Once Colorado’s secretive Independent Ethics Commission dismisses a complaint as frivolous, it cannot be appealed to any higher court.
That’s the decision the Colorado Supreme Court made today on a 4-3 ruling.
The case involved Colorado Ethics Watch, which filed an an ethics complaint against an Elbert County commissioner, which the Ethics Commission dubbed frivolous.
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The original complaint alleged that Commissioner Robert Rowland had violated the provisions of Amendment 41, which says that a local government official cannot make decisions that would benefit themselves personally or financially.
Amendment 41 is the state’s ethics law, passed by voters in 2006. It bans gifts to lawmakers from lobbyists, limits how much in gifts or other considerations a lawmaker or public employee can accept, if the intent is to influence decisions made by those employees or lawmakers.
The complaint alleged that Rowland asked his fellow county commission members to appeal a fine levied personally against Rowland for a violation of the state’s campaign finance laws. Rowland and his fellow commissioners were found guilty of that violation, but the administrative law judge ordered Rowland to pay a $1,000 fine out of his own pocket, rather than asking the taxpayers of cash-strapped Elbert County to pay for it.
The county commissioners, at Rowland’s request, appealed the judgment in 2014. They lost the appeal and last year Rowland paid the fine. But then he immediately sought and received reimbursement from the county for that fine. That led to a lawsuit filed against Rowland in Elbert County District Court for failing to obey the judge’s ruling.
The county settled the case with the plaintiff, Jill Duvall, who chairs the county’s Democratic Party, for more than $20,000, and Rowland eventually paid up.
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Ethics Watch claimed Rowland violated the provisions of Amendment 41 in seeking the appeal, since he would benefit financially if the judgment was dismissed.
The Ethics Commission’s own handbook says that “public employees and officials should conduct themselves for the benefit of the state or local government in which they work, and should avoid making decisions which benefit themselves or members of their family either personally or financially.”
But the Ethics Commission dismissed the complaint as frivolous, without giving any explanation for why they believed it did not meet the requirements under Amendment 41.
In her majority opinion, Chief Justice Nancy Rice wrote that the commission has the authority to dismiss frivolous complaints without conducting a public hearing, authority granted to the commission by the General Assembly. The Court concluded that while the General Assembly may authorize judicial review of the commission’s enforcement decisions, “it may not encroach upon the commission’s decisions not to enforce.”
Luis Toro of Ethics Watch told The Colorado Independent Monday that the Ethics Commission routinely dismisses complaints as frivolous to avoid disclosing the reasons for refusing to hear them. Once dismissed, frivolous complaints are confidential and no information, including who filed the complaint or who it’s filed against, can be revealed.
The ruling by the Court “condones that practice” and even gives the Ethics Commission further incentive to continue doing it, Toro said.
In his dissent, Justice Richard Gabriel pointed out the purpose of the IEC is to “preserve public confidence in government…In my view, allowing judicial review here, would promote that laudable goal. In contrast, by precluding judicial review in this context, I fear that the majority’s ruling will have precisely the opposite effect.”
The Ethics Commission’s executive director, Dino Ioannides, told the Independent the commission will review the ruling next week.
Photo credit Justin Baeder, Creative Commons, Flickr.
