NM ethics board rejects Lujan Grisham’s attempt to dismiss complaint

On Thursday, the New Mexico State Ethics Commission’s hearing officer, retired Judge James S. Starzynski, denied Gov. Michelle Lujan Grisham’s campaign’s motion to dismiss an ethics complaint filed by Piñon Post editor and founder John Block regarding the Governor’s spending of thousands of campaign dollars to her daughter for hair and makeup. The campaign reported these expenses as “media preparation.”

The motion to dismiss by Lujan Grisham’s campaign, New Mexicans for Michelle (NMFM), claimed Block had no “actual knowledge” of the details of the complaint and that because the Ethics Commission signed a joint powers agreement with the Secretary of State (SoS), that it had no authority to rule. The Secretary of State’s office previously claimed the use of the funds was legitimate, despite state law and the SoS’s own guidelines saying exactly the opposite.

In response to the motion to dismiss, Block wrote, “The law clearly states, ‘The commission may share jurisdiction with other public agencies having authority to act on a complaint or any aspect of a complaint.’ … According to the Joint Powers Agreement signed by the Secretary of State’s office and the State Ethics Commission, the Ethics Commission does, in fact, have the authority to investigate this complaint and any such argument from the respondent’s council otherwise is an attempt to usurp… the Commission’s authoritative duties enacted by the Legislature.” 

Block added in his response letter that attempts at poking holes in what he believes to be a clear-cut case just “undermines New Mexicans for Michelle’s frail argument, which is bound together by obscure interpretations of state law and conjecture.”

In a prior jurisdiction determination following the motion and Block’s response, Ethics Commission Executive Director Jeremy Farris said the Lujan Grisham campaign’s “argument is unconvincing.  The Commission did not decline to exercise its jurisdiction over this matter.”

Now, Lujan Grisham is facing another blow from Starzynski, who wrote the following in his September 16 ruling:

NMFM correctly points out that the State Ethics Commission Act requires Block to have “actual knowledge of the alleged ethics violation”, that is, of the facts upon which he relies in his Complaint. See NMSA 10-16G-10(A).  It thus argues that  “Block did not have actual knowledge of the purposes of the expenditures he claims were impermissible,” and therefore lacked the actual knowledge required to submit a complaint to the Commission. See Motion at 7. Instead, NMFM argues that Block only “reviewed publicly filed campaign reports, found expenditures for hair and make-up, then used public records of the Governor’s calendars to conjure up events that he believed were related to the expenditures.” Id. 

To begin with, NMFM’s listing of the payment of $1,040.00 for “media preparation” can be construed as an admission of the activity in question.  Erin Grisham’s statement in her LinkedIn profile (as recited by Block in the Complaint 7) that she provides services as the “stylist and cosmetology consultant for Michelle Lujan Grisham for Governor”, see Complaint at 2, serves as another admission by one of the participants in the alleged campaign violation.  In consequence, reading those admissions provides [Block] the “actual knowledge” he needs to file the Complaint.  

Actual knowledge” is defined as “[d]irect and clear knowledge, as distinguished from constructive knowledge[.]” Black’s Law Dictionary (11th ed. 2019). Courts generally discuss the term in the context of determining whether a party’s knowledge of some fact or condition triggers (or defeats) a statute of limitations defense or some other legally-significant condition precedent. 2 “[Actual knowledge] does not mean first-hand knowledge, but only ‘knowledge’ as the word is used in common parlance[.]” Collins v. Big Four Paving, Inc., 1967-NMSC-019, ¶ 13, 77 N.M. 380, 423 P.2d 418. 

Even if the listing of the payment and the publication of the LinkedIn profile are not treated as admissions, Block has satisfied the State Ethics Commission Act’s “actual knowledge” requirement.  Block’s allegations are based on his review of NMFM expenditure reports and Erin Grisham’s LinkedIn profile. These allegations support a plausible inference that NMFM paid Erin Grisham for hair and make-up expenses. The State Ethics Commission Act does not require Block to have witnessed the make up being applied or the hair styled, and the receipt of a check, as a precondition to submitting a complaint. 

Starzynski added that “in order to fairly dispose of the Complaint, there must be a factual investigation by General Counsel. For that reason, the Motion to Dismiss filed by New Mexicans for Michelle should be denied, and the General Counsel should initiate the requisite investigation.” 

This is just the latest win regarding this complaint, which was originally filed in May, and it appears to be advancing to the final stages, where a concrete determination can be made on whether the Lujan Grisham campaign did, indeed, break state law.