Judge rules state ethics panel can’t conceal documents from public view

(Photo/Joe Gratz, Flickr)
(Photo/Joe Gratz, Flickr)
A judge on Thursday ordered Colorado’s top ethics panel to turn over records it went to court to keep secret, including letters from lawmakers and government employees asking for guidance on ethical questions.

The Independent Ethics Commission argued on Tuesday that releasing records to Colorado Ethics Watch, a nonprofit watchdog group, would cause “substantial injury to the public interest” by discouraging public officials and others subject to state ethics laws from seeking advice. The commission asked for a blanket ruling that submissions to the commission should be kept confidential.

In an unusually swift decision handed down just two days after hearing arguments, Denver District Court Judge Norman Haglund ruled the ethics commission improperly withheld documents sought by Ethics Watch in a Colorado Open Records Act request last summer. The judge also ordered the ethics commission to pay attorneys’ fees to Ethics Watch.

“Finally the commission that was established to hold officials accountable for violations of law is itself being held accountable,” said Ethics Watch director Chantell Taylor in a statement after the judge ruled. “Nothing in the Colorado Constitution or statute allows the [Independent Ethics Commission] to operate in secret. To the contrary, the IEC should serve as the model for honest and open government.”

The commission’s executive director, Jane Feldman, didn’t respond to a call seeking comment on the decision. In the past, commissioners have referred requests for comment to Feldman.

An attorney who specializes in First Amendment and press law hailed the ruling.

“It establishes the important principle that the ethics commission should be transparent and should be open to the public,” said Denver attorney Chris Beall, “and that the Colorado Open Records Act should not be used as a means to prevent public access.”

Beall is representing The Colorado Independent, the Fort Collins Coloradoan and the Pueblo Chieftain in a lawsuit filed last week against the Colorado State University System Board of Governors for alleged repeated violations of Open Meetings Law during the board’s selection of a new system chancellor.

The Colorado Independent is also seeking records of more than a dozen secret meetings held by the ethics commission this year. A week ago, the ethics commission refused to turn over recordings of the meetings, saying they are confidential.

“You’ve got an ethics commission that’s obsessed with secrecy,” said Ethics Watch attorney Luis Toro in an interview last week.

The five-member commission was established after the 2006 approval of Amendment 41, sold to voters as a measure to increase government accountability and transparency.

An investigation by The Colorado Independent revealed the ethics commission spent 85 percent of its time meeting behind closed doors this year to discuss complaints and requests for rulings on the conduct of public officials and government employees.

The commission has a “transparency problem,” Taylor said in an interview last week. “The only way the ethics commission is going to change is with public exposure and more pressure.”

Also on Thursday, Ethics Watch announced it wouldn’t appeal last month’s ethics commission decision clearing U.S. Rep. Mike Coffman of wrongdoing when he served as Colorado secretary of state, instead calling for the commission to investigate complaints more thoroughly.

The complaint Ethics Watch filed against Coffman has so far been the only complaint the ethics commission didn’t dismiss outright. The commission decided against holding hearings on a handful of other complaints, ruling in most cases that state ethics law didn’t apply in the allegations.

Ethics Watch also sought a pair of complaints filed with the commission in its lawsuit decided this week, but the judge ruled that when Ethics Watch asked to see the documents, the commission hadn’t yet decided if the complaints were “frivolous.” That designation would exclude them from public view under the law. The judge invited Ethics Watch to resubmit requests for the two complaints, noting that the commission threw them out but hadn’t dismissed them as “frivolous.”

Feldman testified Tuesday that a caller last summer indicated he wouldn’t file a request for an opinion with the ethics commission if he couldn’t be assured it would be kept confidential. The commission’s attorney admitted under questioning from the judge that no one knows whether the caller eventually sent in an inquiry. Based on that instance and an informal survey of confidentiality rules established by other states, the commission argued that all submissions to the commission should be kept secret, despite laws stating only frivolous complaints and the names of anyone requesting letter rulings were confidential.

The law governing public records shouldn’t be waived, Toro argued to the court, just because the ethics commission has a hunch officials won’t seek advice unless their requests are under wraps. To the contrary, Toro said, public officials and government employees are submitting more requests than the ethics commission can handle, “even though anyone who asked was told there was no guarantee of confidentiality.”

Last year, the ethics commission received 71 requests for advisory opinions and letter rulings — the first category from public officials and the second from those outside government, primarily lobbyists — and has received “13 or 14” requests so far this year, Feldman testified.

The ethics commission only began releasing advisory opinions and letter rulings this year, after first consolidating several similar requests for advice into three position statements issued last fall covering gifts, travel and special discounts for public employees. Some requests for rulings submitted as long as a year ago still haven’t been addressed by the commission, according to an attorney who has regular dealings with the panel.

Haglund agreed with Ethics Watch, ruling that “the concern of the [Independent Ethics Commission] regarding such a chilling effect, while sincere, is merely speculation that such an effect may occur.” He gave the ethics commission 15 days to turn over documents seeking advisory opinions and letter rulings — with names redacted in the latter — that Ethics Watch asked to see, as well as responses and correspondence about the requests.

“This ruling is a victory for public transparency and a wake-up call to the commissioners that Coloradans meant it when they demanded the highest ethical standards from their government, including the [Independent Ethics Commission],” Taylor said.

The ethics commission can appeal the ruling. The lawyer who handles legal matters for the commission, senior assistant attorney general James Carr, didn’t respond to a request for comment.

Read Judge Haglund’s decision, the Colorado Ethics Watch trial brief in the lawsuit, and the Independent Ethics Commission’s legal argument, all PDFs.

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