Probable Cause

An attorney state legislators hired to investigate claims against Sen. Daniel Ivey-Soto concluded there was probable cause to believe Ivey-Soto violated the state’s anti-harassment policy, according to a document obtained by SFR.

Yet, the Albuquerque Democrat asserts he’s off the hook from the investigation that looked into a complaint alleging he sexually harassed and groped lobbyist Marianna Anaya.

The process is shrouded in secrecy, but the three-term Democratic senator grabbed the spotlight Wednesday by claiming in a letter to the Albuquerque Journal that his lawyer “was informed” the case had been closed with no recommendation for discipline.

“There will be no official announcement,” Ivey-Soto wrote, then made his own announcement: “there was no finding of probable cause, meaning the matter is closed.”

Attorney Thomas Hnasko’s report to the Investigative Subcommittee of the Interim Legislative Ethics Committee, dated July 18, concludes there was reason to believe Ivey-Soto violated the state’s anti-harassment policy twice, but not a third time. It’s not clear what happened from there or what, exactly, led Ivey-Soto to declare his exoneration in a newspaper op-ed. That’s because, by statute and rule, no one is allowed to discuss any aspect of the matter. Ivey-Soto did not return calls for comment to SFR; Hnasko declined to comment.

The four senators named as members of the subcommittee in Hnasko’s report are Linda Lopez, D-Albuquerque; Crystal Diamond, R-Deming; Benny Shendo, D-Jemez Pueblo; and Pat Woods, R-Broadview. Lopez is also a co-chair of the Interim Legislative Ethics Committee. Lopez did not return a telephone message seeking comment Thursday.

Meanwhile, Anaya’s lawyer on Thursday filed a petition for declaratory judgment in Santa Fe’s First Judicial District Court asserting the confidentiality provisions in the anti-harassment policy amount to a violation of his client’s free speech rights under the New Mexico constitution.

Hnasko’s 29-page report includes explosive, never-before-reported allegations, including one claiming that Ivey-Soto pinned Sen. Katy Duhigg, a fellow Albuquerque Democrat, down on a couch in 2019 while she tried to pull away from him. And the list of those Hnasko interviewed in his investigation reads like a who’s who of powerful lawmakers, other elected officials and lobbyists. Many of them shared negative experiences and thoughts about Ivey-Soto; a few spoke well of his character.

Anaya’s allegations spilled into public view in February. She said Ivey-Soto pinched her buttocks on one occasion in 2015 and made sexually charged comments towards her in 2020. Anaya also alleged that Ivey-Soto held up a voting rights bill she was lobbying for during the 2022 legislative session and yelled at her after she confronted him about the 2015 incident. She filed a formal complaint with Legislative Council Service, with encouragement from Senate Majority Leader Peter Wirth, D-Santa Fe, according to Hnasko’s report.

That triggered Hnasko’s appointment and investigation, during which he interviewed 21 people.

Hnasko’s analysis found “sufficient credible evidence” that Ivey-Soto’s conduct towards Anaya in 2015 amounted to sexual harassment under the state policy. He made a nearly identical finding for the 2020 incident, once again finding probable cause to believe Ivey-Soto violated the policy. Probable cause, under state law and legislative rules, is the key standard that would trigger a public hearing on allegations against a legislator.

But Hnasko stopped short of deeming the 2022 incident as harassment because it was what “one would reasonably expect during the deliberative legislative process, including ‘heated discussions, pointed questioning and vigorous attempts to persuade.’”

Hnasko writes that Ivey-Soto “has been the recipient of complaints of other inappropriate conduct, some of which have been reported in the press and expressed through public letters.” Hnasko also writes that he included accounts from others to show that Anaya was not mistaken in her perception of at least the two first reported encounters.

“In the current circumstances, as explained below, Special Counsel concludes that evidence of other acts allegedly committed by Senator Ivey-Soto are relevant for the limited purposes of showing that Ms. Anaya likely did not misperceive the conduct of Senator Ivey-Soto, or that she was somehow mistaken in either the occurrence of the event or with her perception of Senator Ivey-Soto’s intent towards her,” he writes.

The claims detailed in Hnasko’s report range from alleged inappropriate touching and harassing language to sexual assault.

Duhigg told Hnasko in an interview for his investigation that before she was a senator, and Ivey-Soto engaged in a “consensual interaction” that “became non-consensual” after Duhigg tried to pull away, according to the report.

“Senator Ivey-Soto ‘pinned her down on the couch,’ did not stop when she asked him to do so, and a struggle ensued, leading them both to fall to the floor, where the struggle continued,” Hnasko writes.

Reached by telephone Thursday afternoon, Duhigg declined to comment.

Hnasko’s is a familiar name for those who follow investigations into New Mexico legislators. Senators on the Interim Legislative Ethics Committee appointed the Santa Fe-based attorney who works at Hinkle Shanor in late 2014 to investigate then-Sen. Phil Griego’s real estate dealings. Those dealings ultimately earned Griego a felony conviction and expulsion from the Senate.

What, exactly, happened after Hnasko turned in his report on the Ivey-Soto allegations is hidden.

Raúl Burciaga, director of the state’s Legislative Council Service, is forbidden from discussing individual cases under the anti-harassment policy. But he describes for SFR in a telephone interview Thursday the process for such cases.

Senate leadership first conducts a review, with the help of an outside attorney, of a complaint. If any of them determines the case should move forward, they send it to the full ethics committee’s investigative subcommittee, which appoints a special counsel—typically a different attorney than the one who assists Senate leadership—to investigate.

The special counsel then presents findings and recommendations to the subcommittee, which votes to accept or reject the special counsel’s recommendations. If the subcommittee finds probable cause of a violation, it sends that vote to the ethics committee’s hearing subcommittee, which votes on whether to conduct a public hearing.

If the investigation subcommittee determines there is no probable cause, it sends that finding to the hearing subcommittee with a recommendation to dismiss the charges or close the matter. The hearing subcommittee must vote on that as well, making it the final stop in the process.

The shroud surrounding the ethics committees dealings, particularly as it relates to the anti-harassment policy, has rankled lawmakers, government transparency advocates and others. Similar concerns landed in a courtroom on Thursday.

Levi Monagle, an Albuquerque-based attorney who represents Anaya, the lobbyist who accused Ivey-Soto, filed a civil complaint in a Santa Fe state court, arguing that the statute that has kept everyone tight-lipped about the investigation violates the New Mexico Constitution.

In his filing, Mongale criticized the law for allowing Ivey-Soto to publicly speak about the allegations against him while effectively silencing Anaya.

“The statute allows an accused legislator like Sen. Ivey-Soto to discuss investigative developments and information if or when he chooses to do so, while leaving complainants like Ms. Anaya subject to a complete and procedurally open-ended gag order,” Monagle writes.

Despite numerous calls for Ivey-Soto to be stripped of committee assignments and others for him to resign, he signaled in his Journal op-ed that he intends to stay in the Legislature.

“To any person who may have taken offense or felt hurt when interacting with me, I sincerely apologize, and I am open to discussing such matters directly,” he wrote. “It is my desire and commitment that we find a way to work together for the betterment of our great state and focus on the substantive work before us in Santa Fe.”