Supremes Bring Gift Ban Back; Still No Ethics Commission

The Colorado Supreme Court today tossed out the injunction barring Colorado’s ethics in government law — in essence ruling it’s up to the state’s five-member ethics commission to implement and enforce the law. The only problem is, more than a year and three months after voters approved Amendment 41, the five-member commission is still not in place.Colorado voters approved Amendment 41 in November 2006. The ethics in government law was largely sold to voters as an effort to halt lawmakers from accepting gifts from lobbyists and others. The broadly worded constitutional amendment, however, raised questions about whether unintended consequences would prevent, for example, children of state employees from receiving scholarships and Nobel Prize winners from being able to accept the cash award.

Last May, a group of opponents called the First Amendment Council succeeded in placing an injunction blocking the gift ban  while the case weaves its way through the courts.

At the time, there was confusion — as there has been over much of a law that nearly everyone has agreed was poorly-worded — over what the injunction meant for lawmakers. After the ruling last spring, Colorado Common Cause, which sponsored the law, called upon elected leaders to pledge to accept no gifts, trips or meals from lobbyists and to follow the voter-approved $50 limit on all other gifts.

However, it’s unclear how closely current lawmakers, none of whom were plaintiffs in the case, have followed that request.

Meanwhile, the law, and subsequent legislation last year, specified that the five-member ethics commission be assembled. Technically the committee, in order to oversee complaints of ethical violation and misconduct by lawmakers and others, could have begun its work last July 1.

However, the commission — which is to be composed of two Republicans, two Democrats and an unaffiliated local government employee — has been slow to assemble.

Last April, the Colorado Senate selected one of its former members, Republican Sally Hopper of Golden, as a commissioner. The Colorado House of Representatives subsequently selected Democrat Roy Wood to one of the slots. Wood is the director of the Center for Civic Ethics at the University of Denver.

In September, four hours after a watchdog group accused Gov. Bill Ritter of dragging his heels on an appointment, the governor’s office announced his selection of Nancy E. Friedman as the third member of the commission.  Friedman, a Democrat, works for a Front Range business-consulting group.

In November, Colorado Supreme Court Chief Justice Mary Mullarkey — who was tasked with appointing a fourth member of the panel — named Grand Junction attorney Phillip M. “Matt” Smith. Smith, a Republican, is a former state representative from the Western Slope.

The four appointees must, by law, select a fifth, politically unaffiliated, member of the commission. More than a month into this year’s legislative session, the commission is still not fully up and operating.

From the summary of today’s ruling (pdf):

The Colorado Supreme Court holds that Plaintiffs failed to present a ripe as-applied constitutional challenge to the Amendment’s gift bans because the Amendment’s ethics commission is not yet in existence, and it has not yet had the opportunity to implement the Amendment.  Because the district court did not have the jurisdiction to grant a preliminary injunction, the court now reverses the district court’s order and directs the court to vacate the injunction.

Cara DeGette is a senior fellow at Colorado Confidential and a columnist and contributing editor at The Colorado Springs Independent. E-mail her at

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