Gessler decision shows why Colorado needs an Independent Ethics Commission
Author: Luis Toro - June 21, 2013 - Updated: June 21, 2013
The idea that an elected official cannot use state funds on partisan political events or for personal use should not be controversial. The Independent Ethics Commission’s determination that Secretary of State Scott Gessler violated state laws regarding the use of public funds was an exercise in common sense.
Last week, the Colorado Independent Ethics Commission (IEC) unanimously determined that Secretary of State Scott Gessler violated ethics standards when he used state funds to pay roundtrip airfare to and from Tampa for the week of his trip to the Republican National Lawyers Association (RNLA) and Republican National Convention (RNC), plus hotel and related travel charges to attend the RNLA conference in Sarasota, Fla., in August 2012. Colorado law prohibits the abuse of public trust for private gain, including specifically the use of public money for activities like the RNLA that are primarily designed to advance the interests of a political party. The IEC also voted 4-1 to find that Gessler also violated ethics standards when he requested and received any leftover funds in his department’s discretionary account at the end of Fiscal Year 2012 as personal income. As a result of these rulings, Gessler is being fined double the amount of personal gain he received through his breach of the public trust, or $1514.88, giving him credit for the $1278.90 he decided to pay the state back for some of these expenses before the IEC made its ruling.
In some quarters this decision has caused much gnashing of teeth. Along with state employees who were misled about the effects of the ballot initiative that created the IEC, veteran lawmakers, lobbyists, staffers and party officials — both Democrats and Republicans — were the groups most vehemently opposed to Amendment 41. Those who hoped the IEC would fail are understandably dismayed to see it work as voters intended, providing oversight where none existed before.
The IEC is still in its early years and its launch was not without bumps and failures. Over the years, however, commissioners have shown a willingness to establish and follow a clear process for investigating the facts and determining whether a public official’s actions were permissible under our state’s ethics laws. Their hard work to develop a workable process paid dividends in this case.
The sad part is that it took nearly seven months of defending himself, and reportedly charging the state more than $80,000 in legal defense bills, for the Secretary of State to reimburse the State of Colorado for state money spent on this political trip.
While Secretary Gessler claims that the IEC did not give him a fair hearing, the IEC deserves praise for their patience with the bullying tactics used by the respondents’ defense team. These included personal attacks on the two Democratic commissioners and the Executive Director, two lawsuits, a failed attempt to convince a Denver district judge to block the proceedings, and repeated additional litigation threats.
At the hearing itself, Chair Matt Smith kept both sets of lawyers in check and kept the process going on track despite repeated efforts by the David Lane-led defense team to derail the hearing by, among other things, forcing the IEC to go to court to enforce a subpoena to Gessler to testify and conducting a lengthy examination past 5 p.m. only to announce afterwards that the hearing must be adjourned because the building had closed right before Gessler was to testify. State troopers were summoned to keep the building open and the hearing continued into the evening. The volunteer commissioners had to meet twice more to complete deliberations and the drafting of a final order they had hoped to complete all in one day.
Much has been made of the fact that two Democratic commissioners donated money to Ken Gordon’s SOS campaign in 2006 and Governor Hickenlooper’s first campaign in 2010. Republican commissioners have unsurprisingly also made contributions to Republican candidates, and the language of Amendment 41 recognized and neutralized the possibility of partisanship of the IEC by prohibiting more than two members of any one party to serve on the five-member panel. Nothing in the conduct of the investigation and hearing itself suggested any bias against the Secretary. If anything, the IEC went too far in accommodating his demands that the IEC scrap its investigation in midstream and start over again with an outside investigator, which caused significant delay. In any event, the IEC’s decision that it was unethical to use state funds for the Florida trip was unanimous.
To find that the Secretary of State’s actions violated ethical standards was in one sense a no-brainer and in another sense an act of courage in the face of inevitable backlash from both Gessler’s diehard political supporters and those who never liked the idea of an ethics commission in the first place. All of Colorado’s public officials should take note: public funds are not for personal or political use, and you will be held accountable for violating this basic principle of good government. Colorado’s ethics enforcement process worked, and this is a victory for clean government in our state.
Unfortunately, Gessler’s legal team was paid for out of the Secretary of State department’s litigation fund, apparently without any outside oversight. The legal authority for using state funds for defense of an ethics complaint is dubious at best — the statute requiring the state to defend employees sued for “injuries sustained from an act or omission of such employee occurring during the performance of his duties and within the scope of his employment” simply does not apply to the internal ethics review procedure established through Amendment 41.
There has been wide variation in how persons named in ethics complaints have been able to conduct their defense. A state senator who was the subject of an ethics complaint was not offered a state-funded defense, couldn’t afford an attorney to defend himself, and was advised that accepting pro bono legal help would violate the gift ban. Several complaints have been filed by individual citizens who found themselves facing government attorneys for the defense at the hearing. Now the IEC has experienced an aggressive state-funded defense that virtually guarantees that no one can file an ethics complaint against an elected official unless they are prepared to lawyer up against one of the top trial attorneys in the state.
The IEC can’t solve this problem alone. The legislature needs to step in and come up with a uniform policy for the funding of the defense of ethics complaints. One possible approach is found in Denver’s Ethics Code, which allows a respondent in an ethics complaint to hire an attorney and be reimbursed up to $7,500 if the respondent is exonerated. Another approach would be to require some form of outside approval when department funds are used to defend an ethics complaint against the department head.
The only participant in the ethics hearing that wasn’t being funded by the state was the complainant, Ethics Watch. While other states have complaints handled entirely by ethics commission staff, only Colorado provides a lavish, state-funded defense to some public officials accused of ethical misconduct while expecting the complaining party to prosecute a case at its own expense. This is no way to run an ethics enforcement system, and Ethics Watch will welcome the day when our services prosecuting ethics complaints before the IEC are no longer required. Believe me, there is plenty more to keep us busy.
It’s about time leaders from both parties realize that Amendment 41 is here to stay and work to make sure our state has an ethics enforcement system that is the envy of the nation — one that doesn’t depend on an outside group like Ethics Watch to make sure our state’s ethics standards have real meaning.
Luis Toro is the executive director of Colorado Ethics Watch.