Until Ronald Reagan defeated him in the 1970 Governor’s race, Jesse Unruh was the long serving, all-powerful, iron fisted Speaker of the California State Assembly. He is best remembered today for his wry observation that, “If you can’t drink a lobbyist’s whiskey, take his money, sleep with his women and still vote against him in the morning, you don’t belong in politics.” Presumably Colorado voters believed they were creating a watchdog for our more weak-kneed politicians when they approved the creation of an Independent Ethics Commission — just in case all that money, booze and women proved persuasive with Colorado’s elected officials.
The Ethics Commission met again Thursday June 13 to adjudicate complaints against Secretary of State Scott Gessler. Four of the five volunteer Commissioners are former State legislators, two Republicans and two Democrats, with Estes Park Mayor Bill Pinkham serving as the panel’s unaffiliated swing voter. Attorney Matt Smith, a Western Slope Republican, currently serves as the Commission chairman. Smith looks like a former bantam-weight boxer starting to go to seed. His demeanor projects a passive-aggressive obsequiousness similar to that portrayed by Anthony Hopkins as the butler in Kazuo Ishiguro’s Remains of the Day. Smith managed to extend what should have been no more than a 45 minute hearing into an eleven hour evidentiary ordeal on June 6, followed by a six hour ‘deliberation’ (without a single word of outside testimony) on the 13.
You can always tell when Colorado Republicans find themselves in a legal corner — they turn to constitutional rights whiz David Lane. An ACLU stalwart and death penalty opponent who seems unlikely to have ever pulled a Republican lever, Lane has been successfully recruited by both Doug Bruce and now Scott Gessler to plead their cases. His zealous defense of the Secretary of State appears motivated by a genuine sense that an injustice is unfolding before our eyes. The original allegations against Gessler were filed by Luis Toro of Colorado Ethics Watch, a shadowy 501(c)4, funded anonymously under the same provisions that produced such a ruckus when the IRS began challenging Tea Party applications for tax exemption as social welfare organizations. Affiliated with CREW (Citizens for Responsibility and Ethics in Washington), Colorado Ethics Watch is likely funded by the same wealthy progressives who have played such a crucial role in rebuilding Colorado’s Democratic Party apparatus.
To date, Ethics Watch has almost exclusively filed complaints against Republican office holders, while offering little more than lip service to citizens who approach them with concerns regarding Democratic misbehavior. Meanwhile, the Commission operates much like a Star Chamber or the Spanish Inquisition, making up new rules as it proceeds. Despite the fact that Colorado courts have suggested the Commissioners should restrict themselves to examining instances of influence peddling, which was never alleged in this case, they continue to find ways to award themselves expanded jurisdiction. When it became apparent that criminality had not occurred, they raised the possibility that state fiscal rules had been violated. When the state auditor informed them that discretionary funds were not subject to state fiscal rules, the Commissioners concern shifted to the ‘abuse of discretion’. As Deputy Secretary of State Suzanne Staiert acidly observes, “Due process would be better for us in North Korea.”
During the June 6 public hearing a group of Arapahoe High School students who participate in their school’s “mock court” program were in attendance. Student Elizabeth Stefani rose during an early opportunity afforded for public comment, but was gaveled into silence by Chairman Smith when it became apparent she wished to discuss the Gessler case. Smith informed her it was not the appropriate time to speak since the Commission had not yet accepted testimony on the complaints. These students remained for another eight hours and departed unheard — for them the proper time never arrived. Stefani may not yet be old enough to vote, but her statement would have admonished the Commission that it should “…not (be) holding trials motivated by partisan politics.” She also would have added that it was “…horrific in the way that a public official’s life was threatened,” and then would have pointed out that his quick decision to return home should not be second-guessed. When I asked what motivated her desire to be heard, I was surprised by the reply. Elizabeth told me she had a chance to watch David Lane in court and decided then that she should appear to support his defense of Scott Gessler. She isn’t politically involved yet and doesn’t know whether she will register one day as a Democrat or a Republican, but she can recognize a travesty of justice when she sees it.
Lane advised the Commission that the Secretary of State had chosen to reimburse the state for travel expenses to the Republican National Lawyers’ Convention, not as an admission of impropriety, but in an effort to remove even the suspicion of impropriety. This did not moot the Ethics Watch complaint, however, which swiftly morphed into the question of whether he should have accepted reimbursement in the first place. Please, how nuts is that? This left a challenge to the $422 expended for changes to his air ticket in order that Gessler could fly home to his family following death threats against them. No one appeared to object to this expenditure, as there was ample testimony from both the CBI and the Denver Police that they had found the threat credible and advised immediate precautions to the Secretary for the safety of his wife and daughter. Nonetheless, there was residual grumbling that the state may have picked up the cost of a cancellation fee for his hotel room at the Republican National Convention. Would anyone question this payment if he had simply been on vacation?
And then there was the remaining $118 that was swept out of his discretionary account at the end of the fiscal year, for which itemized receipts were never submitted although it was acknowledged that there were, in fact, direct expenses incurred that vastly exceeded this trifling amount. We also learned that recent Secretaries of State used these discretionary moneys to purchase clothes and furniture, pay for foreign travel and, in one case, was simply taken on a W-2 as supplemental income — ethically questionable, to be sure, but all apparently quite legal as Colorado elected officials may expend their discretionary accounts “as they see fit” provided there is even a vaguely tenuous connection with their official duties. When Gessler appeared before the Commission on the evening of June 6, he was apparently grilled extensively and eventually made two admissions that were used to club him during the deliberative phase of the Commission proceedings.
The first was his acknowledgment that he had sought reimbursement from the discretionary fund rather than the usual departmental travel budget because he was concerned his attendance at a Republican Lawyers event might be viewed as “suspect.” Then, when queried about what he had learned during Conference meetings that might specifically benefit Colorado taxpayers, he evidenced a sketchy recollection of what had been discussed — even having difficulty recalling the content of his own remarks delivered on the panel he had been invited to join. OK, maybe the reimbursement he has already made might be more about value than propriety. Nonetheless, it’s certainly understandable that his recollection of the entire week may have blurred once he learned of death threats that had been made in Denver.
At this week’s hearing his attorneys attempted a “Hail Mary” pass, requesting that Democratic members, Rosemary Marshall and Dan Grossman, recuse themselves since they had contributed to Governor Hickenlooper’s re-election campaign. It was suggested they would be biased against the Secretary of State who apparently filed an affidavit of candidacy for Governor that same morning — which was brand new information for everyone in the room. Time was wasted discussing whether this filing constituted an announcement of his candidacy. Needless to say, this request was summarily denied.
Whatever Matt Smith’s intentions prior to the deliberative phase of the hearing, he could not have bungled it more thoroughly if chaos had been his sole objective. Commissioners voted 4 to 1, with former Sen. Sally Hopper dissenting, that the failure to provide an itemized list of expenses for the $118 remaining in the discretionary fund constituted an ethical violation. By a vote of 5 to 0 they approved the emergency travel expenses for his return to Denver despite continued carping that the state may have paid for a room cancellation (which apparently is untrue). Then, on a vote of 5 to 0, the Commission found that the original acceptance of reimbursement for travel expenses was an ethical lapse despite the fact these moneys have since been refunded. Then the Looney Tunes theme began to play and the Commission deliberations entered into the ‘penalty assessment’ discussion.
The Commission’s attorney advised Smith that the Commission could not levy a penalty without first adopting a finding of ethical violation. Grossman swiftly suggested wording taken directly from the Constitutional language creating the Commission declaring that Gessler had “…breached the public trust for private gain.” (You can expect to see those words repeated in next year’s campaign ads.) This passed 5 to 0 despite the fact that this charge had never been offered during the proceedings. Smith attempted to impose a modest fine, equivalent to an appropriate rate of interest levied on the moneys that were ruled to have been unethically awarded. Once again the staff lawyers jumped in and advised that fines had to be double the amounts received, which led to a protracted debate about the meaning of “may” and ”shall” in conflicting portions of the Amendment creating the Commission. In the interests of a quick resolution, the double indemnity language was approved, with credit allowed for the moneys previously returned. Someone suggested that Colorado taxpayers had been denied beneficial use of these moneys (a whopping $1,400), when the only person who was actually denied their use was Gessler himself.
Needless to say, the Secretary of State will appeal all this nonsense. Total public costs for these proceedings are now approaching $200,000. Originally the amount at dispute was just slightly more than eighteen hundred dollars. I, for one, have heard enough. It’s disgraceful that the Ethics Commission has allowed itself to be hijacked for partisan purposes and, yes, I fear this has been accomplished by folks with whom I usually am in agreement. In 2013 Colorado’s Independent Ethics Commission is clearly being manipulated in order to pursue unethical agendas. It’s shameful and the Governor should request immediate resignations from the current Commissioners. Their positions should then be left vacant, and the Commission dormant, until the Legislature can clean up its current hearing process, if that is even feasible. Otherwise, voters should repeal the odious mess they casually created. As backpackers advise, “Leave no trace!”
Now a public policy consultant, Miller Hudson is a former Colorado state legislator and former director of the Colorado Association of Public Employees. This op-ed originally appeared in the Colorado Statesman.