State Supreme Court weighs Colorado Ethics Commission’s secrecy

The Colorado Supreme Court now has two cases before it that could either affirm or weaken the authority of the Colorado Independent Ethics Commission to keep much of its work reviewing ethics complaints against public officials out of the public eye.

The first case is an appeal from former Secretary of State Scott Gessler over an ethics commission ruling that Gessler improperly used taxpayer money to attend a Republican Party function. The second case, from the commission itself, is a lawsuit against Colorado Ethics Watch. The commission has asked the court to uphold the panel’s right to dismiss frivolous complaints without further judicial review.

The second case is one in a series of battles between the ethics commission and government watchdog Ethics Watch. The case began with a complaint lodged against Elbert County Commissioner Robert Rowland by Ethics Watch, which the commission dismissed as frivolous. Ethics Watch fought back, and that’s led the ethics body to take on the watchdog in the state’s highest court.

The issue of what happens to frivolous matters is not a small one. In a review of complaints filed in the past three years, more than 70 percent of the 48 have been tossed because the panel found them “frivolous” – a term loosely defined in the commission’s rules as lacking “a rational argument” for review based on facts or law.

And there’s a catch to these frivolous decisions: They’re confidential. Once the panel does its preliminary review on a complaint and decides that it’s frivolous, the matter goes under lock and key and the board doesn’t disclose even who the complaint is filed against, much less the substance. This is all allowed under the amendment to the state constitution that created the panel.

The commission was formed when voters passed Amendment 41, a joint effort in 2006 by Boulder Congressman Jared Polis and Colorado Common Cause, a government accountability group, to clean up corruption in state government. (Polis was not a congressman then; he was a Boulder businessman.)

Amendment 41 has three main sections. Lobbyists can’t give lawmakers gifts of any kind. In addition, there’s a $53 limit on gifts made by anyone who could influence an elected official or public employee, with some exceptions.

The amendment also makes lawmakers wait two years to become lobbyists, once they leave office. The third part required the establishment of the Independent Ethics Commission.

The commission has five members. No more than two can be from the same political party. Appointments are made by the governor, the chief justice of the Colorado Supreme Court, the state senate and the state house of representatives. A fifth member, who must come from local government, is chosen by the other four. At any given time throughout its history, at least three of the five members have been former legislators, which puts them in a position to review complaints against legislators and other elected officials as well as public employees.

Currently, the commission is made up of four current or former elected officials and an attorney in private practice. Two are Republicans, two are Democrats and the fifth, Mayor Bill Pinkham of Estes Park, is unaffiliated.

But just how unaffiliated is he?

Pinkham voted along with the rest of the commission to dismiss a complaint against Gov. John Hickenlooper in 2014 just days before attending a fundraiser for the governor in Estes Park. Pinkham defended his attendance by saying that it was part of his mayoral duties.

The commission has been controversial from day one, particularly over its desire to keep as much of its activity out of the public eye as possible.

Initially, the group didn’t keep records of its meetings, although as any state board it was subject to Colorado open meetings and open records laws.

In 2008, Ethics Watch sued the commission for failure to provide documents under an open records request. The commission responded to the lawsuit by going to Denver District Court and asking the court to protect all information under commission review, including its pending advisory opinions and rulings. The commission lost that case in 2009 and was ordered to pay Ethics Watch $10,000 in legal fees.

The Colorado Independent also sued the commission in 2009 for conducting much of its activity behind closed doors and in violation of the state’s open meetings and open records laws. A Denver District Court judge ruled that the panel broke the laws and ordered it to immediately release all records of improperly closed meetings, even those the commission claimed were protected by attorney-client privilege.

The panel’s most recent trip to the Supreme Court began in December 2013, when an Elbert County citizen filed a complaint with the Secretary of State against Elbert County Commissioner Rowland and the board of county commissioners. The complaint claimed the board and Rowland used public money to support a local ballot measure, a violation of the state’s campaign finance laws.

An administrative law judge ruled later that month that the board and Rowland violated the law and ordered him to reimburse the county $1,000.

The board met in January, 2014 to discuss the case, with Rowland serving as chair. The board voted 2-1 to appeal the judgment, including Rowland’s fine. According to Ethics Watch documents, the decision to appeal would not have passed had Rowland recused himself.

Ethics Watch, in their March 2014 complaint to the ethics commission, claimed Rowland breached both his financial responsibility and violated the public trust, both banned under the state’s ethics law. The law says that someone who serves on a local government board can’t vote on matters in which that person has a personal interest.

The board lost the appeal last March. When asked last week if the fine was paid and by whom, Elbert County Attorney Wade Gately refused to answer and hung up on this reporter.

Late last week Ethics Watch obtained a copy of an April 27 cashier’s check, payable to Elbert County, which identified Rowland as the purchaser.

The ethics commission didn’t act on the Ethics Watch complaint for a year, awaiting the outcome of the appeal. The five-member group began discussing the complaint in executive session last March, and in their May meeting voted 3-2 to dismiss the complaint as frivolous.

Ethics Watch then sued the commission in Denver District Court, claiming the commission’s actions were unlawful. Ethics Watch also asked the Court to set aside the frivolous decision.

Last Monday, the ethics commission asked the Colorado Supreme Court to step in and dismiss the Ethics Watch case. The Court responded Thursday, asking Ethics Watch to tell the court why the commission’s request should not be granted.

In their filing with the Supreme Court, the commission said the case “raises a novel question of constitutional and statutory interpretation:” whether the public has the right to a judge’s review when the commission decides a complaint is frivolous. But the Ethics Watch complaint does raise a question about the commission’s interpretation of “frivolous,” especially when the law appears to specifically cover the kind of action taken by Elbert County’s commissioners.

“We are at a loss to understand why the IEC wants to make a Supreme Court case out of a simple failure to proceed on a case that two of the five commissioners thought deserved a hearing,” said Ethics Watch Director Luis Toro. “Nevertheless, we will fight to make sure the Ethics Commission does the job it was established to do, even if that means going to the Colorado Supreme Court.”

Decisions by the Independent Ethics Commission can be appealed when the complaints are deemed not frivolous.

The highest-profile case to date involves former Secretary of State Gessler, who appealed a unanimous commission finding that he breached the public trust when he traveled to a partisan function on the taxpayers’ dime. Last month Gessler asked the Colorado Supreme Court to dismiss the commission’s decision, which has already been upheld by two lower courts.

The complaint against Gessler dates to 2012, when he traveled to Tampa, Florida, to speak at the Republican National Lawyers Association meeting. The state has already spent $70,000 in attorneys’ fees on behalf of the ethics commission, and Gessler’s private attorneys have billed the state another $122,000 for their costs. The total amount of money spent by Gessler to attend the lawyers’ meeting was $1,278.90, which he has already repaid to the state.

Gessler chose not to run for a second term as Secretary of State in 2014. He instead ran for governor, but in a primary field of four GOP challengers, Gessler took third place.

The commission notes that complaints cannot be filed anonymously. However, the commission’s website points out that people may hesitate to file a complaint in part because of fear of retaliation, one of the reasons to keep confidential frivolous complaints and requests for advisory opinions. Making frivolous complaints confidential also protects the targeted party from being subjected to a witch hunt.

As to its decision to go to the Supreme Court to take on Ethics Watch, the commission never voted nor publicly discussed its decision to go to the Supreme Court.

The panel took up the issue behind closed doors today.

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