Ethics agencies dispute open records law

By Jason Kosena

Should all ethics hearings be open to public scrutiny? That’s the murky area of Colorado’s open records law that’s at the center of a dispute between the state’s Independent Ethics Commission and a private, nonprofit watchdog group called Colorado Ethics Watch.

A court hearing this week between the IEC and CEW is expected to spur a Denver District court ruling on the issue within the coming weeks.

At issue is what CEW says is an illegal effort by the state’s ethics commission to withhold its working documents from the public and operate essentially as a non-governmental
entity, said Luis Toro, spokesman for CEW.

The IEC was created through voter approval of Amendment 41 in 2006, which was aimed at increasing transparency in government. The five-member commission investigates ethical violations and is, in theory, supposed to enforce ethical standards for public officials and government employees.

“This is a big deal, because government is supposed to be conducted in the open and have transparency. And so to say that the ethics commission that goes over many government operations should not be done in open — and, rather, in secret — is wrong,” Toro said. “The same reasons that support all government agencies operating in the view of the public should be true for the commission, too. They are setting a bad example.”

When contacted by The Colorado Statesman this week, Jane T. Feldman, the executive director of IEC, declined to comment, citing pending litigation and advice from attorneys.

In addition to the CEW, The Colorado Independent, an online, progressive news site, recently asked the panel for recordings of a number of its meetings — including those that involved discussion on Republican 6th Congressional District Rep. Mike Coffman, who was recently cleared of any wrong-doing by the panel after allegations were made that he improperly overlooked partisan dealings of certain staff members during his tenure as Colorado’s secretary of state. The Colorado Independent was denied access to the tapes.

Toro said that because the IEC is independent of any governing body and because the governor and the Legislature appoint its members, it is blatantly wrong in attempting to sidestep the open meetings law.

“Because the Independent Ethics Commission is independent, and their rulings are not subject to review by the Legislature, then their operations, to an extent, should be open and transparent,” Torro said. “We see no good reason for them not to be.”

But the IEC does see good reason.

According to arguments made in court, IEC members say there is a risk that some people may not come forward to testify if they fear their testimony could be exposed to the public through an open records request. In addition, the IEC said that it exists more to offer ethics guidance and training than to rule on specific cases, and, therefore, should not be subjected to the same open meeting laws as other, action-oriented government bodies.

Toro, however, disagrees with that statement and argues that if the IEC is so interested in living by one set of standards, it should go to the Legislature and ask for its standards to be changed.

“If they think that that they should go to the Legislature and get them to rewrite the rules on open records,” he said. “What we are interested in is what people are asking about and how they are handling it. This commission is acting completely in secret, and that is the problem.”

At least for now, the Legislature will not get involved. The IEC has gone to the courts, instead, where, it is hoped, and the upcoming ruling will settle the issue.

— Jason@coloradostatesman