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    New Mexico Political Report
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    The Attorney General's office responded to an attorney's attempt to kick them off the case.

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    AG's office responds to motion for removal from Duran case

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    The Attorney General's office responded to an attorney's attempt to kick them off the case.

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    751 views36 pages

    AG's Office Responds To Motion For Removal From Duran Case

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    New Mexico Political Report
    The Attorney General's office responded to an attorney's attempt to kick them off the case.

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    © All Rights Reserved
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    ENDORSED STATE OF NEW MEXICO First Judicial District Court COUNTY OF SANTA FE if FIRST JUDICIAL DISTRICT COURT oct -2 206 ante Fe, o.Aiba & Ean canes STATE OF NEW MEXICO, ‘Santa Fe, Ni 673042268 Plaintiff, v. D-101-CR-2015-00478 ‘AGO 201407-00083 DIANNA J. DURAN, Defendant. sTATE'S RESPONSE TO DEFENDANTS MOTION TO DISQUALIFY THE NEW ‘MEXICO ATTORNEY GENERAL'S OFFICE FROM PROSECUTION OF THE ABOVE ‘CAF TIONED CASE AND TO DISMISS THE INFORMATION, COMES NOW the State of New Mexico, by and through its Assistant Attomeys General, Clara Moran, Joseph M. Spindle, and Zachary Jones, and respectfully requests this Court deny Defendant Dianna Duran’s Motion to Disqualify the New Mexico Attorney General's Office from Prosecution ofthe Above Captioned Case and to Dismiss the Information. As grounds, the State submits: 1. New Mexico law does not permit prosecutor shopping. ‘The law affords criminal defendants many rights. The right to pick the prosecutor is not one of them, Instead, a defendant seeking to disqualify a prosecutor must produce evidence of an incurable bias or co of imerest. Sate v. Juan, 2010-NMSC-041, § 32, 148 NIM. 747, The ‘motion to disqualify cannot be based on speculation or surmise — there must bea “basis in fact.” 1d, Disqualification should be “a rare event,” id, and only “undertaken with the greatest cireumspection.” Stare ». Armijo, 1994-NMCA-136, { 48, 118 NM. 802; see also State v Gonzales, 2005-NMSC-025, 4 29, 138 NM. 271 (*Disqualifieation of « prosecutor should remain a rare event; disqualification of an entire office even more so”). Before a court Aisqualifies a prosecutor, tis a defendant's burden to present credible evidence ofa relationship that exposed relevant, confidential information or critically impaired the prosecutors ability to actin an evenhanded manner, Eg., Juan, 2010-NMSC-041, 432. ‘The bar is set high fora reason. If defendants may disqualify prosecutors on the basis of nebulous or conclusory assertions then they are essentially permitted to pick their prosecutors, ‘This undermines the public's interest in orderly and neutral justice, That is why “a defendant's ‘conduct will almost never be suficient to disqualify a member of the prosecution team, unless the crime being prosecuted was committed against the prosecuting attomey or someone else involved in the prosecution” Gonzales, 2005-NMSC-025, $29; see also State v. Robinson, 2008-NMCA-036, 4 24, 143 N.M. 646 (As a “matter of policy, a defendant does not ereate a disqualifying interest and cannot choose his or her prosecutor for an underlying offense by the use of threats”) Importantly, motions to disqualify also implicate the separation of powers: “Fora court to forbid the attorney general from engaging in a prosecution within the jurisdiction of the office is 1 serious encroachment on the executive branch." Armijo, 1994-NMCA-136, 48. Despite her best efforts to conjure up & conflict, Duran cannot show this is the rate case ‘warranting prosecutorial disqualification. She asserts dual grounds for disqualification, grounds logically opposed to one another — thatthe Attomey General has an incwably toxic vendetta against her, but also thatthe two of them shared such a close, open, and frank attorney-client relationship that his office must be privy to confidential communications that will be used. against her inthis ease. The State argues that tis logical fallacy proves Defendant is tying to engage in impermissible prosecutor shopping, atempting to create disqualifying interests at every tum AS part of Defendant's attempt to engage in impermissible prosecutor shopping, Defendant hints at, but states no real basis for, uniled motions in which she will ry to eal prosecutors as witnesses, Defendan’s stated intention to calla prosecitor as a witness isnot Aispostve of disqualification since this Court can reise that request. United States v. Troutman, 814 F.2d 1428, 1439-40 (10th Cir, 1987 (aot permiting a defendant to calla prosecutor and his staff as witness where they possessed relevant infomation, bu the evidence was cumulative of other witness testimony). See aso Chappell. Cosgrove, 1996-NMSC-020, $9 12,14, 121 NIM, 636 (fusing to disqualify an atorey under Rule 16-307 NMRA, sessing that the paty seeking disqualification ofan attomey-nitness has the burden of showing the stomey- witness testimony is material and unavailable from any oer possible source). Even assuming, arguendo, this Cour allows presi testimony from prosecutors, the Court is not terete obigated to disqualify the wites-prosecuor fom trying the case, State ¥ Doran, 1986-NMCA-126, $20, 105 NM, 300 (referring 10 federal case law terming disqualification under these circumstances “unprecedented”, The defendant in Doran tid to disqualify a prosecutor based on a stated intention to call the prosecutor a8 a witness at a suppression hearing, 1d. 14. But the cour refused to disqualify a prosecutor even after he test od at prestial suppression hearing because “to allow opposing counsel the unfettered ‘option of removing any prosecutor who has personal knowledge of any material fact might well result in restricting the prosecution function to the ill-prepared.” Id. st {17 (quoting Ribon! . District Court, 196 Colo, 272, 274, $86 P.24 9, 11 (1978), Defendant makes additional tempts to crete confit by suddenly refering a mater ‘outside the normal procedure for enforcement (See Defendant's Exit D); referencing former Secretary of State Rebecca Vigi-Giron's casein a publi filing fr shock value, but providing no meaningful factual comparison between the two cases or binding autorty; and repeatedly citing speculative and conclusory allegations as proof ofthe Attorney Gener bias aginst he. Ics noteworthy tha the Seretary of State Rebecca Viil-Giron case raise allegations thatthe Secretary of State as wel as three co-defendants (one who previously worked forthe Aomey General under the King administration) used the Office ofthe Seretary of State 10 cembezale, and funn! toa private contractor, federal monies. These federal monies were given to the State of New Mexico to administer federal legislation, specifically, the Help America Vote ‘Act (HAVA), Nota single allegation was raised against Secretary of State Vigl-Giron in ber personal or non-official capaci Unlike the present case, the embezzled fads in the Vigi-Gron case were entrusted 0 Secretary of State Vigil-Giron inher official capacity, Her ability tuse those funds or convert those funds was based solely onthe fst that she could do so inher official eapacity. The confit that was raised concerned the Attormey General's Office (AGO) unde the King administration. The basis for the conflict in State v. Vigl-Giron et.al. cemered on the AGO's office approving the contacts associated with how these HAVA finds were dsperscd, Specialy, an [AGO attomey inthe civil division was tasked with reviewing all contracts associated withthe SOS office, That atomney would determine if these contracts were “legally suTicient” and approve them, These contracts were the mechanism by which Seeretry of State Vigil-Giron was able to fuel milions of dollars to private contractor. There was ne alegation that members of the prosecution team were involved in reviewing these contracts. Judge Murdoch disqualified the |AGO’s office because the Office was inextricably involved withthe SOS's epproval of these ‘contacts, rising an appearance of conflict. Judge Murdoch's decision was never appedled by ‘the Slate and nothing related to the factual determination of that District Court decision is nding on this Court In this case, the Office ofthe Attorney General's (OAG's) theory for prosecution centers ‘on Defendant in her personal capacity, namely asa private citizen seeking pltical office. The monies embezzled under this theory are sticly private, non-axpayer finds acquired by Defendant a a candid for office, No member ofthe OAG provided advice at the legality of ‘the personal use of tise funds. See State's Exhibit 1, afdavt of Sally Molave and attached contract, Certtaly, Defendant cannot proffer any evidence that would suggest that OAG _siomeys provide legl advice to her inher oficial eapacity as Secretary of Ste that related in any way tothe conversion of campaign contibution to her ovm personal se In this regard, this prosecution of Dianna J. Duran isin stark contrast tothe King administration's prosecution of Secretary Vigi-Giron indeed, the logic Defendant seeks to forward in he motion is that a siting Secretary of State is wholly immune from s criminal prosecution brought by the Attorney General, iespestive of wheter that action is brought in her official capacity or her personal capacity. 11, Duran cannot meet the burden of showing a conflict of interest because there is no conflict of interes ‘Without actual factual support, Duran argues the Attomey General has @ personal bias against her. Bare assertions, however, are simply not a basis for an order of disqualification. ‘Something more is required to show “an interfering personal interest or bias.” Robinson, 2008— NMCA-036, 4122. A party seeking disqualification must show particular circumstances that go beyond vaguely calling into doubt the appearance of impropriety. Gonzales, 2005-NMSC-025, 429, ‘Duran as not identified the necessary particular circumstances because none exist. She alludes to political tensions, but “the fact that a case is high profile, politically charged, or both, is insuficient for disqualification of a member of the prosecution team.” Armijo, 1994-NMCA- 136, $48. Moreover, “an adversarial relationship isnot disqualifying” Id. 54 To show bias, Defendant sel-servingly claims she has tried relationship with the ‘Attomey General that warrants disqualification. Defendant presumably attached to her Motion the best evidence she possesses in support of her contention: a partisan, unsigned newspaper editorial in which Defendant is not mentioned by name or even office (Defendamt's Exhibit A), an article attributing to the Attorney General an even-handed statement ~ which was a response to a letter by the Secretary of State regarding the accuracy of reports submitted by then State ‘Autor Balderas, (Defendant's Exhibit B), and a letter from the Attorney General to Defendant explaining that his office will cease providing legal advice to Defendant during the pendency of this ease to preserve the integrity of both offices (Defendant's Exhibit C). Defendant fails to provide one real, credible piece of information showing true bias. It truly seems that all Defendant can provide are editorial, opinion driven statements combined with ordinary articles covering communications between heads of statewide agencies. Notably, Defendant fils to include any of the correspondence between her and the Office ‘of the Attomey General which show a cooperative and even complimentary relationship. Moreover, the actual interactions between Attorney General Balderas and Secretary of State Duran show collaboration and constructive discourse surrounding systemic issues in public policy. It is clear that they communicated as public officials, not as one providing confidential legal advice to the other ina confidential atiomey-cie, privileged content. See State's Exhibs 2 and 3. Ie is also notable that the cases cited by Defendant which hold disqualification was appropriate are all egregious cases ofexteme bias from outside juisdictions. In Tyre w. State, 262 Ga. 395, 418 S.E.2d 16, 17-19 (1992), the Supreme Court of Georgi in & death-penalty case charging murder and child molestaion, found disqualification appropriate where the prosecutor (formerly engaged in private practice) had represented four ofthe jurors, had told @ newspaper he would shoot the accused himself if he had the chance, and had twice represented the accused killer, including on a prior child molestation charge. In Stare v: Snyder, 256 La. 601, 237 So.2d 392, 393-94 (1970), the Supreme Court of Louisiana disqualified a prosecutor who twice campaigned against a mayoral candidate and then brought that candidate up on criminal charges of defaming the candidate whom the prosecutor supported (and also the prosecutor, though those charges were dismissed). The prosecutor also made a radio statement, republished in a newspaper, promising to bring criminal charges against the candidate for lying to a grand jury, Id. at 395. Despite the prosecutor's claim that he no longer had ill will toward the accused, the Court disqualified him because his “deep-seated hatred” of the accused could not be cured. 1a, 20395, Defendant has not shown that any prior interactions with the Attomey General revealed “relevant, confidential information.” Robinson, 2008-NMCA-036, 22. Defendant cannot create a conflict based simply on the Office of the Attomey General's statutory duty to provide legal advice to the Office of the Secretary of State or other state offices or agencies, The Office ‘of the Attomey General's official representation of Defendant's Office did not implicate her own, ‘campaign contributions, expenditures, or personal finances. The prosecution in this case is not ‘based on any confidential admissions made by Duran. Any attempt to tangle the Office of the ‘Attorney General's legitimate representation ofthe Office of Secretary of State with Defendant’s independent illicit activities involving embezzlement of campaign contributions and other related crimes isa red herring, Sally Malave, an Assistant Attorney General within the Open Government Division of the Office of the Attomey General and tasked with representation of the SOS office has never ‘met or spoken to Dianna J. Duran. See Stare's Exhiblt 1a, Affidavit of Sally Malave and attached contract. Moreover, the scope of Malave's representation was limited to issues relevant 10 the administration of the Office of Secretary of State and not for Dianna J. Duran in a personal capacity. See State's Exhibit 1, at paragraph 10. Despite Mslave's availability and willingness to advise the Office ofthe Sceretary of State in an official capacity, according to the affidavit, the (Office of the Secretary of State chose to hie independent legal representation through Doughty, Alcaraz & deGraauv, P.A, ‘As apparent from the affidavit and attached contact, the scope ofthe representation was ‘broad, including “legal services to the Office of the Secretary of State related to the administration of the Secretary of State's duties as defined in Article IV and Article V of the New Mexico Constitution.” See Office of the Secretary of State Professional Services Contract #18513, a pg 1, attached 10 State's Exhibit 1. Doughty, Alcaraz & deGraw P.A.’s contract with the Office of the Secretary of State, in addition to delineating 45 categories of global representation for the Office ofthe Secretary of State, included representation for the Elections and Ethics Division of the Secretary of State, Among the eleven eategories listed in that subsection of the contract was the provision of legal advice for assisting in conducting legal analysis of issues related to the edministration ofthe election process within the State of New Mexico pursuant tothe Eletion Code, NMSA 1978, §§ T-1- through 11-25, and providing legal advice in conducting legal analysis of issues related to campaign practices pursuant 9 NMSA 1978 §§ 1-1941 through 119-36, See Office of the Secretary of State Profesional Services Conract #18513, at. 4, attached to State's Exhibit. Defendant is charged with embezzling campaign contributions ffom her donors, filing false campsign reports, and fling to investigate her own misconduct, among eter crimes contained within the ciminal complaint and criminal information in this mate. Ths conduct does not implicate the Offic ofthe Secretary of State or lgel advice obtained by the Office of, Secretary of State in its daily operations, as there is zero evidence of an atomey-clent confidential relationship benween Dianna J, Duran and Sally Malave. Tn this eas, the Office of the Attomey Gsneal has no confit of interest in prosecuting Dianna J. Duran because any representation provided was representation ofthe Olive of the Secretary of State covering and extending to all ofits employees its officiel capacity and no confidential communications were shared to further the investigation or prosecution of Defendant for crimes perpetrated in her personal pacity, [As with the outofstate holdings cited shove to suppor the disqualification based on ‘prosecutorial bias, similar incongruenes are found in the eases Defendant relies upon to request disqualification due to the tence of an attorney-client relationship. In People . Zimmer, 51 N.V.24 390, 395, 414 N.E2d 705 (1980), the prosecutor was financially entangled with the defendant in his altemate capacity as legal counsel to defendant’s corporation and stockholder and, in effect, was “serving ... two masters.” In Sinclar v. State, 278 A.2d 243, 260, 363 A.2d 468 (1976), a Maryland appellate court also cited the two masters doctrine to find disqualification where the prosecutors (also engaged in the private practice of law), had a ‘financial stake in the defendants enterprise. Duran has simply not produced sufficient evidence to justify the extraordinary remedy of disqualifying the state's chief law enforcement officer. This Court should deny her Motion. IL, The Attorney General has the duty to prosecute statewide officials who commit crimes. ‘The Attorney General is “the State's highest ranking law enforcement officer, elected by the people of New Mexico." Armijo, 1994-NMCA~136, § 48. By statue, the Attorney General is required to “prosecute ard defend all ations and proceedings brought by or against any sate ‘officer or head of a state department, board or commission, or any employee of the state in his ‘official capacity.” NMSA 1978, § 8:5-2(C) (1975). By its plain language, this sector requires ‘the Attomey General to “prosecute... all actions and proceedings brought ... against any state ‘officer or head ofa state cepartment.” I When an alleged crime violates the Govermmental Conduct Act and the suspect is the Secretary of State, statute specifically identifies the Attomey General as the appropriate prosecutor. The Act reads, “Ifa suspected violation involves the office of the secretary of state, the attorney general may enforce that act.” NMSA 1978, § 10-16-14(A) (1993) Further confirming the Office of the Attorney General's role, the Act specifically prohibits local district attomeys from prosecutirg statewide officals. § 10-16-14(E) (“Except as regards legislators or statewide elected officials, a district attorney” may enforce the act.) (emphasis added) Because Defendant is accused of violating the Goveramental Conduct Act, the Office of the Attomey General is the appropriate prosecutor. 1c does not matter thatthe Office ofthe Atomey General represewed the Secretary of State's Office in civil proceedings. NMSA 1978, § 85-15 1953). In a case (hat defense counsel fils to cite) involving the New Mexico Attomey General, the Tenth Cirut Court of Appeals ruled that “an inerent conflict of interest does not arise merely because a sue attorney general prosecutes a state officer whom he formerly represented” United States v. Troutman, 814 F.2d 1428, 1438 (10th Cir. 1987). Instead, he Tenth Circuit agreed withthe goveraments argument tha the New Mexico “Attomey General acted propery in assisting inthe prosecution of (the State Investment Officer's] off 31 misconduct because he also has an affirmative, statutorily defined duty to prosecute all criminal actions when, in his judgment, it is isthe best interest of the state to do so." Trourman, 814 F.2d at 1437. This is because “a state atiomey general has a primary responsibilty to protect the interests of the people of the state and must be free to prosecute violations of those interests by a state officer regardless of his representation of the state officer in pastor pending Itigntion.” Trouman, 814 F.2d at 1438; se also § 8-5-2(B) Armijo, 1994-NMCA-136, $4 (“We see no reason why the attorney general cannot challenge the activities ofa state agency by pursuing a course of graduated aggressiveness—startng with informal diseussions and proceeding to civil and even criminal sanctions.) When somebody sues a state office, the Office ofthe Atorey General may defend that office. § 8-5.2(C). Yet when the person who holds that office commits a crime, the Office ofthe Attomey General as the duty to prosecute the office-holder. § 8-5-2(B),(C); § 10-16-14(A), ©; Trowman, 814 F.2d at 1437-38. In other words, the Office of the Atomey Generel may represent state offices and sill prosecute state office-holders. § 8-5-2(B), (C); § 10-16-14(A), (©; Trouman, 814 F.2d at 1437-38, The institution is distinct ftom the person. The fact atthe a ‘Office of the Attomey General may at times have represented the Secretary of State's Office in her official capacity, dee not bar him for now prosecuting Dianna J. Duran, IV. The Attorney General acted lawfully in instructing Defendant to give future referrals of the Campaign Reporting Act to counsel not involved with this eriminal prosecution. As she is permitted to do, Defendant recently refered alleged civil violations of the (Campaign Report Act to the Attorney General within days after the fling ofthe criminal charges against Defendant. NMSA 1978, § 1-19-34.4(@) (1997) (Secretary of State may refer possible campaign reporting violations to the Office of the Attomey General). It is noteworthy that prior to the filing of the criminal charges against Defendant, her administration had never referred an alleged campaign finance violation to the Attomey General involving a specific candidate Defendant correctly observes thatthe Office of the Attomey General chose to request Defendant pursue these civil violations through local district attorneys. This course of action is authorized by statute. NMSA 1978, § 1-19-34,6(A) (1995). The State prays this Court ignore Defendant's attempt to question this lawful and good-faith effort to ensure thatthe Office of the Secretary of State receives effective representation while this matter is pending against Defendant. This action, authorized by statute, taken by the Office of the Attomey General, was not based on any conflict of interest, actual or perceived. After charging Defendant, in an abundance ‘of ‘caution, the Office of the Attomey General suggested referal of campaign reporting Violations to local district attomeys. Effective representation require a level of trust from both parties, which based upon these criminal charges, was determined to be nonexistent! The only "san example, Oefendnt witout odhering te tautery volntary compliance requirements, referred a miter tothe Office of he Attorney Gevera. This premature referalinaeates Defendant intense to ue her elected ce to further ner personal inlerest of ratings conc forte prosecution without repre to her stattoy responses. R ‘option encompassing the Office of the Attomey General’s statutory resporsiilities was to ‘suggest the Secretary of Stat refer violations to outside sources V. Duran has not arti hearing. lated any prejudice that would prevent a timely preliminary Ue Defendant believes this proseation is based on anything other than evidence that she violated New Mexico law, she has a remedy in demanding thatthe State demonstate probable cause and rising suppression motions subsequent to a finding of probable case. She may demand thatthe State demonstrate probable cause at a preliminary hearing, suchas the one curently scheduled for October 30,2015, Rule 5-302 NMRA. The State of New Mexico filly expects the evidence to demonstrate that this prosecution is consistent with the Office of the Atomey General's “primary responsibility to protect the interests ofthe people of the state and .. prosecute violations of thos interests by a state officer * Trouman, 814 F.2d a 1438, WHEREFORE, the State request hat ths Court deny Defendant Dianna Duran's Motion and allow the Attorney General to remain on this case as prosecutor. B Respectfully submitted, HECTOR H. BALDERAS ge \GLRKA MoKAN-o77 “Assistant Attomey General JOSEPH M. SPINDLE “Assistant Attomey General ZACHARY JONES Assistant Attomey General Office of the Attomey General 111 Lomas Blvd. NW Suite 300 Albuquerque, New Mexico 87102 (50s) 222-9000 hereby pertfy that «true and correct copy of the foregoing, was sent to the Law Offices of Exlinda ! for Dianna J. Duran, on this 2" day of October, 2015. u“ STATE OF NEW MEXICO COUNTY OF SANTA FE FIRST JUDICIAL DISTRICT COURT STATE OF NEW MEXICO, Plaincif, D-101-CR-201500478 DIANNA DURAN, Defendant. AFFIDAVIT OF SALLY MALAVE. 1, Sally Melavé, declare and state the folowing 1. Tam over eighteen (18) years of age and a resident of Santa Fe, New Mexico. 2. With the exception of fourteen (L4) months tthe Santa Fe County Attorney's Ofie, 1 have worked in the New Mexico Office ofthe Atiomey General (*OAG") as an Assistant Attomey Genera inthe Open Government Division, Oka the Civil Division, since September 1993 3. Inmy capacity as an Assistant Attomey General, I provide limited legal advice and representation ta varity of boards, commissions and state agencies; research and write "Atorney General Opinions on discret questions of aw; and investigate complaints submited tothe OAG regarding alleged violations ofthe state Inspection of Public Kecorts ‘Act and Open Meetings Act. 4, have provided legal advice and representation to the New Mexico Secretary of State's Office (“S0S"), dough various members ofits management team, since January 2015, 5. Generaly, in my capacity as counsel tothe SOS, Ihave reviewed contracts for legal sufficieney and provided legal advice relating to a variety of issues tha fall within the SOS's purview, including but not limited to questions regarding corporations, trademark, disposition of public propery, and corporate filings, and authority to negotiate fines for alleged violations of the Campaign Reporting Ac, alls presented to meby the SOS. 6. Tals have advised the SOS on questions relating tothe Campaign Reporting Act and School District Campaign Reporting Act, proved comment on proposed roles relating 0 ballot order and campaign finance reporting, and represented the SOS in matters scheduled for arbitration pursuant to Section 1-19-34.4F) ofthe Campaign Reporting Act 7. In late March 2015, the SOS asked me to review and sign for legal sufficiency a professional services contract between the SOS and Doughty, Alearaz & De Graauw, P.A., for legal services, tached hereto as Exhibit 8, Because ofthe broad scope of work contemplated by that contr, I asked the SOS for clarification onthe seope of representation it expected to receive from the OAG. I never received a direc response 9. Notwithstanding my representation ofthe SOS as outlined above, Ihave never met or spoken to Secretary of Sate Diana J. Duan 10, Secretary of State Dianna J. Duraa never sought from me nor did I ever provide legal advice to Ms, Duran inher capacity asa private citizen ora a candidate for public office. 11, Lalso have never met or spoken to Assistant Attomeys Genes Clara Moran, Joseph Spindle or Zachary Jones, who T understand were hired by the current administration of the ‘OAG and are housed in the OAG Albuquerque office. 12, Thad no knowledge and did not become aware ofthe present litigation or any ofthe allegations contained therein until the day after it was filed, when it was widely eported in the Santa Fe New Mexican and the Albuquerque Journal. To the best of my knowledge, I declare under penalty of perjury thatthe foregoing is true and correct on this date, October 2, 2015, Sally Malave State of New Mexico) dss. County of SantaFe SUBSCRIBED AND SWORN TO and ACKNOWLEDGED before me by Sally Malavé on. October 2, 2015. ‘Notary’ = ie, ~ My Conminsioa expec denn Van idl March 2 2014 STATE OF NEW MEXICO Office of the Secretary of State PROFESSIONAL SERVICES CONTRACT #18513 ‘THIS AGREEMENT is made and entered into by and between the State of New Mexio, Office ‘of the Secretary of State, hereinafter refered to as the “Agency,” and Doughty, Alearaz & ‘deGranuw, P.A. hercinfier refered to a the “Contractor,” and is effective as of the date set forth below upon which tis executed bythe Department of Finance and Administation (DFA). ITIS AGREED BETWEEN THE PARTIES: 1. Scope of Work. ‘A. The Contactor shall perform the following work: legal services to the Office ofthe Secretary of State related to the administration of the Sesrtary of State's duis as ‘defined in Article IV and Article V ofthe New Mexico Constintio, 8, Pedformonce Meosures, ‘Business Services Ohision ofthe Secretary of tate: + Be vallable by phone or inthe Office ofthe Secretary of Staten ard to consul wth and provide legal advice tothe Secretary of State and other stat Assist in conducting lega analysis of ssus related tothe Uniform Facsimile Signature of Publc Officials Act, HMSA.1978, 669-1 through 653.6; 1+ Assist in conducting legal analysis ofiesues related tothe Notary Publc Act, NMSA 1978, §16-120- trough §14123-26; ‘+ Assitin conducting legal analysis of ssues related tothe Secretary of State as agent for service of process, NMSA 1978, 9134-22, $381.51, §38-146, §38-16.1, and §38-1 18,5; + _Assistin conducting legal analysis of sues related to International Wills, NMSA 1978, 452-1010; + Assist in conducting legal analysis of sues elated tothe Uniform Revised United Partnership Act, NMSA 1978, §54-22-101 through 54-22-1206; + Assist in conducting egal analysis of issues elated tothe Uniform Commercial Code ~ Secured Transactions, NMSA 1978, §55-8-101 through §55-9-808;, EXHIBIT ‘contract 2Dt ‘+ Assist in conducting legal analysis of issues related to the Farm Products Secured Interest Act, NMSA 1978, §56-13-1 through 56-13-14; ‘+ Assist in conducting legal analysis of issues related to the Trademark Act, NMSA 1978, §57-3b-1 through §57-3b-17; ‘© Assist n conducting egal analysis of issues related to the Registration of Trading Stamp Companies, NSA 1978, §57-8-1 through §57-8-6; ‘+ Assist in conducting legal analysis of issues related to the Public Utility Act, [NMSA 1978, 962-13+ through §62-13-6 and §62-13-8 through §62-13-13; ‘+ Assist n conducting legal analysis of issues related to the Watershed District Act, NMSA 1978, §73-20-1 through §73-20-48; ‘© Assist in conducting legal analysis ofssues related to thefling of official acts of the Governor, including, but not limited to executive orders, proclamations, and appointments, pursuant to Art. IV ofthe New Mexico Constitution; ‘© Assist in conducting legal analysis of issues related to the Inspection of Public Records Act, NMSA 1978, §14-2-1 through §14-2-12; + Assistin conducting legal analysis of issues related to thecollection and disposition of fees for Corporation filings, NMSA 1978, §53-2-1 through 953-2-11; © Accictin conducting egal analysis af iccues: 4553-241 through §53:20-17; ated to Corsarations, NMSA 1978, © Assistin conducting legal analysis and issues related to the Sanitary Projects Act, NMSA 1978, §3-29-1 through §3:29-19; ‘© Assistin conducting legal analysis ofssues related to the Banking Act, NMSA 1978, §58-1- through §58-1-85; = Assistin conducting legal analysis of issues related to theSavings and Loan Act, NMSA 1978, 958-1041 through §58-10-111; ‘+ Assistin conducting legal analysis of issues related to the Credit Union Act, NMSA 1978, 958-111 through §58-11-65; ‘+ Assistin conducting legal analysis of issues related to the Domestic Stock and ‘Mutual Insurers Act, NMSA 1978, §592-34-1 through §$8a-34-46;, concrace Woe + Assist in conducting legal analysis of issues related to Incorporations and Powers of Utilities, NMASA 1978, §52-1-1 through $62: Assist in conducting legal analysis of issues related to the Rural Electric Cooperative Act, NMSA 1978, §62-15-1 through §62-15:37; + Assist in conducting legal analysis of issues related to the Organization and ‘Management of Railroads, NMSA 1978, $63-1-1 through §63-1-42;, + Assistin conducting legal analysis of issues related to Water User Associations, NMSA 1978, §73-5.1 through §73-5-9; + Assist in conducting legal analysis of issues related to the Cooperative Marketing Association Act, NMSA 1978, §76-12-1 through 76-12-23; + Assistin conducting egal analysis of issues related to Water or Natural Gas Associations, NMSA 1978, §3-28-1 through 3-28-22; + Assistin conducting legal analysis of issues related to the Homeowners Association Act, NMSA 1978, §47-7E-1 through §47-7E-14; Assist in conducting legal analysis of issues related to the Condominium Act, NMSA 1978, §47-7C-1 through §47-7C-19; © Assist in conducting legal analysis of issues related to Incorporations and Powers ‘of waterworks, NMSA 1978, §62-2-1 through §62-2-22;, ‘© Assist in conducting legal analysis of Issues related to the Natural Lands Protection Act, NMSA 1978, §75-5-1 through §75: ‘+ Assist in conducting legal analysis of issues related to the New Mexico ‘Administrative Code 12.3.2, Trade, Commerce & Banking - Business Associations Profit Corporations; + Assist in conducting legal analysis of issues related to the New Mexico ‘Administrative Code 12.3.3, Trade, Commerce & Banking - Business Associations NonProfit Corporations; ‘+ Assist in conducting legal analysis of issues related to the New Mexico ‘Administrative Code 12.3.2, Trade, Commerce & Banking ~ Other Business Entities; Elections and Ethics Division ofthe Secretary of State: ‘+ Beavailable by phone or inthe Office ofthe Secretary of State in order to consult with and provide legal advice to the Secretary of State and other staff ‘© Assist in conducting legal analysis of issues related to Automatic Recounts; Elections for State and Federal Offices; pursuant to NMSA 1978, § 1-14-24, ‘+ Assist in conducting legal analysis of issues related to Automatic Recounts; Expenses; pursuant to NMSA 1978, § 1-14-25. ‘+ Assist in conducting legal analysis of issues related to the administration ofthe election process within the State of New Mexico pursuant tothe Election Code, NMSA 1978, §1-1-1 through 1-125; ‘+ Assist in conducting legal analysis of issues related to campaign practices pursuant to NMSA 1978, §1-18-1 through §1-19.36; + Assist in conducting legal analysis of issues related to the Governmental Conduct ‘Act, NMSA 1978, §10-36-1 through §10-16-18; + Assistin conducting legal analysis of issues related to the Lobbyist Regulation ‘Act, NMSA 1978, §2-11-1 through §2-11-9; © Assist in conducting legal analysis of issues related to the Financial Disclosure ‘Act, NMSA 1978, §10-16A-1 through §10-164-8, ‘© Assist in conducting legal analysis of issues related to the Inspection of Public Records Act, NMSA 1978, §14-2-1 through §14-2-12. ‘© Assist in conducting legal analysis of issues related to the Voter Action Act, NMSA 1978 § 1-19A-1 to 1-194-17, ‘+ Assist in conducting legal analysis of issues related to the School District Campaign Reporting Act, NMSA 1978, §1-22A-1 through 1-22A-10, 2 Compensation. ‘A. The Agency sal! pay to the Contractor in fll payment for services satsfzctorily performed atthe rate as listed in Appendix A, such compensation not to exceed Twenty-seven fhousand one hundred sixty two dollars and sixty one cents $27,162.61, excluding gross receipts tax. The New Mexico gross receipis tax levied on the amounts payable under this Agreement totaling One thousand nine hundred one dollars and thirty nine cents $1,901.39 shall be paid by the Agency © the Contractor. The total amount payable to the Contractor under thi Agreement, including gross receipts tax and expenses, shall not exceed Twenty nine thousand sixtv four dollars and zero cents $29,064.00. This amount is a maximum and not 4 contract 194 1 guarantee that the work assigned to be performed by Contractor under this Agreement shall equal the amount stated herein. In accordance with Section 13-1-158 NMSA 1978, ‘payment shall be tendered to the Contractor within thirty (30) days of the date of written certification of Acceptance. The parties do not intend for the Contractor to continue to provide services without compensation when the total compensation amount is reached. Contractor is responsible for notifying the Agency when the services provided under this Agreement reach the total compensation amount. In no event will the Contractor be paid for services provided in excess of the total compensation amount without this Agreement being amended in writing prior to thore services in excess of the total compensation amount being provided. B. Contractor must submit detailed statement accounting forall services performed and expenses incurred. Ifthe Agency finds thatthe services are not acceptable, within thirty days after the date of receipt of writen notie from the Contractor that payment is requested, it shall provide the Contractor a letter of exception explaining the defector objection tothe services, and ‘outlining steps the Contractor may take to provide remedial action. Upon cetification by the ‘Agency that the services have been received and accepted, payment shall be tendered to the Contractor within thirty days after the date of acceptance. If payment is made by mail, the payment shall be deemed tendered on the date it is postmarked. However, the agency shall not {incur late charges, interest, or penalties fr failure to make payment within the time specified herein 3 Term, THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL APPROVED BY ‘THE DFA. This Agreement shall terminate on June 30, 2015 unless terminated pursuant to paragraph 4 (Termination), or paragraph 5 (Appropriations). In accordance with NMSA 1978, § 13-1-150, no contract term for @ professional services contract, including extensions and ‘renewals, shall exceed four years, excent asset forth in NMSA 1978, § 13+1-150, 4. Termination ‘A. Grounds. The Agency may terminate this Agreement for convenience or eause ‘The Contractor may only terminate ths Agreement based upon the Agency's uncured, material breach ofthis Agreement B. Notice: Agencv Opportunity to Cue 1. Except as otherwise provided in Paragraph (4(B)G), the Agency shall sive Contractor writen notice of termination at last thirty (30) days prior to the intended date of temnination 2 Contractor shall give Avency writen notice of termination at least thet (G0) days prior to the intended date of termination, which notice shall (i) identify all the ‘Agency's material breaches ofthis Agzeement upan which the termination is based and (i) state ‘what the Ageney must do to cure such material breaches. Contracior’s notice of termination Shall only be effective (i) fthe Agen doesnot cure all material breaches within the tht (30) day notice period or (i) inthe case of material breaches that cannot be cured within thirty (30) days, the Agency does not, within the tity 30) day notice period, notify the Contractor of its intent wo cure and begin with due diligence to cure the material breach 3. Notwithstanding the foregoing, this Agreement may be terminated contract 1Dt immediately upon written notice to the Contractor (i) if the Contractor becomes unable t0 perform the services contracted for, as determined by the Agency; (i if, during the term of this, ‘Agreement, the Contractor is suspended or debared by the State Purchasing Agent, of (i) the ‘Agreement is terminated pursuant to Paragraph 5, “Appropriations” ofthis Agreement. C. Liability. Except as otherwise expressly allowed or provided under this ‘Agreement, the Agency's sole liability upon termination shall be to pay for acceptable work performed prior to the Contractor's receipt or issuance of 2 notice of termination; provided, ‘however, that a notice of termination shall not nullify or otherwise affect either party's lability for pre-termination defaults under or breaches ofthis Agreement, The Contractor shall submit an invoice for such work within thirty (30) cays of receiving or sending the notice of termination, THIS PROVISION 1S NOT EXCLUSIVE AND DOES NOT WAIVE THE AGENCY'S OTHER ‘LEGAL RIGHTS AND REMEDIES CAUSED BY THE CONTRACTOR'S DEFAULT/BREACH (OF THIS AGREEMENT. D. Termination Management. Immediately upon receipt by ether the Agency or the Contractor of notice of termination of this Agreement, the Contractor shall: 1) not incur any further obligations for salaries, services or any other expenditure of funds under this Agreement without written approval of the Agency; 2) comply with all directives issued by the Ageney in the notice of tenmination as to the performance of work under this Agreement; and 3) take such action as the Ageney shal direst forthe protection, preservation, retention or transfer ofall property tiled tothe Ageney and records generated under this Agreement, Any non-expendable personal property or equipment provided to or purchased by the Contractor with contract funds shall become property of the Agency upan termination and shall be submitted to the agency as soon as practicable. 5S Appropriations, ‘The terms of this Agreement are contingent upon sufficient appropriations and authorization being made by the Legisature of New Mexico for the performance of this ‘Agreement. If sufficient appropriations and authorization are not made by the Legislature, this ‘Agreement shall terminate immediately upon written notice being given by the Agency to the Contractor. The Agency's decision as to whether sufficient appropriations are available shall be accepted by the Contractor and shall be final. If the Agency proposes an amendment to the Agreement to unilaterally reduce funding, the Contractor shall have the option to terminate the ‘Agreement orto agree to the reduced funding, within thity (30) days of receipt of the proposed amendment, 6. Status of Contractor, ‘The Contractor and its agents and employees are independent contractors performing professional services for the Agency and are not employees of the State of New Mexico. The Contractor and its agents and employees shall not accrue leave, retirement, insurance, bonding, use of state vehicles, or any other benefits afforded to employees ofthe State of New Mexico as ‘ result of this Agreement. The Contractor acknowledges that all sums received hereunder are reportable by the Contractor for tax purposes, including without limitation, self-employment and business income tax. The Contractor agsees not to purport to bind the State of New Mexico unless the Contractor has express written authority to do so, and then only within the strict limits ‘of that authority. contact 154 Assignment, ‘The Contractor shall not assign or transfer any interest in this Agreement or assign any Claims for money due or to become due under this Agreement without the prior writen approval ‘of the Agency. 8. Subcontracting The Contractor shall not subcontract any portion of the services to be performed under this Agreement without the prior written approval of the Agency. No such subcontract shall relieve the primary Contractor from its obligations and liabilities under this Agreement, nor shall any subcontract obligate direct payment from the Procuring Agency. %. Final payment of the amounts due under this Agreement shall operate asa release of the Agency, is officers and employees, and the State of New Mexico from all liabilities claims and ‘obligations whatsoever arising from or under this Agreement, 10, Confidentiality. Any confidential irformation provided to or developed by the Contractor in the performance of this Agreement shall be Kept confidential and shall not be made available to any {individual or organization by the Contractor without the prior writen approval of the Agency. 11, Product of Service - Copyright, All materials developed or acquired by the Contractor under this Agreement shall become the property of the State of New Mexico and shall be delivered to the Agency no later than the {termination date of this Agreement. Nothing developed or produced, in whole or in part, by the Contractor under this Agrerment shall be the subject of an application for copyright or other claim of ownership by or onbehalf of the Contractor. 12, Conflict of Interest: Governmental Conduct Act, ‘A. The Contracior represents and warrants that it presently has no interest and, during the term of this Agreement, shall not acquire any intrest, director indirect, which would conflict in any manner or degree with the performance or services required under the Agreement. B. The Contractor further represents and warrants that it has complied with, and, uring the term of this Agreement, will continue to comply with, and that this Agreement ‘complies with all epplicable provisions of the Governmental Conduct Act, Chapter 10, Article 16 NMSA 1978, Without in anyway limiting the generality of the foregoing, the Contractor specifically represents and warrants that: 1) in accordance with NMSA 1978, § 10-16-43, the Contractor does not cemploy, has not employed, and will not employ during the term of this Agreement any Agency employee vhile such employee was or is employed by the Agency and participating directly or indirectly in the Agency's contracting process; 2) this Agreement complies with NMSA 1978, § 10-16-7(A) because (i) the Contractor is not a public officer or employee of the State: (ji) the Contractor is not & member ofthe family of a public officer or employee ofthe State; (ii) the Contractor is contract 10H, not a business in which a public officer or employee or the family of public officer or employee has a substantial interest; or (iv) if the Contractor is ® public officer or ‘employee of the State, a member of the family of a public offer or employee of the State, ora business in which a public officer or employee of the State or the family of a public officer or employee ofthe State has a substantial interest, public notice was given 8 required by NMSA 1978, § 10-16-7(A) and this Agreement was awarded pursuant to @ ‘competitive process; 3) in accordance with NMSA 1978, § 10-16-8(A), (i) the Contractor is not, and has not been represented by, s person who has been a public officer or employee of the State within the preceding year and whose offical act directly resulted in this Agreement and (ji) the Contractor isnot, and has not been assisted in any way regarding this transaction by, a former public officer or employee of the State whose official ac, while in State employment, directly resulted inthe Agency's making this Agreement, 4) this Agreement complies with NMSA 1978, § 10-16-9(A)because (i) the Contractor is nota legislator; (ji) the Contractor isnot a member ofa legislator’ family (i) the Contractor is not @ business in which a legislator of a legislators family has @ substantial interest; or (iv) ifthe Contractor is a legislator, 2 member of a legislator's family, or a business in which a legislator or a legislator's family has a substantial interest, disclosure has been made as required by NMSA 1978, § 10-16-7(A), this Agreement is not @ sole source or small purchase contract, and this Agreement was Awarded in accordance with the provisions ofthe Procurement Code; 5) in accordance with NMSA 1978, § 10-16-13, the Contractor has not Girectly participated in the prepsation of specifications, qualifications or evaluation criteria for this Agreement or any procurement related to this Agreement, and 6) in accordance with NMSA 1978, § 10-163 and § 10-16-133, the Contractor has not contributed, and during the term of this Agreement shall not contribute, anything of value toa public officer or employee of the Agency. ©. Contractor's representations and warranties in Paragraphs A and B ofthis Article 12 are material representations of fact upon which the Agency relied when this Agreement was ‘entered into by the parties. Contractor shall provide imamediate written notice to the Agency if, at any time during the term ofthis Agreement, Contractor leams that Contractor's representations and warranties in Paragraphs A and B ofthis Amicle 12 were erroneous on the effective date of this Agreement or have become erroneous by reason of new or changed circumstances. If it is, later determined that Contractor's representations and warranties in Paragraphs A and B of this Article 12 were erroneous on the effective date of this Agreement or have become erroneous by reason of new or changed circumstances, in addition to other remedies available to the Agency and notwithstanding anything in the Agreement to the contrary, the Agency may immediately terminate the Agreement D. _Al terms defined in the Governmental Conduct Act have the same meaning in this Article 12(B), 13. Amendment. ‘A. This Agreement shall not be altered, changed or amended except by instrument in ‘writing executed by the parties hereto andall other required signatories. onteact 20H, B. If the Agency proposes an amendment to the Agreement to unilaterally reduce funding due to budget or other considerations, the Contractor shall, within thirty (30) days of. receipt of the proposed Amendment, have the option to terminate the Agreement, pursuant to the termination provisions as set forth in Article 4 herein, or to agree tothe reduced funding. 14, Merger. ‘This Agreement incorporates all the Agreements, covenants and understandings between the parties hereto conceming the subject matter hereof, and all such covenants, Agreements and understandings have been merged into this written Agreement. No prior Agreement or understanding, orl or otherwise, of the partes or their agents shall be vali or enforceable unless embodied in this Agreement, 15. Penalties for violation of law, ‘The Procurement Code, NMSA 1978 §§ 13-1-28 through 13-1-199, imposes civil and criminal penalties for its violation, In addition, the New Mexico criminal statutes impose felony penalties fr illegal bribes, gratuites and kickbacks, 16, Equal Opportunity Compliance, ‘The Contractor agrees to abide by al federal and state laws and rules and regulations, and ‘executive orders of the Governor of the State of New Mexico, pertaining to equal employment ‘opportunity. In accordance with all such laws of the State of New Mexico, the Contractor assures ‘that no person in the United States shall, on the grounds of rac, religion, color, national origin, ancesiy, sex, age, physical or mental handicap, or serious medical condition, spousal affiliation, sexual orientation or gender identity, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed under this Agreement. If Contractor is found not to be in compliance with these requirements during the life of this Agreement, Contractor agrees to take appropriate steps to correet these deficiencies. 17. Applicable Law, ‘The laws of the State of New Mexico shall govern this Agreement, without giving effect to its choice of law provisions. Venue shall be proper only in a New Mexico court of competent jurisdietion in accordance with NMSA 1978, § 383-1 (G). By execution of this Agreement, Contractor acknowledges and agrees tothe jurisdiction ofthe courts ofthe State of New Mexico over any and all lawsuits arising under or out of any term of this Agreement 18, Workers Compensation, The Contractor agrees to comply with state laws and rules applicable to workers compensation benefits for its employees. Ifthe Contractor fails to comply with the Workers Compensation Act and applicable rules when required to do so, this Agreement may be terminated by the Agency. 19, Records and Finan led time and expenditure records that indicate the date; time, nature and cost of services rendered during the Agreement's term and effect and contzact IDk retain them for a period of three (3) years from the date of final payment under this Agreement. ‘The records shall be subject to inspection by the Agency, the Department of Finance and ‘Administration and the Ste Auditor. The Agency shall have the right to audit billings both before and after payment. Payment under this Agreement shall not foreclose the right of the Agency to recover excessive or illegal payments 20. Indemnifiea ‘The Contractor shall defend, indemnify and hold harmless the Agency and the Stte of New Mexico from all actions, proceeding, claims, demands, cass, damages, attorneys’ fees and all other liabilities and expenses of any kind from any source which may arise out of the performance of this Agreement, caused by the negligent actor failure to act af the Contractor, is officers, employees, servants, subcontractors or agents, or if caused by the actions of any client of the Contractor resulting in injury or damage to persons or property during the time when the Contractor or any officer, agent, employee, servant or subeontractor thereof has or is performing services pursuant to this Agreement. In the event that any action, suitor proceeding related tothe services performed by the Contractor or any officer, agent, employee, servant or subcontractor under this Agreement is brought against the Contractor, the Contractor shall, 3s socn as practicable but no later than two (2) days aftr it receives notice thereof, notify the legal counsel ff the Agency and the Risk Management Division of the New Mexico General Services Department by certified mail 21, New Mexico Emplovees Health Coverage, ‘A. If Contractor has, or grows to, six (6) or more employees who work, or who are ‘expected to work, an average of atleast 20 hours per week over a six (6) month period during the term of the contract, Contractor certifies, by signing this agreement, to have in place, and agree ‘to maintain for the term of the contract health insurance for those employees and offer that health insurance to those employees if the expected annual value in the aggregate of any axd all, contracts between Contractor and the State exceed $250,000 dollars. B. Contractor agrees to maintain 2 record of the number of employees who have (2) accepted health insurance; (b) declined health insurance due to other health insurance coverage already in place; or (c) declined health insurance for other reasons. These records are subject f0 review and audit by representative of the state, C. Contractor agrees to advise all employees of the availability of State publicly financed health care coverage programs by providing each employee with, as a minimum, the following web site link to additional information: hp: insurenessmexico state.nm.us 2B Pay Equity Report Contractor agrees iit has ten (10) or more New Mexico employees OR eight (8) or more: ‘employees in the same job classification, at any time during the term ofthis contrat, to complete ‘nd submit the PE10-249 form on the annual anniversary of the initial report submittal for Contracts up to one (1) year in duration. If contractor has (250) or more employees contractor ‘must complete and submit the PE2SO form on the annual anniversary of the initial report submittal for contracts up to one (1) year in duration. For contracts that extend beyond one (1) calendar year, or ate exterded beyond one (1) calendar year, contractor also agrees to complete contract 108 and submit the PE10-249 or PE2S0 form, whichever i applicable, within thity (30) days ofthe annual contract anniversary date of the initial submital date or, if more than 180 days has elapsed since submittal of the last report, at the completion of the contract, whichever comes first. Should contractor not meet the size requirement for reporting at contract award but subsequently grows such that they meet or exceed the size requirement for reporting, contractor agrees to provide the required report within ninety (90 days) of meeting or exceeding the size requirement. That submittal date shall serve as the basis for submittals required thereafter Contractor also agrees to levy this requirement on any subcontractor) performing more than 10% of the dollar value of this contract if said subcontracto(s) meets, or grows to meet, the stated employee size thresholis during the term of the contract, Contractor futher agrees that, should one of more subcontractor not meet the size requirement for reporting at contract award ‘but subsequently grows such that they meet or exceed the size requirement for reporting, contractor will submit the required report, foreach such subcontractor, within ninety (90 days) of that subcontractor meeting or exceeding the size requirement. Subsequent report submittals, on Jbchalf of each such subcontractor, shall be due on the annual anniversary of the initial report submittal. Contractor shall submit the required form(s) to the State Purchasing Division of the General Services Department, and other departments as may be determined, on behalf of the applicable subcontractors) in accordance with the schedule contained in this paragraph. Contractor acknowledges that this subcontractor requirement applies even though contractor itself may not meet the size requirement for reporting and be required to repor itself. [Notwithstanding the foregoing, if this Contract was procured pursuant to solicitation, and if Contractor has already submitted the required report accompanying their response to such solicitation, the report does not need to be resubmitted with this Agreement 23, Invalid Term or Condition, If any term or condition of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected and shall be valid and enforceable. 24, Enforcement of Agretment, ‘A ppatys failure to require strict performance of any provision of tis Agreement shall not waive or diminish that party’ right thereafter to demand strict compliance with thet or any other provision. No waiver by a pary of any of its rights under this Agreement shall be effective unless express and in writing and ne effective waiver by a party of any of rights shall be effective to waive any other rights. 25. Notices, ‘Any notice required to be given to either party by this Agreement shall be in writing and shall he delivered in person, by courier service or by U.S. mail, either fist class or certified, retum receipt requested, postage prepaid, as follows: Tothe Agency: Mary Quintana Deputy Secretary of State Office ofthe Secretary of State 325 Don Gasper, Suite 300, Santa Fe, New Mexico 87501 ‘contrace 108 Tothe Contractor: Robert M. Doughty IIL Doughty, Alcaraz & deGraauw, P.A. 20 Furst Plaza NW, Suite 412. ‘Albuquerque, New Mexico 87102 26, Authority, If Contractor is other than a natural person, the individual(s) signing this Agreement on behalf of Contractor represents and warrants that he or she has the power and authority to bind Contractor, and that no further action, resolution, or approval from Contractor is necessary to enter into a binding contract IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of signature by the DFA Contracts Review Bureau below. yee eee eee eee eee Date: Agency By: ere eee eee Date ‘Agency's Legal Counsel ~ Certifying legal sufficiency By: Date: ‘Ageney’s Chief Financial Officer By jon and Revenue Department reflect that the Contractor is registered ‘with the Taxaticn and Revenue Department of the State of New Mexico to pay gross receipts and ‘compensating taxes, ID Number: 03-048431006 By: ‘Date: Taxation and Revenue Department Contract Ibe ‘This Agreement has heen approved by the DFA Contracts Review Bares By ee DFA Contracts Review Bureau Bb Date: ‘contract. 108, Appendix A Attorney Name |__Pariner or Associate Hourly Rate Robert M. Doughty Hil “Partner $200, ‘william W. Wirkus Associate St7> Jeffrey M. Mitchell ‘Associate ‘8150. fonica E. Sedillo Associate ‘8150. (Amye G. Green ‘Associate ‘8150 Attorney General Of New Mexico HECTOR H. RALDFRAS, ELIZABETH A GLENN Altomey General (Cie Depury Attorney General Sune 17,2015 Hant-Delvered ‘The Honorable Dianna J. Duran, Secretary of Sate 325 Don Gaspar Ave. Suite 300 Sana Fe, NM 87501 RE: Campaign Finance Reporting Task Force Recommendat Dear Seeretay of State Duran, [As you know. Ihave een and continue to be concerned about enforcement ofthe Campaign Reporting Act. To date, my Office has nly received ore criminal referal under the Act from your Office. Pursuant to our collaborative meeting on Janusry 27.2015, representatives from both the Office of the Secretary of State and the Office of the Atlorey General came together t identify solutions and strengthen accountability. Our office heve now met on two occasions to fulfill the obligations we agreed to undertake through the Camzuign Finance Reporting Task Force, The purpose of ths leter isto provide final reeommendat ons from my Office to improve campaign Finance reporting processes a the Office of the Secretary of Stat, ‘My staf’ first recommendation isto suppor a lepslatve proposal that will estate mandatory fines for non-compliance. This wil accomplish refomn that is needed to provide clarity to individuals and enttes subject othe requirements of the Campaign Reporting Ac. A statutory change will bea staightforward approach to enforcement of the Act and wll enhance your ability to focus your efforts on proative traning to improve overall compliance rates. My office proposes ‘hat this legislation be evaluated during the current interim committee process, Inadkition to legislative reform, there are several intemal process changes that can be implemented by your office to streamline campaign reporting compliance. My office recommends thatthe Office ofthe Secretary of State employ a dedicated training officer who is charged with the responsibility of conducting egularstalewide trainings and promoting front end understanding and guidance regarding the Act, These tings will ensure timely communication with those individuals and entities who are regularly non-compliant, My office also recommends an upgrade to your web application that may encourage increased compliance and reduce the opportunity for 8m ganar Fan ~~ errors in eporing. Finally, my office recommends that the Offic of the Secretary of State develop. an enhanced naifiction press to include the candidate, the treasurer, and an authorized agent ‘receive communications egarding reporting and late notices from vour Office. “Thank you forthe opportunity to work with you. I hope that you will ind hese recommendations helpful as we work toward improving transparency, accountability, an full compliance in the

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