2013 IEC Notes

CLICK ON THE DATE TO SEE THE NOTES FROM THAT MEETING. THEY ARE IN CHRONOLOGICAL ORDER.

January 7

The IEC discusses the staff investigation report for Complaint 12-06 (regarding a Leadville City Councilperson).  The public hearing for Complaint 12-06 is set for 10:00am on February 4, 2013.  The IEC approves Advisory Opinion 12-12 (Travel Paid by Federal Agency).  The IEC hears oral argument and discusses a number of motions to dismiss Complaint 12-07 (regarding Secretary of State Gessler).  Ethics Watch Staff Counsel, Peg Perl, argues against the motions and in favor of the IEC completing its staff investigation of the matter. The IEC votes 4-0 to deny each of the motions and continues its investigation.  The IEC expects to have a staff investigation report completed for discussion at the Februrary meeting.  The IEC discusses an advisory opinion request from the Colorado Department of State, requesting the establishment of a legal defense fund to be spent on the Secretary of State’s legal bills.  The IEC directs staff to draft a response to be discussed in the January 17, 2013 telephonic hearing.

January 8

The IEC receives a letter in support of the advisory opinion request from the Department of State from the Office of the Attorney General.

January 11

Speaker Mark Ferrandino nominates former Rep. Rosemary Marshall (D-Denver) to the IEC House Resolution.

January 14

The Colorado House confirms former Rep. Rosemary Marshall (D-Denver) as the IEC’s fifth Commissioner. Her term will run through June 30, 2015.

January 22

The IEC receives a letter opposing the advisory opinion request 13-01 (legal defense fund) from Colorado Common Cause.

January 23

The IEC conducts a telephonic meeting including new Commissioner Rosemary Marshall.  The IEC unanimously (5-0) votes to issue an order denying the motions to dismiss and motion to reconsider in Complaint 12-07 (regarding Secretary of State Gessler).  The IEC discusses a draft response to Advisory Opinion 13-01 (legal defense fund), but decides to discuss further at the February 4 meeting.

January 30

Secretary of State Scott Gessler files suit against the IEC to attempt to block the release of the investigation report on the ethics complaint against him. The IEC agrees not to release the report at the February 4 meeting in exchange for an agreement not to proceed with a motion for temporary restraining order until February 7.4 meeting.

February 4

The IEC holds a public hearing and rules no violation occurred on Complaint 12-06 (regarding a Leadville City Council member).   The IEC discusses a draft response to Advisory Opinion 13-01 (legal defense fund), but decides to take a final vote on the matter on February 15.  The IEC also discusses a draft response to Advisory Opinion Request 13-02 (travel to a conference), but decides to discuss a further revised draft on Feburary 15.  Finally, the IEC discusses Advisory Opinion Request 13-03 (staff attendance at events) and asks the requestor (the Department of State) to redraft and resubmit as separate requests based on the number of scenarios raised in the letter.

February 7

Denver District Court denies Secretary of State Scott Gessler’s request for a temporary restraining order that would have prohibited the IEC from continuing its investigation of Complaint 12-07. The Court also refused to stay the effectiveness of this ruling while the Secretary appeals to the Colorado Supreme Court.

February 15

The IEC holds a telephonic meeting and adopts a final order regarding Complaint 12-06 (regarding a Leadville City Council member).  The IEC also issues Advisory Opinion 13-02 regarding travel to a conference.  The IEC discusses a revised draft response to Advisory Opinion 13-01 (legal defense fund), but defers voting on the matter until the next meeting.  The IEC discusses three motions filed by Secretary of State regarding Complaint 12-07.  The IEC defers releasing the investigation report on Complaint 12-07 or voting on these motions until the March 4 meeting.  The IEC states that Ethics Watch (the complainant in Complaint 12-07) may file a written response to the motions with the IEC before the March 4 meeting.

February 26

Ethics Watch files a response with the IEC to the Secretary of State’s motions regarding Complaint 12-07.

March 1

The IEC receives supplemental comments regarding the advisory opinion request 13-01 (legal defense fund) from Colorado Common Cause.

March 4

The IEC in public meeting discusses advisory opinion request 13-05 regarding a possible conflict of interest from an employee of the Governor’s Office of Information Technology, but delays action while the agency pursues a resolution of the matter.  The IEC votes unanimously (5-0) to deny the motions to recuse Chairman Grossman and Commissioner Marshall filed by the Secretary of State regarding Complaint 12-07 (and any other matters regarding the Secretary).  The IEC also votes unanimously (5-0) to deny the Secretary’s motion to disqualify the Executive Director for bias in the investigation of Complaint 12-07.  The IEC then votes (4-1) to contract the services of an extra investigator to complete the investigation report regarding Complaint 12-07.  Finally, the IEC votes unanimously (5-0) to postpone consideration of the Secretary’s motion to remove the proceedings for Complaint 12-07 to an administrative law judge. The IEC discusses a draft response to advisory opinion request 13-01 (legal defense fund), but defers further consideration until consultation with conflicts counsel regarding the matter. The IEC also discusses advisory opinion requests 13-03 regarding travel expenses and 13-04 regarding mileage reimbursement.  The IEC directs the Executive Director to prepare a response for 13-03 regarding scenarios presented where outside entities propose to pay travel expenses for a state official.  The IEC declines to craft responses at this time for 13-04 and the remaining scenarios in request 13-03 which concern use of state travel funds and reimbursements for local travel from state funds.  The IEC also votes Complaint 13-03 is not frivolous and instructs the Executive Director to notify the respondent.

March 7

IEC files supplemental budget request to restore second staff position that was cut in 2011.

March 11

Secretary of State Gessler files an amended complaint in his Denver District Court suit against the IEC, now alleging that Article XXIX of the Colorado Constitution (establishing the IEC and the limits on gifts for public officials) is void as contrary to the U.S. Constitution. The IEC files a motion to dismiss the suit based on the original complaint.

April 3

Secretary of State Gessler and Deputy Secretary of State Staiert file a lawsuit in Denver District Court against the IEC, asking the court to compel the IEC to rule on various advisory opinion requests. Gessler II Complaint. Exhibits to Gessler II Complaint.

April 8

At its monthly public meeting, the IEC receives a verbal interim report on the Gessler investigation and sets a hearing for June 7 at 9am. The IEC approves and releases several advisory opinions: AO 13-03 (travel paid by National Notaries Assn); A) AO 13-04 (mileage reimbursement); AO 13-07 (blind trust for family medical expenses-request); AO 13-08 (travel funded by nonprofits-request); and AO 13-09 (use of personal funds for market-price trip on private jet-request). The IEC also discusses advisory opinion request 13-10 from Weld County DA Ken Buck regarding the applicability of Amendment 41 restrictions on county officials.  Finally, the IEC receives an update on the investigation of Complaint 13-03 (regarding an Eagle County Commissioner). The IEC also elects Matt Smith as Chair and Rosemary Marshall as Vice Chair effective May 1. Separately, Secretary of State Gessler files a response to the IEC’s motion to dismiss the Denver District Court suit against the IEC (Gessler I).

April 19

Secretary of State Gessler and Deputy Secretary of State Staiert file an amended complaint in Gessler II litigation alleging advisory opinions issued by the IEC at the April 8 meeting are insufficient.

April 25

The Commission publicly releases the investigative report of H. Ellis Armistead on Complaint 12-07 (regarding Secretary of State Gessler). The report addresses factual allegations but does not draw legal conclusions. 

April 30

The IEC holds a telephonic meeting to discuss various pre-hearing issues for Complaint 12-07 (regarding Secretary of State Gessler), which is set for public hearing on June 7. The Commission adopts a pre-hearing order listing the legal standards of conduct that may be applied at the public hearing.  The Commission also grants permission for Secretary of State Gessler to file motions to disqualify Commissioner Grossman, to refer the case to an Administrative Law Judge, and to exclude certain issues from consideration at the public hearing.  The Commission will consider those motions at its next public meeting.  The Commission also voted to release the Executive Director’s investigation report regarding the Complaint.

May 6

During its monthly public meeting, the IEC approves Advisory Opinion 13-01 (legal defense fund) by a vote of 3-2 with Commissioners Grossman and Marshall dissenting. The Commission discusses a draft response to Advisory Opinion 13-10 regarding Weld County, but directs staff to complete further revisions before voting at a future meeting.  The IEC hears and votes on numerous motions filed by Secretary of State Gessler with regard to Complaint 12-07, granting the request to exclude certain facts and allegations that were uncovered after the complaint was filed (without prejudice) and denying the requests to disqualify Commissioner Grossman for bias and to refer the proceedings to an Administrative Law Judge. The public hearing for Complaint 12-07 is set for June 7. The IEC also receives an update from staff about Complaint 13-03 (regarding an Eagle County Commissioner) and decides to invite the parties to argue the motion to dismiss at the July Commission hearing.

May 7

The Colorado Senate confirms former Sen. Bob Bacon (D-Ft. Collins) as a Commissioner, replacing Commissioner Grossman as of July 1, 2013. His term will run through June 30, 2017.

June 7

The IEC conducts its public hearing on Complaint 12-07 (regarding Secretary of State Gessler). The IEC hears from its invesitgator and other witnesses and receives documents as evidence.  The IEC decides to reconvene on Thursday, June 13 for deliberations and a decision with regard to the Complaint.

June 13

The IEC conducted a public meeting to deliberate and issue decisions regarding Complaint 12-07 (regarding Secretary of State Gessler).  The IEC unanimously denied Secretary Gessler’s motion to disqualify Commissioners Marshall and Grossman.  After discussion and deliberation, the IEC takes a series of votes.  The Commission finds that Secretary Gessler violated the discretionary fund statute and breached the public trust for private gain by receiving a personal payment of $117.99 in state funds without justification that the funds were used for state business by a 4-1 vote (Commissioner Hopper dissenting). The Commission also unanimously finds that Secretary Gessler violated the discretionary fund statute and breached the public trust for private gain by using $1278.90 in state funds to pay travel expenses to attend a Republican National Lawyers Committee event in August 2012.  The Commission unanimously votes that the Secretary did not violate any standard of ethical conduct by using state funds to pay for airline change fees in connection with an early return from his Florida trip.  The Commission unanimously voted to reserve judgment on whether or not the Secretary violated by any standard of ethical conduct by using state funds to pay the cancelled hotel night previously paid by his campaign.  The Commission imposes a penalty of twice the amount at issue minus the amount paid back to the state by the Secretary in May 2013 by a 3-2 vote (Commissioners Hopper and Smith dissenting), imposing a total fine of $1,514.88.  The Commission plans to meet via telephone on June 19 to formally approve the written final order reflecting these findings.

June 19

The IEC met telephonically and voted to adopt the written order of the Commission’s determinations regarding Complaint 12-07 (Gessler).  The Commission ordered that the fine levied be paid within 30 days. That afternoon, Secretary Gessler’s legal team filed a Second Amended Complaint.

July 1

The IEC holds its first regular monthly meeting with new commissioners Bob Bacon and Bill Leone.  The Commission approves Advisory Opinion 13-11 regarding a PUC Commissioner accepting the waiver of conference fees and lodging (request).  The Commission also discusses whether any remaining portions of Advisory Opinion request 13-03 regarding travel paid with state funds by the Deputy Secretary of State still require a response. The IEC dismisses several complaints as frivolous, but votes to launch an investigation of Complaint 13-07 filed by Larks Wing, LLC against Fort Lewis College President Dene Kay Thomas. Notice of investigation.

July 18

Judge Robert L. McGahey of the Denver District Court grants the IEC’s motion to dismiss the “Gessler II” suit filed by Secretary of State Gessler and Deputy Secretary Steiert. Order.

July 23

The IEC meets in executive session to discuss the remaining Gessler lawsuit and to consider candidates for the Deputy Director position.

August 5

The IEC opens its regular monthly meeting with an expression of thanks to former Commissioners Dan Grossman and Sally Hopper.  The Commission then discusses Complaint 13-07 regarding travel expenses accepted by the Ft. Lewis College President. The Commission approves the respondent’s request to file a motion to dismiss and instructs IEC staff to conduct the investigation simultaneously.  The Commission plans on hearing the investigation report and argument by the parties on the motion at the September meeting. The Commission then discusses Advisory Opinion 13-03 regarding travel paid with state funds for the Deputy Secretary of State to attend various conferences. The requestor agrees to withdraw the advisory request while the Commission drafts a Position Statement regarding the prohibition on use of state funds for partisan events. The Commission approves Advisory Opinion 13-12 regarding a PUC Commissioner accepting travel expenses and conference fees from a for-profit entity sponsoring the conference. The Commission then discusses Advisory Opinion 13-10 regarding the application of Article XXIX to Weld County officials.  Commissioners direct staff to draft a more general position statement regarding the requirements for exercising the home rule opt-out provision in Article XXIX. The Commission also votes 3-0 (Commissioner Smith recused) to dismiss Complaint 13-03 regarding an Eagle County Commissioner as frivolous because the individual resigned from elected office before the alleged violation occurred. Finally, the Commission discussed various budget and staffing needs, explaining that no candidate was selected from the prior posting for Deputy Director. The Commission instructed staff to draft a new posting for appropriate position or positions to be filled this fiscal year. The IEC dismissed Complaint 13-08 as frivolous.

September 3

The IEC votes unanimously to dismiss Complaint 13-07 against Fort Lewis College President Dene Kay Thomas. The IEC also votes unanimously to dismiss two complaints (13-09 and 13-10) as frivolous.

September 26

Denver District Judge Hubert L. Stern, III enters an order dismissing a portion of Scott Gessler’s first lawsuit against the IEC. Order on Motion to Dismiss All Claims Other Than Those For Judicial Review.

October 11

The IEC met with Judicial Branch administrators to discuss budget issues and access to shared services. The IEC discussed its 2015 Strategic Plan and budget request. It also discussed Advisory Opinion Request 13-05, which was brought back to the IEC after the State Controller raised concerns about transfer of a cell tower lease to an employee of the Office of Information and Technology.

October 22

The IEC met telephonically with all five commissioners present to discuss Advisory Opinion request 13-05 (conflicts of interest).  The opinion was approved by a vote of 4-1 with Chairman Matt Smith issuing a dissent.  The IEC also discussed finalizing a position description for a new employee posting.

November 18

The IEC meets for its regular monthly meeting.  After a lengthy executive session, the Commission vote unanimously to declare Complaint 13-11 (regarding Governor Hickenlooper) non-frivolous in public session and direct the IEC’s counsel to contact the parties to discuss the process and start the investigation of the matter. The IEC also discusses the hiring process for additional staff and options for additional technology use by Commissioners. Due to additional time spent in executive session discussing personnel matters, the Commission defers consideration of a number of items on the public session agenda until the next monthly meeting in December.

December 2

The IEC meets in person and discussed a variety of administrative matters such as purchasing laptops or tablets for commissioners, updates to the website, lease provisions, and budget requests pending at the Joint Budget Committee.  The IEC also decides to interview 4 to 6 top candidates for the new staff position at the January 17 meeting.  In an update on Complaint 13-11 (regarding Governor Hickenlooper), the IEC votes to hold a pre-hearing conference with the parties during the January 17 meeting to discuss possible witnesses, depositions, discovery, and to narrow the undisputed facts at issue in the matter and whether any further investigation is necessary. A series of executive sessions dealing with personnel matters are held. Then the IEC discusses advisory opinion request 13-13 regarding possible conflict of interest based on outside employment. The Commissioners ask for more information and plan to ask questions of the requestor at the January 17 meeting before issuing an opinion. Finally, the IEC discusses the procedure required when a complaint is determined to be frivolous – and therefore confidential – and the proper notice procedure to be followed when a complaint is made public but later dismissed as frivolous.