Investigation into Gessler’s use of public funds continues

Ethics commission pursues complaint filed by Ethics Watch
The Colorado Statesman

The state’s independent ethics commission on Monday rejected requests by attorneys for Republican Secretary of State Scott Gessler to drop an investigation into his alleged inappropriate use of public dollars.

Liberal-leaning Colorado Ethics Watch, which filed a complaint against Gessler with the four-member bipartisan Independent Ethics Commission, has produced records showing that taxpayers funded the secretary’s trip to attend a Republican National Lawyers Association event in Sarasota, Fla. at the time the Republican National Convention was taking place in Tampa, Fla.

State law prohibits expenditure of state funds for anything other than “official state business purposes only.” The same applies for discretionary spending, though it is at the prudence of elected officials.

Secretary of State Scott Gessler

Gessler was reimbursed through his office’s discretionary fund for what has been recorded as “RNLA/RNC Trip, Sarasota and Tampa Bay.” The trip took place from Aug. 23-Sept. 1.

After lodging at the Ritz-Carlton Hotel in Sarasota, and following meals and airfare, the cost was $1,453. Gessler said he was forced to return a day early from the trip at a cost of $422 because of a threat to his family.

Ethics Watch has also turned the case over to the Denver District Attorney’s office to determine whether criminal charges may apply. The DA’s office continues to investigate.

At issue for Gessler’s attorneys — including prominent lawyers David Lane, Robert Bruce and Michael Davis — is whether the ethics commission is within its jurisdiction to investigate Gessler.

Davis on Monday argued that the issue does not concern Amendment 41, which prohibits most gifts more than $53 to public officials. Instead, said Davis, the commission could potentially be investigating a criminal matter, which would fall outside its jurisdiction.

“By interpreting other standards of conduct to include undefined allegations, the complaint violates the secretary’s right to a fair hearing,” Davis addressed the commission.

He then went on to state that attorneys do not even know what the charges could be, which also puts Gessler in an unfair position.

“This is a high-profile case…” emphatically stated Davis. “And even if you say you’re not going to impose a penalty, you’re still going to have a finding that the secretary may have committed a felony under other standards of conduct. There is a very negative stigma that is associated with a felony finding such as that, even if you can’t throw him in jail.”

“If you can’t figure out what they’re alleging, put yourself in Mr. Gessler’s shoes,” Davis continued. “He’s trying to defend himself against a complaint that is completely vague.”

As it became apparent that the commission was leaning towards unanimously denying the motion to dismiss, Davis questioned whether the commission was declaring authority to investigate criminal allegations.

“It sounds like you guys are denying the motion to dismiss, so apparently you guys are asserting criminal jurisdiction, because the motion to dismiss was based on the fact that you guys lacked criminal jurisdiction…” he suggested. “So, all four commissioners believe you have criminal jurisdiction? Is that a fair reading of today’s vote?”

Chairman of the Independent Ethics Commission Dan Grossman, a former Democratic state senator from Denver, fired back: “I think we’re getting beyond the scope.”

Peg Perl, counsel for Ethics Watch, was adamant that the case before the ethics commission is not solely rooted in criminal allegations.

“Ethics Watch has never argued that this commission has jurisdiction to take criminal actions against any individual,” Perl told the commissioners. “The same factual conduct described in the complaint can implicate criminal statutes as well as the other non-criminal standards of conduct.”

Commissioners agreed with Perl. Former Rep. Matt Smith, R-Grand Junction, said the case is still about alleged ethical violations.

“The nature of our investigation still goes to ethical questions,” he said. “Whether they exist as a constitutional amendment, or other standards of conduct… we’re still there.”

“I appreciate the fact that criminal statutes are cited… but we still are kicking around the notion of the underlying ethical basis,” Smith continued.

A spokesman for Gessler was unable to make the secretary available for comment. But Rich Coolidge said his boss did not violate any laws or ethical guidelines.

“Secretary Gessler fully complied with the law and will continue to defend himself against these specious attacks,” Coolidge said.

“Even after two months, it is unclear what rule the secretary is alleged to have violated,” he continued. “This confusion makes it difficult for the secretary to defend against vague claims. We’re anxious for the commission to finish its report so the secretary can fully focus on serving the people of Colorado.”

But Perl points out that Gessler and his attorneys never denied the claims laid forth in the complaint.

“If you look at the actual documents of the proceedings, there wasn’t actually any factual allegations in our complaint that the secretary of state denied,” she told The Colorado Statesman following the hearing. “They did not deny that he used state funds to fly to Florida… so the factual allegations really weren’t disputed.”

Legal defense fund

Perl is also concerned about a request by Gessler to set up a legal defense fund to assist with costs related to the criminal investigation. His attorneys in the ethics probe are being paid through funds from the Department of State’s legal budget. But Gessler must spend his own money to fight any criminal charges.

The Department of State has asked the ethics commission for guidance on whether it would be appropriate for Gessler to establish a legal defense fund to fight allegations of embezzlement, official misconduct and falsely altering a public record.

Perl suggests, “The department is stating that such a fund could be used to pay Gessler’s bills for criminal matters.” She has raised concerns to this point.

Coolidge, however, said the secretary is simply “seeking guidance from the IEC about setting up a fund to offset any legal fees associated with defending himself.”

Suzanne Staiert, deputy secretary of state, said in a written request that allowing donations to a legal defense fund would dissuade political opponents from doing financial harm to public officials who they disagree with.

“Many talented and driven citizens are deterred from seeking public office or government employment for fear that they too will be financially ruined for no other reason than they exercised their public duties in the manner they saw fit,” she wrote.

The ethics commission is likely to come to a decision on the legal defense fund at its next meeting on Jan. 17. It likely won’t issue findings in the ethics investigation until next month.

Peter@coloradostatesman.com