(Rule 1: always mention the cash — Promoted by Colorado Pols)
Eighteenth Judicial District Attorney John Kellner, the Colorado GOP’s lone candidate for attorney general, faces an ethics complaint for his decision not to charge a former Douglas County undersheriff and campaign donor with misconduct despite a finding of probable cause by investigators.
The misconduct in question involves Kluth’s directing an employee to delete sensitive records from her personnel file prior to running for Douglas County sheriff.
Kellner’s decision not to file charges was first reported by 9News last month.
“Based on a thorough review of the investigative findings in this case, we have probable cause to believe Holly Nicholson-Kluth committed the crime of Official Misconduct in the First Degree and Official Misconduct in the Second Degree,” reads the JeffCo Sheriff case report. “These acts were all found to have been committed in 2019 during Nicholson-Kluth’s tenure with the Douglas County Sheriff’s Office, specifically while she was serving in the capacity of Undersheriff.”
The ethics complaint filed with the state’s Independent Ethics Committee (IEC) by progressive advocacy group ProgressNow Colorado notes that former Undersheriff Holly Kluth, made two donations totaling $350 to Kellner’s DA campaign in 2020. Colorado law caps the maximum contribution to a non-statewide campaign at $400, the lowest amount in the nation.
“I submitted a letter this morning to the Colorado Supreme Court requesting an investigation of District Attorney John Kellner, for violating the rules of professional conduct as well as for prosecutorial misconduct for his failure to disclose his conflicts of interest when he refused to prosecute his high-profile campaign donor,” stated Sara Loflin, Executive Director of ProgressNow Colorado.
Loflin’s complaint raises the previously unreported issue of campaign donations from Kluth, whose intention to run for Douglas County sheriff was already public at the time of the investigation, to Kellner, who was already running to replace his term-limited boss, George Brauchler, as DA for the Eighteen District.
Kellner’s office gave two reasons for dealing to charge Kluth: First it noted that the statute of limitations had already expired, given that the alleged crimes took place in April 2019 and that circumstances needed to invoke the “discovery” exception to the time limit don’t exist. Secondly, it assessed the evidence to be “insufficient to support a reasonable likelihood of success at trial.”
In addition to raising the issue of campaign contributions, Loflin’s complaint also disputes the legal reasoning behind Kellner’s decision not to prosecute Kluth. District Attorneys generally have broad discretion over charging decisions. That said, an ethics complaint addresses the possibility of elected officials’ “breaching the public trust for private gain,” which can involve different factors than those comprising a prosecutorial decision, such as a conflict of interest or the appearance of impropriety.
The Colorado IEC will review the complaint and determine whether it is frivolous, which has a specific definition for this purpose. According to the IEC’s website, “in the context of Article XXIX [of the Colorado Constitution] and the IEC’s rules, the term “frivolous” does not have the same meaning that it has in normal everyday usage (lacking in seriousness or marked by unbecoming levity). As such, when the IEC uses the term “frivolous,” it does not mean that a complaint is trivial, of low importance, or filed in bad faith.”
In the meantime, Kellner must make his case to his fellow Republicans to nominate him as their choice for Attorney General at tomorrow’s GOP state assembly in Colorado Springs. As the only declared candidate, this is presumably a foregone conclusion; Kellner’s only opposition would have to come from a floor nomination during the assembly itself.
While such a scenario is unlikely, there is at least one prominent group of El Paso County Republicans who don’t support Kellner: the El Paso County Republican Strategy Forum (RSF), which includes two of the county party’s leaders, Vickie Tonkins and Sheryl Glasgow.
The RSF states that, “while the El Paso County Republican Party Chair and Secretary are members of The Strategy Forum, consistent with Party rules, they did not participate in any way with the recommendations.” Reached for comment, Glasgow confirmed she is not involved with the list.
Two days ago, the group updated its Voter’s Guide, which previously did not include a candidate recommendation for attorney general. The new document recommends opposing John Kellner, noting, “the major (but not the only) reason for opposing a candidate – they are too closely aligned with the Elites of Colorado’s Republican Establishment.”
The Colorado Times Recorder reached out to both Kellner and Kluth for comment but neither responded. This article will be updated with any responses received.eOOecjoDxA PUsXfHJsVO
How tough would it have been to assign the decision to a neighboring district's DA or to a member of the professional staff in the office who DIDN'T have a prior relationship or a campaign donation from the individual????
Exactly. A clear financial conflict of interest. And given his explanation, sending it to another JD's DA to address would have shown good ethics and most likely would've resulted in the same disposition, but without the cloud. Kellner is going to be dogged by this, methinks
This isn't the first serious ethical lapse by Kellner in protecting his political friends as a DA and going after perceived enemies. Remember back in late December 2020 when the Parker GOP put together a FB group for the sole purpose of publishing the home and work addresses of state health department employees with threats of sending patriots to their home and work to threaten them into changing their minds on COVID mitigation efforts? Group was shutdown after only two days (but with a large amount of GOP members) but Kellner said there was no crime committed. Baloney. There is a state statute directly on point that makes it a felony to use threats of violence to intimidate a public official into changing their view on a subject, and the threats of violence are based on an objective assessment, not a subjective one (i.e., if a reasonable person would perceive the conduct as a threat of violence it does not matter if that is not what the person uttering the threat intended – and based on the posts, there certainly did not seem to be much debate that the intent was to intimidate and scare public health officials with thinly veiled threats of violence). But for Kellner . . . no problem.