A statute with limitations

No sanctions likely if candidates broke law

By Eric Maddy
The SCORE

Three candidates for city office may have technically violated city and state election procedures by failing to appear or be represented at City Hall on Thursday, which they affirmed they would do in paperwork required to become a candidate in the March 4 Rio Rancho municipal election.

But under law and custom, there appears to be no precedent or penalty for such a violation.

As part of the form distributed by the city clerk’s office, as required by state statute, candidates were required to sign a Declaration of Candidacy that requires them to “affirm that I, or my representative, shall personally appear at the office of the City Clerk during normal business hours on January 10, 2008 to ascertain whether the City Clerk has certified my Declaration of Candidacy as valid.”

The document also requires the candidate to affirm their name, address, phone number and position they are seeking. It also requires candidates to “affirm that this Declaration of Candidacy is an affidavit under oath and that any false statement knowingly made herein constitutes a fourth-degree felony under the laws of New Mexico.” The document is then signed by the candidate, a notary republic and the city clerk.

District 4 City Councilor Howard Balmer, District 6 candidate Todd Hathorne and mayoral candidate Michael Reed Ellis signed the document on filing day on Tuesday, but did not appear in person or have their designed represented appear in their behalf.

New Mexico Statute 3-8-27 is titled “Regular municipal election; declaration of candidacy; withdrawing name from ballot; penalty for false statement.”  Subsection D specifically outlines what information must be contained within the Declaration of Candidacy.

But nowhere in the statute is stated a penalty if the candidate fails to appear. The law also doesn’t compel the clerk’s office to report to any legal entity that a candidate did not appear.

Both Balmer, who is running in his fourth municipal election, and Hathorne, in his second, said they have never appeared two days after filing in their previous election experiences. Ellis, a first-time candidate, could not be reached for comment.

No one interviewed for this story, including City Clerk Roman Montoya, Mayor Mike Williams, Assistant City Attorney Margo Steadman or Department of Public Safety Greg Connors  – and other candidates – said they had ever heard of a penalty being levied for failing to appear.

State law specifically requires:

•Candidates file 56 days before the election.
 
•The clerk certify the Declaration of Candidacy 55 days before the election.

•The clerk post a list of approved candidates and, if necessary, a list of candidates who are turned down and the reasons why. The list(s) are required to be posted 54 days prior to the election and by 9 a.m. of that day. Candidates/designees are then required to verify their status after the 9 a.m. posting during the hours of normal business, usually 5 p.m.

A reporter for The SCORE personally sat in the clerk’s office all day Tuesday and heard Martinez tell candidates they (or their representative) must appear personally on Thursday. One exception is when Balmer received instructions, as the reporter was outside in the hallway interviewing another candidate.

Martinez agreed there is no penalty for failing to appear and said anyone who wanted to follow up on any perceived violation should consult the city attorney’s office or hire a private attorney to seek a remedy in district court. Steadman said she was not familiar with the specifics of the statute but she did not believe any violation would come under the jurisdiction of the city attorney’s office.

Without seeing the language in front of her, Steadman said she did not want to offer a specific interpretation on the issue. Given that precondition, she did say the rationale for the law was likely to give candidates the chance to verify their candidacy or find out from the clerk why they had been rejected. In either case, only the candidate could be placed in jeopardy by failing to follow through – a “no harm, no foul” situation.

Connors, who is in charge of code enforcement for DPS, said the situation is not one his office would handle. He noted “there are probably a hundred laws” that place requirements but have no penalties. One in particular that his department has to deal with is the state’s night lighting ordinance, which provides no recourse for someone who believes the law has been violated.

The key word in this case seems to be “knowingly,” as trying to prove a candidate’s  intent would likely be difficult. The basic penalty for a fourth degree felony, as prescribed by Chapter 31-18-15, Subsection A (10) of state law, is 18 months imprisonment.