Professional Documents
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ISSUES PRESENTED
Colorado voters created the Independent Ethics Commission (IEC) to
protect against the potential for interest groups or individuals to buy
access or influence government actors by giving them gifts or other
things of value. In the years following Amendment 41s passage,
however, the IEC has expanded its mandate by decreeing itself the
authority to oversee almost all aspects of public officials or employees
compliance with any law or regulation, including in this case the use of
discretionary public funds. Also in this case, the IEC provided the
defendant with insufficient pre-hearing notice of the charges against
him and threatened to add additional charges after the hearing.
The questions presented are:
(1)
(2)
(3)
OPINIONS BELOW
The court of appeals opinion is attached as Appendix A and can be
found at Gessler v. Grossman, __ P.3d __, No. 2015 COA 62 (Colo. App.,
May 7, 2015). The district court order and IEC order are attached as
Appendix B and C, respectively.
JURISDICTION
The court of appeals issued its opinion on May 7, 2015. No petition
for rehearing was filed. This Court has granted extensions of time to
seek certiorari through August 10, 2015.
STATEMENT OF THE CASE
Amendment 41 proposed a new article (XXIX) to the Colorado
Constitution entitled Ethics in Government. The ballot title described
the Amendment as prohibiting persons who are professionally involved
with government activities from soliciting or accepting certain
monetary or in-kind gifts, prohibiting lobbyists from giving anything
of value, prohibiting revolving-door representations for two years,
establishing penalties, and setting up a commission. The Amendment
applies broadly to all state government employees, all county and
municipal government officials, and lobbyists, government contractors,
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I.
The fears of IEC overreach that this Court did not reach in
Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008),
are now ripe for review.
Shortly after the voters of Colorado passed Amendment 41 this Court
took up a case concerned with ways the IEC, once constituted, might act
to chill the free speech of government employees. Developmental
Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). The petition there raised
several constitutional objections to the IECs potential jurisdiction over
the gift ban provisions in Article XXIX. The Court did not reach these
critical issues, however, because the case was not ripe:
[I]n actuality, no enforcement or threat of enforcement of the
gift bans has occurred. It is the Commission that will
implement the Amendment and develop rules to guide the
enforcement of the gift bans. Perhaps, in the future, there
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B.
law under other standards of conduct goes well beyond the intent of
the Colorado voters who created the IEC. The commission was always
understood to have jurisdiction over the carefully meted gift limitations
in Article XXIX(3). See generally 2006 Bluebook, p.9-11 (Amendment
41 expands the current prohibitions to cover other gifts and things.);
Davidson v. Sandstrom, 83 P.3d 648, 655 (Colo. 2004) (looking to
Bluebook for voter intent in case of ambiguity). Importantly, the
General Assembly endorsed this view in the session immediately
following the adoption of Article XXIX. See Zaner v. City of Brighton,
899 P.2d 263, 267 (Colo. App. 1994), citing Denver v. Board of Commrs,
77 P. 858, 861 (Colo. 1904) (While it is not conclusive with the courts,
nevertheless a contemporaneous legislative construction of a statute or
constitutional provision is persuasive.).
The IECs enabling statute requires the commission [to] dismiss as
frivolous any complaint that fails to allege that [a covered individual]
has accepted or received any gift or other thing of value for private gain
or personal financial gain. C.R.S. 24-18.5-101(5)(a). The definitions of
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private gain and personal financial gain make clear the General
Assemblys view that Article XXIX was focused on influence peddling:
Private gain or personal financial gain means any money,
forbearance, forgiveness of indebtedness, gift, or other thing of value
given or offered by a person seeking to influence an official act C.R.S.
24-18.5-101(5)(b)(II) (emphasis added). Thus, a covered gift must come
from someone outside government, seeking to influence government
with that gift. By way of contrast, moneys appropriated through the
legislative process, coming from government, and directed for a
particular government use, are not a thing of value coming from
someone outside government.
As the Secretary argued below, the IECs asserted basis for
jurisdiction in this case, other standards of conduct and reporting
requirements as provided by law, is best interpreted as providing the
General Assembly with the ability to carefully and prospectively expand
the mission of the IEC by providing by law for specific provisions to be
enforced by the IEC. The IEC has consistently refused to offer any
limiting interpretation; claiming instead that any law or regulation falls
within its purview. This troubling jurisdictional claim has never been
tested or verified in court until now. This Court should grant
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partial list of other standards of conduct that the IEC has ruled upon
demonstrates the extraordinary breadth of its claim:
Subject
Law / Rule
IEC Action
(Compl. 08-01);
C.R.S. 18-8-404
(Compl. 08-01)
C.R.S. 18-8-405
(Compl. 08-01)
C.R.S. 1-13-107
(Compl. 08-01)
C.R.S. 24-6-202
(AO 09-06)
(AO 10-18);
Governor-Elect--Transition
to New Administration
C.R.S. 24-8-101
(AO 10-18);
Code of Ethics
C.R.S. 24-18-101 to
113
(AO 09-06)
C.R.S. 24-18-103
C.R.S. 24-18-104
(AO 09-06)
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employees
Ethical principles for public
officers, local government
officials, and employees
C.R.S. 24-18-105(2),
(3)
C.R.S. 24-18-109
C.R.S. 24-18-201
C.R.S. 24-50-117
(Compl. 08-01)
Discretionary Fund
C.R.S. 24-9-105
This case
This case
Embezzlement of Public
Property
C.R.S. 18-8-407
C.R.S. 18-8-114
This case
Control System to Be
Maintained
C.R.S. 24-17-102(1),
(26)
This case
This case
See [AR p.624-25]. The only apparent limit on what constitutes other
standards of conduct is the creativity of those who file complaints with
the IEC.
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The Court of Appeals opinion did nothing to cabin the IECs theory of
jurisdiction. Similar to the District Court, the opinion interprets as
provided by law to mean simply laws already in existence. 2015 COA
62, 16. If not addressed by this Court, the IEC will have free rein to
hear any and all complaints brought before it as a standard of
conduct. Attempts by the accused employees or officials to have
complaints dismissed will, no doubt, be met with appeals to the Gessler
v. Grossman opinion as proof that the IEC has unlimited jurisdiction.
D.
problems with allowing the IEC to operate under the no-limits theory of
jurisdiction.
1.
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The facts of this case mirror those the IEC considered in Advisory
Opinions 14-10 and 14-13, in which the IEC advised the Secretary and
Deputy Secretary of State that attending the 2014 RNLA was entirely
ethical. In those later actions the IEC officially affirmed the value of the
RNLA national election law conference specifically for the Secretary of
State:
Among other things, the Secretary of State is charged by statute
with the duty to enforce the provisions of Colorados elections
code, supervise the conduct of congressional vacancies and state
wide ballot issues in Colorado, to serve as the chief state election
official under the federal law Help America Vote Act of 2002, to
coordinate Colorados responsibilities under the federal National
Voter Registration Act of 2002, to promulgate rules for the proper
administration and enforcement of Colorados election laws and to
review practices and procedures of county clerk and recorders and
election officials in the conduct of congressional vacancies and the
registration of electors in Colorado. 1-1-107, C.R.S.
AO 14-13.
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despite multiple requests from the Secretary, the IEC simply refused to
explain the legal theory or charges being faced prior to the hearing. The
Secretary received only a skeletal notice, aptly described by the District
Court as notice of only facts. App. B, 6. Procedural due process
requires more from pre-hearing notice than a bare listing of laws, like
the skeletal listing provided by the IEC in this case.
Second, the IEC reserve[d] the right to consider additional
standards of conduct and/or reporting requirements, depending upon
the evidence presented, and the arguments made, at the hearing in this
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The IECs core theory is that the Secretarys conduct violated the
discretionary fund because his choice of how to appropriate state
money, as he sees fit, did not satisfy the IECs judgment of the
appropriation statutes purpose. That logic applies to all appropriations,
especially the many appropriations that are not by their terms
discretionary.
The potential for abuse and discriminatory enforcement due to
vague, ill-defined jurisdiction that the Court foresaw in Developmental
Pathways has come to fruition. The IECs action under other standards
of conduct has been self-contradictory. There is no reasonable way to
square the IECs imposition of a double penalty against the Secretary
for attending the 2012 RNLA, because it was not in pursuance of
official business, with the IECs advisory opinion declaring the use of
state funds to attend the 2014 RNLA to be ethical. 1 It looks arbitrary
because it is.
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R.
32, including all formatting requirements set forth in that rule.
Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g). Choose one:
It contains 3,794 words.
It does not exceed 30 pages.
The brief does not comply with CAR 28(g) because it exceeds the
word and/or page limit. A motion to accept the over length brief
has been filed contemporaneously with the brief.
MICHAEL FRANCISCO
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CERTIFICATE OF SERVICE
This is to certify that I have duly served the within PETITION FOR WRIT OF
CERTIORARI TO THE COLORADO COURT OF APPEALS upon Respondents,
DAN GROSSMAN, SALLY H. HOPPER, BILL PINKHAM, MATT SMITH, and
ROSEMARY MARSHALL and the INDEPENDENT ETHICS COMMISSION via
email on August 10, 2015.
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