly there would be no State or City commissions without political appointees, or ambassadors either. He asked if she had provided the disclosure statement.

Ms. Ferlic replied it is not in the record. It was mailed to the City Clerk’s office per the instructions on the form and Ms. Anderson did not retain a copy.

Member Amer thought that from what was stated Ms. Anderson had filed a disclosure about being on the Women’s Commission. She asked if she also filed disclosures on running for the school board and her district attorney activities.

Clerk Mihelcic responded. She asked the timeline because appointments for the Women’s Commission were in 2020, prior to the political campaign season. That was also prior to her becoming City Clerk. The Clerk’s office does not have a copy of the form and has contacted the member for an update.

Member Amer asked if they have other disclosure forms.

Clerk Mihelcic said they do not. They keep disclosures on file for City committees, not elected officials or outside the City.

Member Amer asked to confirm that the City had no disclosure forms.

Clerk Mihelcic said they do not. November 2020 was prior to her employment and during Covid. Now forms are done electronically and renewed in July each year.

Chair Miller said he has observed since being on the Board that members are required to regularly file disclosure forms. He recalls the City is sometimes timely and sometimes not in getting them the forms. He said he would hate to fine a public official who volunteered to serve on a board or commission, when it was possible that the form was sent to the City and was not processed or was misplaced. There is a timeline to file the forms and the City doesn’t always contact public officials in time to comply. The issue may have been with the City.

Member Biderman said looking at section 1-7.6, he wasn’t sure that everyone has to do that. He read from 7.6 B, Elected officials and department heads shall disclose in writing as listed below. He said public official is defined as, city manager, city attorney, city clerk and a member of a governmental body, including the Governing Body. He continued reading, a governmental body is any board, commission or committee appointed by the Governing Body with their advice or consent. He asked if the Women’s Commission was appointed with the advice and consent of the Governing Body. He couldn’t recall confirmation by the Governing Body after being appointed by the mayor.

Member Kovnat agreed. She said she did remember filing a disclosure.

Member Biderman said he did not think that was required. He asked if the membership of the Women’s Commission requires Council approval.

Chair Miller said the ECRB is appointed with the advice and consent of the Governing Body. He said he would like the City to fix it if they were missing disclosure forms and there are gaps. It is not an ethical issue or a reason to fine a volunteer whether she submitted the form or not.

Member Amer said a bigger issue is if there is a conflict of interest to volunteer for a campaign if you work for the school board, or public official, or the district attorney. She thought there is no conflict of interest per se, but there could be specific instances where Ms. Anderson may need to recuse. A person that does a variety of jobs or public service isn’t point-blank, a conflict of interest.

Member Kovnat agreed.

Member Biderman said he recalls that a state employee cannot run for a partisan office but could run for a non-partisan office.

MOTION: Member Kovnat moved to dismiss the Complaint. Member Amer seconded the motion.

VOTE: The motion passed by roll call vote with Members Amer, Biderman and Kovnat voting in favor and none voting against.

Chair Miller informed Ms. Martinez that she could return to the meeting.

6. PUBLIC COMMENT

There were no public comments.

7. MATTERS FROM STAFF

Clerk Mihelcic said she is reviewing the disclosure form process. She is working on an audit and a process to ensure receipt of the forms on a regular basis.

Chair Miller said his main point is that the City has an obligation to track that.

Member Biderman disclosed for the record that he had been put on the City’s payroll opposed to a contract since the last meeting, as the alternate municipal judge. He said he confirmed with the City Attorney that serving on the ECRB would not be a conflict.

8. MATTERS FROM THE BOARD

There were no matters from the Board.

9. MATTERS FROM THE CHAIR

There were no matters from the Chair.

10. NEXT MEETING: No meetings are scheduled.

Chair Miller said a number of issues were raised that would be prudent for the Board to address for the next meeting. He asked members to keep in mind shortcomings or areas where clarity is needed in the Ordinance.

Member Amer suggested the Board identify issues that have previously surfaced. Chair Miller agreed.

11. ADJOURNMENT

MOTION: Member Biderman moved to adjourn the meeting at 4:33 p.m. Member Kovnat seconded the motion.

VOTE: The motion passed by roll call vote with Member Amer, Biderman and Kovnat voting in favor and none voting against.

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