2013 Ethics Roundup: Colorado's Ethical Lowlights

Colorado Ethics Watch 2013 Ethics Roundup: Colorado's Ethical Lowlights
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Ethics Roundup • • 2013 Colorado’s Ethical Lowlights Ethics Watch coloradoforethics.org INTRODUCTION: COLORADO’S SHARED ETHICAL VALUES At Colorado Ethics Watch, we have been monitoring state and local politics in Colorado since 2006, filing legal challenges to ethics and election practices that violate the law, and publicizing disgraceful behavior from public officials and groups that put private benefit ahead of the public trust even when the law scandalously permits that misbehavior. This Ethics Roundup, our sixth, covers the lowlights of this year in Colorado politics in the areas that are our focus: ethics, transparency and election integrity. The misbehavior we chronicle takes many forms: state officials playing politics with laws that protect the security of elections; Colorado Springs government throwing up obstacles to the people’s right to know what their government is doing;; a gun lobbyist’s outright disregard for the legislature’s process to maintain integrity among its many registered lobbyists; continued abuse of the system for private gain in Adams County; and the Secretary of State’s misuse of public money for personal and political purposes. These stories have one thing in common: each shows a basic lack of respect for the shared values of our community. Secure and accessible elections, transparency in government, careful stewardship of the people’s money, and respect for systems designed to maintain accountability in government – these are not progressive or conservative values, they are shared Colorado values. Calling attention to this year’s ethical lowlights, we hope, will encourage public officials and others to act with regard to keeping these shared values at heart. We publish the Ethics Roundup because we understand that winning lawsuits and successfully prosecuting ethics complaints alone won’t solve the problems in Colorado state and local government. We need politicians, and those who wish to influence them, to understand that government exists to make a better life for everyone, not just a privileged few. That way, we all can build a better Colorado together. Colorado Ethics Watch Luis Toro Peg Perl Doug Staggs Allison McGee Johnson Ethics Roundup 2013 | 1 #FAILEDSYSTEM: PLAYING PARTISAN POLITICS WITH ELECTION INTEGRITY The genius of democracy is that it relies on the wisdom of an informed citizenry to guide policy through the ballot box. Election time is the one time each American has an equal voice. While everyone wants elections to be free and fair, in 2013 Colorado saw blatant attempts to undermine the system in order to justify restrictive voting rules believed to favor conservative candidates. Public officials displayed a dismaying double standard of hyping claims of noncitizen voting in order to justify policies that make it harder for citizens to vote, while ignoring or minimizing actual, highly public examples of real voter fraud committed by their political supporters. Overhyped claims of election fraud have become a staple of Colorado politics under Secretary of State Scott Gessler, who issued a “white paper” in 2011 claiming that as many as 11,805 noncitizens were registered to vote in Colorado, of whom nearly 5,000 voted in 2010.1 The story quickly went national as Gessler sought authority to remove from the rolls of active voters anyone he suspected was not a citizen and could not prove citizenship to his satisfaction.2 Colorado’s county clerks, whose jobs include maintaining accurate voter rolls, understandably demanded proof of Gessler’s assertions. None was provided, indeed, the SOS office admitted it had not identified any noncitizens who had voted in a Colorado election.3 This didn’t stop Gessler’s office from sending out approximately 4,000 letters on the eve of the 2012 election, demanding that recipients prove their citizenship or remove themselves from the voter rolls.4 The list was reportedly created by comparing Colorado voter rolls to lists of individuals who had used a non-citizen form of identification when signing up for a Colorado driver’s license. As it turned out, the vast majority of those receiving these accusatory letters were U.S. citizens.5 This result was unsurprising to those who were paying attention, because it was always known that the number of people who became citizens in Colorado during the period in question greatly exceeded the number of people who used non-citizen ID to get a driver’s license and later showed up on voter rolls.6 Colorado Department of State, “Comparison of Colorado’s Voter Rolls with Department of Revenue Non-Citizen Records,” March 8, 2011, posted at http://www.sos.state.co.us/pubs/newsRoom/issueFiles/2011/NonCitizenVoterRollComparison/whitepap er.pdf (accessed December 17, 2013). 2 Debbie Siegelbaum, GOP says 5,000 non-citizens voting in Colorado a ‘wake-up call’ for states, The Hill, March 31, 2011. 3 Charles Ashby, No evidence yet in Gessler claim of illegal voters, Grand Junction Daily Sentinel, June 17, 2011. 4 Eli Stokols, Gessler asks 4,000 voters to prove they can legally vote, KDVR-TV, August 16m 2012, posted at http://kdvr.com/2012/08/16/gessler-asks-4000-voters-to-prove-they-can-legally-vote/ (accessed December 17, 2013). 5 Sara Burnett, Database: 88% of questioned people on voter rolls are U.S. citizens, The Denver Post, August 30, 2012. 6 Editorial Board, Editorial: Secretary of State Gessler owes some apologies, The Denver Post, August 31, 2012. Ethics Roundup 2013 | 2 1 In 2013, county clerks fed up with Gessler’s lack of cooperation promoted their own election modernization bill.7 The bill, which featured voter registration portability, elimination of “inactive voter” status, paper ballots mailed to all registered voters, and registration up through Election Day was supported by Republican and Democratic county clerks and was hailed as a model for the nation by a top Republican election lawyer.8 Gessler, however, strongly opposed the bill. After Governor Hickenlooper signed the bill into law, the controversy over “illegal voters” turned from mere political disagreement into scandal. When citizens initiated two recall campaigns against state legislators in Colorado Springs and Pueblo, the first such recalls in Colorado history, opponents of the bill pounced on the opportunity to try to discredit the new voting law. Independence Institute president Jon Caldara went so far as to falsely claim: Under HB 1303, the “intention” to establish residence along with a few minor requirements such as being 18 years of age, living in Colorado for 22 days, and having an address in the district, permits almost anyone to ‘Bring in the Vote’ and cast a ballot in any district.9 Caldara decided to illustrate his flawed critique of the law with his own actions. While maintaining a residence in Boulder, Caldara claimed to have signed a week-to-week lease in Colorado Springs for the purpose of voting in the recall election in that area.10 Caldara followed through with his plan, registering to vote in Colorado Springs and then casting a vote. Before voting, he displayed his ballot to members of the media to show that it was not marked – even though displaying a to-be-voted ballot is itself a misdemeanor crime in Colorado.12 As if on cue, the Colorado Springs Gazette used the stunt as a reason to call on the governor to call a special session 11 7 John Tomasic, On Hot-Button Election Reform Bill, It’s Gessler Versus The Clerks, The Colorado Independent, May 1, 2013, posted at http://www.coloradoindependent.com/127614/on-hot-buttonelection-reform-bill-its-gessler-versus-the-clerks (accessed on December 17, 2013). 8 Trevor Potter, A Simple Plan to Drastically Improve Voting, Stop Fraud, and Save Money, The Atlantic, April 18, 2013, posted at http://www.theatlantic.com/politics/archive/2013/04/a-simple-planto-drastically-improve-voting-stop-fraud-and-save-money/275074/ (accessed on December 17, 2013). 9 Jon Caldara, Know Your Voting Rights! Bring in the vote Colorado! The Cauldron, September 5, 2013, posted at http://www.joncaldara.com/2013/09/05/know-your-voting-rights-bring-in-the-votecolorado/ (accessed December 17, 2013). 10 Lynn Bartels, New El Paso County resident Jon Caldara turns in blank recall ballot, The Denver Post, September 7, 2013. 11 Id. 12 Id.; C.R.S. § 1-13-712. Ethics Roundup 2013 | 3 to fix the alleged problem with the new law.13 Within a week, Caldara announced that he had changed his mind and decided to return to his Boulder home.14 The truth is that the new voting law left unchanged both the legal definition of “residence” for voting and existing criminal penalties for making false statements about residency in order to vote. “Residence” for voting purposes has long been defined as the “principal or primary home or place of abode of a person. A principal or primary home or place of abode is that home or place in which a person’s habitation is fixed and to which that person, whenever absent, has the present intention of returning after a departure or absence, regardless of the duration of the absence.”15 The new voting law also left unchanged the felony criminal penalty for “knowingly giving false information regarding the elector's place of present residence.”16 Although his office had sent a memo to El Paso County Clerk and Recorder Wayne Williams affirming that out-of-district voting is illegal,17 Secretary of State Gessler publicly congratulated Caldara for doing “a really good job of bringing attention to this.”18 Gessler even allowed his Deputy Secretary of State, Suzanne Steiert, to appear as a guest on Caldara’s TV show where Caldara discussed his escapade as an “itinerant voter.”19 El Paso County Clerk and Recorder Wayne Williams was, if anything, even more partisan in his response to Caldara’s vote – first claiming that he had “heard concerns from folks that busloads from Denver were coming down to vote”20 and then attacking Governor Hickenlooper after the governor’s spokesman criticized Caldara’s stunt. Missing was the usual outrage about voting fraud. Approval of Caldara’s high-profile election stunt by opponents of the new election law contrasted sharply with their earlier alarms about noncitizen voter fraud, such as Gessler’s evidence-free October 2012 accusation that Democrats were intentionally registering noncitizens as part of an organized campaign of voter fraud.21 13 Editorial Board, Gov. Hickenlooper should call special session to fix HB1303, Colorado Springs Gazette, September 15, 2013. 14 Tessa Cheek, Caldara vote fraud case under attorney general review, Colorado Independent, September 17, 2013, posted at http://www.coloradoindependent.com/144001/caldara-vote-fraud-caseunder-attorney-general-review (accessed on December 17, 2013). 15 C.R.S. § 1-2-102(1)(a)(I); see also id. § 1-2-102(d) (“A person shall not be considered to have gained a residence in this state, or in any county or municipality in this state, while retaining a home or domicile elsewhere.”) 16 C.R.S. § 1-13-709.5. 17 Lynn Bartels, supra note 10. 18 Mike Littwin, Gessler on Caldara vote fraud: Meh, he did a public service, Colorado Independent, September 18, 2013, posted at http://www.coloradoindependent.com/144025/gessler-on-caldara-votefraud-meh-he-did-a-public-service (accessed December 17, 2013). 19 “Colorado’s New Election Law Explained,” “The Devil’s Advocate,” KBDI-TV, November 22, 2013, posted at http://www.youtube.com/watch?v=H74EDaqklcs&feature=share&list=UUzX8jVtWl2D4PxI3EQf1Wk w (accessed on December 17, 2013). 20 Editorial Board, Caldara’s Political Stunt Had A Purpose, The Denver Post, September 9, 2013. 21 John Tomasic, Gessler accuses left of ‘organized’ voter fraud, Colorado Independent, October 5, 2012, posted at http://www.coloradoindependent.com/125286/gessler-accuses-left-of-organized-voterEthics Roundup 2013 | 4 The last laugh, however, may go to the law’s defenders. The November statewide election, the first to fully implement the new voting law, went smoothly, with increased turnout over comparable offyear elections and no examples of Caldara-type registration shenanigans.22 Meanwhile, Caldara is one of the subjects of a criminal investigation by the Colorado Attorney General’s office into allegations of illegal voting in the special election.23 Another individual among those reportedly under investigation with Caldara is Alissa Vander Veen, who reportedly voted in the Colorado Springs-area recall election in September 2013 despite having moved to Pueblo in 2012. Vander Veen is a former elections employee under El Paso County Clerk Wayne Williams, though it must be noted that to his credit, Clerk Williams did refer Vander Veen’s case for prosecution despite their former ties.24 The effort to gin up evidence of problems with the new voting law found its humorous coda when a candidate for state legislature tried to suggest the new law was to blame for his receiving two ballots for the November election. State House candidate Jon Keyser of Morrison posted a picture of two ballots, one placed over the other so as to obscure the return address, on Twitter the evening of October 19: fraud-even-as-colorado-da-launches-investigation-of-gop-linked-registration-firm (accessed December 17, 2013). 22 See Joey Bunch, Colorado turnout numbers way up under new mail-ballot election law and passiondriving local issues, The Denver Post, November 8, 2013; Editorial Board, So far, so good for mail balloting in Colorado, The Denver Post, November 11, 2013. 23 Tessa Cheek, supra note 14. 24 Tessa Cheek, El Paso Clerk forwarded Vander Veen vote fraud complaint for investigation, Colorado Independent, November 19, 2013, posted at http://www.coloradoindependent.com/144974/el-pasoclerk-forwarded-vander-veen-vote-fraud-complaint-for-investigation (accessed on December 17, 2013). Ethics Roundup 2013 | 5 The picture was promptly picked up by conservative media outlets to trumpet the alleged failures of the new election law.25 It did not take much investigation, however, to debunk any suggestion of impropriety. A reporter quickly established that Keyser owns property in Delta County and was legally entitled to vote in a TABOR-mandated special election there in addition to being permitted to vote in Jefferson County based on his residence there.26 Keyser was reduced to denying that he ever meant to suggest that he had received two identical ballots, instead, he claimed the “#failedsystem” was only the bureaucratic inefficiency of two clerks in two different counties sending him ballots for two different elections held on the same day.27 Left unexplained was how Keyser managed to miss the words printed on the Delta County special election ballot envelope: “This may not be your only ballot. You may receive a mail ballot from another political subdivision conducting an election on the same day.”28 Also unexplained was why the Delta County return address on the second ballot was covered up in his photo. This year’s high-profile incidents exposed the danger of politicizing the issue of ballot integrity. Election integrity should be the concern of all citizens and not a tool for partisan advantage. The face of voter fraud in Colorado is not a non-citizen bused to the polls by craven leftists, but has become that of the conservative activist who commits voter fraud in order to attempt to prove that voter fraud is a problem. 25 Anonymous, DOUBLE TROUBLE: Some Residents Receive Two Ballots For 2013 Election, Colorado Peak Politics, October 21, 2013, posted at http://coloradopeakpolitics.com/2013/10/21/double-trouble-some-residents-receive-two-ballots-for2013-election/ (accessed December 17, 2013). 26 John Tomasic, No violation: JeffCo ‘duplicate ballot’ was a Delta County special election ballot, Colorado Independent, October 25, 2013, posted at http://www.coloradoindependent.com/144626/noviolation-jeffco-duplicate-ballot-was-a-delta-county-special-election-ballot (accessed December 17, 2013). 27 Id. 28 Id. Ethics Roundup 2013 | 6 TRANSPARENCY TROUBLE IN COLORADO SPRINGS There are cloudy skies in Colorado Springs this year, but it is not just the latest winter storm. It’s the disturbing trend away from open government in actions by the Colorado Springs City government. In 2013, increased fees for open records, questionable practices with regard to open meetings, and a rollback of public disclosures all spell trouble for Colorado Springs citizens who deserve transparency in local government. First, the Colorado Springs government has aggressively moved to institute a new, more expensive schedule of fees to be charged to citizens, journalists and others requesting to view public records. Any request under the Colorado Open Records Act (CORA) that covers more than 25 pages or takes more than two hours of staff time for response will trigger these new fees.29 At that point, the city will charge a number of fees such as 25 cents per page for copying, $20 per hour for “research and retrieval time” – billed in 15 minute increments – and an extra $5 charge for electronic record production.30 If a citizen chooses to come and view documents in-person, the city will also charge $20 per hour for staff time to oversee the citizen review of documents. The city policy also requires a 50% deposit to be paid before records are compiled and produced. It is not hard to imagine that such fees will deter people seeking information and decrease the transparency of city government decision-making. These new fees can quickly add up to hundreds or even thousands of dollars – a large burden for citizens to pay to see the public records which they are entitled to access. Even journalists and media entities are feeling the pinch of paying to review public records to report on city government to the citizens.31 One reporter withdrew a request and elected not to follow up on an important government accountability story after the quoted estimate was at least $370 for city council emails over only a 2-week period.32 While the city government justified these hefty fees with claims that the city was overburdened with CORA requests and needed to recoup some of the costs for the time spent responding to them, it is unclear the extent to which such burden exists.33 A Colorado Springs Independent review of 2013 CORA fees in September showed that the city government had only recorded costs of approximately $6,000 to respond to CORA requests – and charged $1,400 of that to requestors.34 The figures are so much lower than the city’s cited $200,000 in costs to respond to CORA requests in 2012, the 29 Colorado Springs CORA Request Fee Schedule, posted at http://www.springsgov.com/units/communications/CORARequestFeeSchedule.pdf (accessed December 17, 2013). 30 Id. 31 Editorial, Our View: Fees impede government transparency (poll), The Gazette (Colorado Springs), Feb. 14, 2013. 32 Pam Zubeck, A case in point, Colorado Springs Independent, Sept. 4, 2013, posted at http://www.csindy.com/coloradosprings/a-case-in-point/Content?oid=2753080 (accessed December 17, 2013). 33 Pam Zubeck, After claiming it spent $200,000 on open-records requests in 2012, the city’s numbers are tiny for 2013, Colorado Springs Independent, Sept. 4, 2013, posted at http://www.csindy.com/coloradosprings/after-claiming-it-spent-200000-on-open-records-requests-in2012-the-citys-numbers-are-tiny-for-2013/Content?oid=2753066 (accessed December 17, 2013). 34 Id. Ethics Roundup 2013 | 7 Independent explains that either those 2012 costs were inflated, or the fees have seriously deterred CORA requestors. Indeed, the online CORA request form requires requestors to agree to pay fees at the time they submit the request.35 Increasing costs for citizens to view public records kept by their taxpayer-funded city government agencies is anything but a pro-transparency policy. At the same time that the Colorado Springs government started charging more to view records of government activity, it was refusing to even produce documentation for some city spending. One highprofile example is the Mayor’s office refusing to release severance payment agreements for public money paid to former city employees who left when the new Mayor took office.36 It was reported that more than $1 million was paid to these employees under agreements that contained confidentiality clauses, yet the city refused to release the agreements because it argued they were part of “personnel records” exempt from CORA disclosure.37 Months after the media covered the refusal to produce the records and the Colorado Independent threatened to sue, the city finally relented stating the Mayor’s position that “wherever possible the City should promote transparency in its operations, and public access to knowledge and information regarding the operations of the City.”38 Ironically, a review of the severance agreement revealed a reminder to employees that the city is subject to CORA.39 There have also been transparency troubles surrounding the City of Colorado Springs proposal to build a new baseball stadium (since withdrawn), including seeking state tourism funds to support that project. The City circulated a public survey of residents regarding a possible new stadium, but the results were not released publicly and not included in the state-funds proposal.40 At least one CORA request for the survey was denied.41 Further reducing the public scrutiny of the project, the City Council discussed the results of the survey not in public session, but a closed-door executive session as a matter “subject to negotiation.”42 Keeping quiet and refusing access to documents about such a large project proposed to be funded with public money is shady-at-best. The baseball stadium executive session discussion isn’t the only time Colorado Springs City Council has had questionable compliance with the Colorado Open Meetings Law (OML). It appears some City Council subcommittee meetings have not been taking and keeping minutes as required by the 35 Colorado Springs CORA Online Request Form, posted at http://www.springsgov.com/units/communications/CORA%20RequestSubmission0.html. 36 Independence Staff, Indy demands severance contracts from city, Colorado Springs Independent, May 22, 2013, posted at http://www.csindy.com/coloradosprings/indy-demands-severance-contracts-fromcity/Content?oid=2675811 (accessed December 17, 2013). 37 Id. 38 Pam Zubeck, City: We’re all about transparency, Colorado Springs Independent, June 5, 2013, posted at http://www.csindy.com/IndyBlog/archives/2013/06/05/city-were-all-about-transparency (accessed December 17, 2013). 39 Id. 40 Monica Mendoza, Colorado Springs City Council holding closed-door meeting on baseball stadium survey, The Gazette (Colorado Springs), Oct. 21, 2013. 41 Id. 42 Id. Ethics Roundup 2013 | 8 law.43 The lack of minutes makes it hard for citizens to track what has been discussed, who attended the meeting, and whether any decisions were made. The City blames the lack of minutes on a staff shortage and says the practice was sanctioned by City Attorney advice.44 That narrow legal reading of the OML seems to conflict with prior Colorado Attorney General opinions and the statute which requires any local government committee that has been delegated “decision-making function”45 to keep minutes when actions occur.46 It certainly is not best practices when it comes to running an open transparent city government. Concerns have also been raised that improper “reply all” email chains between City Council members discussing policy have violated the law which explicitly applies to gatherings of officials convened “electronically.”47 A final example of the decline of meaningful transparency in Colorado Springs government in 2013 is the lack of any reporting by public officials for gifts received under the city ethics code.48 In contrast to prior years when reports of gifts received by Colorado Springs officials were filed with the City Clerk’s office, those disclosures don’t exist (public or otherwise) for 2013. This appears to be based on the new City Clerk’s technical interpretation of the city ethics code that requires gifts to be documented but does not say how they should be reported.49 Even if the code is unclear – the answer should not be no reporting at all. But it is not too late for Colorado Springs to let the sunshine in and change its ways. The City Attorney has recommended that the ethics code be revised to specify public disclosures procedures for gifts.50 We hope the City Council takes up such measures and revisits the CORA fee schedule in light of the lower costs incurred responding to requests. City Council members are also now closely scrutinizing when to conduct business in executive session instead of public open meetings.51 Colorado Springs citizens are eager to see if the cloud will be lifted in favor of transparency in city government operations for 2014. 43 Pam Zubeck, Council subcommittees haven’t documented their meetings, Colorado Springs Independent, Aug. 27, 2013, posted at http://www.csindy.com/coloradosprings/council-subcommitteeshavent-documented-their-meetings/Content?oid=2743466 (accessed December 17, 2013). 44 Id. 45 C.R.S. § 24-6-402(1)(a). 46 Id. at (2)(d)(II). 47 Pam Zubeck, supra note 32; C.R.S. §24-6-402(1)(b). 48 Pam Zubeck, Mayor and Council advised to adopt rules for documenting the freebies they get, Colorado Springs Independent, Nov. 27, 2013, posted at http://www.csindy.com/coloradosprings/mayor-and-council-advised-to-adopt-rules-for-documentingthe-freebies-they-get/Content?oid=2794079 (accessed December 17, 2013). 49 Id. 50 Id. 51 Monica Mendoza, Colorado Springs City Council takes a closer look at closed-door sessions, The Gazette (Colorado Springs), July 5, 2013. Ethics Roundup 2013 | 9 JOE NEVILLE CALLS THE CAPITOL’S BLUFF A February 2013 confrontation between Colorado Rocky Mountain Gun Owners political director, Joe Neville, and Rep. Cheri Gerou triggered a political circus and exposed a potentially deadly weakness in the General Assembly’s ability to regulate the behavior of registered lobbyists under the golden dome. The special legislative committee formed to investigate the complaint failed to assert its authority to enforce the rules that lobbyists agree to follow because the lobbyist simply refused to participate in the investigation. Tensions will always run high and political maneuvers are expected at the Capitol, but interactions between lobbyists and legislators are supposed to follow a set of rules enforced by an established process. If that process breaks down, the rules have no teeth. The conflict between Rep. Gerou and Joe Neville began the same day as a grueling session to debate four gun safety bills in the House. The confrontation was triggered by claims by the Rocky Mountain Gun Owners that Rep. Gerou was planning to back the four gun control bills. Gerou said she confronted the lobbyist outside the House chamber, and told him to quit “scaring her constituents.”52 Rep. Gerou then told Neville to “(expletive) off.” Rep. Gerou then claims that Neville replied “You just earned yourself another round of mailers on your district.”53 Sergeants then removed Neville from the Capitol at Rep. Gerou’s request because she believed he was in violation of the lobbyist rules of conduct.54 Rep. Gerou voted against all four gun bills.55 She suggested that the real reason she was targeted by the lobbyist group was actually because of her support for civil unions.56 Her support of same-sex civil unions in 2012 prompted Joe Neville’s father, former Sen. Tom Neville, to issue robocalls into her district criticizing her support of the bill.57 There is also the possibility that Rep. Gerou might face Tom Neville in a 2014 primary election for a state senate seat.58 Regardless of motivations, policy disagreements and political alliances, there is still a code of conduct that registered lobbyists agree to follow. Rep. Gerou filed a complaint with the Executive Committee of the Legislative Council59 against Joe Neville for violating Rule 36(b)(1) of the Joint Rules of the Senate and House of Representatives, which prohibits lobbyists from: 52 Lynn Bartels, RMGO gun lobbyist Joe Neville slapped with ethics complaint, hearing is Friday, The Denver Post, February 28, 2013. 53 Id. 54 Id. 55 Id. 56 Id. 57 Peter Marcus, Ex-state senator defends Neville in ethics committee hearing, The Colorado Statesman, March 25, 2013. 58 Peter Marcus, RMGO lobbyist Neville off the hook on alleged ethics violation – for now, The Colorado Statesman, November 24, 2013. 59 Complaint filed by Rep. Cheri Gerou, filed February 25, 2013, posted at http://www.documento.com/doc/134272227/Public-File-of-Colorado-General-Assembly-Joint-Rule-36Ethics-Committee-Investigation-Regarding-Joe-Neville (accessed December 17, 2013). Ethics Roundup 2013 | 10 Attempt[ing] to influence any legislator or elected or appointed state official or state employee or legislative employee by means of deceit or by threat of violence or economic or political reprisal against any person or property, with intent thereby to alter or affect said legislator's, elected or appointed state official's, state employee's, or legislative employee's decision, vote, opinion, or action concerning any matter which is to be considered or performed by him or her or the agency or body of which he or she is a member;60 Under Joint Rule 36, the bipartisan Executive Committee first had to decide whether to move forward with the complaint. The committee unanimously voted to investigate the matter and appointed a special legislative committee to look into the complaint, interview relevant persons, and report back to the Executive Committee.61 Once the Executive Committee received the report of this investigative committee, it would be required to act to dismiss the complaint or decide if a violation of Rule 36 occurred. For violations, the Executive Committee can suspend lobbying privileges, issue a letter of admonition, or recommend lawmakers censure the lobbyist.62 The three person committee of Rep. Dan Pabon, and Sens. Irene Aguilar and Mark Scheffel held a number of public hearings in March and April to investigate the matter and formulate a recommendation.63 The committee heard testimony and reviewed documents submitted by Rep. Gerou and other witnesses at multiple hearings.64 Neville’s attorney initially submitted a personal statement regarding the incident to the committee and Neville appeared at an early hearing to testify.65 However, he then refused to comply with committee requests for him to appear for questions and testimony and submit additional documentation. At the April 3 hearing, Neville read a prepared statement in which he stated that he would not participate and referred to the committee as an ‘unconstitutional tribunal” before walking out of the proceedings.66 Neville contended that Joint Rule 26 violated his free speech rights and his attorney said Neville was in the same position as a journalist refusing to testify about sources in court.67 The committee was dumfounded by this statement and was hoping to continue the investigation with Neville’s participation. The committee again requested Neville’s appearance and production of 60 Joint Rule 36: Lobbying Practices, posted at http://www.sos.state.co.us/pubs/lobby/houseSenate.html#JR36 (accessed December 17, 2013). 61 Lynn Bartels, Colorado gun lobbyist faces ethics probe by lawmakers, The Denver Post, March 1, 2013; Joint Rule 36(d)(2). 62 Joint Rule 36(d)(5). 63 Peter Marcus, Ex-state senator defends Neville in ethics committee hearing, The Colorado Statesman, March 25, 2013. 64 Committee Documents, posted at http://www.documento.com/doc/134272227/Public-File-of-ColoradoGeneral-Assembly-Joint-Rule-36-Ethics-Committee-Investigation-Regarding-Joe-Neville (accessed December 17, 2013). 65 Id. 66 Lynn Bartels, Read gun lobbyist’s Joe Neville statement on “unconstitutional” ethics hearing, The Denver Post, April 3, 2013. 67 Email from Shawn Mitchell to Jennifer Gilroy, April 18, 2013, posted at http://www.documento.com/doc/138569526/Neville-File-Apr-22 (accessed December 17, 2013). Ethics Roundup 2013 | 11 specific documents at its April 17 hearing and warned “Failure to attend or provide further documentation may result in further action being taken by this or other committees.”68 He refused to appear or provide the requested documents. The committee consulted with legal counsel regarding the ability to subpoena Neville – under Joint Rule 26 the executive committee can request the power from the General Assembly to issue subpoenas if they are necessary in the investigation.69 Two of three lawmakers on the committee indicated at that hearing that they didn’t want to attempt to subpoena him; the third was troubled by his lack of participation in the investigation.70 The committee agreed to not hold any more hearings and present a report to the Executive Committee based on the information already gathered.71 Instead of further compelling testimony, or rendering a decision on the complaint based on the information already submitted by Neville and other witnesses, the investigative committee simply gave up. Moreover, the committee dragged its feet and didn’t even issue its non-report for almost four months after the last public hearing. On August 20 they released a final report to the General Assembly.72 The report basically stated that they had taken the issue as far as they could because of the lack of participation of Joe Neville, advising:73 The members of this committee believe the Executive Committee should share in this committee’s concern about the establishment of a precedent in which a relevant witness, particularly the very subject of a complaint, refuses to participate in a process established by legislative rule.74 The report also reminded the Executive Committee of its ability to seek subpoena power and left it up to that Executive Committee to decide what, if any, further action to take. In addition to refusing to participate in processes set up in the rules governing all registered lobbyists, Neville and the Rocky Mountain Gun Owners continued to retaliate and escalate. As the investigation was pending, Dudley Brown, the director of the Rocky Mountain Gun Owners, sent an email to the entire membership of the organization attacking Rep. Gerou for her stance on gun rights issues although she voted in line with the group’s position.75 After the investigative committee 68 Letter from committee, April 10, 2013, posted at http://www.documento.com/doc/135633247/ColoradoJoint-Ethics-Committee-investigation-of-lobbyist-Joe-Neville-Public-Record-additions-week-of-April8-2013 (accessed December 17, 2013). 69 Joint Rule 36(d)(5). 70 Lynn Bartels, Panel ends review of ethics complaint against gun lobbyist, report due, The Denver Post, April 18, 2013. 71 Id. 72 Final Report of the Committee Designated to Investigate the Complaint Filed Pursuant to Rule 36, August 20, 2013, posted at http://www.documento.com/doc/191156645/Neville-Investigative-CommitteeReport (accessed December 17, 2013). 73 Lynn Bartels, Gun lobbyist Joe Neville in ethics probe has quit cooperating, The Denver Post, August 21, 2013. 74 Final Report, supra note 72. 75 Eli Stokols, In email to members, RGMO’s Dudley Brown blasts GOP lawmaker for filing ethics complaint, seeks donations, Fox31 Denver, April 30, 2013, posted at http://kdvr.com/2013/04/30/inemail-to-members-rmgo-blasts-gerou-for-filing-ethics-complaint/ (accessed December 17, 2013). Ethics Roundup 2013 | 12 submitted its report to the Executive Committee – but before any decision was made by that committee – Neville filed a federal lawsuit against the Colorado General Assembly claiming his discussion with Rep. Gerou was constitutionally protected speech and the complaint was official retaliation against him for exercising his First Amendment rights.76 Yet, Neville voluntarily dismissed the case in November without explanation.77 Months again passed before the Executive Committee met to take action on the investigative committee report. In a November 2013 meeting, the Executive Committee decided unanimously that there was not enough evidence to prove that Joe Neville violated Rule 36.78 The Executive Committee authorized Legislative Council to send Neville a “strongly worded” letter critiquing him for his lack of cooperation.79 So, by refusing to participate in the process, Neville called the Capitol’s bluff and the General Assembly didn’t move to enforce its own rules either by subpoena or taking action based on the information Neville did submit. It remains to be seen whether there will be consequences for Neville’s actions against Rep. Gerou and his blatant contempt for the ethics processes of the General Assembly. There is still a chance that the regulation of lobbyists has some authority and teeth behind it. Some members of the Executive Committee thought there was enough evidence gathered to show a violation of Rule 36, and many members of both parties were concerned with the disdain showed by Neville and were looking for further ways to address his behavior: “What is not debatable is the failure to honor the request of a committee within a body where you claim to be a part of the professional lobbyists that work here,” said Sen. Bill Cadman.80 “I have some serious concerns about what happened here, and I do think Mr. Neville did come to or crossed the line…This is not the end of this conversation,” said Speaker Mark Ferrandino.81 We hope the General Assembly demands respect for the rules from all registered lobbyists and protects the institutional integrity of the bipartisan enforcement system it has created. But, given the actions of 2013, we aren’t holding our breath. 76 Sam Reynolds, Gun Lobbyist Complains of Power Tripping in Colorado, Courthouse News Service, Oct. 9, 2013, posted at http://www.courthousenews.com/2013/10/09/61874.htm (accessed December 17, 2013). 77 Neville v. Colorado General Assembly, Civil Action No. 2013-CV-02735-REB-MJW, Notice of Dismissal (Filed Nov. 8, 2013). 78 Peter Marcus, RMGO lobbyist Neville off the hook on alleged ethics violation – for now, The Colorado Statesman, November 24, 2013. 79 Id. 80 Id. 81 Id. Ethics Roundup 2013 | 13 CONTINUED CORRUPTION IN ADAMS COUNTY 2013 represented a disturbing continuation of “business as usual” for Colorado’s poster child of local government corruption: Adams County. Even as the Quality Paving scandal wound its way towards contested results and prison sentences, investigative journalists uncovered disturbing internal audits conducted by School District 12 officials, revealing heretofore-concealed millions of dollars. Quality Paving Scandal Comes to a Head In 2008, investigators uncovered a scheme through which construction contractor Quality Paving, alongside several Adams County government employees, “robbed Adams County taxpayers of at least $1.8 million for road work that was never done.”82 Quality Paving was awarded contracts without undergoing any semblance of the state-mandated bidding process, and would bill Adams County for projects never completed.83 In return, the top county officials who were responsible for supervising said no-bid contracts were favored with expensive, off-the-books remodeling of their own homes.84 Of the seven individuals against whom criminal charges were brought, three are now in jail.85 Dennis Coen, the former Vice President of Quality paving, was sentenced to thirteen years imprisonment; Lee Asay, former Adams County Public Works Director, pled guilty and received a 30month sentence; and Sam Gomez, the former Adams County Construction manager, four years.86 Two of the other public employees indicted pled guilty to theft and received deferred sentences.87 The former owner of Quality Paving, Jerry Rhea, was sentenced to nine years in prison, but is currently out on bond while appealing his conviction.88 And yet, now that the legal dust had settled, the final picture painted is one where corruption still remains a potentially profitable practice. In April 2013, both Rhea and Gomez settled with the County in civil lawsuits, with their cumulative restitutions paying back $750,000 dollars – less than half the money stolen from taxpayers, and well under the amount Quality Paving pocketed from the scheme.89 The case against former Adams County Commissioner Alice Nichol, who also had “extensive” work done on her home by Quality Paving, came to inconclusive results in 2012, but only recently was it revealed how little investigation was even done before the case was closed. The investigation was handed over to special prosecutor Scott Storey in an effort by then-District Attorney Don Quick to avoid a potential conflict of interest.90 In April 2013, the Denver Post obtained documents showing that DA Quick was 82 Yesenia Robles, Adams County settles with two in scandal tied to Quality Paving, The Denver Post, April 23, 2013. 83 Yesenia Robles, Adams County adding to reforms, The Denver Post, May 23, 2012. 84 Arthur Kane & John Ferrugia, Adams County: Exposing a culture of corruption, ABC 7 Denver June 26, 2013, posted at http://www.thedenverchannel.com/news/call7-investigators/adams-county-exposinga-culture-of-corruption (accessed December 17, 2013). 85 Id. 86 Id. 87 Id. 88 Robles, supra note 82. 89 Id. 90 David Olinger, DA: Case closed without independent probe of corruption allegations, The Denver Post, Apr. 29, 2013. Ethics Roundup 2013 | 14 urging Storey to investigate, but the investigation was closed without much of a probe into the corruption allegations – or even an interview of Nichol herself.91 Commissioner Nichol confirmed that once the special prosecutor took over the case, she and her husband were never contacted for information.92 Both Storey and Quick were term-limited and did not continue in their positions in 2013. Ultimately, perhaps the most emblematic of stories to emerge from Adams County came during the sentencing hearing of disgraced former Adams County public works director Lee Asay. After pleading guilty to one count of theft (and having 25 other counts dropped), Asay argued that he had been “a victim of the culture of corruption in Adams County,” portraying his actions in the Quality Paving scandal as an inextricable part of Adams County business culture.93 Even presiding Judge Steven Shinn described Asay as being so habituated to the corrupt Adams County norm, having worked for the county for more than 40 years, that “[h]e knew no different way of handling business.”94 When convicted public servants successfully evoke sympathy depicting themselves as victims of inescapable systemic corruption, it would seem the resolution of the Quality Paving scandal – and the County’s subsequent moves to enact reforming legislation, hire ethics and audit officers, and expand the number of County Commissioners from three to five– are but small steps towards reclaiming public trust.95 Secret Tapes Reveal School Officials Concealing Millions While Cutting Programs Adams 12 Five Star School District, Colorado’s fifth-largest educational subdivision, has faced lean times over the past three years, suffering budget cuts totaling more than $56 million.96 How much outrage might then be sparked if, during that same window of time, District 12 officials were deliberately concealing “tens of millions of dollars” from the public, all while cutting bus routes, school programs, and more than 200 jobs?97 According to former District 12 internal auditor-turned-whistleblower Gina Holub, that’s precisely what happened.98 Holub alleges that District 12 Chief Financial Officer Shelley Becker and her staff deliberately misstated figures in official reports, “intentionally inflating the numbers to justify...cuts.”99 Fired for questioning the district’s budget process, Holub’s termination letter criticized her professionalism, specifically citing her relationship with the CFO. Yet Dr. James Sorenson, professor of Accountancy at the University of Denver, argued that “[t]he path that [Holub] took is the 91 92 Id. Id. 93 Kane & Ferrugia, supra note 84. 94 Yesenia Robles, Former Adams County public works director gets 30 months in prison, The Denver Post, Jan. 29, 2013. 95 Kane & Ferrugia, supra note 3. 96 Josh Bernstein, State’s 5th largest school district hid millions while cutting services to students?, Fox 31 Denver, Feb. 4, 2013, posted at http://kdvr.com/2013/02/04/states-5th-largest-school-district-hidmillions-while-cutting-services-to-students/ (accessed December 17, 2013). 97 Id. 98 Id. 99 Id. Ethics Roundup 2013 | 15 appropriate way that an internal auditor should operate...If you find that something is not right you can’t just say well I’ll just overlook it. You have a professional responsibility.”100 Following Holub’s termination, District 12 hired former Assistant Commissioner of Public School Finance for the Colorado Department of Education Vody Hermann to investigate the allegations.101 In a letter sent out to more than 40,000 District 12 households, Hermann stated that there was “no merit” to Holub’s allegations, and that “all of the district’s funds” were “accounted for publically.”102 However, in a secretly-recorded September 2012 meeting, obtained by Denver’s Fox 31 KDVR, Hermann specifically said to Holub: “I am going to agree with you…This unassigned amount is going to grow to be $12 million dollars”103 In that same meeting, Superintendent Gdowski explained that “[w]e did not want the public at large to know that we have these big stipends that people get when they exit the system,” and Chief Human Resources Officer Mark Hinson explicitly admits that Adams 12 officials tried to “bury it.”104 Just last year, Gdowski himself called for “shared sacrifice” when discussing one round of cuts totaling $12 million and 60 jobs.105 Finally, in July Adams 12 officials performed a seemingly abrupt about-face on their repeated insistence as to the adequacy of the district’s budgeting practices, announcing that they had “freed up” approximately $5 million worth of unspent employee benefit funds.106 Though officials allege that motivation for the evidence marshaled against them was rooted in broken-down negotiations with the teacher’s union, tapes of their own internal conversations seem to imply otherwise.107 If, as CFO Shelley Becker claims, the newly “freed up” funds are the mere result of “leaving no stone unturned,” why, precisely, were these same metaphoric stones previously left to ignorance, while students and teachers alike continue to shoulder the burdens of cut funding?108 Perhaps Adams County can finally close the book on these scandals and increase the transparency of transactions using public funds so that the citizens can have confidence in how it is spent. 100 101 Id. Josh Bernstein, Caught on tape: School officials laughing as they talked about hiding millions of dollars, Fox 31 Denver, March 28, 2013, http://kdvr.com/2013/03/27/caught-on-tape-school-officialslaughing-as-they-talked-about-hiding-millions-of-dollars/ (accessed December 17, 2013). 102 Vody Hermann, Fox 31 Denver, http://localtvkdvr.files.wordpress.com/2013/03/herrmann-020413signed.pdf (accessed December 17, 2013). 103 Bernstein, supra note 101. 104 Id. 105 Joe Rubino, Adams 12 cutting $12M, 60 jobs from budget, The Denver Post, April 11, 2012. 106 Yesenia Robles, Adams 12 changing budget practice, finding millions in underspending, The Denver Post, July 22, 2013. 107 Id. 108 Id. Ethics Roundup 2013 | 16 GESSLER’S PERSONAL CRUSADE TO EVISCERATE THE ETHICS COMMISSION Last year’s Ethics Roundup explained how a review of public records revealed several personal and political reimbursement requests by Secretary of State Scott Gessler in 2011 and 2012. The $5,000 “discretionary fund” allocated to Secretary Gessler is limited by statute to “expenditure[s] in pursuance of official business.” 109 In October 2012, Ethics Watch sent a request for a criminal investigation to District Attorney Mitch Morrissey and filed an ethics complaint with the Independent Ethics Commission (IEC) seeking an investigation and possible imposition of civil fines based on the following uncovered transactions:110 • In August 2012, Secretary Gessler received reimbursement for $1,278.90 in travel costs (airfare, lodging and incidentals) to attend the Republican National Lawyers Association (RNLA) election law conference in Sarasota, Florida.111 Secretary Gessler then attended the Republican National Convention in Tampa using this same roundtrip airline ticket. Airline change fees were also reimbursed with state travel funds for the Secretary to return early from the Convention for reasons not stated in the public record. In July 2011, Secretary Gessler requested a “reimbursement” request seeking “any remaining discretionary funds” at the end of Fiscal Year 2010 without any accompanying receipts or details of government-related spending.112 State Comptroller records show a payment of $1,400 on July 13, 2011 to Scott Gessler for “6/30/11 balance” coded as “Other Employee Benefits.”113 In July 2012, Secretary Gessler again requesting personal reimbursement of any moneys left in the discretionary fund at the end of Fiscal Year 2011 without any attached receipts.114 State Comptroller records show payments on July 9, 2012 to an unnamed employee totaling $118 for “Employee Non-Cash Incentives.”115 • • Colo. Rev. Stat. § 24-9-105 (2013). Based on its limited one year jurisdiction, the IEC ethics complaint only included allegations regarding the 2012 transactions. 111 Secretary Gessler Discretionary Fund documents, posted at http://www.documento.com/doc/161986740/Sec-of-State-Gessler-Discretionary-Fund (accessed December 17, 2013). 112 Letter from Scott Gessler to Heather Lizotte, Jul. 12, 2011, posted at http://www.documento.com/doc/110479177/Gessler-Discretionary-Fund-Request-07122011 (accessed December 17, 2013). 113 Office of State Comptroller, “Report of Expenditures for Secretary of State for Fiscal Years 201011,” posted at http://www.documento.com/doc/110478121/colorado-sos-discretionary-account-transactions (accessed December 17, 2013). 114 Letter from Scott Gessler to Heather Lizotte, Jul. 5, 2012, posted at http://www.documento.com/doc/110806953/Supplement-to-IEC-Complaint-Gessler (accessed December 17, 2013). 115 Office of State Comptroller, supra note 113. 110 109 Ethics Roundup 2013 | 17 In response to these filings, Secretary Gessler hired a team of lawyers to defend his actions116 and repeatedly indicated that he would not return the funds, despite calls for him to do so.117 Under the unique system of ethics enforcement in Colorado, the public paid for Secretary Gessler’s defense team with state money while Ethics Watch was required to prosecute the case at its own expense. In June 2013, the IEC ruled that Secretary Gessler breached ethical standards in his use of public funds and fined him the maximum allowable under Colorado law (double the amount misused, totaling $2793.78).118 While the grand jury declined to issue a criminal indictment, it took the unusual step of publicly releasing a report criticizing Secretary Gessler’s behavior and lack of concern over use of public funds.119 Perhaps almost as bad as the misuse of public funds at issue in those complaints is that throughout the process Secretary Gessler showed disrespect – and sometimes downright contempt – for the IEC and its authority granted by the citizens of Colorado to conduct a bipartisan investigation and adjudication of these allegations.120 These actions throughout 2013 evidenced an attitude by Secretary Gessler that if he was going down for misuse of public funds, he was going to bring down the IEC with him. Obstruction and delays in IEC proceedings costs Colorado citizens Rather than cooperate so that the IEC investigation would come to a speedy resolution, Secretary Gessler’s defense team – consisting of three different law firms – took every opportunity to challenge the IEC’s institutional integrity and ability to review the ethical implication of elected official’s actions. The IEC’s procedural rules are meant to provide a streamlined process for fact-finding when presented with complaints, which benefits both the citizen complainant (who often is navigating this process without benefit of legal counsel) and the public officials who want the matter cleared up quickly. Once a complaint is determined to be within the IEC’s jurisdiction and not frivolous, the IEC staff starts an investigation by providing the subject of the complaint the opportunity to file a written response including legal and factual arguments.121 The IEC sets a hearing date and both the complainant and respondent must disclose relevant documents to the IEC (and each other).122 The IEC also has the power to subpoena witnesses for the hearing.123 After the hearing, the IEC renders a final agency decision which may be appealed to the Denver District Court.124 116 Tim Hoover, Secretary of State Gessler hired David Lane as attorney in ethics case, The Denver Post, Dec. 6, 2012. 117 Editorial: Gessler needs to repay taxpayers, The Denver Post, Oct. 23, 2012. 118 IEC, Complaint No 12-07: Findings of Fact and Conclusions of Law, June 19, 2013, posted at http://crew.3cdn.net/5730c6a79ff45df8ab_jkm6i6eb1.pdf (accessed December 17, 2013). 119 Denver Statutory Grand Jury Report, “Investigation on use of discretionary fund by Secretary of State Scott Gessler,” at posted at http://www.documento.com/doc/148833577/grand-jury-report (accessed December 17, 2013). 120 Colo. Const. Art. XXIX, § 5 (adopted in 2006). 121 IEC Rules of Procedure, Rule 7(K). 122 Id. Rule 8(C)(1). 123 Id. Rule 8(C)(6). 124 Id. Rule 8(H); C.R.S. § 24-18.5-101(9). Ethics Roundup 2013 | 18 However, after the IEC determined that Ethics Watch’s complaint was not frivolous and started its investigation in November 2012, Secretary Gessler’s team responded with two motions to dismiss.125 Filing of motions is not a part of the procedure laid out in the IEC rules and is the type of legal maneuver that takes advantage of the fact that public officials often have government attorneys representing them while citizen complainants typically do not. In this case, Secretary Gessler’s legal team was paid with state funds through the “legal services” budget of the Department of State.126 Despite the lack of rules allowing motions, the IEC decided to consider these motions, and both were denied in January 2013. The IEC attempted to move forward with its investigation and planned to release its investigative report at its early February meeting, but Secretary Gessler ran to Denver District Court and filed a lawsuit against the IEC Commissioners on January 30, 2013, seeking a temporary restraining order to stop the IEC proceedings.127 After an expedited hearing on the matter on February 7, 2013, the judge denied Secretary Gessler’s request and allowed the IEC to finish its investigation and hearing process.128 As the IEC process moved forward, Secretary Gessler continued to try and obstruct the process – literally at every meeting. In February, Secretary Gessler filed multiple motions to move the hearing to an administrative law judge, transfer the investigation from IEC staff to an outside investigator, and disqualify two Commissioners for alleged bias.129 The Commission unanimously refused to grant any of these motions, but decided to contract an outside investigator to complete the investigation so as to avoid any appearance of bias.130 In March, Secretary Gessler expanded his district court lawsuit to void the Colorado Constitution Article XXIX (adopted as Amendment 41 and establishing the IEC) as contrary to the federal constitution. In April 2013, Secretary Gessler filed a second lawsuit in Denver District Court against the IEC – this time over his stymied attempt to maneuver around the pending investigation using the Commission’s constitutional powers to issue advisory opinions regarding prospective conduct.131 In late January (while the investigation into Secretary Gessler’s use of state funds to attend the 2012 RNLA conference was pending), Deputy Secretary of State Suzanne Staiert requested an advisory opinion on behalf of herself and the Secretary asking whether state funds could be used to pay for travel to a number of potential events, including the 2013 RNLA conference.132 The IEC correctly saw this as a Peter Marcus, Investigation into Gessler’s use of public funds continues, Colorado Statesman, Jan. 11, 2013. 126 Patrick Malone, State spends $34,000 so far defending Gessler in ethics probe, Fort Collins Coloradoan, Feb. 25, 2013. 127 Gessler v. Grossman, et al., No. 2013CV030421 (various public filings posted at http://www.documento.com/collections/4222052/Gessler-v-Grossman-pleadings) (accessed December 17, 2013). 128 Tim Hoover, Judge rejects Gessler’s request, The Denver Post, February 8, 2013. 129 Tim Hoover, Commission again delays Gessler ethics probe, The Denver Post, February 16, 2013. 130 Tim Hoover, Outside probe for Gessler case, The Denver Post, March 4, 2013. 131 Gessler v. Grossman, et al., No 2013CV31590, filed April 3, 2013, posted at http://www.documento.com/doc/135178049/Gessler-II-Complaint (accessed December 17, 2013). 132 Colorado Independent Ethics Commission Advisory Opinion request, filed January 22, 2013, posted at http://www.citizensforethics.org/page/-/COLORADO/pdfs/IEC/AO%2013-03%20request.pdf (accessed December 17, 2013). Ethics Roundup 2013 | 19 125 ploy to get a ruling from the Commission that might prejudice the pending investigation, and refused to respond to that part of the advisory request until after the complaint proceedings were completed. Secretary Gessler and Deputy Secretary Staiert filed a lawsuit seeking to force the IEC to provide an advisory ruling immediately. This lawsuit was ultimately dismissed by the Judge in July 2013. The IEC released its investigative report in late April 2013 and set the matter for a final hearing on June 7, but that didn’t stop Secretary Gessler from trying to block the proceedings. In May 2013, Secretary Gessler’s team filed another series of motions to disqualify the same two Commissioners from deciding the matter, to transfer the proceeding to an Administrative Law Judge, and to exclude some evidence in the investigator’s report. The IEC granted the evidentiary motion, but again denied the others. Secretary Gessler also sought to subpoena numerous former and current state officials, which the IEC limited to the immediate prior Secretary of State.133 After all these delay tactics, on May 20, 2013, Secretary Gessler surprisingly repaid the Department of State the $1,278.90 amount spent on travel to the RNLA conference while his lawyers continued pre-hearing filings.134 Secretary Gessler’s spokesman stated that he did this to “move on so we can focus on our work for Colorado.”135 The decision to refund most of the money on the eve of the final hearing after spending tens of thousands of dollars of public money on an aggressive legal team is simply indefensible. Months earlier, the Denver Post had urged Secretary Gessler to pay back the money and resolve the issue without a costly and lengthy investigation.136 But Secretary Gessler insisted he would be exonerated and had already charged Colorado taxpayers approximately $81,000 in legal fees before the ethics hearing (and forced the IEC to spend more than $62,000 in state money as well).137 Despite the eleventh-hour repayment, the IEC hearing proceeded on June 7 both to resolve the propriety of those travel reimbursements and the end-of-fiscal-year payout that Secretary Gessler did not repay. Secretary Gessler’s disrespect for the IEC and its constitutional authority continued into the hearing itself when his lawyers refused to produce him as a witness despite the IEC’s subpoena issued in May.138 The IEC was forced to send its counsel from the Attorney General’s office to Denver District Court to get a court order enforcing the subpoena – delaying the hearing. Secretary Gessler finally appeared, under court order, after 6:00pm that evening to answer questions about his use of state funds. During the post-hearing deliberation public session, Secretary Gessler again tried to disqualify two of the five commissioners from participating in the decision on the merits, on the new ground that he was now a candidate for Governor. These motions were again unanimously rejected.139 The bipartisan IEC unanimously ruled that Secretary Gessler violated the statutory provisions and breached the public trust for private gain by state funds to pay travel expenses to attend the RNLA conference.140 133 Lynn Bartels, Gessler repays state for political trips, mulls governor’s race, The Denver Post, May 23, 2013. 134 SOS Repayment, posted at http://www.documento.com/doc/143278334/SOS-Repayment (accessed December 17, 2013). 135 Lynn Bartels, supra note 133. 136 Editorial: Gessler needs to repay taxpayers, The Denver Post, Oct. 23, 2012. 137 Joey Bunch, For Gessler, toughest opponent is his past, The Denver Post, June 2, 2013. 138 Joey Bunch, No ruling in Gessler case, The Denver Post, June 8, 2013. 139 Joey Bunch, Public trust “breached”, The Denver Post, June 14, 2013. 140 IEC, supra note 118. Ethics Roundup 2013 | 20 The Commission also found that Secretary Gessler violated the statute and breached the public trust for private gain by receiving the personal year-end payment by a 4-1 vote (Commissioner Hopper dissenting). Finally, the Commission unanimously voted that the Secretary did not violate any standard of ethical conduct by using state funds to pay for airline change fees in connection with an early return from his Florida trip. The Commission imposed a penalty of twice the amount at issue minus the amount paid back to the state by the Secretary in May 2013, imposing a net fine of $1,514.88.141 How is it that Secretary Gessler was able to engage in such scorched-earth litigation tactics during the IEC investigation – including filing two separate lawsuits – which resulted in an overwhelming finding that he acted improperly? His legal team was paid with public funds under contracts that had no limits beyond an agreed-upon hourly fee. Moreover, because Secretary Gessler himself was not paying for these hundreds of attorney hours, he had no incentive to cooperate in the proceedings or avoid costly delays. Legal expenses were stratospheric, totaling $122,000 as of June 30, 2013 and another $67,000 from July 1 through December 10, 2013. Thus, a total of approximately $189,000 in public money has been spent to defend Gessler’s misuse of less than $2,000 (which the Secretary ended up mostly paying back right before the hearing).142 Gessler’s disproportionate use of state funds for aggressive legal tactics in a dispute before another state agency also caught the attention of national media, including one which created a striking graphical representation: 143 The fact that the understaffed and underfunded IEC continues to require complainants to prosecute ethics matters at their own expense highlights the inequity of unlimited publicly funded defenses for public officials in ethics matters. Reform is warranted at the state-level to avoid a repetition of the Secretary Gessler slash-and-burn approach. Perhaps the local Denver municipal code can serve as Pam Zubeck, Gessler found in violation, Colorado Springs Independent, June 25, 2013. Joey Bunch, Colorado Ethics Watch posts Secretary of State Scott Gessler’s legal bills: $122k, The Denver Post, July 25, 2013; Appendix E to Joint Budget Committee, “Department of State FY 2014-15 Joint Budget Committee Agenda,” December 13, 2013, posted at http://www.documento.com/doc/192137691/Dept-of-State-Legal-Services-FY-12-14 (accessed December 17, 2013). 143 Rachel Maddow Show, In which the Colorado Secretary of State bills taxpayers $122k for defense against $2,800 fine, July 26, 2013, posted at http://www.msnbc.com/rachel-maddow-show/which-thecolorado-secretary-state?lite (accessed December 17, 2013). 142 141 Ethics Roundup 2013 | 21 an example.144 Under the Denver Code of Ethics, any person who is the subject of an ethics complaint that is investigated by the Denver Board of Ethics may apply to the city attorney for reimbursement of “reasonable legal expenses” incurrent in connection with the complaint. However, this use of city funds to pay legal defense costs has two important limitations – first the person cannot apply for reimbursement until the ethics process has resulted in the person being “exonerated.” Second, the maximum reimbursement is $7,500.145 The General Assembly should seriously consider a version of these limitations for use of state funds in ethics matters to provide a disincentive to run up the legal bills with unnecessary and disproportionate maneuvers. Grand jury report in criminal investigation criticizes Secretary Gessler’s actions At the same time as the parallel IEC civil ethics investigation, the Denver District Attorney empaneled a grand jury to review Secretary Gessler’s use of state funds in both 2011 and 2012 for possible criminal indictment.146 In stark contrast to the state-funded defense team in the ethics proceedings, Secretary Gessler was told by the Attorney General’s office that he must personally pay for any attorneys he employed in connection with the criminal investigation.147 But Secretary Gessler did not think he should be personally responsible for these legal bills either and sought another way. In January 2013, Deputy Secretary of State Staiert sought to establish a “legal defense fund” on behalf of Secretary Gessler through an advisory opinion request with the IEC.148 Basically, the proposal was to establish a fund where individuals (and possibly corporations) could donate money to pay for Secretary Gessler’s legal bills in unlimited amounts. This fund would not be subject to campaign finance limitations or gift rule limits in Amendment 41. This was the first time a Colorado officeholder had proposed such an idea, and there is no specific provision in Colorado law that allows such defense funds. Yet, Secretary Gessler showed contempt for the IEC’s thoughtful research and deliberation on this novel issue by demanding an immediate answer to his advisory request in his second lawsuit against the IEC filed in April 2013.149 Secretary Gessler’s request was a thinly veiled attempt to received large donations otherwise prohibited by law (at one hearing Deputy Secretary Staiert stated that “maxed-out” campaign donors would be a fundraising target for the fund). Yet the IEC ultimately issued an opinion outlining certain limited – and publicly disclosed – donations from individuals that the Secretary could accept towards 144 145 Denver, Co. Rev. Code, Art. IV, § 2-57 (2012). Id. 146 Joey Bunch, Secretary of State Scott Gessler won’t face criminal charges, Denver grand jury says, The Denver Post, June 19, 2013. 147 Colorado Independent Ethics Commission Advisory Opinion request, posted at http://www.documento.com/doc/119944547/Colorado-Independent-Ethics-Commission-AO-13-01-Request (filed Jan. 2, 2013). 148 Id. 149 Gessler v. Grossman, et al., No 2013CV31590, filed April 3, 2013, posted at http://www.documento.com/doc/135178049/Gessler-II-Complaint (accessed December 17, 2013). Ethics Roundup 2013 | 22 legal expenses without violating the gift rule, but only after he had been formally charged with a crime – which had not yet occurred at the time the opinion was issued.150 Despite the time and resources spent fighting the IEC in an effort to avoid personal responsibility for his criminal investigation-related legal bills, Secretary Gessler did not have the opportunity to establish such a fund or solicit unlimited donations. In June 2013, one week after the IEC ruled Secretary Gessler violated ethics laws, the grand jury released a report declining to indict on any criminal grounds.151 However, the grand jury did not condone Secretary Gessler’s behavior, stating harshly: “[t]he Grand Jury believes that the Secretary of State’s decision to use the discretionary funds in order to attend a partisan and political conference like the RNLA was not prudent, especially when it was followed by a trip to the Republican National Committee.”152 and “[t]he Grand Jury herein expresses displeasure with the fact that Secretary of State Gessler did not provide any documentation to account for the lump sum pay out from the Discretionary Fund in 2011 and again in 2012, thus creating difficulty not only for [Gessler], but also for the People of the State of Colorado.”153 Thus, despite Secretary Gessler’s personal crusade to take down the IEC and avoid any personal responsibility for his use of state funds – including paying for his legal teams harsh and extreme tactics – his actions were admonished in both civil and criminal contexts. The scandal of this abuse of power that provides a blank check from public funds to Secretary Gessler’s legal team continues. Secretary Gessler has appealed the IEC rulings to Denver District Court, and the suit includes sweeping accusations of constitutional rights violations and seeks to have large parts of Amendment 41 invalidated together with reversing his personal IEC ruling.154 Unfortunately for Colorado citizens’ pocketbook, the case – and the legal bills – will continue to drag on into 2014. 150 IEC Advisory Opinion No. 13-01, May 6, 2013, posted at http://www.documento.com/doc/139833752/Colorado-Independent-Ethics-Commission-AO-13-01-CriminalDefense-Fund-Corrected (accessed December 17, 2013). 151 Joey Bunch, supra note 146. 152 Denver Statutory Grand Jury Report, supra note 119. 153 Id. at 4. 154 Opening Brief in Gessler v. Grossman, No. 2013CV030421 (filed 11/12/13) posted at http://www.documento.com/doc/188615858/Scott-Gessler-appeal-of-Ethics-Commission-sanctions-OpeningBrief (accessed December 17, 2013). Ethics Roundup 2013 | 23