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2016 IEC Notes

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

Next Meeting:

Next regular monthly meeting is scheduled for January 23, 2017 at 9am in the Carr Judicial Center, 1300 Broadway, Denver. [Agenda]

NOTES

January 4

After cancelling its December meeting, the IEC reconvenes for monthly business without its former Executive Director. The Commissioners spend at least 90 minutes in closed executive session with representatives from the Office of State Auditor discussing the draft audit report. The IEC then considers Advisory Opinion Request 15-12 regarding a state employee who has been elected to Aurora City Council. In discussions of the different ethics code adopted by Aurora, the Commissioners ask for further legal argument and public comment regarding home rule jurisdictions and the requirments for “opting out” of Article XXIX requirements and IEC jurisdiction. The Commissioners will further consider this specific request and the larger question at the February 8 meeting. The IEC then unanimously votes to circulate a proposed revised complaint form for public comment and possible adoption in February. The afternoon is spent in executive session discussing approximately 20 complaints recently filed which are still required to be kept confidential, and interviewing candidates for the vacant Executive Director position.

January 21

The House of Representatives votes 57-8 to approve the nomination of attorney April Jones (U-Greenwood Village) to replace former Rep. Rosemary Marshall (D-Denver) as the House-appointed member of the IEC.

January 26

The Colorado Supreme Court hears oral argument in Independent Ethics Commission v. Colorado Ethics Watch, regarding whether the district court can review the IEC’s decision to dismiss a complaint as frivolous.

January 28

The IEC names Constantinos “Dino” Ioannides as its new Executive Director.

February 9

The IEC holds its regular monthly meeting, starting with introducing the new Executive Director Dino Ioannides, who will start on March 1. After brief discussion with the requestor, the Commission unanimously approves Advisory Opinion 16-01, approving travel expenses paid by a nonprofit for international travel for a Department of Revenue employee. Commissioners briefly discuss in public sessionthe status of the State Audit, which is set for the February 23, 2016 Legislative Audit Committee hearing, but specific discussions of the report and questions from state audit staff was conducted in executive session. The IEC then notes the requestors in Advisory Opinion 15-12 (Aurora City Councilwoman who is a state employee) asked to be deferred to the March monthly meeting. In conjunction with the discussion of that request on March 3, Commissioners state they will consider and accept public comment and legal analysis regarding the home rule ethics provisions of Article XXIX of the Colorado Constitution and how home rule municipalities are adopting and enforcing ethics codes outside of the constitutional scheme & IEC jurisdiction. Written submissions will be accepted before the March 3 meeting and public comment may be made in person at that meeting as well. The IEC then considers proposed revisions to the complaint form used and Ethics Watch Senior Counsel Peg Perl gives comment on the proposed changes on behalf of Ethics Watch. The Commission defers adoption of the new complaint form (and revisions to the IEC Handbook) until after the state audit report and possibly the resolution of the Colorado Supreme Court case. Finally, the Commission notes that it will be re-posting the job description for the soon-to-be-vacant 5th Commissioner position (local government). After discussion in executive session, the IEC votes unanimously to find new Complaints Number 15-31, 15-32, 15-33 and 15-34 nonfrivolous and direct IEC staff to start an investigation. All these complaints are related.

March 3

The IEC introduces its new Executive Director, Dino Ioannides. It hears public comment about home rule cities that may be subject to IEC jurisdiction because they have not enacted ethics laws that address the subjects covered in Article XXIX of the Colorado Constitution. The IEC rejects a request by Governor Hickenlooper for an advisory opinion that would allow General Electric to pay for a work trip to Italy. It hears testimony and deliberates on the request for advisory opinion by a state employee who is an elected Aurora official regarding the application of Article XXIX to her. The IEC approves a letter ruling request from former Senator Greg Brophy, holding that he is permitted to speak with legislators about a pending ballot initiative without violating the lobbyist revolving door provision.

March 8

The State Auditor releases its performance audit of the IEC. Later that day, a bill to provide the IEC with independent counsel and to require it to adopt conflict of interest and political activity rules for its own members passes out of the House Judiciary Committee.

March 11

The IEC meets to discuss the bill that passed through House Judiciary and composes a letter to the House Appropriations Committee outlining their concerns.

April 4

The IEC approves a letter ruling to former Senator Greg Brophy that allows him to discuss a potential ballot measure with state legislators without running afoul of the lobbyist revolving door ban. The IEC issues an advisory opinion prohibiting the Governor from accepting payment from General Electric for certain travel expenses. The IEC dismisses one complaint, sets one for investigation, and stays a third complaint. The IEC unanimously re-elects Bill Leone as Chair and Bob Bacon as Vice-Chair.

April 15

The IEC approves an advisory opinion allowing a nonprofit to pay for travel expenses for regulators to attend a marijuana regulation conference. It also holds a preliminary hearing on several complaints filed against Archuleta County personnel.

April 25

The Colorado Supreme Court, in a 4-3 ruling, holds that judicial review is not available when the IEC dismisses a complaint as frivolous.

May 2

The Commission approves an advisory opinion on travel paid by a nonprofit for a marijuana regulation conference. It also approves a notice of grounds for hearing on the Archuleta County complaints. Members of the IEC express their agreement with the Supreme Court ruling.

June 29

Ethics Watch Senior Counsel Peg Perl demonstrates an option for live stream video for IEC meetings, the Commission requests that she suspend the feed for this meeting upon agreeing to discussion options for Commission live broadcasts at upcoming meetings. The Commission approves the new IEC Handbook. The Commission sets August 10th at 11 a.m. as the date for the hearing for Complaints Number 15-31, 15-32, 15-33, and 15-34. The IEC issues a draft position on the question of Home Rule Ethics Codes and Aricle XXIX of the Colorado Constitution which outlines seven criteria  home rule ethics codes must meet in order to opt out of Article XXIX. The Commission agrees to defer Advisory Opinion 15-12 (Application of Ethics Code to State Employee Serving as a Local Government Official) until the final position statement has been made. The IEC approves Advisory Opinion 16-05 regarding a Pitkin County City Council member who owns short term rental property voting on a short term rental issue. The Commission issues Letter Ruling 16-02 stating it would be a violation of the gift rule for elected officials to accept a waiver of conference fees from the Colorado Oil & Gas Association. 

July 25

The Commission provides an update on the search for the fifth commissioner, three candidates have been interviewed by Bill Leone. All three will come in to meet the whole commission in the near future. The IEC released a revised draft of their position statement on Home Rule Ethics and Colorado Constitution Article XXIX and will receive public comment August 3rd. The Commission has circulated a draft of Advisory Opinion 15-12 (Application of Ethics Code to State Employee Serving as a Local Government Official) to the Commissioners, but not yet to the public. Some debate among the Commission about whether or not this should be issued before the home rule position is finalized. The IEC votes 4-0 to defer Complaint 16-02 until after the home rule issue is settled as the complaint also pertains to home rule ethics. The IEC also votes to defer Complaint 16-13 for similar reasons. 

August 10

For the first time, the Commission provides a live video stream of its public hearing. The Commission holds its public hearing on the ethics complaints field against Archuleta County officials (Complaint Nos. 15-31, 15-32, 15-33, and 15-34). The hearing consists of legal argument from the citizen complainant and counsel for the respondents as well as public comment from individuals attending the hearing. No witness testimony was given because both sides agreed to the facts as described in the written materials and IEC investigation report. After argument, questioning from the Commissioners and deliberation in public session, the Commissioners voted 4-0 that there were no ethical violations by any respondents. Written findings of fact and conclusions will be drafted and presented for discussion and final vote by the Commission at the next meeting. The Commission then approved a new complaint form and an internal code of conduct for Commissioners and staff (both items were raised by the Legislative Audit report). Based on time constraints, the Commission deferred consideration of the Home Rule Ethics Codes draft position statement until the September meeting and kept open the comment period until August 30. The draft statement and comments received, including those submitted by Ethics Watch are posted here.

September 13

The IEC holds its regular monthly meeting with a full agenda of administrative items and a lengthy executive session to discuss newly filed complaints required to be kept confidential until an initial vote by the Commission. During the staff report, Executive Director Dino Ioannides explains that the test run of live-streaming video of the Commission’s August 10 meeting was successful. However, the cost of such a service is $2,350 for a full-day meeting. ED Ioannides states that he is coordinating with state internet office to use a lower-cost audio-only live stream, hopefully starting the next meeting. The IEC approved a final order finding no ethics violations by Archuleta County officials (complaints were the subject of a hearing last month). The Commission also agreed to post its new Code of Conduct for IEC Commissioners and recusal standards on its website. Upcoming budget and legislative audit committee hearings were discussed by Commissioners before the 5th Commissioner, representing local governments, was selected. JoAnn Sorenson from Clear Creek County was chosen and will join the IEC at its October meetings. While the IEC decided to defer final decision on a proposed position statement regarding home rule ethics codes until next month when Commissioner Sorenson is able to participate, it voted to release to the public a draft dissent from Commissioner Jones urging an alternative approach to the issue.  The Commission also proposed holding a special meeting to discuss and decide the home rule ethics code matter on October 13 at 8:30am, and will confirm that Commissioner Sorenson is available for that meeting. After executive session discussion of new complaints filed, the Commission voted to dismiss 4 complaints as frivolous and held 5 complaints over for additional discussion next month.

October 13 - Special Meeting

The IEC convened a special half-day meeting with the single agenda item of discussing the proposed position statement regarding home rule ethics codes. This was also the first meeting for the new 5th Commissioner (representing local governments) JoAnn Sorenson from Clear Creek County.  The meeting was held in the Colorado Court of Appeals courtroom to allow for livestreaming video (available here).

Commissioners discussed what requirements to impose on home rule cities in their local ethics codes in order to allow them to opt-out of IEC jurisdiction and the rules under Art. XXIX of the Colorado Constitution. In addition to the public proposed statement, the IEC considered a draft dissent from Commissioner Jones urging an alternative approach to the issue.  Commissioner Smith also proposed some clarifications and amendments at the meeting.

Public comment was given by many representatives of home rule cities (starting at approximately 2:19:30 in video) including Colorado Springs City Attorney Wynetta Massey, Boulder Senior Assistant City Attorney Kathy Haddock, Shaun Sullivan with the Denver City Attorney’s office, and Colorado Municial League Executive Director Sam Mamet. Each of these speakers were opposed to the IEC proposal and the attempt by the Commission to lay out specific provisions that must be adopted in local ordinances. Colorado Ethics Watch Senior Counsel Peg Perl also provided public comment reminding the IEC of past commission position that home rule cities that adopted any sort of ethics code and enforcement were exempt from Article XXIX jurisdiction and to urge the Commission to include clear language of the legal force and effect of any position statement issued on this matter. IEC Rules of Procedure define a “position statement” as “a generally applicable written statement addressing ethics issues”, but do not state the binding effect of such statements on any particular entity or individual, or whether such statements are subject to judicial review like a regulation under state law.

The Commission did not reach final decision on the issue and voted to continue the discussion at the regular monthly meeting on October 17.

 

October 17

The IEC held its regular monthly meeting with all five commissioners.  Technical difficulties made the live audio stream unreliable for public listening, but the Executive Director was also recording the audio and stated the recording would be posted on the IEC website as soon as it was available to upload. The Commission ED updated the Commissioners on a proposed referred measure to shift jurisdiction for judicial discipline to the IEC. The IEC discussed the Legislative Audit Committee status hearing that was attended by Commissioner Jones and IEC staff which did not include too much detailed discussion due to pending Colorado Supreme Court cases. Legislators asked the Commission to return next fall and update on court case resolution so that potential legislation regarding the IEC’s operations could be discussed. Commissioners then discussed the proposed FY18 budget which was developed by Commissioner Smith and IEC staff. Generally, the budget does not ask for an increase in funds but does shift money around between line items in order to accommodate live streaming costs and possible increased use of outside counsel in cases of conflicts. The Commission is not requesting additional staff (beyond its single full time employee) or a complete shift to counsel outside of the Attorney General’s office. However, the budget submission will note that if the AG pushes to reduce representation of the IEC through legislation (like last session) or office policy, the IEC might ask the legislature for a supplemental appropriation to cover increased costs for outside counsel.

Commissioners then continued the deliberation of the proposed position statement regarding items to be required for home rule cities to adopt in their local ethics codes in order to allow them to opt-out of IEC jurisdiction and the rules under Art. XXIX of the Colorado Constitution. Commissioners did not discuss the draft dissent from Commissioner Jones, but instead walked through Commissioner Smith’s proposed clarifications and amendments. Many of these amendments were less restrictive than the original proposal and received support from Commissioner Jones. For example, the IEC appears to be removing the requirements that a home rule ethics code must include post-employment restrictions for local elected officials and regulation of gifts from registered lobbyists. Commissioners instructed the ED to create a revised draft for additional discussion and amendments next month.

Because the IEC did not complete the agenda for this meeting and wants to consider a revised draft of the home rule ethics position statement (including votes on amendments and possible final approval), the Commission decided to extend the November monthly meeting over two days: November 15 (9am to Noon) and November 16 (9am to 5pm). 

 

November 16

The IEC held its regular monthly meeting with all five commissioners, cancelling the first day of what was originally noticed as a two-day session. During the staff report, the Commission reported that its Executive Director, Dino Ioannides, will be attending the annual Council on Governmental Ethics Laws (COGEL) conference in December. 

This monthly session included a number of lengthy executive sessions closed to public in order to discuss: (1) “legal updates form the Office of the Attorney General” (the AG serves as legal counsel to the IEC) and (2) consideration of new complaints that have not yet been determined to be non-frivolous. After these executive sessions, the Commission voted to dismiss 4 complaints as frivolous and held 6 complaints for further discussion and information gathering before a vote on the frivolous determination. A listing of complaints as they are decided can be found here.

In public session, the IEC discussed an advisory opinion request from the Office of Colorado’s Child Protection Ombudsman regarding a monetary fellowship awarded to the requestor before she became a state employee. The Commissioners requested changes to the draft opinion and plan to vote to adopt a final version next month. Finally, the IEC again discussed the Draft Position Statement as revised based on prior discussions (a revised draft was not made available to the public, but the original draft and all public comments are available here). The IEC appeared to come to consensus on most issues and poised to be ready to vote on a final draft next month regarding its listing of requirements that must be included in a home rule city/county ethics code in order to opt-out of Article XXIX provisions for local officials and IEC jurisdiction for advice and enforcement.

December 19

The IEC held its last monthly meeting of the year. During the staff report, the Commission’s Executive Director, Dino Ioannides, noted that he was unable to attend the national ethics conference (COGEL) due to illness. He also summarized the IEC’s budget hearing with the legislative joint budget committee, which reviewed the FY 2017-18 request for basically the same amount of money. Commissioner Smith who attended the JBC hearing stated that the legislature seemed thankful with the IEC request since most other Judicial Department agencies were seeking an increase in funds for next year.  Staff report concluded with a preview of a plan to redesign the IEC website in a more user-friendly manner and create word search functions for past advisory opinions on the website.

The IEC discussed a revised Draft Position Statement regarding home rule ethics codes (a revised draft was not made available to the public, but the original draft and all public comments are available here). After a lengthy discussion in public and a closed executive session to ask legal questions from the IEC’s counsel from the Attorney General’s office, the Commission approved the Position Statement 5-0. The Commissioners stated that the position statement would be effective when issued (after final edits from today’s meeting) and will be available on the IEC website and emailed to everyone that submitted a public comment on the draft within the next couple weeks. [UPDATE: Final Position Statement 16-01 was published December 29 and is available online here]

The Commission then considered a series of complaints in executive session which had not yet been reviewed pending the adoption of the home rule ethics code statement. In open session, the IEC unanimously voted one complaint (16-20) as non-frivolous and directed the staff to start an investigation. Another complaint was dismissed as frivolous and outside the 1 year timeframe of IEC jurisdiction and the remaining 4 complaints were continued to be held with no action yet taken. A listing of complaints as they are decided can be found here.

Finally, the IEC considered two advisory opinions and a letter ruling. In AO 16-07, the Commissioners unanimously approved travel by a Department of Revenue employee to a Berlin tax stamp conference. The Commissioners also approved a final draft of AO 16-06 discussed last month regarding a fellowship received by an employee of the Child Protection Ombudsperson (by vote of 5-0). The IEC also discussed and approved  Letter Ruling 16-05 to the Regional Transportation District, holding that RTD directors and employees are not subject to the jurisdiction of Article XXIX and the IEC by vote of 5-0.

December 29

The IEC releases Position Statement 16-01, regarding its jurisdiction over home rule cities and counties with their own ethics boards.

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