COVER STORY | Colorado’s Independent Ethics Commission on uncertain course
Author: Marianne Goodland - September 11, 2018 - Updated: September 18, 2018
Colorado’s Independent Ethics Commission is unlike any other in the country. And that’s not a good thing, according to those who have worked for and/or observed the commission in its 10-year history.
They say the commission’s structure, staffing and funding make it impossible for the public to have any confidence that ethics issues — whether it’s investigations into potential ethics violations, training for state or other government employees, or guidance — are handled in a logical or even timely manner.
The ethics commission is one of the three pillars of Amendment 41, the initiative that won 59 percent voter approval in 2006.
What Amendment 41 did:
• Set up a limit on gifts to lawmakers and government workers. The amendment initiated that limit at $50 with an adjustment for inflation. It’s currently at $59. It also outright banned gifts to lawmakers from lobbyists.
• Prohibited state lawmakers from lobbying the General Assembly or other elected officials for two years after leaving office.
• Established the five-member ethics commission, all unpaid volunteers, along with a long list of powers the commission would hold, including that complaints dismissed as frivolous would be kept confidential, and that members could be appointed for four-year terms but without any term limits. One commissioner, former state Rep. Matt Smith, has been on the board for its entire lifespan since first being appointed in 2007.
The monthly commission meetings focus on complaints and advisory opinions. But most of the meetings are conducted in executive sessions behind closed doors, which take up much of the commission’s day. During those sessions the commissioners decide which complaints are frivolous and then will make public what they’ve decided on the complaints.
Between 2008 and 2017, according to a 2017 annual report, the commission received 196 complaints. All but 20 were dismissed as frivolous, out of the IEC’s jurisdiction or withdrawn.
Whether those complaints were truly frivolous will never be known.
A lawsuit filed by Colorado Ethics Watch two years ago over a complaint out of Elbert County resulted in a state Supreme Court decision that made it clear that once the IEC says a complaint is frivolous, it’s not able to be appealed. The complaint related to an elected official who improperly charged the county for a $1,000 fine levied against him personally on a campaign finance complaint. Amendment 41 says elected officials are not allowed to vote on matters in which they have a financial interest, and this official was part of a 2-1 vote to appeal his own fine. But the IEC dismissed the complaint as frivolous on a 3-2 vote.
Absence of transparency
One of the most frequent complaints lodged against the IEC is that it lacks transparency, a criticism raised in a 2016 state audit as well as in numerous lawsuits attempting to force the commission’s activities into the public eye.
State boards and commissions, as well as elected bodies like the Legislature, are governed by the Colorado Open Records Act. The Act has two components: open meetings and open records. Under the law, wherever two or more members of a public body are convened to discuss public business, that meeting must be open to the public and recorded, with minutes made available to the public.
While you can listen in via telephone to IEC meetings or later on obtain a recording, the standard for many state public bodies — whether it’s the Colorado Board of Education, the Colorado Oil and Gas Conservation Commission or the General Assembly — is to live-stream on the Internet so that the public can tune-in and watch in real-time.
And everyone, including the IEC, has that ability. The IEC, however, chooses not to, for some interesting reasons.
In 2015, the commission received equipment, provided by the Statewide Internet Portal Authority, a state agency, to live-stream its meetings. According to IEC Executive Director Dino Ioannides, the commission attempted in 2016 to record and put live-stream videos of its meetings on YouTube.
They quit after doing it twice, both times in October 2016. In a statement to Colorado Politics, Ioannides cited a lack of funding from the General Assembly to cover the costs. He also pointed out that the IEC has only one employee — Ioannides himself — “whose primary work responsibilities made it impossible to operate the live audio production equipment in an effective and reliable manner.”
The IEC is considering giving that equipment to the Colorado State Surplus Agency “for liquidation” since they don’t have the money or personnel to run it, Ioannides said.
“The IEC remains open to legislative allocation of additional resources for live-streaming purposes if the Joint Budget Committee and General Assembly deem appropriate,” Ioannides said.
The IEC, however, would have to make that request to the Joint Budget Committee. According to JBC records, they haven’t asked.
Enter former state Sen. Pat Steadman of Denver, who as a member of the JBC tried several times to get the IEC to take more money for staff funding, which could have allowed the commission to hire a second person to take on secretarial or technical responsibilities, like learning how to use the live-streaming equipment.
It’s not unheard of — the IEC had a second staff person for administrative purposes for several years, up until around 2015.
Steadman told Colorado Politics the IEC “had turned down additional resources when clearly they’re under-resourced.” The commission has been inconsistent in its position on whether it want to live-stream its meetings, he added.
“They told the JBC four or five years ago they were moving forward” on making those meetings available and then “dropped the ball,” he said.
“It’s been frustrating,” Steadman added. “They don’t even let people help them.”
Writing its own rules
The IEC’s reasoning — that the IEC has only one employee who has other responsibilities that make it impossible to do other things — has found its way into other reasons for not following the open records law.
Last December, the commission issued its own version of the state’s open records law, to be known as “Commission’s Access to Records Rules.” It was a 10-page document that drew howls of protest from the Colorado Press Association, the Colorado Broadcasters Association, Colorado Ethics Watch and the Colorado Freedom of Information Coalition.
Among the proposed rules was one addressing CORA’s requirement that an open records request must be responded to within 72 hours. If the commission’s one staff person was too busy — getting ready for a commission meeting, for example — he could have up to seven days to work on that request.
The state’s open records law gives no such exemption for delaying a response on the basis of being too busy. At one point, Commissioner Bill Leone, a former U.S. attorney, said he didn’t understand what the fuss was about.
The commission scaled back the proposed rules from 10 pages to one, without explanation or even much in the way of public discussion. How that policy got changed appears to have taken place primarily in executive session.
The commission’s rulemaking, which became final in May, follows a long-standing tradition with the IEC and with its views of whether the Open Records Act applies to them.
When the commission held its first meeting in December 2007, it didn’t record the meeting or even take minutes. The justification? The IEC wasn’t subject to CORA, according to an assistant attorney general in 2008 when questioned about it by this reporter.
If you want to know what the IEC did during 2007 and 2008, you’re out of luck. There are no records of any kind pertaining to what they did in 2007 and 2008, save for three position statements.
It took a lawsuit filed by the Colorado Independent to get the IEC to start following some sections of the state’s open records act. In 2009, a Denver District Court ordered the commission to release recordings of its executive sessions, in a lawsuit that claimed the IEC was making too many decisions out of the public eye. According to an analysis by the Independent, the IEC spent 85 percent of its meeting time, about 46 hours total, behind closed doors, but recorded only 13 hours of those meetings. The Independent eventually received just 11 hours of recordings.
Ioannides told Colorado Politics that while the commission is concerned about transparency, it must be balanced against “other important legal protections,” such as the confidentiality of complaints. He acknowledged that the commission spent a lot of time in executive session, reviewing complaints or receiving advice from the Attorney General’s representative.
Joining the judicial branch
Things got more interesting in 2010. That’s when the IEC was moved from the Department of Personnel and Administration to the state’s judicial branch.
Steadman and then-Rep. Beth McCann of Denver sponsored that legislation, which Steadman said was for administrative reasons. The move was to recognize the board’s status as an independent commission.
But somewhere along the line the commission decided that since it was housed in the judicial branch, and the judicial branch isn’t subject to the open records act, the commission wasn’t either. That’s despite the views of the Colorado Supreme Court. In a 2015 rule-making statement on access to administrative records, the state high court pointed out the Judicial Branch “does not include the Judicial Discipline Commission, Independent Ethics Commission or the Independent Office of the Child Protection Ombudsman.”
“I don’t recall any discussion of (the IEC) under CORA as a result of relocating and that certainly was not the objective” of the 2010 legislation, Steadman told Colorado Politics.
The IEC’s lack of transparency also led Colorado Ethics Watch, which was initially formed to make sure Amendment 41 was being properly followed, to start keeping an eye on the IEC, according to Peg Perl, who worked with CEW from 2012 until last year. “They weren’t doing much to get information out to the public in a timely manner,” Perl said.
“What struck you about the IEC is in how they did their business,” Perl, a former counsel to the House Ethics Committee in Washington, D.C., said. That experience gave her a solid background in how an ethics body works from the inside.
What Perl noticed in six years of watching the IEC was a lack of consistency in areas such as process and transparency. “Substantive decision changed and varied depending on who the individual commissioners were at any given time,” she said. “Nothing has changed with CORA or Amendment 41. The only thing that’s changed are the people on the commission.”
Jeff Roberts of the Colorado Freedom of Information Coalition told Colorado Politics that “it’s ironic that the commission cites the open meetings law when they go into executive session, given that they don’t seem to think they’re subject to CORA.”
Given that the IEC is charged with investigating ethical misconduct “it’s important that they act in a way that is as transparent as they can be,” he said.
“Making policy should be done in public,” Roberts explained. “If they have specific legal questions about policy, that can be discussed in private, but it appears a lot of policy gets discussed or even made outside of public view.”
Training on the downturn
The open records act isn’t the only issue for which the IEC is criticized.
In its 2017-18 budget request, the IEC stated that it “has long believed that education and outreach are a fundamental component of its overall mission. Covered individuals should know what is expected of them and what ethical standards will apply to their performance of their duties. In addition, community outreach and availability to citizens are essential, so they know their concerns are being heard.”
Training is the responsibility of the executive director, in addition to such mundane tasks as ordering lunches for the commissioners, preparing for meetings and processing travel vouchers. The executive also has the major roles of investigating complaints and drafting advisory opinions.
The IEC, according to its 2017 annual report, provided six training sessions. The previous year, when it was going through yet another transition from one executive director to another, it provided just one. That’s ethics training to cover 22 state agencies and dozens more divisions, with more than 31,000 classified employees.
And that lack of training from the IEC doesn’t serve state or other government employees or the public very well, according to former executive director Jane Feldman.
Feldman served as the IEC’s first executive director, from July 2008 to March 2014. Feldman provided as many as 34 training sessions in 2011. But training took a backseat to dealing with lawsuits beginning in 2013, when former Secretary of State Scott Gessler sued the commission over a complaint filed by Colorado Ethics Watch over misappropriation of funds. (Gessler has lost that lawsuit at every level, up to the state Supreme Court.)
That lawsuit meant everything else went on hold, even though training remains important, Feldman explained.
She pointed to the executive director of the Connecticut Ethics Commission, whose master’s thesis was on the impact of training. “The more training you do, the more complaints are filed and more advisory opinions requested. Training leads to questions that could lead to more guidance for the people governed by Amendment 41,” Feldman said.
Having just one staff person is “ridiculous,” Feldman said. Compare Colorado to Connecticut, which has a population that is roughly 2 million smaller. Their ethics staff is 15 to 20 people, and that’s pretty standard for virtually every state that has an ethics commission, she said.
Connecticut’s state law requires every state employee to receive ethics training every two to three years. That’s not unusual, Feldman said, adding that most states with ethics bodies do that. In North Carolina, for example, you have six months from the date of notification to complete ethics training. If you don’t do it, you can be fired. “It’s considered a requirement of employment.”
But it’s a monumental chore to work on ethics training when the one and only staff person has to do investigations, meeting prep and craft advisory opinions, Feldman explained.
To have a robust ethics commission, Feldman says the staffing must be ramped up. Connecticut has staff who do just training, more for investigations, yet others for advisory opinions — and all of them overseen by the executive director.
For his part, Ioannides said he is unaware of any reluctance by the commission to seek additional funding for staff. But he also said the commission’s makeup had changed, and that could be reflected in future budget requests.
Fewer whistle-blowers in Colorado
Feldman points again to Connecticut as the model for ethics investigations. They have an entire enforcement section with experienced investigators who interview witnesses, write the report and make recommendations. In Connecticut, the complainant can be anonymous, according to Feldman. In Colorado, the complainant is named publicly, reducing the number of whistle-blowers willing to come forward.
Feldman recalled getting a phone call once from a contractor who had been asked to contribute a flat-screen TV for a county Christmas party raffle. The contractor felt very uncomfortable doing that but said he couldn’t afford to lose the county’s business, given that if he filed a complaint, his name would be public. He never filed the complaint. That’s not an isolated incident, according to Feldman.
Keeping the investigations division separate from all others is good practice so that people writing advisory opinions don’t discuss cases with the investigators. “You shouldn’t be writing opinions with potential cases in mind,” she said. On Colorado’s commission, of course, the investigator and the writer of advisory opinions is one and the same, the executive director.
The IEC almost had a separate investigator at one point, around 2013. Feldman said she’d gotten permission to hire a lawyer who would handle investigations and complaints. She could then focus on advisory opinions and administrative work. But Leone, the former U.S. attorney, in his first meeting, called the request inappropriate and that was the end of it, Feldman said. The IEC does not give out contact information for individual commissioners.
Perl points to other states as well for examples of how Colorado’s ethics system could be improved. “The point of having an independent bipartisan commission was to take politics out of enforcement of the rules,” she said. What’s happening in Colorado is that because of funding, the IEC is a private-party enforcement system of ethics laws. Whoever files a complaint is told to gather the evidence and the commission will be neutral judges. It puts the burden on the person filing the complaint. And that’s a disincentive to filing a complaint, Perl said. She also believes that it not what voters intended.
The IEC does its investigations differently based on who the complainant is, Perl explained. If the complainant is an attorney, they leave it to the attorney to handle. However, when the complainant isn’t an attorney, the IEC will help them along. “That’s not the way to do the system,” Perl said.
Feldman said she didn’t have a background in ethics when she was hired, so she started attending annual conferences of the Council on Governmental Ethics Laws, the national organization for ethics professionals. She said it isn’t only training for state employees that has been largely neglected. The commission appears to take little interest in improving how it does business, according to Feldman.
‘Enough to get by’
Feldman believes Colorado is a “relatively clean state,” ethics-wise. Since Amendment 41 was adopted, only three elected officials have gotten into serious ethical trouble: Former state Sen. Steve King, former Secretary of State Scott Gessler and Doug Bruce, whose ethics issues were not related to public services.
Does that mean that no one else has done anything wrong? Probably not, she said. “We need a more robust system and a place for people to ask questions.” Feldman said she still gets calls from people trying to understand Amendment 41, telling her they can’t get a call back from the IEC.
Perl said what would serve the IEC best is to make it a real, independent agency with civil service staff that would provide the kinds of institutional continuity seen in most government agencies. Funding is the biggest part of that, and the lack of funding gives the IEC an excuse to not do the things voters might have intended, Perl said.
“When they go in for funding on the next budget cycle, everything is ‘we have enough to get by’ and there’s no strong advocate on the commission to say ‘we’re not fully realizing expectations’ or need to grow,” Perl said.
The IEC needs to be professionalized, Perl said. “There’s no reason why we can’t have the best practices and that kind of agency in Colorado.”
The 2016 audit
A 2016 audit of the IEC, the first in its history, recommended the IEC increase its staffing as a way of helping complainants. The IEC’s response: “The IEC has determined that it will not pursue any staffing changes at this time,” citing, among other things, legislation that year that would have changed its legal representation, from being represented by the Attorney General’s Office to private counsel, and which the IEC vehemently opposed. (The measure failed.)
“Regardless of the ability to secure such resources, the IEC will continue to periodically explore other viable staffing alternatives to improve the IEC’s effectiveness,” the commission said.
According to the 2017 and 2018 budget briefings by the JBC, the IEC has yet to ask for additional funding that would allow for more staff.
Is there a future for changes with the IEC? Perhaps. But it appears more likely to come from without than within.
Amendment 41 was the brainchild of Colorado Common Cause and then-state board of education member Jared Polis, who’s now vying for governor.
Polis told Colorado Politics that he believes Amendment 41 has done a good job of “cleaning up the political culture of Colorado” as it pertains to gifts and lobbyists. He believes the state is in a better place for having an ethics commission but certainly it “could do even better.” Polis said he intends to listen to those who are leaders in ethics, citing, for example, former U.S. Reps. Joel Hefley and David Skaggs. ”I look forward to picking their brains on how to implement the best ethics regime in Colorado.”