Lawmakers hoping once again to try and rid the state’s anti-corruption agency from its own conflicts of interest might have an unlikely ally in their effort this year: the state’s Republican attorney general, Cynthia Coffman.
When the legislative session begins next month, Democratic Rep. Beth McCann plans to carry a bill that would decouple the attorney general from her role giving legal advice to the Colorado Independent Ethics Commission. The IEC, as it’s known, is a beleaguered, underfunded state agency currently operating without a director. It was set up in 2006 to hear complaints about politicians who potentially run afoul of ethics laws.
But the commission has been accused of having its own problems with conflicts of interest.
Particularly, the attorney general’s office acts as legal counsel to the Ethics Commission, even though the office of the state’s top prosecutor is under the commission’s jurisdiction. Furthermore, the AG has in the past assumed the Kafkaeqsue task of advising both the ethics agency and a politician who was under investigation by that agency.
Think of it this way: Imagine you sued someone and then found out your lawyer was also working for the person you were suing.
“It presents the possibility of conflicts,” says McCann. “I am planning to introduce a bill that at least at a minimum would provide for independent counsel for the commission.”
A similar bill carried last year by Denver Democratic Sen. Pat Steadman died in a committee. At the time the IEC was in a bitter legal battle with then-Republican Secretary of State Scott Gessler, which became an issue for some lawmakers.
Steadman says he’s been working with McCann on her measure this year that is likely to also include other provisions involving the IEC.
Officials at Attorney General Coffman’s office haven’t yet seen language of a final bill, but they’ve been in discussion with lawmakers about the idea.
“In concept the attorney general is in agreement,” says Coffman’s spokesman Roger Hudson.
For his part, the Independent Ethics Commission’s chairman, Bill Leone, says he hasn’t yet been in any talks with lawmakers or the AG’s office about efforts this year to tweak the way the IEC works. In his view, the attorney general’s office has done a good job representing the commission.
“I think it’s a concept that we will just have to look at,” he says of the commission potentially getting its own counsel, adding that there might be plenty of ways to examine best practices when it comes to legal advice. “I’m not adverse to looking at all of them and evaluating all of them.”
For some in the private sector, Leone says, it might seem odd to have the same law firm working on both sides of a case. But, he adds, it’s a “fairly established phenomenon” for the attorney general’s office.
In recent months, the attorney general’s relationship with the Ethics Commission has come in for state and national criticism. In November, the Center for Public Integrity’s State Integrity Investigation gave Colorado an ‘F’ for its ethics enforcement agency, the same grade it handed down in 2012. (I worked on the latest report.)
Then, on Dec. 16, the ethics commission’s former director, Jane Feldman, thew down the gauntlet when she published a tell-all column in The Colorado Statesman about what it was like working for the agency and the institutional shortcomings that plague it. Pointing to the attorney general’s role specifically, Feldman called it a “major issue that reduces the effectiveness of the IEC.”
The Independent Ethics Commission, which has been hacked by budget cuts over the years, recently lost its latest director, Amy DeVan, who left on Dec. 23.
The commission was established by a constitutional amendment in 2006 and has jurisdiction over lawmakers, local public officials, and employees in the state and legislative branch unless they are under home-rule jurisdiction. A five-member volunteer board of commissioners hear complaints filed by third parties.
Last year the commission fined then-Secretary of State Scott Gessler after it found he had used public money for personal and political gain. It was the first time the ethics panel has fined a sitting statewide public official. The nonprofit Colorado Ethics Watch had filed the complaint that led to the fine.
Ethics Watch has filed numerous other complaints with the IEC and is currently involved in a lawsuit with the commission. The group has long argued that having the attorney general represent the commission while also representing state employees subject to the IEC’s jurisdiction in Colorado is problematic.
“In fact, the AG and her staff are subject to IEC jurisdiction, creating at least the appearance of a conflict of interest,” says Ethics Watch director Luis Toro. “Separating the IEC from the AG’s office will make both more effective.”
Feldman, the former IEC director who now works in New York’s legislature on ethics compliance issues, says she’s pleased and a bit surprised to hear Coffman could be on board with getting the attorney general’s office out of its legal role with the IEC.
About her time as director in Colorado, she says: “The attorney general’s office said time and time again there is no conflict.”
[Photo by Dan Mason]