By Etta Pettijohn

Rep. Rebecca Dow's (R-38) attorney is seeking the dismissal of a complaint her opponent filed with the state's new Ethics Commission claiming the Representative violated state conflict-of-interest and financial disclosure laws when securing state grants for AppleTree Educational Center – and asking it to investigate allegedly false statements made under oath by Karen Whitlock in the complaint, and to probe her expenditures and contributions.

Attorney Pat Rogers filed the motion to dismiss Sept. 29, and the Commission can now dismiss the complaint, and/or compel Whitlock to respond. It cannot comment publicly during the blackout period.

The complaint was filed during a 60-days (before the election) blackout period established in the law creating the entity in 2019, where the Commission is required to keep cases confidential, unless it finds evidence of wrongdoing. The law does allow the accuser to publicly disclose a case, and the Whitlock campaign contacted most of the media in the state as soon as the complaint was filed.

AppleTree is a non-profit, governed by a board of directors, and financial records show Dow has no ownership or interest in the center, although she did serve as CEO until she resigned in early 2019. She has since served as an unpaid grant writer for the Center. Since no persons have ownership or interest in AppleTree, the IRS directs the assets to be transferred to another non-profit should it ever dissolve.

"This is a huge because of concerns about the ethics commission," said Rogers. "It is exactly what the critics (of the Commission) said would happen.

"While we are anxious to have this dismissed as quickly as possible, we are also anxious to have questions answered about Whitlock's own failure to list expenses and donations. In many ways the important issue is what is the Commission going to do, and will it address the integrity of the process.
"Rather than proceed confidentially as provided in the rules for serious complaints, the complainant files a late complaint filled with irrelevant and scurrilous claims. And then she promotes the false statements in the media as if they are already determined and true," reads the motion. "The immediate damage is to the Dow campaign. The long-term damage – if the complaint is not rejected – goes straight to the integrity of the commission. Absent a prompt dismissal and proceedings to address the false statements of Karen Whitlock, the Ethics Commission will be deluged with complaints that are instantly made public by the complainant looking to use the process and the commission for a cheap unpaid media shot against an opponent."

The motion contends:
The complaint is frivolous and lacks a good faith basis. Both § 10-16G-15A NMSA and NMAC 1.8.3.9 A (6) prohibit the commission from accepting or considering any complaint after two years from the date of the alleged conduct, or when that conduct could have been discovered. Applicability-Laws 2019 ch.86 § 40 provided that the provisions of the State Ethics Commission Act apply only to conduct occurring on or after July 1, 2019. See also NMAC 1.8.3.9 C. The dates for actions presented in the complaint include 2009 to the present.

"Surely Karen Whitlock understands the difference between actions prior to July 2019 and actions after July 1, 2019," it reads. Rebecca Dow is not AppleTree, owns no financial interest.

"The complainant is an educated woman who works at a nonprofit (WNMU), and she serves on the board of a non-profit (Community Partnership for Children). Nonetheless, the complaint asserts that Rebecca Dow is 'the owner of AppleTree Educational Center.'"

"Surely Karen Whitlock understands the difference between a non-profit contractor and an individual largely donating her time to the laudable charitable good works of the non-profit, AppleTree Educational Center."

Disclosures/procurement code violations claims are bogus.
"Next, the complaint insists that these 2017 and 2018 contracts fail to address or satisfy the "disclosure requirements," the motion reads.

"Rebecca Dow's disclosures and concerns about accurate and honest representations are demonstrated by her repeated consultation with, and advice received from, both the Legislative Council Service and Department Secretaries.

"Raul Burciaga was consulted and confirmed that the 2019 Public Education Department contracts signed by Rebecca were not wanting for any failure to disclose."

Reasons for delaying ethics complaint is false
"Ms. Whitlock delayed filing her complaint with the Ethics Commission and then made the decision to publicize the filing of the complaint . . . in order to game the system and the commission, expecting that the complaint will not be denied or rejected until after the election," reads the motion. "On her Facebook page, Whitlock claimed the late filing was because she had just received the supposedly relevant documents and that she had not delayed in filing her complaint. But on September 20, 2020, a reporter for the (Sierra County Sentinel) and Grant County Beat, Etta Pettijohn, exposed that falsehood. Ex. 6:
'I filed after getting all the relevant documents. In no way did the blackout period play into the timing of this, just the timing that documentation was received," Whitlock stated. "I would have very much liked to have had the documents earlier so that the complaint could have been filed earlier.'

"The public records from the Public Education Department and the Children, Youth and Families Department, the state agencies that provided the documents, established the records were actually produced in July, not to Karen Whitlock but to a researcher named Matt Bricken from Grindstone Research, LLP.2

Ms. Pettijohn reported: 'This Grant County Beat reporter sent several IPRA requests to both the Public Education Department (PED) and the Children, Youth and Families Division (CYFD) this week, the two agencies whose contracts the Whitlock campaign provided as their evidence of their accusations. The CYFD records custodian, Kathleen Hardy, replied, "In reviewing my requests for the past calendar year, I do not find any requests from either Karen Whitlock or Rick Lass (Whitlock's campaign manager).

The only public records requests specific to Appletree came in from Matt Bricken." Matt Bricken is a partner in Grindstone Research LLP, an opposition research firm.'

In response to a question from the same reporter, Karen Whitlock's campaign manager, Rick Lass, said:
'When the Grant County Beat asked Lass who filed the IPRAs with the CYFD, PED and ECECD he responded, "Apparently CYFD forwarded the IPRA requests to the General Services Division (GSD), then GSD replied to us." He later said, "We wanted to have a professional researcher, Bricken, make these IPRA requests rather than Karen or I. 'We wanted to have a professional researcher, Bricken, make these IPRA requests rather than Karen or I.'"

The motion further reads, "So Rick Lass admits that sometime in June, the Karen Whitlock campaign decided to "have a professional researcher, Bricken, make these IPRA requests. Ms. Pettijohn reported:
'Hardy also verified, via email, that Grindstone had the majority of his IPRAs answered as early as June and July. When asked the date the CYFD provided the requested documents to Bricken, Hardy replied, "For Mr. Bricken's first request (June 29, 2020), CYFD responded June 30, 2020. For Mr. Bricken's second request (July 23, 2020), CYFD referred him to the Early Childhood Education and Care Department (ECECD), as the care and custody of the requested records had transferred to ECECD effective July 1, 2020.'"

"In addition to the false statements to justify the partisan misuse and abuse of the Ethics Commission, an additional important matter are the violations of the law and the rules and Whitlock's failure to disclose contributions to her campaign," the motion states. "The Campaign Reporting Act requires that candidates report their contributions and expenditures, including, "The name and address of the person or entity to whom an expenditure was made or from whom a contribution was received..." as well as "the amount of the expenditure or contribution or the value thereof" and "the purpose of the expenditure" and "the date that the expenditure was made or the contribution was received."

In the motion Rogers states, "It is also illegal to conceal the true source of contributions made to candidates or expenditures made to elect them. Campaign Reporting Act at Section 1-19-34.3 NMSA 1978 provides:
A. It is unlawful for a person to make a contribution in the name of another person, and no person shall knowingly accept a contribution made by one person in the name of another person.

Section 1-19-34.7(D) also provides:
D. All contributions made by a person to a candidate, either directly or indirectly, including contributions that are in any way earmarked or otherwise directed through another person to a candidate, shall be treated as contributions from the person to the candidate.

"In June, she (Whitlock) engaged the services of a professional researcher, Matt Bricken and his company Grindstone Research, LLP, prior to the initial Inspection of Public Records (IPRA) requests. To date, no expenditures (including contract obligations) related to Mr. Bricken or Grindstone Research, LLP have been reported.

"Ms. Whitlock's false statements to explain the late filing of the complaint exposed other (actual) violations of the law. Although an "in-kind" contribution from the "Egolf Speaker Fund" of $3,527.52 on June 29 is reported by Whitlock, the Brian Egolf Speaker Fund did not report any "in-kind" or other contribution to the Whitlock campaign. The Speaker Fund did not report any payments to Mr. Bricken or Grindstone Research, LLP.

"The only political committee which has reported any payments to Mr. Bricken or Grindstone Research, LLP is the New Mexico Senate Democrats, which reported a payment of $12,000 to Grindstone Research, LLP on September 1, at least 60 days after the date Mr. Lass and Ms. Whitlock would have procured a professional researcher to submit the late June records requests. The New Mexico Senate Democrats failed to identify any donations to Whitlock," it reads.

"Ms. Whitlock has never listed her contract obligation or any expenditure to Bricken and has not listed any contributions, whether in-kind or not, from the New Mexico Senate Democrats or any other source for Mr. Bricken's 'expert' research she commissioned in June and received many months ago.

"Karen Whitlock has signed a sworn statement that is false. She cannot believe that AppleTree is owned by Representative Dow (or anyone) and she should be held to account. She cannot create a violation by substituting Rep. Dow's name for AppleTree on the AppleTree contracts in which AppleTree is identified as the CONTRACTOR. She cannot believe the commission has jurisdiction over matters prior to July 1, 2019.

"The commission has the authority to initiate its own complaint. NMAC 1.8.3.9. False statements, inane complaints, and the misuse of the Ethics Commission for cheap partisan purposes as well as Ms. Whitlock's failure to disclose expenditures or contributions should be addressed by the commission. The commission should also address the failure of the Egolf Speaker Fund and the "New Mexico Senate Democrats" to disclose contributions to the Whitlock campaign."

The motion further asks the Commission staff to subpoena all relevant documents and investigate Whitlock's "violations and false statements."