State’s top ethics panel agrees during secret enclave: We’re no star chamber

No group empowered to pass judgment wants to think of itself as a “star chamber,” least of all the Colorado panel that, until recently, regularly met for hours on end in secret to formulate ethical decrees. At least that’s what members of the Colorado Independent Ethics Commission said in a secret meeting a lawsuit alleges was convened illegally and discussed topics Colorado law forbids public officials from deciding when the public isn’t watching.

Ethics commissioners held a rollicking discussion in March about a Western Slope imbroglio involving a small-town sheriff, his messy divorce and assorted gossip hitting the headlines. Should we intervene? commissioners wondered aloud. Will there be times when the citizenry is so spooked by local officials — especially those who carry guns and can throw pesky do-gooders in jail — that none dare file a complaint with the ethics commission? What then?

Dismissing the notion the commission should initiate its own investigation based on newspaper reports — at least this time — commissioners agree: they’re no star chamber.

The discussion came to light this week when the ethics commission released recordings from two closed-door executive sessions in response to a Colorado Open Records Act request made three months ago by The Colorado Independent. The news site subsequently filed a lawsuit charging the ethics panel repeatedly failed to comply with strict legal requirements for convening executive sessions, rendering a dozen enclaves not executive sessions but meetings that were illegally closed to the public. The lawsuit is being heard in Denver District Court.

Following an investigation into questions of secrecy surrounding the ethics commission, The Independent’s lawsuit argues the panel didn’t post its meeting topics properly, commissioners were prohibited by law from discussing some of the things talked about in secret and the commission illegally deliberated on questions and came to conclusions before rubber-stamping their decisions in public votes.

In this case, the 10-minute discussion occurred during a four hour, 40 minute executive session when the commission hashed out several ethical rulings, among other topics. The public notice announcing the commission’s intended topics for its March 19 executive session didn’t include anything like an examination of the panel’s powers to initiate its own investigations absent a formal complaint, and the topic hasn’t appeared in the public record since.

Here’s the audio from the second portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link.

The discussion about the Garfield County sheriff and whether the commission considers itself a star chamber starts at the 35-minute mark. Listen to the recording here:

Here’s what went down:

After discussing a range of other questions for about 35 minutes, the commission turns its attention to a scandal brewing in Garfield County. A number of anonymous phone calls and e-mails have been sent to the commission about the Garfield County sheriff. Curious about the ruckus, the commission’s executive director, Jane Feldman, reports she tracked down some newspaper accounts and learned the sheriff, who is getting a divorce, is apparently having an affair with a staffer he subsequently promoted.

No one has filed a complaint about anything involving the sheriff, Feldman says, but she wanted to inform the ethics commission this story is out there and raise the question: “There is a larger issue to what extent the commission wants to get involved.”

Noting that the commission rules require someone to file a complaint before the panel can investigate or take action, commission chairwoman Nancy Friedman asks, “If we see something covered by every newspaper in the state, at what point do we chose to get involved in something?”

“Never,” says commissioner Sally Hopper.

Commissioner Matt Smith wants to set the record straight. He says he’s been following the story and says “part of the scuttlebutt” is whether what’s being reported in newspapers is accurate. “I think there’s no end to the number of complaints we get involved with if we do pick up allegations in the newspaper,” Smith says. Saying he understands commissioners don’t want to become a “laughing-stock” by ignoring ethical scandals everyone is talking about, Smith urges commissioners to stay out of it unless someone formally files a complaint.

Friedman recounts an instance in New York City — where she worked for years on that city’s notoriously secretive ethics board before moving to Colorado — when the official ethicists finally felt compelled to weigh in on a public scandal that threatened to swallow the metropolis in corruption, despite no one asking the board for a ruling.

“We just decided it would be ridiculous if we didn’t do something,” Friedman says. But it only happened once in a decade, she later notes.

“We could talk theoretically all day,” Hopper says. “Let’s just blow this one off until we get a complaint.”

The commission agrees that there could be situations where “the hazards of filing a complaint are so great” that no one will approach the commission.

Courts can’t take cases until they’ve been filed, says David Joeris, the lawyer with the attorney general’s office advising the commission, noting that this “can be a blessing and a curse.” Likewise, the commission doesn’t have the authority to go out and investigate something until someone has filed a complaint, he advises, adding that the commission can set its rules differently if it wants.

“The danger of a group like this just deciding to go around and catch the guilty bastards is really dangerous,” commissioner Roy Wood says.

Friedman agrees, the ethics commission “would never be a star chamber.”

And with that declaration, the commission breaks for lunch.

Listen to more recordings of the ethics commission’s closed-door meetings here.

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