Watchdog groups say the commission’s lack of funding makes it nearly impossible for average citizens to bring complaints against public officials who misuse tax dollars or act unethically. Meanwhile, some elected officials say aspects of the commission’s hearing process deny them the due process rights they need to defend themselves.
Despite its mission to keeping politicians clean, the commission itself has been used – both inadvertently and intentionally – as a political tool.
During last fall’s gun control motivated recalls, for example, political opponents of former Senator John Morse of Colorado Springs advertized that he’d been brought up for an ethics violation without ever noting that the case was ultimately dismissed. It’s possible that the stigma of an ethics complaint — even an unfounded one — hurt his chance to hang on to his office.
Meanwhile, Secretary of State Scott Gessler is still trying to shake the political dead weight of the commission’s June 2013 finding that he misused taxpayer money for a political trip. His department wracked up some $180,000 in legal fees defending against and then appealing the commission’s decision, only to have its finding upheld by the Denver District Court.
Gessler keeps picking at his year-old ethics wound, now petitioning to submit briefs in an ethics case against Governor John Hickenlooper. In that case, conservative political organization Compass Colorado argues that Hickenlooper misused state resources when preparing for the 2013 meeting of the Democratic Governors Association and that he ran afoul of the gift ban when he accepted dinners and receptions at the event. Gessler’s legal team is arguing that the allegations are similar and that neither official should be considered in violation of ethics laws. Hickenlooper, whose governor’s seat Gessler is running to usurp this fall, isn’t welcoming Gessler’s solidarity on the ethics front, which adds a layer of twisted political weirdness to the discussion on how to fix what’s broken with Colorado’s ethics commission.
Living up to voters’ expectations
“The three pillars upon which ethics agencies are built are independence, adequate resources and enforcement authority.” — Carol Carson, former president of the Council on Governmental Ethics Laws.
When more than 60 percent of Colorado voters approved Amendment 41 in 2006, they called for an independent ethics commission that would “conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint [of an ethics violation.]”
Eight year later, private citizens, watchdog groups and political organizations that have perused ethics complaints say the commission is so under-funded that it’s failing to live up to that constitutional mandate.
Colorado is the only state in the country that requires a person who files a complaint to act as a prosecutor at their own expense. Other states employ staffers to pursue complaints of wrongdoing on the public’s behalf.
With an annual budget of $271,000, Colorado’s ethics commission receives about half the funding of commissions in neighboring states, according to the National Conference of State Legislatures. Even considering that some of those states, such Kansas and Nebraska, combine elections and ethics oversight — which Colorado doesn’t —our commission is still radically understaffed.
“The idea was always that if a complaint isn’t frivolous, the commission will investigate and hold a hearing. It’s supposed to be like medical license review — the agency investigates and prosecutes. But with a staff of one, you can’t do that. At bare minimum you need three people: an investigator, an executive director and a prosecutor,” said Luis Toro of Colorado Ethics Watch, a nonpartisan ethics watchdog group.
Right now the commission employs just one staff person, Maureen Toomey, as assistant director. The executive director, Jane Feldman, resigned last month and the commission is now considering holding-off on replacing her for budgetary reasons.
Citizens are often shocked when they reach out to the commission with ethical concerns about public officials only to find that they’ll have to prosecute the case themselves or else come up with the funds to hire an attorney.
Take, for example, the story of James Fry, a Fort Collins resident who in 2010 filed an ethics complaint against Larimer County Engineer Rex Burns regarding the region’s storm water authority. The commission did no investigation on Fry’s behalf at all. It simply notified Fry of the hearing date where he was expected to make his case. Ultimately the commission sided against Fry.
To its credit, the commission has since made an effort to contract with investigators to probe the facts behind ethics grievances.
“They changed the rules in 2011 to at least say investigation and they do put out things on paper that they call investigations,” Toro said. Problem is, he noted, was that in the Gessler hearings the commission paid $10,000 for an investigator who Toro complains did little more than copy down witness statements.
Toro isn’t the only one to feel the impact of the commission’s lack of a full-time investigator. Lawyers for Compass Colorado have encountered much the same situation in their complaint against Governor Hickenlooper’s approach to attending last year’s meeting of the Democratic Governors Association.
“So far, in this case, the burden [of investigation] has been entirely on the complainant,” said attorney Geoff Blue, who is representing Compass Colorado before the commission. This has lead to a volley of debate around the timeline in the Hickenlooper hearing — with particular conflict over just how long Compass can extend the “discovery phase” during which they do their own investigation.
Toro says the lack of an impartial investigator is the root cause of complaints that the commission is being used as a political attack tool.
“The legislature doesn’t give the commission funds to investigate and then they turn around and say everything is politically motivated. Well, they set up the system. If we (the non-partisan Ethics Watch) went away tomorrow, it would all be politically motivated,” Toro said. “The system is ridiculously lopsided.”
The right to a (publicly funded) defense
While Toro sees the ethics commission’s most critical issues affecting complainants, some elected officials say there are serious problems for respondents as well.
Last week, GOP Rep. Amy Stephens of Monument proposed a bill to reform the ethics commission from the perspective of those who might be called up to defend themselves before it. Her bill, HB 1258, asked for the state to consistently provide a publicly funded defense when an elected official is accused of an ethics violation. It mandated that the commission give precise legal notice of the alleged violations so that targets of complaints know specifically what they’re being accused of. This was one of several issues raised in the Gessler case, supporters say Gessler was notified only that he had violated some sub-section of a 14 page fiscal rule and that the commission reserved the right to explore additional charges. Although the commission was not designed to operate as a formal court, supporters of Stephens’s bill argued that it would provide much needed clarity for lawyers trying to prepare a defense.
Finally, Stephens’s would have made the five politically appointed members of the ethics commission individually liable for any violation of a respondent’s rights.
“If I’m brought before the [commission], I should know what the charges are against me and I shouldn’t have to go into hawk or debt, have to mortgage my family’s future, in order to come before the commission,” Stephens testified in favor of her legislation before the House State, Veterans and Military Affairs committee. She noted that, in addition to establishing the commission, Amendment 41 banned elected officials from accepting gifts over $50. That means that an embattled politician making $33,000 a year wouldn’t be able to accept a pro-bono defense.
While the vast majority of elected officials brought up before the commission do get a taxpayer-funded defense, there are stark disparities.
When former Senate President John Morse was accused of violating the gift ban in 2011 for accepting per-diem on days when he did things other than make legislation, he was offered no publicly funded defense and represented himself until the allegation was dismissed. Secretary of State Scott Gessler later received what many have called a “gold plated” defense involving three law firms wracking up about $180,000 in legal fees to defend him against allegations that he misused taxpayer dollars when he traveled to a GOP elections law conference in Florida. The commission ultimately fined Gessler roughly $1,500 – less than one percent of his taxpayer-funded legal defense costs.
Stephens’s bill failed last week on a party-line vote, largely because of testimony from people like Toro, who asserted that her bill’s quest to make it possible to sue individual commissioners was ammunition for any public official who wants to bully his or her way out of an ethics charge.
Though Stephens’ bill failed, many of her colleagues at the Capitol still share her concerns about who should pay to defend them against a possible ethics complaint and just how much they should know about their alleged violations when they’re summoned before the commission.
Among them were Democratic Reps. Dominick Moreno of Commerce city and Joe Salazar of Thornton, who both offered to work with Stephens on a late bill that would standardize right to legal counsel and codify that targets of ethics complaints be notified before ethics hearings what they’re being accused of.
Ethics Watch’s Toro isn’t thrilled by the prospect of this particular bipartisan commission reform bill. He said it doesn’t address the crux of the commission’s problems – a woeful lack of funding.
“I think the legislature has a very short attention span when it comes to the Independent Ethics Commission. The only reason they’re paying attention now is that there was this ruling against Scott Gessler that infuriated the right,” he said. “My theory is if they pass this little tweak they’ll think, ‘our butts are covered’ and carry on.”
[Photo by Dan Mason]