Secretary of State Gessler’s plan to moonlight as private attorney sounds ethics alarms

Colorado Secretary of State Scott Gessler is no stranger to political controversy. He has represented a long line of conservative advocacy and attack groups and in that role has become the public face of partisan causes. Indeed, his name and the law firm he founded virtually stand for a branch of Colorado politics that seeks to limit government restrictions on and oversight of campaign financing. He has done battle repeatedly with laws the secretary of state is charged to enforce and now he is secretary of state. His election victory put government watchdog groups on high alert. News coming today, a little more than a week since he was sworn into office, that Gessler plans to keep working part-time as an attorney for his former firm even while serving as secretary of state has set conflict-of-interest alarm bells ringing in watchdog offices.

In an interview with the Denver Business Journal, Gessler acknowledged that his plan to moonlight as a contract attorney with the Hackstaff Law Group, formerly Hackstaff and Gessler LLC, would certainly raise ethical questions but that he needed the money. He said his first priority would be to serve the state but that the public-servant $68,500-a-year salary that came with the office amounted to a major pay cut and he still had to provide for his family.

“My first duty is to the state of Colorado. Anything else I do, I’m going to have to make sure it in no way conflicts,” he told the Journal.

Making sure that any work he does for Hackstaff doesn’t conflict with the work he has sworn to do for the people of Colorado, however, may amount to another full-time job.

The secretary of state oversees and administers laws, codes, regulations that cover a vast array of vital and contested areas of activity, including lobbying, elections, campaign finance, voter registration, ballot initiative title setting and petition verification, some gambling as well as business, nonprofit and charitable practice and licensing. The list is long.

Gessler’s former law partner Jim Hackstaff bought Gessler out of the firm the day before Gessler became secretary of state. Hackstaff told the Journal that the ongoing part-time contract he signed with Gessler, which goes into effect in March, contains a provision stating that Gessler and the firm would “ensure that no conflict exists with Gessler’s state duties” and “specifically cited such areas as election law, nonprofit representation and business registration matters.”

Hackstaff said he “knows Gessler well enough to know he’ll be very conservative” in the projects he chooses to work on in order to steer clear of conflicts of interest.

Former Secretary of State Bernie Buescher, who has accepted a job as the deputy attorney general responsible for advising the secretary of state, said he couldn’t comment on Gessler’s plan to moonlight because commenting would be “inappropriate.”

Attorney General John Suthers, who is tasked to work with Gessler to help him avoid Hackstaff-related conflicts of interest, said attorney-client privileges prevent him from speaking on the topic.

This legally proscribed silence is a big problem and points to the bigger problem going forward, according to Luis Toro, director of government watchdog group Colorado Ethics Watch and a man who has argued cases against Gessler in the past. The public is being forced to simply accept that the secretary of state will be acting in good faith without any way to really ask questions or get answers to confirm that’s the case, he said.

“Assuming it’s feasible for [Gessler and Hackstaff] to carve out areas of law for [Gessler] to practice that don’t present a conflict with his responsibilities as secretary of state, how is the public supposed to monitor that? That [challenge] is inconsistent with the idea of public oversight of public officials.”

Toro points to the ethics questions that two years ago plagued Colorado Springs Mayor Lionel Rivera surrounding a deal that included a $53 million city contract to develop a new headquarters for the U. S. Olympic Committee. Because the Colorado Springs mayor position was, in effect, a part-time job, Rivera continued to work as a broker. His business clients included developers bidding for the Olympics project. He later said his problems with the case were compounded by the fact that he couldn’t break confidentiality agreements.

Toro said that in fact Colorado’s Personnel Board makes strict rules governing outside employment for state workers. As secretary of state, Gessler will have to sign off on those for his staff and they likely will apply to Gessler as well. Toro said that, in the end, Gessler may just decide to look for other ways to make side-cash given the “ethical minefield” his plan to moonlight for Hackstaff already seems to be laying out before him.

“Maybe he’ll just be, you know, ‘mea culpa.’ You just got to give him a chance to say ‘This isn’t going to work. Let’s avoid this whole can of worms. I’ll focus on doing the best job I can as secretary of state.'”

[Image via UPI ]

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