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2014 IEC Notes


January 17

The IEC’s first monthly meeting of the new year starts with a pre-hearing conference with the parties involved in Complaint 13-11 (regarding Governor Hickenlooper). Counsel for Compass Colorado (the complainant) and the Governor’s legal counsel are charged with submitting the Commission a join statement of undisputed facts by the February meeting and any requests for discovery from the parties. The Commission also requires the parties to disclose documents, possible witness lists and other evidence to the IEC investigator.  The Commission sets March 31 as the date for the main dispositive hearing for this complaint after the investigation and parties discovery has completed.  After an interview conducted in executive session, the IEC votes to hire a contract investigator (Mr. McBean) to conduct the investigation for Complaint 13-11.  The Commission notes that its legal services budget for the fiscal year has been mostly used, so they plan to instruct the investigator to rely upon discovery gathered by the parties and only supplement where needed to keep the investigation cost effective.  The IEC then discussion Advisory Opinion Request No. 13-13 regarding negotiations for future employment by a State Department of Revenue employee. Commissioners ask questions of the requestor, provide comments, and plan to consider a new draft at the next meeting.  The Commission also discusses a number of administrative matters regarding the agency’s website and lease in the Judicial Center, and interviews potential candidates for an administrative assistant in executive session.

January 22

The IEC holds a telephonic executive session meeting to interview and discuss candidates for the Assistant to the Director position.

January 28

The IEC first convenes an executive session meeting on the telephone to discuss candidates for the Assistant to the Director position.  Then in public session the IEC votes to offer employment to a particular candidate for that position.  The Commissioners discuss possible scheduling changes to the February meetings.  A public session telephonic meeting is set for February 6 to finalize scheduling issues with the Commissioners and the parties in Complaint 13-11.

February 6

In a telephonic meeting, the IEC changes the dates and deadlines for various filings and stages in considering Complaint 13-11 (regarding Governor Hickenlooper).  A public meeting is set for February 25 to consider submissions by the parties.  The IEC notes that it might discuss and decide a motion to dismiss the complaint at its regularly scheduled monthly meeting on March 10 if the papers are filed early enough before that meeting.  Otherwise, the IEC will consider the motion to dismiss on the March 31 date currently set as the final hearing on the complaint.  The Commission also introduces its newly hired Assistant Director, Maureen Toomey.

February 10

At its regular monthly meeting, the IEC conducts business at times with a quorum three Commissioners, while at various times Commissioners Leone and Pinkham join the meeting via telephone.  The Commission discusses pending potential legislation and ballot measures that could affect IEC jurisdiction and budget.  In executive session the Commissioners determine Complaints 13-12 and 14-01 to be frivolous and, therefore, kept confidential.  The Commission discusses Advisory Opinion request 14-01 (acceptance of a gift) and asks questions of the requestor – Arapahoe County Clerk Matt Crane. The Commission decides to consider the matter and any additional submissions made by the requestor in a future meeting.  The Commission also considers Advisory Opinion request 14-02 (travel paid by a foreign government) and gets further information from the Executive Director of the Department of Revenue who has been invited to travel to a conference paid by the Swiss government.  The Commission votes 4-0 (Commissioner Leone abstaining) to approve the opinion.  The Commission also continues to discuss Advisory Opinion request 13-13 (negotiations for future employment), but defers taking action until the next meeting.  During this meeting, Commission Executive Director, Jane Feldman, announces that she is resigning and her last day at the Commission is February 26.

February 25

At a prehearing conference, the IEC denies Compass Colorado’s motion to transfer the hearing of its complaint against Governor Hickenlooper to an ALJ for alleged bias. The IEC issues Advisory Opinion 13-13, on ethical responsibilities of state employees seeking new employment, and14-03, authorizing the Director of Revenue to accept payment from a non-profit group of alcohol regulators to address them on Colorado’s legalization of marijuana. The IEC continues to discuss Advisory Opinion request 14-01 filed by Arapahoe County Clerk Matt Crane regarding possible gifts from the Denver Broncos Football Club in gratitude for excellent service from the Clerk’s office, without a decision. It also discusses transition issues related to Director Feldman’s retirement.

March 10

The IEC’s regular monthly meeting starts with staff report by Assistant to the Director, Maureen Toomey, regarding CORA requests and administrative process matters now that Executive Director has left the Commission.  The IEC discusses and votes to revise Advisory Opinion 14-03 to allow the Director’s substitute designee to accept travel expenses for the speaking engagement. The Commission also discusses Advisory Opinion request 14-01 regarding offered gifts from Denver Broncos to Arapahoe County clerk’s office. All commissioners indicate they support a response that did not allow receipt of gifts, but directed IEC staff to revise the draft and present for further discussion and vote next meeting.  The IEC also holds another pre-hearing status conference regarding Complaint 13-11 (Governor Hickenlooper) and discusses pending discovery matters.  Mike Davis, attorney for Secretary of State Scott Gessler, requests the opportunity to file an amicus brief in support of the Governor’s motion to dismiss the complaint. After hearing some opposition to the idea of accepting amicus briefs in the pending matter from the parties, the IEC directs Mr. Davis to file a written motion with the proposed brief to be considered by the IEC at the next meeting when the motion to dismiss the complaint is argued and voted upon.  The IEC also offers Ethics Watch the opportunity to file a similar motion and brief if it so chooses before the March 31 meeting.

March 12

Denver District Court Judge Herbert Stern, III issues a ruling affirming the IEC’s final decision in Complaint 12-07 (Secretary Gessler) in all respects.

March 31

After an executive session to consult with IEC’s counsel and receive legal advice, the IEC conducts a pre-hearing conference to hear arguments on pending motions regarding Complaint 13-11 (Governor Hickenlooper).  The IEC votes 5-0 to deny Compass Colorado’s motion to issue a subpoena. The IEC hears arguments on a motion to dismiss, but defers deliberation and decision on the motion until the April 14 meeting. The IEC then handles administrative matters such as setting future meeting dates and update on budget status. The IEC tentatively schedules elections for Chair and Vice-Chair for the April 14 meeting. No motion to file an amicus brief from Secretary of State Gessler appears to have been filed or discussed.

April 7

Governor Hickenlooper publicly releases certain documents related to the IEC investigation in Complaint 13-11 (Governor Hickenlooper).  These documents included a draft report by the IEC contracted-investigator and transcripts of interviews done during the investigation.  It was revealed at the March 31, 2014 IEC meeting that the Complainant in this matter, Compass Colorado, had not received a copy of this draft even though the investigator provided a copy to the Governor’s counsel.  The IEC refused to adopt the draft report and instead deemed the transcripts of the interviews as the “results of the investigation” in Complaint 13-11.

April 8

The IEC meets telephonically in executive session to consult with counsel and receive legal advice regarding Complaint 13-11 (Governor Hickenlooper).

April 14

The IEC begins its monthly in-person meeting with a lengthy executive session to receive legal advice regarding Complaint 13-11 (Governor Hickenlooper).  The Commission then discusses the pending motion to dismiss the matter and proceeds to deliberate and ask questions of counsel for both parties in the matter.  The Commission votes 4-1 (Smith dissenting) to find no ethics violation on summary judgment because no material facts are disputed to require a fact-witness hearing. The IEC also hears a request from Mike Davis, attorney for Secretary of State Scott Gessler, to reopen Complaint 12-07 (Secretary Gessler).  The IEC declines to rule on the motion based on lack of jurisdiction because the final IEC decision in Complaint 12-07 is currently the subject of appeal at the Colorado Court of Appeals. The IEC discusses Advisory Opinion request 14-08 (receipt of gifts by DMV employees) and plans to draft a response for discussion at a later meeting.  The Commission votes to tenatively approve Advisory Opinion request 14-09 (travel by Department of Revenue Director paid by nonprofit organization) and approves a response in Advisory Opinion 14-01 (receipt of Broncos gear by Arapahoe County Clerk employees).  After an executive session discussion, the IEC votes in public session to stay any action regarding Complaint 14-07 (Commissioner Rowland).  Finally, the IEC elects Commissioner Marshall as Chair and Commissioner Smith as Vice-Chair, effective at the next meeting.

April 28

The IEC’s monthly in-person meeting opens with an announcement that the written final order and dissent in Complaint 13-11 (Governor Hickenlooper) are not ready to be discussed or publicly released. The Commission discusses advisory request 14-08 (receipt of gifts by DMV employees) and directs staff to draft a response explaining why such gifts are not acceptable.  The IEC adopts Advisory Opinion 14-09 (travel paid by nonprofit organization) by vote of 5-0. The Commissioners discuss issuing a draft Position Statement 14-01 (regarding home rule ethics codes) for public comment at the next meeting.  The IEC adopts a temporary revised Open Records policy and directs Commission counsel to review and provide a draft revised CORA policy, privacy policy, and document retention policy to the Commission at the next meeting. The Commissioners discuss transition to a new website, which may require some time “offline”, and how to best comply with open meetings notices during such an outage. As part of the Staff Report, the IEC notes that 8 advisory opinions have been filed beyond those on today’s agenda.  The Commissioners also discuss the new budget, including projected shortfalls as legal fees are above budget, and Commissioner Pinkham is charged with starting to put together a posting for the vacant Executive Director position to be filled after July 1.

May 29

The Colorado Freedom of Information Coalition (CFOIC), together with the ACLU of Colorado, BillTrack 50, Colorado Broadcasters Association, Colorado Common Cause, Colorado Ethics Watch, Colorado Press Association, Colorado Press Women, Independence Institute, League of Women Voters of Colorado, and The Colorado Independent submit public comments regarding the IEC’s open records policy.

June 9

The Commission meets for its regular monthly in-person meeting. In public comment, Ethics Watch Staff Counsel Peg Perl highlights the main points of the CFOIC submission regarding the IEC’s open records policy and explains that new legislation effective July 1, 2014 requires amendment of the current open records fee policy. The Commissioners delegate authority to Chair Rosemary Marshall to work with IEC staff and the Attorney General’s office to develop a revised policy that will be posted on the IEC website by July 1 and further discussed at the July 7 meeting. The IEC staff reports that a position statement regarding home rule ethics codes is being drafted for Commission consideration at a later meeting.  The Commissioners then move into executive session for over three hours for the purpose of receiving legal advice on Complaint 13-11 (Governor Hickenlooper). After executive session, the IEC grants a motion to supplement the record in Complaint 13-11 by a vote of 5-0, but states that it does not yet have a draft final order in that matter to discuss or issue. Commissioners state that the final order will be discussed and adopted at the July 7 meeting. The Commissioners then approve a posting for the vacant Executive Director position. The IEC proceeds to discuss a number of advisory opinion requests. Advisory Opinion 14-05 (travel paid by third party) is adopted by vote of 5-0 allowing the Department of Revenue to accept travel expenses to a conference. Advisory opinion request 14-08 (receipt of gifts by DMV employees) is deferred after the requestor could not be reached by telephone. Advisory Opinion 14-11 (travel paid by a third party/vendor board) is approved by a vote of 5-0 and states that a county clerk may not join the board of advisors for a voting services vendor based on conflict of interest rules. The Commission discusses advisory opinion request 14-14 (solicitation of donations) and directs staff to draft an opinion setting parameters for raising donations for an injured police officer. Advisory opinion requests 14-10 (travel paid by third party), 14-12 (credit card points & frequent flyer miles) and 14-13 (travel paid by third party) were all submitted by the Deputy Secretary of State on behalf of herself and the Secretary regarding upcoming travel to the Republican National Lawyers Convention.  The Commissioners discusses these requests and directed staff to draft responses to be considered at the June 27 meeting. The IEC moved again into executive session to consider complaints not yet public.  In public session, the Commission declines to reconsider the stay issued in Complaint 14-07 (Commissioner Rowland). [note: the June 27 telephonic meeting was later cancelled by the Commission]

July 7

The IEC’s monthly meeting starts with a staff report, including Commission approval of a new Colorado Open Records Act (CORA) fee policy. After receiving legal advice in executive session, the Commissioners deliberate a draft final order in Complaint 13-11 (Governor Hickenlooper).The Commission ato consdopts the final order with amendments by a vote of 4-1 (Vice Chair Smith dissenting). Vice Chair Smith discusses his written dissent in the matter. Chairperson Marshall gave a brief budget update that explained the IEC is $80,000 over budget, specifically in the area of legal services, and that she is working to prepare a supplemental budget request for this fiscal year and a increased budget request for next fiscal year. The Commission approves a number of advisory opinions including 14-08 (not allowing the acceptance of gifts by DMV employees), 14-12 (approving use of rewards on personal credit card used for state travel), and 14-16 (approving acceptance of travel by Department of Revenue from nonprofit organization). The Commissioners discuss and give tenative approval to advisory opinion request 14-15 (approving acceptance of travel fellowship). The Commissioners discuss a pair of advisory opinions regarding travel to the Republican National Lawyers Association annual conference by the Secretary of State (advisory opinion request 14-10) and the Deputy Secretary of State (advisory opinion request 14-13). The Secretary of State requested approval to accept the costs of travel to the conference paid by the RNLA, while the Deputy Secretary request would use state funds to pay her travel expenses and conference fee for attendance.  The Commissioners discussed both requests at length and directed that drafts be written in response to be considered and voted upon in a telephonic meeting on July 23. Finally, the Commissioners stated that 12 applications had been received for the posted position of IEC Executive Director and will now be scored and prepared for interviews and review by the Commissioners.

July 18

The IEC issues its Findings of Fact and Conclusions of Law on Complaint 13-11 filed by Compass Colorado against Governor Hickenlooper.

July 23

The IEC holds a public telephone conference to consider a number of pending advisory opinions and discuss interview and hiring schedule for a new Executive Director. After discussion, the IEC votes 2-3 to approve Advisory Opinion 14-10 (allowing travel paid by conference sponsor) with Chair Marshall and Vice Chair Smith dissenting.  The IEC then approved Advisory Opinion 14-13 (allowing travel paid with state funds) by a vote of 4-1 with Chair Marshall dissenting. Finally, the Commission unanimously approved Advisory Opinion 14-15 (allowing receipt of a international travel fellowship). The Chair and Vice Chair continued to put together some draft budget requests which will be presented and discussed at the next open meeting.

August 4

The IEC holds its monthly meeting. Suggested changes to the minutes prompt a discussion regarding the Commission’s Colorado Open Records Act (CORA) research fee policy and the need for the Commission to adopt a more comprehensive CORA policy. The issue will be set for a future public meeting agenda. The Commission considers four new complaints in executive session (as they must be kept confidential under a finding of non-frivolous is made). In public session, the IEC votes to dismiss Complaint 14-13 for timeliness and frivolousness, dismiss Complaint 14-15 for frivolousness and lack of jurisdiction, and to stay consideration of two complaints pending outcome of concurrent proceedings (Complaints 14-14 and 14-16). Vice Chair Smith recuses himself from deliberation and voting on Complaint 14-16 to avoid “the apperance of impropriety.” Commissioners enter into a lengthy executive session to receive legal advice regarding “personnel matters.” The IEC also receive a briefing and legal question session regarding CORA, open meetings law and attorney-client communications from IEC assigned-AG counsel in executive session. Finally, the IEC convened in executive session to interview Executive Director candidates.

August 5

The IEC continues to interview Executive Director candidates in executive session.

September 2

After narrowing the candidates down to three finalists who were interviewed again in executive session, the Commission announces that Amy Devan has been hired as the new Executive Director of the IEC.

September 8

The Commission convenes its monthly in-person meeting with an introduction of new Executive Director Amy Devan and a staff report reviewing the volume of advisory requests and complaints received this year by the IEC. Chair Rosemary Marshall leads a discussion regarding the adoption of a draft IEC employee handbook. The Commissioners vote to move into closed executive session to receive legal advice regarding “disputes that are the subject of pending or imminent court action” and “specific legal questions regarding a potential open meetings issue.” After approximately 90 minutes, the IEC returns to public session to discuss and unanimously approve Letter Ruling 14-01 (attendees at a nonprofit education event). The Commissioners discuss a draft of Letter Ruling request 14-02 (former state employee future employment options), but defer voting on the response until next meeting after additional information is acquired. The Commissioners unanimously approve a response to Advisory Opinion request 14-18 (acceptance of a public prize), but that request is withdrawn before the opinion is released. The Commission approves Advisory Opinion 14-17 (travel from third party) by a vote of 4-1 (Smith dissenting). Vice-Chair Matt Smith presents a draft of the 2016 Strategic Plan & Budget, and Commissioner Leone leads a discussion regarding the IEC’s role in overall ethical guidance on various issues in political and government arenas.

October 6

This monthly meeting of the IEC focuses mostly on administrative matters, with Commissioner Bacon excused absence and Commissioner Leone participating by telephone to reach a quorum. During the staff report, Executive Director Amy Devan explains that the Commission did not receive numerous requests or complaints during the previous month, and some received were too late in the month for this monthly meeting and will be placed on the agenda for the next meeting in November. The Commission then discusses Letter Ruling request 14-02 (former state employee seeking future employment) and votes 4-0 to adopt and issue the ruling. The Commissioners discuss the newly revised IEC Employee Handbook, which was adopted last month and now re-adopted with minor revisions. The IEC discusses the need to revisit and revise a number of formal policies for records retention, open records requests, confidentiality of requestor names, and the information provided on the IEC website. Staff will be reviewing options of different state-level guidance and providing drafts for Commission consideration at future meetings. The Commissioners also discussed the 2016 Strategic Plan and Budget which is about to finalized and submitted to the General Assembly. After setting the public meeting dates through June 2015, the Commission entered two executive sessions: first, to receive legal advice concerning potential court actions, the other to discuss two complaints recently filed. Back in open session, the Commission voted 4-0 to dismiss both Complaints as frivolous and outside the jurisdiction of the Commission.

November 20

In the last monthly meeting of the year, the IEC convenes with Commissioner Leone participating by telephone and all other Commissioners present. Executive Director Amy Devan updates the IEC on efforts to digitize the Commission’s records in order to make records retention and CORA responses easier. The Commission discusses Advisory Opinion request 14-20 (outside employment of CDOT employee) and asks questions of the requestor. Commissioners voted 5-0 to approve the request in general, but will vote on a final written opinion at the January meeting. The IEC next asks questions from the requestor of Advisory Opinion 14-21 (receipt of gifts by town employees) and votes 4-1 (Commissioner Pinkham dissenting) to approve an opinion stating such gifts violate Article XXIX. The IEC then hears a presentation by the requestors of Letter Ruling 14-03 (solicitations for and contributions from a police benevolent trust). After much discussion, the requestors decide to revise the rules of the trust and resubmit for Commission consideration in January. After executive session discussion, the IEC votes 5-0 to dismiss newly filed Complaints 14-23 and 14-24 as frivolous. The Commission also conducts an executive session asking legal advice regarding pending appeals, a potential open meeting lawsuit and personnel matters. The IEC also votes 5-0 to indefinitely table potential Position Statement 14-01 regarding home rule jurisdictions. Administrative matters handled by the Commission include ratification of the FY 2016 Budget submitted to the Joint Budget Committee, and a decision to discuss adopting a formal records retention policy in January.

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