Ethics commission rules for Hickenlooper against Gessler

DENVER — Colorado’s ethics commission has been the subject of intense accusations of partisanship over the last two years as it weighed allegations of improper spending on the part of two of the state’s highest officeholders, one Republican and one Democrat. On Monday, the commission opened itself up to more abuse when it ruled to dismiss a complaint against Democratic Governor John Hickenlooper, who is running for reelection, and then declined to revisit a decision it handed down last year against Republican Secretary of State Scott Gessler, who is running for the chance to unseat Hickenlooper this November.

The commission voted four to one against pursuing allegations that the governor violated the state gift ban by accepting a two-day hotel stay in Aspen last August during the Democratic Governor’s Association meeting and that he misused state funds by having a staffer spend five hours preparing background and policy briefs for the conference — a partisan event, according to the allegation, that should have been paid out of campaign funds. The estimated amount of taxpayer money in question fell between $100 and $1,000.

Former Assistant U.S. Attorney Bill Leone, who took the lead among the commissioners at Monday’s hearing, was partly sympathetic to with the complaint against the governor. He said it echoed in broad terms the earlier complaint against Gessler who the commission found guilty of breaching the public trust last June.

The cases may deal with substantially the same question, said Lenoe — the use of state money used for partisan purposes. But, he explained, the commission members are bound by state ethics rules, which right or wrong, treat the secretary of state and governor’s office differently. Specifically, the governor’s travel expenses are covered much more liberally by taxpayers, under the law, which recognizes frequent travel as part of the job of the state’s chief executive.

Nor did the commissioners find Hickenlooper violated the gift ban by attending the conference and staying at the conference hotel because he more than earned his stay, giving speeches and hosting the event.

On the other hand, Gessler, they said, never disputed that he used money from the discretionary fund for travel to a Republican National Lawyers Association meeting or that he took money from the fund without submitting receipts. The state’s ethics laws governing the secretary of state’s discretionary fund are simply more strict.

Leone agreed that the events attended by both men were partisan.

“But the question before us is not whether the meeting was partisan,” he said. “I’m assuming it was enormously partisan — but that doesn’t matter here. All we’re asked to decide is whether the governor violated the state’s gift ban and whether staff hours dedicated to preparing the briefs for the event was an improper use of state resources.”

Leone said that, given the complexity of today’s campaign finance rules — where avenues to spending seem to multiply exponentially every election season — it would be a “fool’s errand” to try to parse out where, at a function like the one in Aspen, policy work ends and politics work begins.

“There are so many participants at such an event, each with their own purposes and agendas. Some of the governors who attend want to pander, others want to network with big donors, some want to see which policies are popular…  Governor Hickenlooper had a legitimate right to attend in order to advance and debate policy ideas, to court other governors, business leaders, citizens — whether sycophants or skeptics. Articulating policy is part of his job.”

The case had been a thorn in the side of the governor for months. It was filed by political media outlet Compass Colorado last October as a transparent tit-for-tat after nonprofit Colorado Ethics Watch filed a similar complaint against the secretary of state in the fall of 2012.

But the cases have never seemed likely to make equal impact.

The Gessler complaint was brought by nonprofit Colorado Ethics Watch led by Luis Toro, a forty-something attorney with a law degree from the University of California, Berkeley, who clerked for the U.S. Tenth Circuit Court of Appeals in Denver. Ethics Watch is state local chapter of the well-established national group Citizens for Responsibility and Ethics in Washington, which prides itself on using “hard-charging legal action ” to hold public officials accountable. Toro’s group is in the business of knowing state ethics rules inside and out.

The case against Hickenlooper was brought by Compass Colorado, a three-year old conservative media politics site that specializes in tracker videos targeting Democrats. It is run by twenty-something self-styled pundit Kelly Maher.

The Ethics Watch complaint against Gessler concerned $1,300 in office discretionary funds, which he used to travel to a Republican National Lawyers Association meeting in Florida the same week the national Republican Party convention was being held there. That case has dragged on for a year and a half. Gessler never disputed the facts in the complaint but, as a longtime committed courtroom brawler, he has spent hundreds of thousands of dollars in public money to hire a team of high-profile lawyers and battled the allegations of wrongdoing at every turn — before the ethics commission, in law courts, on the campaign trail and in the media. When the ethics commission ruled against him and fined him, he appealed to a Denver district court. He lost. News comes this week that he has appealed the decision to a state court, which is why the commission had no jurisdiction to revisit the complaint on Monday.

Republicans see bias. The Hickenlooper case never gained traction with the public and was painted in effect as a stunt in the mainstream media from the moment it was filed. It was clear from the opening of proceedings Monday that the commission had found nothing substantive in the complaint to follow up on and summarily dismissed it without much debate and little disagreement among the members.

But Gessler has lost at every turn. He and his legal team have called ethics commission members biased and characterized the commission as a “kangaroo court” unmoored by the rules that guide legitimate judicial proceedings. He has had no more luck outside the commission. Denver District Court Judge Herbert Stern in March wrote a blistering ruling when he rejected Gessler’s appeal. The Conservative Colorado Springs Gazette recently wrote that the secretary of state has been tainted by scandal and that his nomination as the Republican Party’s choice to run for governor would be “a train wreck” characterized by a parade of political ads referring to Gessler’s repeat convictions for ethics violations.  

Gessler attorney Mike Davis seemed both passionate and resigned at the hearing. He argued that Hickenlooper and Gessler are both candidates for governor and that, in effect, Gessler’s candidacy has been tangled up in the commission’s net while Hickenlooper’s has been set free.

“If the commission is going to be viewed as fair, it should reconsider its ruling against the secretary of state and use the same test the commission used today when it threw out the complaint against the governor.”

Davis said he thought the question at the heart of the Hickenlooper case was more serious, because it had to with possible influence peddling, whereas there was no question of influence peddling in the Gessler case.