April 21, 2011 06:07 PM UTC

It's Good To Be Scott Gessler's Ex-Client, In So Many Ways

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• by: Colorado Pols

Notwithstanding the bad legal advice and the steady stream of ethics red flags, as the Colorado Independent’s John Tomasic reported yesterday afternoon:

Colorado Secretary of State Scott Gessler filed a brief with the attorney general last week supporting an appeal brought by election-politics group Clear the Bench in a campaign finance case. Gessler defended the group as a private attorney in the original case and so his support now as secretary of state is sure to raise more questions about his ability to serve the public without treading across ethical boundaries.

“Last year, the Secretary of State’s office was scrupulously neutral while [the case] proceeded,” wrote Luis Toro, Director of government watchdog Colorado Ethics Watch. “It is inappropriate for the new Secretary of State to change that policy, particularly to benefit his former client.”

…Gessler, who was then a partner at Hackstaff-Gessler, the top conservative-politics campaign finance firm in the state, defended Clear the Bench by saying the group was caught in a “Kafkaesque situation” where it was in effect being admonished by the state for following the state’s advice.

Administrative Law Judge Robert Spencer agreed with Toro. It wasn’t Kafkaesque, he said, the burden was on the group’s lawyers, as it is with all political groups, to properly interpret the rules of the game.

Although former Secretary of State Bernie Buescher, a Democrat, took himself out of the proceedings, he had good reason not to withdraw: His office staffers were key players in the drama.

Buescher’s staffers advised Clear the Bench to register as an issue committee but they also cautioned the group to consult with its attorney. That attorney was Gessler, who now appears to be again defending the counsel he gave and that Spencer ruled was no good.

We talked about this case last fall, just as Matt Arnold’s “Clear the Bench” campaign against sitting Colorado Supreme Court Justices was in the process of fizzling out ignominiously. In Arnold’s defense (yes, you read that correctly), it appears that the group was acting under advice from both the former Secretary of State Bernie Buescher’s office, as well as then-attorney Scott Gessler, when they elected to file their committee as an “issue committee,” as opposed to one dealing with candidates with a higher standard for spending disclosures.

Once the matter became contentious, though, Buescher smartly withdrew from the situation and allowed the courts to make a ruling–which didn’t go “Clear the Bench’s” way. As you can read above, the court ruled that it was CTB’s responsibility, more to the point their former attorney Scott Gessler, to ensure their committee registration was in compliance with the law.

Now, you can make the argument that Gessler, Secretary of State or not, has an obligation to his former clients to defend them in a situation where he was apparently responsible for giving them bad advice. The problem with that, says Colorado Ethics Watch’s Luis Toro, is the Secretary of State has an bigger obligation to not take sides in a campaign finance legal matter–“period.” Any “obligation” to Arnold would be trumped by Gessler’s responsibility to the rest of the state.

In some circles, the brief Gessler filed on Friday in support of Clear the Bench will serve as evidence that his past work as a high-profile partisan attorney presses on him inordinately in his present work as a public official or, at least, that Gessler is unmoved by arguments that public perception of attempted impartiality on the part of the Secretary of State matters as anything more than formality…

There are undoubtedly a few people who haven’t yet been convinced Scott Gessler was a bad choice for Secretary of State, whose own ethical blind spots makes these conflicts inevitable, but there can’t really be very many at this point. To the extent that Gessler’s election as Secretary of State might make things harder on his former election law clients?

Much like the shoddy filings responsible, whose problem is that?