Independent ethics commission ordered by court to come clean

By Jason Kosena

In a ruling last week, a Denver district judge ordered the state’s Independent Ethics Commission to turn over records including written requests from government employees asking for ethical advice.

The ruling by Judge Norman Haglund came after the non-profit group Colorado Ethics Watch sued the commission for what it said was an illegal effort to withhold its working documents from the public and operate essentially as a non-governmental entity.

“I think it’s a landmark case,” said Luis Toro, a spokesman for CEW on Wednesday. “It’s a ruling that says the IEC is subject to the same open records laws as other parts of government and, best of all, we have seen a change of behavior in the way they conduct meetings as witnessed yesterday when they were debating their business in public. We think that it all is very positive.”

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.

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. Feldman also decline comment to The Statesman last week.

According to arguments made in court, IEC members say there is risk that some people may not come forward to testify about ethical violations or seek advice on possible conflicts if they fear they 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.

But Judge Haglund disagreed, saying that the IEC did not demonstrate that the public good is better served by keeping the documents secret.

Also this week, in an apparent backtrack from their previously stated position, the IEC agreed to release documentation involving all of the “non-frivolous” complaints it has received that accused public officials of ethical wrongdoing in 2009. Although the documents themselves were not included in the original court ruling last week, Toro said the group believes the court’s finding opened the door for a new records request that would have successfully gotten the documentation.

“I think it says on their part is that we have an ethics commission that is supposed to judge the ethical issues of state government,” Toro said. “And, they argued they could do that in secret but are now realizing, after last week’s ruling, that they should end their efforts to do so.”

The ethics commission has dismissed a majority of the complaints that have come before it, citing a number of reasons including lack of jurisdiction or insufficient evidence to back up the accusations at hand. Only one complaint, against U.S. Rep. Mike Coffman, was actually heard.

Coffman, who was accused of having a conflict of interest while serving as the Colorado Secretary of State, was cleared of all wrongdoing by the IEC last month.

The apparent problems of the ethics commission don’t stop there though. After the district court ruling last week, Colorado Ethics Watch asked a judge to vacate a decision by the ethics commission to allow Rep. Cherylin Peniston, D-Westminster, to accept a trip to Turkey from Multi-cultural Mosaic Foundation, an Aurora-based non-profit.

The ethics commission stated in their ruling that the trip was considered a “gift to the state” and not to Peniston herself. But officials with Colorado Ethics Watch disagree, saying the trip, and the subsequent ruling by the ethics commission, violates a gift ban in the state constitution.

The Colorado constitution only allows for lawmakers to accept gifts larger than $50 if they come from a non-profit entity that receives less than 5 percent of its funding from for-profit ventures. The Mosaic Foundation accepts more than 20 percent of its funding from for-profit entities.

“The IEC looked at it and said that rule doesn’t apply though because it was viewed as a gift to the state,” Toro said. “But it wasn’t as if the foundation told the state it had a certain number of slots for the trip and asked that representatives be chosen to attend. Instead, they hand-selected the lawmaker they wanted to come and we see a problem with that.”

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 and was denied access to the tapes by the IEC. In a court motion filed this week, the Independent is asking a Denver judge to make the recordings of the meetings available, claiming the IEC illegally conducted business behind closed doors.

“This action seeks injunctive relief to remedy an ongoing pattern of illegal closed-door meetings by the Commission in violation of the Colorado Open Meetings Law ... and in so doing, to provide transparency and accountability to the very body created by the voters of Colorado as the guardian and guarantor of transparency and accountability in government,” the court filing reads.