Third appeal: Scott Gessler fights his ethics charge at taxpayers’ expense – again

Scott Gessler is no longer the Secretary of State, but Colorado taxpayers will keep footing the bill for his legal defense as his fight against a three-year-old ethics charge moves into its next phase. Tuesday, he petitioned the state Supreme Court to review a complaint against him that’s been ruled on three times now — but never to his liking.

The case revolves around the roughly $1,300 dollars Gessler spent on airfare and two nights at the Ritz-Carlton when he took a trip to Tampa in 2012. He was there to give a presentation on election law at a Republican National Lawyers Association meeting which happened to coincide with that year’s Republican National Convention. On reimbursement forms, Gessler wrote off the expense as “state business,” but failed to submit any receipts. He also took home his office’s leftover discretionary funds as a personal bonus at the end of the fiscal year – a hefty $117.99.

Government watchdogs Colorado Ethics Watch first filed an ethics complaint against Gessler in 2012 to be reviewed by the state’s Independent Ethics Commission. The commission was created in 2006 to give advice on any issue arising under Amendment 41, which bars public officials from using their posts for private gain. That means no gift-giving, no favors, and nothing that even looks like a violation of the public trust.

Gessler tried and failed to get the case thrown out, then paid back the $1,278.90 in question. But in the end, the IEC decided his use of discretionary funds was indeed a breech of public trust. Gessler asked the Denver District Court to review that decision, and Judge Herbert L. Stern rejected his appeal. Gessler then took his case to the Colorado Court of Appeals, where the IEC’s ruling was affirmed yet again this May.

Gessler may be out of public office now, but he’s still fighting his case. On Tuesday, he filed a petition asking the state Supreme Court to take up his appeal.

In his petition, the facts of the case are undisputed. Gessler did indeed use state funds to travel to give a presentation on election law at a Republican National Lawyers Association meeting in Tampa in 2012.

“Colorado Secretaries of State have used the funds for a wide variety of activities,” the petition points out, “including cocktail receptions for county clerks, personal clothing, overseas travel, and taking the amount as W-2 income, all without incident.”

Rather, he accused the IEC of “mission creep” for using a single phrase in Amendment 41 to justify an unbounded view of its jurisdiction. The IEC can rule on matters related to gift-giving, influence peddling, “or any other standards of conduct or reporting requirements as provided by law” — and that, Gessler’s defense claims, is overly vague and broad.

Secretary of State Wayne Williams’ press secretary Tim Griesmer said his office will continue to foot the bill for Gessler’s defense. Up through June 30, 2013, Gessler’s team of outside attorneys billed the state for more than $122,000, while the IEC logged nearly $70,000 to investigate, prosecute and defend its opinion in subsequent appeals. And taxpayers will continue to foot the bill for both sides.

Williams is Gessler’s chosen successor.

When the embattled Gessler opted for a gubernatorial run rather than try for a second term as Secretary of State, he endorsed fellow Republican and El Paso County Clerk at the time Wayne Williams to take his place. Williams won handily. Since taking office, Williams has carried on Gessler’s efforts to tighten up voting rules after the state reformed its election system in 2013.

Under Williams, the Department of State will continue paying the former secretary’s legal bills. Griesmer said the office thinks it’s important to see the case through “so all state employee know what standards are in dealing in Amendment 41.”

But Colorado Ethics Watch director Luis Toro says this particular application of the law doesn’t apply to all state employees because only the governor, lieutenant governor, secretary of state, attorney general and treasurer have discretionary funds.

“There is nothing ambiguous about the ban on the use of discretionary funds for personal and political use,” Toro said. “People under the dome have hated Amendment 41 since its inception and have been rooting for the Ethics Commission to fail.”

Toro is especially concerned about how much taxpayers will have to pay for Gessler’s legal fees.

“The funding of Gessler’s defense has been questionable from the start,” he said. “Colorado is the only state where people who file ethics complaints are required to prosecute them at their own expense while the public official – here, one who was found to have engaged in wrongdoing – gets a publicly-funded defense.”

Correction August 11, 2015: The original version of this story stated that Common Cause was a co-plaintiff on the 2012 Scott Gessler case, which is incorrect.