The Colorado Independent Gets It Wrong On HB1258

I am writing this to briefly rebut several points made in the Colorado Independent’s February 28, 2014 report on HB1258.  For those of you who are not aware, HB1258 is a bill sponsored by Representative Amy Stephens, which mandates various procedural due process rights that a respondent has in a proceeding before the Independent Ethics Commission (“IEC”).  Such rights include the ability to have a state-provided attorney and to be informed of the elements of the offense an IEC Respondent is charged with.  As an enforcement mechanism to protect these rights, and any other right clearly established under federal or state law, any IEC Commissioner who recklessly, intentionally, or willfully violates such rights will have personal liability.

The points that I will be rebutting are as follows:

Contention #1 (by Robert Wechsler): HB1258 Will Allow Citizens To Be Sued For Bringing A Complaint
Reality: This is absolutely false.  The bill creates liability for IEC commissioners (not complainants) who willfully, recklessly, or intentionally violate clearly established rights of IEC respondents.

Contention #2 (by Luis Toro): The IEC is being singled out for doing their job.
Reality: The IEC’s job, under Colorado Constitution Article XXIX is “to hear complaints, issue findings, and assess penalties, and also to issue advisory opinions, on ethics issues arising under this article and under any other standards of conduct and reporting requirements as provided by law.”  Just as a Police Officer’s job duties of keeping the peace do not require him to violate the rights of suspects in his custody, an IEC Commissioner’s job duties do not require him to deny such basic due process rights as providing an attorney or informing a respondent of the elements of the offenses such a respondent is charged with.

Contention #3 (by Luis Toro): HB1258 is a “messaging bill” that does not address any of the “real” problems with the IEC
Reality: Given that Luis Toro did not specify what the “real” problems of the IEC are, whether the bill addresses them or not in his view is impossible to evaluate.  To the extent observers believe that this bill is merely a dog and pony show, they should review the policy reasons behind why we have due process in this country.

Contention #4 (by Luis Toro): IEC Defendants have received a “Cadillac” legal defense in the past
Reality: Just as politicians are bound by Colorado Ethics Rules under Article XXIX, Attorneys are bound under the ethics rules found in the Colorado Rules of Professional Conduct.  Under Colorado Rule of Professional Conduct 1.3, Comment 1, “A lawyer must . . . act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” (emphasis added)  Although Luis Toro’s comments are unclear, it appears he would term a dedicated legal counsel as “Cadillac”.  Practicing attorneys, on the other hand, usually term it as providing what is “ethically required.” 

Contention #5 (by the Colorado Independent): the bill is all about Scott Gessler.
Reality: Progressives have long claimed that Gessler violated substantive ethics law, and was not subsequently done in by any procedural “gotcha” tricks in the IEC prosecution, by attending an election law class at a partisan organization.  HB1258 does not change substantive ethics law.  Thus, under Progressives’ assumptions, this bill should not have had any effect on Gessler’s ethics case.

If I am missing any points, please feel free to message me and I will seek to address them.  My email is ElliotFladen at gmail.

Note -this is my own original work that I posted originally at the Colorado Independent

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14 Community Comments, Facebook Comments

  1. mamajama55 says:

    Elliot, don't you have a "full disclosure" to make, as well? That is, are you not working, either as a paid consultant, or pro bono, to contest this bill?

    Re: contention 2: The IEC exists as an independent entity because the Colorado Constitution wants it as an independent entity, in order to have ethics oversight of governmental agencies and employees.   The IEC  has the Constitutional duties you enumerated.  The whole idea of a "requirement that IEC violate due processes of respondents" is nonsense – a straw man. 

    Re: Contentions 5 and 4: Gessler did violate ethics law. He was found out. And he was competently, and expensively, defended by his own State Department, funded by business and organizational filing fees from Colorado businesses and organizations, to the tune of $238,923 over FYs 2013-2014. Perhaps this is what Toro means by a "Cadillac defense".

    Gessler spent $238,000 litigating his $1300 ethics complaint. In 2012, Scott Gessler spent $ 1278.90 on travel to the Republican convention and meeting in Florida  and DC, and took it out of discretionary funds. Colorado Ethics Watch filed a complaint, and after two years, Mr. Gessler has spent $238, 923 fighting the ethics complaint and appealing the decision. (CEW Appendix E , page 1 – see preparer’s note: “The Majority of Outside Counsel Services for 2013  and 2014 are related to the IEC matter and related appeal.”)  – my emphasis.


    RE: Contention 5: If this isn't about Scott Gessler, and Gessler's political ambitions, then what the hell is it about? Who else would you be advocating for? Who else complains that they were denied due process by the IEC, and must be able to sue individual commissioners as a remedy for this violation? If there are unknown witnesses lining up to complain, where are they?

  2. ElliotFladen says:

    I have gotten paid $0.00 to advocate on behalf of this bill.  I have consulted on its creation because I passionately believe it is the right thing to do. 

    Contention 2: Actually it isn't a straw man.  If the IEC does not inform somebody of the elements of the offense they are charged with, nothing happens to it under current law.  That is a mistake.  Knowing elements of what you are charged with is a hallmark of our legal system and HB1258 enshrines that into law with an appropriate enforcement mechanism.  

    Contention 4: If your complaint is about legal fees, then that is a worthwhile discussion about how to make it so that an IEC Respondent can have a cost-effective legal defense.  However, I read Toro's Cadillac criticism (which was ambiguous) to be broader than mere fees – I interpreted it to be that an IEC Respondent should have non-aggressive attorneys.  If that is the criticism – that such respondents should have bare bones legal representation – it seems that Toro is against zealous advocacy and thus against what is ethically required for an attorney to do when such attorney is representing an IEC Respondent on the Gov't's dime. 

    Re: Contetnion 5.  It is about having due process in these proceedings.  You may not be aware, but Compass Colorado has a complaint against Hickenlooper right now that has made it past the frivolous stage.  In 2014, the GOP has a shot to take the entire legislature and the governor's mansion and thus appoint a solid majority of the IEC.  I would want, under such a political reality, democrats to be protected from procedural abuses as well if/when they are brought before the IEC just as I want republicans to be protected from such abuses.  Because this shouldn't really be about partisanship MJ – it should be about good government. 

    • ElliotFladen says:

      and in case it wasn't clear – I was paid $0.00 to consult on the bill's creation as well.   in other words – I have gotten paid NOTHING to push these ideas forward.  I am doing it for the same reason you are attacking them MJ – because each of us passionately believes we are doing the right thing. 

  3. mamajama55 says:

    Luis Toro, interviewed in the original Colorado Independent article said:

    Colorado is the only state that provides public money exclusively to defend against ethics charges but no money to investigate them. Toro says that role has been outsourced to nonprofits like his or to citizens themselves. He said Coloradans are routinely shocked and put-off when they come to the commission with evidence of wrongdoing and are told they will have to act essentially as the prosecutor in a case against the Attorney General’s office.

    So there is public money available, depending on the department in which the defendant works, to defend public employees against ethics charges. If the defendant is found guilty of the charges,  he or she may have to repay his/ her department.  That's the existing law. Nobody is forcing gigantic legal bills on respondents. If anything, Joe or Jane Citizen is forced to conduct an ethics complaint all on their lonesome.  So that's one "due process" leg for HB1258, collapsed, pfft.

    The other contention, that respondents should have precise knowledge of the charges against them, has merit – except I can't see how it has been violated.

    In Gessler's case, which is, of course, what this is about, the complaints against him were quite specific. He took money out of a discretionary fund, and spent it on travel and lodging for his own benefit. Then he charged his legal bills on the ethics defense to the State of Colorado. My number of 238,923 is larger than the 122,000 cited here because I'm looking at two fiscal years, and they are looking only at FY2013. Either way, it's a lot of money.

    Are there other respondents complaining about vagueness of IEC charges?

    No? Didn't think so.

    I agree with Mr. Toro that there does need to be legislation spelling out how a citizen can prosecute a public official for ethical wrongdoing, without having to foot the bill out of pocket.

    The other bizarre thing about this bill is its provision to be able to individually sue members of the commission.  Do I get to sue a judge if they uphold a citation? A police officer doing his/her job? I have recourse to review and redress in both those situations, but an individual lawsuit provision against ethics  committee members commission is not appropriate, and risks derailing the mission of the IEC.

    HB14-1258 is parked in the State, Military Affairs, and Veterans Committee, and is unlikely ever to leave it. I think that's a good thing. Amy Stephens did her job, carrying water for Gessler. So did you. You tried. Let it go.

    If someone wants to write a real bill which would empower citizens to speak out against ethics complaints, and spells out how and if their legal fees would be paid, that would be a good thing. This bill is weighted against citizens, and for public officials rightfully or wrongfully accused of misconduct.


    • ElliotFladen says:


      The issue is not just to tell people factual basis of charge – but also to tell them the precise elements of offense they are charged with.  The IEC does not do this. 
      As for legal counsel – not all people get it.  And if you don't get it, you can't fundraise for it under the gift ban or possibly even get a pro-bono attorney (is that a gift? possibly)

      So this is not "carrying the water" for Gessler.  These are needed due process reforms.  That you insist on seeing them in a solely political light is deeply disturbing. 

      • ElliotFladen says:

        As for whether it leaves State Affairs – I think it has a decent chance to get out.  I doubt the dems want to go on the record as opposing basic civil rights.  

        • mamajama55 says:

          Would you want it to get out amended to be a true "civil rights" bill?

          This would require:

          1. Clarification of how citizens pay to bring ethics complaints.
          2. Clarification on limits for public officials to defend against ethics complaints.
          3. Funding source for both the above,if necessary.
          4. Clarification on "precise elements of offense charged with"…this was done for Scott Gessler, and you haven't answered my question as to whether any other respondent has made a complaint of vagueness, so I still don't accept that this is a real problem.

          If all of the above due process, civil rights-y elements of HB1258 were left in place after amending, but the "Respondent gets to sue the IEC individual members" thing were deleted, would you still support it as a "civil rights" case?

          Didn't think so.

          • ElliotFladen says:

            1) what do you have in mind for compensating citizens for bringing successful ethics complaints?  That the office holder pay any fines charged to him to the citizen instead of the IEC/State?  I think, on first thought, that I would be ok with that, but it is not me you have to convince

            2) I think a publc defender type person should be brought on to handle IEC defenses with zeal.  If you want Gruskin or Lane to defend you that can be yor choice, but the bill does not mandate that option.  It only requires that legal counsel be offered.

            3) mooted by above

            4) no it was not done for Gessler.  But say I am wrong (I am not, but whatever).  If it is already done you would not have any issue with that aspect of the bill

            as for taking out liability provision, I think you will potentially have enforcement issues without it.  So I think the liability section is necessary for that reason.

  4. mamajama55 says:

    1. I would support a modest (under $50) filing fee to bring an ethics complaint against a public official. This should also cover costs for copies and open records searches. So, not free, to discourage frivolous complaints, but not so expensive that average citizens would be discouraged from filing.

    Example: I actually had an ethics complaint against a public health agency in Denver, about a year ago, which had differing fee structures and treated clients differently, depending upon a client choice. I thought it was unethical, and debated bringing a complaint. $50 would be doable. $500 or more out of pocket would not.

    2. Public defenders and prosecutors should be available to those who have such a complaint but lack funds to see it all the way through.

    3. Any bill has to have a financial impact statement. Where would the money come from? Justice Department?  IEC  barely has funds for its mission now, and is underfunded compared to neighboring states ethics commissions.

    4. This is still obviously about Gessler, since you have mentioned no other clients or complaints against the IEC. There is no evidence that the IEC complaints were too vague for him, and if there is one for someone else, I haven't heard it.

    5. How do other independent watchdog agencies enforce? Who watches the watchdogs? it's an honest question. But I think, inherent in the title "Independent", it means that commission members should be free from bribery or intimidation, which includes threats of being sued by deep-pockets respondents.


    • ElliotFladen says:

      1) Where are you getting the idea that there is a non-modest filing fee to file an IEC complaint currently?
      2) Prosecution is already done by the government.  Why would a public defender though need to represent a complainant?  I think you are confused. 
      3) The Fiscal Note on this is not yet out.  The costs should be pretty minimal. 
      4) There have been very few IEC prosecutions in general.  Very few.  Gessler.  Hickenlooper.  And a county commissioner or two.  Maybe a few others.  Not many at all. 
      5) An Independent Ethics Commission that does not intentionally, recklessly or willfully violate clearly established rights has nothing to fear from this bill. 

  5. mamajama55 says:

    1. Complainants have to bear their own costs (Luis Toro, CO Ind. story)

    2. Not confused. Call it pro bono legal help for complainants, not a "public defender".

    3. Costs will not be minimal if IEC absorbs some of the costs of filing.

    4. Perhaps few prosecutions because it's costly. From  Cheek's 2/28 CO Ind. article:

    Colorado is the only state that provides public money exclusively to defend against ethics charges but no money to investigate them. Toro says that role has been outsourced to nonprofits like his or to citizens themselves. He said Coloradans are routinely shocked and put-off when they come to the commission with evidence of wrongdoing and are told they will have to act essentially as the prosecutor in a case against the Attorney General’s office.

    5. Once again, whose rights are you alleging have been violated? Not Gessler's – he had a great defense, paid for by businesses and organizations filing fees in Colorado. He just lost, is all, because the evidence was pretty compelling.


    • ElliotFladen says:

      1) There are no filing fees for an IEC complaint.  
      2) There isn't much needed to file an IEC complaint. We aren't talking about massive expenditures here. 
      3) Not sure what you are trying to say

      4) Prosecution have stepped up after Gessler.  Compass has a complaint against Hickenlooper now and other complaints seem likely to follow in a tit-for-tat sense. 

      5) The bill is about protecting rights going forward. 

  6. mamajama55 says:

    Heh. Still composting in the State Committee. Unnecessary legislation, and  harmful as it weakens the watchdogs on ethics. Compost away…..

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