Colorado’s Independent Ethics Commission resists reform
A bill to reform Colorado’s Independent Ethics Commission outraged its Chair Bill Leone, who led the commission in taking a hard line on the measure that would create policies to address conflicts of interest between commissioners and the officials the body holds accountable.
The commission’s move to resist new regulations comes in the wake of a scathing review of its work by the state auditor. Leone said the audit “stung.”
House Bill 16-1216 would prohibit the commission from using the Attorney General’s office as legal counsel because it falls under the IEC’s oversight. Instead, the commission would have to hire private attorneys.
The bill narrowly passed committee on Tuesday, hours after the audit was released.
Leone did not limit his criticism to the auditor and the lawmakers who wanted to hold the ethics commission ethically accountable.
He also blasted Attorney General Cynthia Coffman because her office testified Tuesday that she supported allowing the commission to hire its own attorneys.
“The Attorney General supports the portion of HB 1216 that allows the Independent Ethics Commission to seek in-house legal counsel to represent and advise on matters ranging from opinions to litigation. Attorney General Coffman supports any effort that promotes good governance by ensuring there is no perceived conflict now or in the future,” wrote Coffman’s spokesperson Roger Hudson in an email to The Colorado Independent.
But Leone has known at least since last December that a bill was coming that would require the commission to hire its own attorney
Coffman relayed her support for the idea to The Independent last December through a spokesman. In that same story, which focused on the pending bill, Leone was also interviewed, and said at the time he was not “adverse” to the idea.
Since its beginning in 2007, the commission has relied on legal services from the Attorney General’s office. Leone said that arrangement was set up with then-Attorney General John Suthers, who assured the commission his office would bend over backwards to ensure the relationship was appropriate.
One of the commission’s primary responsibilities is to hear complaints and dole out advice about ethical issues involving elected officials, which could include the Attorney General, raising a huge potential conflict of interest.
Leone told fellow commissioners Friday that he thought about inviting Coffman to Friday’s meeting, but changed his mind.
“It would have been for her to come down here so we could yell at her,” he said.
Fellow commissioner and former state Rep. Matt Smith of Grand Junction added he had been unaware, until he saw the bill, that the Independent Ethics Commission had been “terminated” by the Attorney General.
Leone said he knew nothing about the bill until the day of the hearing, a claim he also made in the Judiciary Committee meeting.
Leone said he “just happened” to be at the state Capitol and saw that the bill was scheduled for hearing later that day.
The bill has been in the works for two years, said Senate sponsor, Sen. Pat Steadman of Denver, who pointed out that last year a similar bill failed.
After the 2016 bill came out in February, an interim Ethics Commission staff member worked with the legislature’s fiscal staff to identify its costs, which would have required knowing what was in the bill.
In addition, the commission’s attorney from the Attorney General’s office worked on the bill and reviewed its language line-by-line.
The commission’s executive director, Amy DeVan, who left in December, also “probably knew about the bill,” according to Leone.
Update 3/14/2016: Leone’s speculations were unfounded, said DeVan, who told The Colorado Independent she knew nothing about the 2015 legislation until it was introduced in committee and nothing about the 2016 bill until it was reported by the press.
The commission’s March 3 meeting included an executive session notice that was to include a discussion of the bill.
Unlike Leone, commissioner Smith said he knew about the bill at least several days before the March 8 hearing, because he submitted a two-page letter outlining his concerns to the Judiciary Committee, which discussed his letter during the hearing.
But no one involved with the bill ever contacted the commission to discuss the bill publicly or to make a presentation on what the bill would do, Leone complained.
The bill had been on the General Assembly’s website for public review since February 4.
But Leone oddly maintains he and the commission were shut out of the process, despite its attorney, staffers and fellow commissioners’ involvement.
“This is no way to make a law,” Leone told his fellow commissioners. “I sat in the hearing for two hours and listened to testimony” from people who have sued or are suing the commission and others who testified as to how the commission works.
Leone said the bill smacked of a “backroom deal” made by a former commissioner — who went nameless — and the bill’s proponents, which include Colorado Ethics Watch and Colorado Common Cause.
As to the bill itself, Leone raised the possibility of suing the legislature should HB 1216 pass.
The commission was created by a constitutional amendment, he said, and he is obliged to defend the commission’s independence and constitutional authority.
“I don’t think the legislature has the right to tell us who to hire as a lawyer.”
Should the legislature press the issue, Leone said he would fight “to the death in court,” if necessary.
Leone and Smith noted the extreme costs of hiring outside counsel.
The Attorney General’s office has a wide range of legal expertise on employment, trial and constitutional issues, provided at $98/hour, Leone said. That’s not a rate or a range of expertise they’re likely to find from a Denver attorney’s office.
The bill’s initial estimate of $130,000 per year would be insufficient, Leone and Smith said, estimating the cost would be closer to $400,000.
That cost would likely doom the bill in a tight budget year, Leone said. But he doesn’t want the cost issue to be used as a “bludgeon” to kill the bill.
And if Coffman wants to sever the relationship with the ethics commission, Leone said she should have met with the commissioners first.
Leone said the only part the commissioner would consider was cutting ties with the attorney general’s office, but only if it were an option rather than a mandate.
The rest of the rules and policies the bill outlines? Leone would strike out everything else.
Steadman was shocked by some of Leone’s remarks, including the false assertion that the General Assembly doesn’t have the right to pass bills that would tell the ethics commission what to do.
Lawmakers do pass bills affecting constitutionally-created groups, Steadman told The Colorado Independent Friday. That includes the annual budget, which funds the commission, its office and its staff; as well as the original bill that set up the commission.
In 2010, Steadman carried a bill that moved the commission out of the Department of Personnel and Administration and under the Department of Law.
“Yes, they’re established in the constitution as an independent entity, but we have to figure out in statute where they fit in state government,” Steadman said.
He said the General Assembly approves the commission’s budget so they have a staff and office, and also looks at laws in general to figure out how those laws apply to the commission.
Steadman noted the Joint Budget Committee, of which he is a member, has had concerns about the commission’s budget, which he believes is inadequate, as well as concerns about the commission’s lack of transparency, an issue raised in last year’s budget hearings.
The commissioners intend to send a letter to the House Appropriations Committee, which will review the bill next, outlining their concerns.
Photo credit: M.A.R.C., Creative Commons, Flickr.
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