Former Secretary of State Scott Gessler’s fight with the Independent Ethics Commission over how he spent $1396.89 in office has already cost Coloradans $343,473, and the bills keep racking up.
The public first paid his legal bills in 2012 when the commission reviewed the case, then the next year when he appealed that ruling in Denver District Court, and then again when that failed and he took it to the Colorado Court of Appeals.
He lost both appeals.
Now, Gessler is asking the state Supreme Court to take up his case. And a spokesperson from his former office has told The Colorado Independent that state funds will continue to support him even though he has been out of office since 2014.
“Secretary Gessler was sued in his official capacity,” deputy Secretary of State Suzanne Staiert told The Colorado Independent by email. “Litigation often times continues after a person leaves state employment.”
The case revolves around $1396.89 from the Department of State’s discretionary fund, $1,278.90 of which Gessler spent on a trip to Tampa in 2012, and $117.99 of which he took home as an end-of-year bonus.
Government watchdog Colorado Ethics Watch filed an ethics complaint under Amendment 41 — a constitutional amendment that prohibits gift-giving, influence peddling or any use of public money for private gain — and the Independent Ethics Commission ruled that Gessler did indeed violate public trust by using state funds inappropriately.
Colorado Ethics Watch paid for the prosecution on its own dime, but Gessler’s defense team charged the state more than $122,000, and the Independent Ethics Commission logged nearly $70,000. So all told, the state spent around $192,000 on litigation through June 30, 2013.
Two years later, we have the updated numbers: The Department of State reports spending nearly $76,000 on Gessler’s defense as his case moved through Denver District Court and the state Court of Appeals, and the Independent Ethics Commission billed just about the same amount.
Spokesman Tim Griesmer said the Secretary of State’s office under Gessler’s chosen successor Wayne Williams wants to see this case through for the sake of establishing case law.
“Not only are subsequent secretaries of state going to know how Amendment 41 works,” Griesmer said, “but all state employees will know what the standards are.”
Gessler doesn’t dispute the facts of the case. He acknowledges having spent $1,278.90 on airfare and two nights at a Ritz-Carlton to attend the Republican National Lawyers Association annual meeting in Tampa that year. He called it “state business.”
Rather, his petition to the state Supreme Court accuses the Independent Ethics Commission of “mission creep” for using a single phrase in Amendment 41 to justify an unbounded view of its jurisdiction.
The Independent Ethics Commission can rule on matters specific to gift-giving, influence peddling “or any other standards of conduct or reporting requirements as provided by law.” That, Gessler’s defense claims, is overly vague and broad.
“Instead of policing the specific gift-ban provisions at the core of Article XXIX, the Independent Ethics Commission now sits in judgment over any law or regulation that has arguably been transgressed by a public official or employee, be they a public university professor, a civil servant working for a state agency, a municipal council member, a state senator, or the Governor,” the petition states. “Such a jurisdictional expansion warrants this Court’s careful review.”
Colorado Counties, Inc., a nonprofit association of county commissioners, filed an amicus brief in support of Gessler’s petition.
The association’s constituents have a stake in the case, the brief states, because as long as the courts reaffirm the Independent Ethics Commission’s unlimited jurisdiction, “all public officials and employees remain vulnerable to claims that arise from a limitless font of political conduct restraints.”
The brief asks the court to limit the commission’s scope to “avoid inefficiency, uncertainty and confusion that might otherwise result.”
The Colorado Municipal League, an association representing Colorado’s cities and towns, didn’t sign onto the counties’ amicus brief, which is notable insofar as the two organizations typically march in lockstep.
Colorado Ethics Watch director Luis Toro thinks it’s wrong to say the Independent Ethics Commission’s scope applies to all state employees and all standards of conduct. He takes the phrase “or any other standards of conduct” in its full context. That line in Amendment 41 reads:
“The purpose of the independent ethics commission shall be to hear complaints, issue findings, and assess penalties, and also to issue advisory opinions, on ethics issues arising under this article and under any other standards of conduct and reporting requirements as provided by law.”
So the unlimited jurisdiction argument falls flat, he said. “They leave out the ‘ethics issues’ part because it shows that the commission’s jurisdiction is not over any law, but only ethics questions arising under other laws, such as the misuse of public funds for personal use.”
Independent Ethics Commission director Amy DeVan said the commission will continue to defend its work, just as it has done throughout the appeals. “Thus far, the courts that have heard the case have not found IEC has exceeded its jurisdiction.”
Is this all a waste of time and money?
“I’m sure taxpayers might wish it were spent in a different way, but I can’t pass judgement about right or wrong. It’s his constitutional right,” DeVan said.
The money spent on Gessler’s defense is raised through fees imposed by the Department of State.
But as far as public dollars go, Democrats in the state House majority think $343,473 could be better spent.
Frustrated by the upper chamber’s insistence on fiscal conservatism when voting down certain spending appropriations, the House Majority office offered a menu of measures more deserving of the funds going toward Gessler’s legal bills.
• It would’ve cost $33,126 to keep the state Pay Equity Commission working on equal-pay-for-equal-work disparities for another year.
• Launching the Retirement Security Task Force to address coming cost shifts associated with an aging population would’ve cost $20,600.
• $25,000 was the price tag on a new working group to focus on economic development in distressed regions.
• Adding more tax-benefits to the CollegeInvest program for low-income families would’ve cost $101,151 in 2015-2016.
• Rep. Pete Lee’s bill to expand a program offering specialized consulting for small businesses came in at $128,043.
• And the first year of new measures to protect retirees from elder abuse would’ve cost $30,002.
The state could fund all of that instead of fighting the IEC on Gessler’s behalf, said a spokesperson from the House Majority office.
And Colorado would still have $5,551 leftover to fill potholes.
Photo by Colorado Senate GOP, Creative Commons, via Flickr.