The response to yesterday’s Colorado Supreme Court ruling reinstating a ban on gifts to lawmakers has ranged from disappointment to delight — and confusion of the type that has marked Amendment 41 since its inception. In the afternoon, members of the 2006 voter-mandated Independent Ethics Commission issued a statement, on official letterhead, announcing that the commission doesn’t actually yet exist — on which two of its four members’ names were misspelled. Specifically, four of the five members of the commission have been appointed. More than a year later, a fifth member must still be selected. Meanwhile, the group, which is designed to review complaints of ethical wrongdoing by government and public officials, has been meeting monthly since December to establish its rules of conduct and organizational structure.
On Monday, the Supreme Court announced its unanimous decision to lift the injunction, in place since last year, on the portion of the law that prohibits lawmakers and government workers from receiving gifts from lobbyists and others of more than $50.
The Supreme Court has not yet weighed in on the constitutionality of Amendment 41 — a broadly worded law that many critics contend would result in unintended consequences, including the children of government officials not being able to receive scholarships.
In lifting the injunction, the Supreme Court ruled 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.”
In a statement, the plaintiffs, representing the group the First Amendment Council, expressed their disappointment:
With this decision there are no ‘winners,’ but there are hundreds and thousands of losers.
“The decision leaves every state and county employee, along with their families, in limbo. Every business and individual that contracts with the state will also continue to be uncertain as to what behavior is acceptable and what is not.”
Meanwhile, Jenny Flanagan, of Colorado Common Cause — which sponsored the original amendment — was clearly thrilled: “This is the second win for the voters,” Flanagan told the Denver Post. “They won in 2006 and they won again today.”
Senate President Peter Groff, meanwhile — who cosponsored legislation last year to set up the voter-mandated ethics commission — issued his own response to the ruling:
“As a lawmaker I respect the ruling of our state’s highest court, though I am disappointed that we are back where we started. However, SB07-210, which I sponsored with Senator [Andy] McElhany last year, created a commission that may now begin to answer some of the questions that surround the ambiguity of Amendment 41.”
However, the four members of the Independent Ethics Commission, which met yesterday afternoon, issued their own statement claiming the commission is not yet operational — and didn’t provide any indication of when it might be. Last April, the Colorado Senate selected Republican former Sen. Sally Hopper to the commission, and the Colorado House of Representatives subsequently selected Democrat Roy Wood to one of the slots.
In September, Gov. Bill Ritter picked Democrat Nancy E. Friedman as the third member of the commission, and in November, Colorado Supreme Court Chief Justice Mary Mullarkey named Republican former state Rep. Phillip M. “Matt” Smith to the fourth slot.
By statute the group must pick a fifth, unaffiliated committee member. But when and how that might happen was not apparent, from the formal statement, complete with the Colorado seal, that members issued on Monday following the ruling — on which two of the four committee members names were misspelled.
25 February 2008
The Colorado Supreme Court today issued its decision in the Developmental Pathways case and stated that the Independent Ethics Commission is not yet in existence until the fifth commissioner is appointed.
The Colorado Independent Ethics Commission, which is currently composed of four citizen volunteers, is working hard to select the fifth commissioner, to hire its Executive Director and to promulgate its rules. Until such time as the fifth commissioner is seated and the rulemaking on our complaint and advisory opinion procedures are in place, the Commission will not process complaints, requests for advisory opinions or letter rulings.
As to any complaints that the Commission may receive prior to such time, the complaining parties will be notified that their complaints will not be processed.
Commissioner & Interim Chair
Sally Hoppner [sic] Commissioner
Philip [sic] “Matt” Smith
Dr. Roy Wood
The announcement did not include any telephone numbers or contact information for who to call for additional information, including when the commission plans to be operational – and how members of the public should proceed with any complaints in the meantime. Subsequent efforts to reach committee members have been unsuccessful.
The ongoing absence is not lost on Chantell Taylor of Colorado Ethics Watch, whose organization is the only one so far to have filed a complaint with the commission, alleging conflict-of-interest charges against Secretary of State Mike Coffman. For months, Taylor’s group has been agitating for the committee to become operational. On Tuesday, Taylor criticized the commission’s own statement, claiming its nonexistence.
“They are conducting formal meetings and making formal actions and issuing formal statements on their letterhead announcing their nonexistence, and it’s an absurd position to take,” said Taylor.
“It’s a position of convenience — at least that’s my interpretation. They’re stalling so they can take time to be comfortable and fully prepared without being rushed — but here we are [a year and three months] after voters approved Amendment 41 and … they need to get up and running.”
Cara DeGette is a senior fellow at Colorado Confidential and a columnist and contributing editor at The Colorado Springs Independent. E-mail her at firstname.lastname@example.org