Colorado Secretary of State Scott Gessler is asking a court to overturn a voter-approved amendment to the state constitution because, he charges in court filings, its wording is “unconstitutionally vague” and denies due process rights to those targeted by a state ethics panel, including Gessler himself.
In a March 11 filing in Denver District Court, Gessler asks the judge to halt a Colorado Independent Ethics Commission investigation into a complaint that accuses him of misusing public funds. In the lawsuit, Gessler contends that the panel lacks jurisdiction and that the whole endeavor is unconstitutional because he’s being held to standards that aren’t clearly spelled out.
It’s the latest volley in a legal back-and-forth that has stretched for months, and it has the authors of the ethics amendment fuming, not least because the state is footing the bill to challenge a provision in its own constitution.
“Colorado voters passed Amendment 41 because they wanted to establish strong ethical standards for those in public service,” said Elena Nuñez, executive director of Colorado Common Cause, which sponsored the 2006 ballot measure. “It is disappointing that the Secretary of State is opposed to that, and shocking that he’s using state funds to try to undermine the will of the voters. Secretary Gessler swore to uphold the Colorado Constitution; he should be focused on following the ethics law, not using taxpayer resources to try to gut it.”
Rich Coolidge, a Gessler spokesman, countered that the secretary “has a constitutional right to a fair trial and due process,” and that “to date, he hasn’t been afforded that opportunity.”
Gessler is defending against a complaint filed with the IEC last year by liberal-leaning Colorado Ethics Watch. It charges that he inappropriately paid for a political trip to the Republican National Convention and a meeting of Republican lawyers out of his office’s budget, and that he shouldn’t have reimbursed himself by clearing out his office’s discretionary fund at the end of the year.
The state has paid private law firms $61,118 to defend Gessler against the complaint before the ethics commission, according to invoices submitted through early March and released this week by the Department of State. In November, Gessler hired lawyers David Lane, Robert Bruce and Michael Davis to handle his case because the attorney general’s office, which usually performs legal work for state officials, represents the IEC. The money for Gessler’s defense comes out of his department’s legal fund, which is stocked by business filing fees paid to his office.
Amendment 41 — approved by 63 percent of state voters — sets strict limits on gifts to public officials and government employees, forbids certain former elected officials from lobbying for two years after leaving office, and establishes a five-member ethics commission. Under the amendment, the commission is charged with investigating violations of the gift ban, “or any other standard of conduct or reporting requirement specified in law,” according to a Legislative Council summary that appeared on ballots. That’s the language Gessler says violates his right to due process — because it doesn’t spell out clearly “what conduct could result in penalties,” his lawyers argue in the filing.
Colorado Ethics Watch director Luis Toro told The Colorado Statesman that there’s no question the complaint falls within “the heartland of ethics issues,” including the State Fiscal Rule, which prohibits using public money for personal or political activity. “It’s not a hard call,” he said.
The Denver district attorney’s office is weighing criminal charges against Gessler for the spending and money transfers. A spokeswoman for the prosecutor said this week that the investigation is “pending” and declined further comment.
Gessler is seeking to establish a criminal defense fund and has asked the ethics commission to rule whether he can accept contributions without running afoul of the amendment’s gift ban. The IEC is scheduled to rule on that request at its regular April 8 meeting. Also, a private investigator is set to unveil his report on the Gessler complaint.
Gessler’s defenders are making at least two arguments in their attempts to quash the investigation: first, that the commission is limited to enforcing a narrow range of transgressions, and, second, that the entire proceeding rests on ambiguous and overly broad language in the amendment.
“(Gessler) is being asked to defend himself against ‘other standards of conduct’ when the attorney general’s office has made it clear the IEC can only review influence peddling. They’re making the secretary defend against standards that aren’t available to him,” Coolidge said. “We have no idea what the ‘other standards of conduct’ are — how far do they get to go in pursing these charges? If they open the door to Fiscal Rules, then what about DUI’s, or God knows what else?”
He called it “a huge overreach” for a commission that “doesn’t operate under any standards or any oversight whatsoever,” and then repeated his contention that the panel’s jurisdiction “has been only limited to influence peddling.”
Toro said that the attorney general’s office narrowly applied the “influence peddling” restriction, when another lawsuit asked the courts to clarify provisions of the gift ban. Besides, he noted, it should speak for itself that the attorney general was defending the IEC and asking the court to throw out Gessler’s lawsuit contesting the investigation.
As for Gessler’s complaint that the amendment defines potential ethics violations ambiguously, Toro called the argument “a red herring.” He said there is “no vagueness about what his standard of behavior is supposed to be — it’s very clear you’re not allowed to spend public money on personal or political behavior.”