A Denver-based nonprofit legal watchdog group filed suit in Denver District Court Tuesday against three Republican state lawmakers, asking a judge to compel them to fully comply with an open-records request relating to their correspondence about Amendment 52.
In a release late Tuesday, Colorado Ethics Watch officials said they hope to force Sen. John (sic) Penry (R-Grand Junction) [actually Josh], Rep. Cory Gardner (R-Yuma) and Rep. Frank McNulty (R-Highlands Ranch) to turn over “additional relevant documents” after only partially complying through the Office of Legislative Legal Services.
According to the Ethics Watch release, the three lawmakers first objected to the open-records request made under the Colorado Open Records Act (CORA) but then did turn over a handful of documents via the OLLS.
“I haven’t heard about Ethics Watch filing a lawsuit, no,” McNulty said in a phone interview late Tuesday. “I am aware that we complied with the Open Records Act request.”
But the OLLS advised Colorado Ethics Watch, according to the release, that Penry, Gardner and McNulty withheld additional documents because when lawmakers discuss a ballot initiative they are not acting as legislators, and therefore the documents aren’t subject to the Open Records Act.
“State lawmakers are using the initiative process as an alternative means of advancing their agenda, and therefore their e-mails to each other should be considered public records under the law, open to public review,” Chantell Taylor, director of Colorado Ethics Watch, said in the release.
“This lawsuit addresses a troubling resistance to transparency in government. We hope the judge will recognize the dangerous precedent being set when lawmakers can claim a large portion of their work is unofficial business, and not open to public scrutiny.”
Without seeing the lawsuit or the press release, McNulty would not comment on the argument that e-mails and other correspondence between lawmakers on ballot initiatives should be subject to the Open Records Act, but he did question the political motivations of Colorado Ethics Watch.
“I don’t know that I can make sense out of what Ethics Watch is doing,” McNulty said. “The best I can tell is that it’s an organization that has the sole interest of going after nearly exclusively Republicans, and that just doesn’t make much sense to me, but perhaps the Colorado Independent has a different view, I don’t know.”
In an e-mail response to McNulty, Colorado Ethics Watch Senior Legal Counsel Luis Toro replied that “this has nothing to do with partisan politics and everything to do with government transparency. The issue is whether legislators who use the initiative process to promote their legislative agenda are entitled to operate in secret, and we look forward to having a judge decide whether the objections filed to our CORA request are valid or not.”
The CEW release cites a 2005 Colorado Supreme Court ruling that e-mails between a county clerk and a staff member he was having an affair with were not public records under CORA because the correspondence didn’t relate to public business.
Now Ethics Watch says that precedent is routinely invoked to keep secret all sorts of records that do qualify as official business, including requests to determine “whether public officials are improperly conducting campaign business using public resources.”
“E-mails among legislators regarding ballot initiatives have a direct link to their official role in the legislature because Colorado legislators are authorized to, and often do, sponsor initiatives as an alternative means to accomplish legislative objectives,” Taylor said in the release.
Penry, Gardner and McNulty back Amendment 52, which voters will decide on the Nov. 4 statewide ballot, as a means of dedicating state oil and gas severance tax revenues to fund road repairs and improvements, with an emphasis on Interstate 70.
Calling it “the only plan on November’s ballot to fund transportation,” McNulty, who last legislative session unsuccessfully tried to push through an I-70 toll to pay for improvements to the state’s critical but congested main east-west highway, says Amendment 52 is a better solution than a toll, which would be unpopular with mountain communities.
“I-70 is important to not only local economies up there but the Denver Chamber has a report that says congestion on I-70 costs the state of Colorado $800 million a year, and that’s in lost wages, lost jobs, lost revenue, and so that’s something that we need to tackle, and we have an opportunity to do it with Amendment 52.”