March 03, 2014 12:52 PM UTC

The Colorado Independent Gets It Wrong On HB1258

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• by: ElliotFladen

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.