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April 21, 2011 06:07 PM UTC

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

  • 20 Comments
  • 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?

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20 thoughts on “It’s Good To Be Scott Gessler’s Ex-Client, In So Many Ways”

  1. Gessler is a lawyer. For you lawyers out there, is his actions in defending the interests of a former client while serving as SoS a violation of the rules of professional conduct? Should he recuse himself from participating in the office’s deliberations on whether, and how, to intervene in the case?

    Lawyers who are in public office still must obey the rules of professional conduct unless a statute or constitutional provision says otherwise. I’m not sure Gessler has that “out” here.

    Just asking . . . .

    1. 1.  The Secretary of State’s office has an obligation to provide public interpretations of the campaign finance laws to the public, candidates, and committees.  Here, the previous Secretary, Bernie Buescher, told Clear the Bench to register as an issues committee.  The ALJ said he wasn’t bound by Secretary Buescher’s opinion, which the ALJ believed was wrong.  The brief addresses only one issue, which is whether or not the ALJ was bound by the Secretary’s interpretation of the campaign finance laws.

      2.  Bernie Buescher is the supervisor of the attorney who filed the brief.  That attorney is without a doubt the best and most ethical attorney in the State of Colorado.  If you can find anyone who has ever been involved in a case with Maurie who disagrees, I will eat my laptop.  That’s easy to say, because you won’t find anyone.

      3.  It’s common for an administrative agency or officer to file a brief defending the power and prerogative of that agency or officer.  I don’t remember any cases where the officer previously represented the party that would benefit from the decision if the court decides the way the officer argued, though.

      4.  If Clear the Bench came before Secretary Gessler and Gessler participated in a decision involving CtB, then I would be all over that in a heartbeat.  That would be a clear conflict of interest.  That’s not what’s going on here, though.  This is just a brief telling the Court of Appeals that the ALJ should have done what the previous Secretary said.

    2. First, Mr. Gessler’s former client can hire another attorney to advocate its legal position. This means Mr. Gessler should stay out of the case and allow the parties to pursue appeals and the courts will decide the outcome. Once the appeals process is completed, it is Mr. Gessler’s obligation to abide by and follow the decision when this issue arises again. If he doesn’t like the final decision he can ask the legislature or the public, via initiative to repeal or amend it.

      Second, normally, the Attorney General represents the SOS before administrative or judicial courts.  I may be missing something here but why hasn’t the AG presented a brief? If Mr. Gessler is representing himself, then perhaps the AG refused to take his position. If true that is a telling inference against Mr. Gessler’s position.

      1. DID hire another attorney.  Richard Westfall, former treasurer of the Colorado Republican party.

        That doesn’t change the fact that Gessler’s firm argued the original case before the ALJ.  He should have recused himself from the appellate proceeding.

  2. if it was written into a movie about a completely corrupt and clueless state SOS.

    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

    .

    How much clearer can Gessler make it that he never, not for a second, had any a intention of acknowledging, much less meeting, any obligation “… to not take sides in a campaign finance legal matter…”?  What is this, the dozenth example in his short tenure of the reality that he ran for SOS strictly to cheat in favor of special interests and the GOP and with no intention of even bothering to give an appearance of feeling any obligation to the people of the state as a whole?

    The truth is, the people of Colorado don’t really have an SOS in Gessler.  He is strictly a party operative. This is  geting ridiculous. There is no reason why the people of Colorado should have the slightest confidence in any election process in which the office of SOS plays any role whatsoever.

  3. Bernie B. was a Democrat, Scotty G. is a Republican. The Secretary of State is an elected position and reflects the will of the voter. This is no neutral position.

    While Bernie was King, Republicans and other limited government causes found it terribly difficult to navigate State waters. Now it will be difficult for Democrats.

    Its all politics, grow up and get used to it.

    Go Scotty, Go! Represent the Republicans that elected you!

    2. Which specifically involves supporting the fairest most honest election process possible. Politics will never be entirely removed from any elected position however both Buescher as SOS and even Suthers as AG are far superior examples of meeting the requirements of serving the state rather than just members of their own party to a highly acceptable degree compared to the execrable Gessler.  

      1. “Republicans”* voted for a Republican to represent them and see that their votes for Democrats are never fairly counted again.

        Duh. It all makes PERFECT sense.

        *Ignoring that purely GOP voters cannot elect anyone statewide, just like the Dems. But hey, we all hate Independents, right?

    3. and Bennet should represent only Democrats and screw Republicans at every opportunity.  Interesting take on who an elected official represents.

      I was under the impression that they represented everyone and should work for the benefit of all their constituents but I guess that is an arcane ideal that Republicans view with contempt.

  4. follow the money.

    Laying aside the sheer sleaziness of Gessler’s actions for a moment, maybe I’m enough of a conspiracy theorist to doubt that the actions here aren’t something more than just a former attorney arranging some pro-bono tax-payer funded legal assistance for a affiable former client??

    Gessler is a man who has as much as admitted that the lifestyle to to which he is accustomed requires more income than his SOS salary can provide.  In a state where “any job is a good job,” it appears more than probable that the SOS gig, as practiced by Gessler, may be a very good job.  This sounds very much like a story with legs.

    (Also my salute and admiration to Ralphie, The Junction Daily Blog, Gertie, and any of the other Pols who had any hand in getting this story to light.)

    1. is not as easy as it used to be.  When the SoS office put up TRACER last year, it did away with bulk data downloads.  In the old days, it was easy to suck down all the contribution data for all candidates and committees for entire quarters and match up who was giving to whom.

      Since the advent of TRACER, this capability is no longer available.  Now you have to generate individual reports by candidate/committee and reporting period.  VERY unhandy.  Makes fishing expeditions next to impossible.  Maybe that was the intent.

      During the campaign, Gessler promised to restore that capability.  Let’s see how much of a priority it is to him now.

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