The Colorado Independent Ethics Commission last year operated behind closed doors, ironically shrouding in secrecy the open-government mission voters bestowed upon it when they voted it into existence. Nonprofit Colorado Ethics Watch called out the commission, filing and winning a lawsuit this summer, forcing the commission to open its deliberations to public scrutiny and bringing the matter to the attention of the press. Luis Toro, new director of Colorado Ethics Watch, counts the suit as a major victory and a model for the kind of work he will pursue in the coming year.

Colorado Ethics Watch Director Luis Toro

Senior Counsel Toro took the wheel on the first of the year, replacing Founding Director Chantell Taylor. The organization has been working as a watchdog in the state since 2006, filing law suits, formal complaints and open records requests aimed at improving government transparency and raising public trust. More than any single victory, the ongoing legal vigilance of Ethics Watch has made an impression on lawmakers and public officials.

Toro joined the organization in January 2008. He talked to the Colorado Independent recently about the organization’s mission and its plan for 2010.

Colorado Independent: What do you have on your plate for the first half of 2010? Who in Colorado government should be looking over their shoulder?

Luis Toro: Ha. Actually, we’re working up a general ethics scorecard, where we select bills and give legislative ratings related to government ethics and transparency. The CSU higher education executive hiring legislation proposed at the end of last session, for example, was a transparency bill. It concerned high-level decision-making. It concerned how we spend tax dollars. It would have got a high rating– had it not been LINK killed by its sponsor, of course.

There are no particular good actors or bad actors at this point… But we’re entering a campaign season, so there will be a lot to watch– as much as ever, anyway. Colorado campaign finance laws being reviewed by the state Supreme Court with the Citizens United trial, that’s definitely on our radar.

What about Amendment 54, the so-called clean elections amendment? It’s still tied up in the Supreme Court. Are you watching that?

Well, that had some really obvious constitutional problems. I personally don’t think that will be back. But the amendment sought to set up a [sole source] contracts database. That’s good and that will be retained.

What about 2010 ballot initiatives? There’s a controversial slate of proposals, as usual. Any concerns there?

No. It’s not our role to weigh in for or against at this early stage on individual proposals. Again, though, the process is a concern. The matter of candidate and issue committee [donation] limits, for example.

Take the Clear the Bench campaign, which seeks to unseat all of the [Colorado] Supreme Court justices. So far, the donations made by that campaign have conformed to candidate-donation-limit standards. Those limits are lower than limits on issues. As an issue campaign, Clear the Bench could take in higher amounts. But there are no oversized donations so far. The question is whether a plan to unseat justices really counts as an “issue.” Doesn’t it really primarily concern candidates? We’re looking at that. You know, what are the parameters?

How did you come to Ethics Watch?

I’m a Colorado kid. Heritage High! Then I went to Harvard undergrad and law school at Berkeley. I taught law in Sacramento. In 1995 I came back to Colorado. It was lucky timing, actually. I joined the first crew of law clerks to work with Judge Carlos Lucero in the 10th Circuit here. Amazing. [laughs.] I could probably never get that job now. …

But Ethics Watch is about a greater good. That’s what we’ve got here. That’s what Colorado has in Ethics Watch. Our organization is sometimes seen as concerning itself with candidates, but we work for good governance for the whole state, right and left.

And this year we’ll be doing the same as always. It’s important that there’s an organization here looking to hold people and organizations accountable. The mission is the same as ever. We’re going to continue to do what we’ve been doing.

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Edit note: An earlier version of this story described the database set up by Amendment 54 as a “donations database.” In fact, as Toro said, the amendement set up a database to track sole-source work contracts.

Interview edited and condensed.

Over the past months, determined Republicans have worked to link the teachers union-endorsed Republican candidates to right-wing bugbears like “Government health care” and the Employee Free Choice Act and President Obama.

Monday, however, the Douglas County Federation, or local teachers union, returned fire in the form of a press release that makes a damning case that the local GOP has raised ideology over candidate qualifications. And Colorado Ethics Watch filed a complaint against GOP-endorsed candidate Meghann Silverthorn for violating Hatch Act campaign laws meant to keep partisan politics out of government business.

The underlying issues

Contributors at conservative blogsite Rocky Mountain Right argued that the teachers federation-supported candidates would ultimately demand unionization of charter schools. Observers at progressive blogsite Square State countered that the GOP-supported candidates planned to convert Douglas County to an all-charter school district, eliminate teacher contracts and appoint former U.S. Rep. Bob Schaffer, the failed 2008 Republican candidate for U.S. Senate, to the superintendent’s post.

Each side has also spilled ink accusing the other of unfair tactics.

On the “Moms Like Me” blog, candidate Kevin Leung — a longtime active Republican who did not earn the GOP nod — voiced his frustration with the Republican attempts to frame the race as a fight between the union liberals and GOP conservatives.

“My Party boss now has accused me to be a handpicked candidate by the union even though I have not received a dime of donation from the teachers’ union.”

Meanwhile conservative blogger and attorney Mike Robinson accused “the union and its cronies” of picking on Meghann Silverthorn because of her GOP endorsement.

“Meghann is a candidate for the Douglas County School board,” wrote Robinson. “She is endorsed by the Douglas County Republicans and shunned by the AFL-CIO and its AFT local branch. As such she has been insulted, branded and dissed by the union and its cronies. All this while preparing for her husband to go off and help defend this country.”

Hatch Act violation?

Colorado Ethics Watch asked the federal Office of the Special Counsel on Monday to investigate a possible Hatch Act violation by Silverthorn, whose website explains that she is a Department of Defense employee.

The Hatch Act — which seeks to ensure government offices are run fairly — prohibits federal employees from running for partisan office. While Douglas County School Board races have traditionally been nonpartisan affairs, Ethics Watch argues that the Douglas County race fails to meet that description.

“Even a nonpartisan election can become partisan if the candidate herself injects politics into the race,” said Chantell Taylor, director of the nonpartisan nonprofit watchdog group.

The move by the Douglas County Republican Party this summer to endorse candidates is unusual. The party endorsed Silverthorn as well as Dan Gerken, Doug Benevento and incumbent John Carson.

Material distributed this fall by the party has attempted to paint the election as a battle between four true “conservative” candidates and four union-tainted “liberals.”

The Ethics Watch complaint states that Silverthorn has also worked to “inject partisan affiliation into the race.”

“This is one of those clear cases, and those are rare, that’s for sure,” Taylor said.

Citing evidence from Silverthorn’s Twitter feed (pdf), Ethics Watch argues that Silverthorn publicized her GOP nomination, twittering that she was “honored to receive the endorsement of the Douglas County GOP for my candidacy for the Board of Education, District G.” She later twittered statements such as “Some R shocked that people 4 parent choice, transparency & accountability R organizing w/GOP help, but what about years of union organizing?” and “Can’t wait for R Block Party tonite: come meet my friends [other Douglas County Republican Party-endorsed candidates] Doug, Dan & John and support education reform!”

Ethics Watch also points out that her campaign filings show Silverthorn accepting $3242.25 in campaign contributions from the Douglas County Republicans.

For her part, Silverthorn — who is in consultation with attorneys and so kept her remarks brief — says some of the items contained in Ethics Watch’s letter to special counsel are inaccurate.

“What I can tell you,” she said, “is that I did not solicit the endorsement of the Republican Party. I was pleased that I got it but I did not solicit it.”

She also argued that the donation she listed on her campaign filing form documented the cost of a mailing sent out by the Republican party on behalf of their four endorsed candidates. Silverthorne said she listed the donation on the advice of an attorney, but that she had not asked the Republican party to send anything on her behalf.

“I didn’t see it until it landed on my doorstep with the mail,” she said.

Taylor said Ethics Watch had not heard yet whether the Office of Special Counsel would be investigating Silverthorn’s possible violation. If the office does find any wrongdoing, the minimum penalty is a 30-day suspension without pay. Regardless of whether she is found to have violated the Hatch Act, Silverthorn’s candidacy will not be affected.

Douglas County Federation alleges misinformation

Meanwhile, the Douglas County Federation, the local union affiliate of the American Federation of Teachers, released a letter on Monday expressing concern about “misinformation being disseminated in newspapers, letters to the editor, editorial boards, and from Douglas County Republican Party Chairman John Ransom concerning this year’s school board election.”

Apparently countering accusations that the union was a liberal organization, the letter explained that the union’s membership consisted of almost equal parts Republicans and Democrats, with the remainder unaffiliated.

The letter went on to accuse the GOP-supported candidates of ignorance regarding school board issues.

“In July of this year, John Ransom, as the Douglas County Republican Party Chair, endorsed four candidates even though school board races are nonpartisan.

“These candidates currently refer to themselves as the ‘reform’ candidates. These reform candidates have repeatedly made statements indicating a complete lack of knowledge about our district and its current situation.”

The union alleges that two of the reform candidates have called for site-based budgeting even though such a system was put in place at the end of last year. The uniuon also claims the reform candidates have repeatedly mentioned the need for a “Pay for Performance” program in the district, though such a system has been in place since the mid 1990s.

The fall election in Douglas County will be held by mail-in ballot only, and it is already underway. Ballots were mailed to voters Oct. 13.

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Josh Penry (Jason Kosena: TCI)

In September, the Denver Post reported that government employees were receiving campaign emails from Penry for Governor– employees that subscribed to the Minority Office list but not to the Penry campaign list.

Mike Britt, Penry’s campaign manager, told The Post that the campaign “asked supporters — including lawmakers and lobbyists — to share their distribution lists. That could be how the campaign ended up with e-mail addresses to state government accounts.”

This is not the first time, however, that political operative Mike Britt has been involved in an email scandal. Britt was one of Karl Rove’s acolytes in the Bush administration and he was one of the targets in 2007 of the congressional investigation into violations of the Presidential Records Act, also known as the White House email scandal, where Rove and Britt and other strategists conducted official government business on their Republican National Committee email accounts instead of on White House email accounts.

White House email is part of a public record archived for future researchers. The RNC emails, though, were mysteriously deleted when investigators began asking for them.

Observers remain skeptical of the Bush administration’s use of the RNC email accounts and particularly of Rove’s defense in the matter. Colorado Ethics Watch is likewise unconvinced by Britt’s explanation in the matter of Penry’s email distribution campaign.

“The fact remains that there are people who had not given the Penry campaign their email address but they had [given it to] the Senate Minority Office,” Ethics Watch Director Chantell Taylor told The Colorado Independent. “Those kinds of situations make you wonder ‘How did they get those people if not through the [Senate Minority Office] list?’

“If indeed the Senate Minority Office provided their list of emails to any candidate campaign that would be tantamount to a contribution, because a list has value,” Taylor said.

Taylor said the CORA request, while a response to The Post report, was also inspired by what she called a local history of misusing public funds for partisan purposes.

“It is not limited to just Penry’s campaign,” she said. “This issue has come up before with the Senate Minority Office. We brought a complaint to the District Attorney’s office and Mitch Morrissey about their use of partisan funds to create the website in the first place.”

Taylor said that case raised a lot of questions about how both the minority and majority office websites were funded.

ColoradoSenateNews.com, the Minority Office website, drew scrutiny two years ago. In an investigation conducted by media outlets including the Colorado Independent, then-Senate Minority Leader Andy McElhany revealed that the site came to life through a “handshake agreement” he made with GOP operative Brad Jones, the man behind now-suspended conservative blog Face the State. The two sites were originally both registered to Jones.

At the time, Colorado Ethics Watch reported that McElhany broke the law in paying Jones $2,700 with contributions from a political action committee to create the site. Political contributions, mostly campaign funding, may not be used for official purposes, including building a Senate party site.

“I knew how we were paying for it was eventually going to be questioned,” McElhany told the Rocky Mountain News. “We decided we’d make a gift to the state out of the [political action committee funds] in the interest of getting out the truth to Colorado citizens.”

Taylor said the CORA request looking into the Penry campaign is centered on the Minority Office and seeks simply to determine whether or not the office is providing emails lists to any candidate or campaign. Neither the Minority or Majority office should be supporting partisan activities.

“It is our concern that they might be,” Taylor said.

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84,000 strong turned out for Barack Obama's nomination speech at INVESCO Field. Voters are also expected to turn out in record numbers for the Nov. 4 (Photo/Jason Kosena)

In Colorado, the state with the longest ballot in the country, more than 215,000 new voters have signed up since January. The woman in charge of the state elections department, Holly Lowder, resigned just weeks ago, after her cozy personal relationship with the beneficiary of several state election-related contracts surfaced. Lowder’s boss, Secretary of State Mike Coffman, is himself the target of longstanding ethics complaints and is overseeing an election that he is also running in — to replace retiring Congressman Tom Tancredo. And, oh yeah, Colorado could be the deciding state for the presidential election.

Hold on tight. It could be a bumpy ride.

The latest Mason-Dixon poll, released on Sunday, shows presidential candidates John McCain and Barack Obama tied exactly at 44 percent statewide.

And that’s about par for Colorado for weeks — fluctuating in the polls between slightly Democratic to slightly Republican on the political maps — and putting the state in the political crosshairs for the first time in memory for both major presidential candidates.

But, as anyone who has turned on a television for the past two months can attest, the presidential election is not the only thing going on in Colorado.

Grab a “Blue Book” — the voter-mandated explanation of the myriad referenda and initiatives and judges up for retention on the statewide ballot — and you’ll get a good idea of what voters and election officials are grappling with. The Blue Book arrived in the mail last week, and at a hefty 176 pages, it’s larger than the phone books of many small towns — Wasilla, Alaska, comes to mind.

Besides the candidates running for office themselves — including one of the most closely watched U.S. Senate races in the country, a mind-boggling 18 statewide ballot measures are also up for grabs (though a complicated deal between business and labor has knocked four of them out of contention).

And that’s not counting the local school and municipal ballot questions. In all, Colorado’s ballot will be longer than any since 1912.

To give you an idea of how long it may take to plow through the ballot, consider two years ago, when the screed was nearly as long. El Paso County Clerk & Recorder Bob Balink did an unscientific test and reported that an average voter would require 12 minutes in the booth — two minutes longer than allowed by state statute.

That’s right, there is a statute on the books that lets election officials kick voters out of the voting booth after 10 minutes, though Balink was hard-pressed to think of anyone who would actually enforce that rule.

In mid-September, Colorado Gov. Bill Ritter, a Democrat, joined a group of county clerks and recorders at a press conference designed to highlight the urgency that voters should vote early or by mail to avoid the kind of problems that resulted in long lines and voter frustration two years ago.

Notably absent was Coffman, a Republican and the official who is actually charged with pulling off the election, who is running to replace Tancredo in the heavily GOP 6th Congressional District south of Denver this year.

In retrospect, Coffman hasn’t had much of anything official to say to voters about the historic election just ahead — though he finally weighed in during a Channel 9 news report on Sunday night. In the report, he predicted the highest election turnout in state history.? “I’m stunned at the intensity of the voting registration drives,” Coffman told 9NEWS viewers.

And when it comes to the numerous controversies that have plagued the office he oversees over the past year, the secretary of state — in that office less than two years — has had noticeably little to say.

Consider the highlights:

• Last December the Colorado State Auditor issued a blistering report on the management of the Secretary of State’s Office under Coffman. As the Colorado Independent’s Dan Whipple reported, the auditor’s report found eight major areas of failures in the office, including duplicate voter registration records, voting by dead people and felons, failing to account for $445,000 in federal funds, and numerous conflict-of-interest violations among employees, at least some of which Coffman was aware of. The most widely covered conflict of interest was the allegation that former employee Dan Kopelman had used state voter data in an outside business, a political consulting website Political Live Wire, which serves primarily Republicans.

• In addition, Coffman was dinged for failing to disclose last year the conflict of interest between Phase Line, a political consultant Coffman employed for his congressional campaign who was simultaneously working for Premier Election Systems (formerly Diebold), the sole electronic voting system certified by the secretary of state.

• Then there was the electronic ballot machine decertification and subsequent recertification fiasco that stretched out over several months. Last Dec. 17, Coffman announced he was decertifying three of four types of election machines currently in use in all but 12 of Colorado’s 64 counties — including six of the state’s 10 most populous counties. In layman’s terms, Coffman declared that the electronic machines were unreliable and that they could potentially be hacked. The announcement left clerks and recorders across Colorado scrambling to figure out how they could possibly make necessary adjustments in time for this year’s August primary and November general elections. The day after Christmas last year, Coffman’s office announced his recommendation that voters cast paper ballots at polling places for the 2008 presidential election. Two months later, after the Legislature jumped in, Coffman recertified the machines, deeming them reliable after all.

• A month ago — just weeks before the election — Coffman’s state elections director, Holly Lowder, abruptly resigned amid an outside inquiry involving her longtime relationship with John Paulsen, who has received $183,800 in election-related contracts from the state of Colorado. Turns out, as the Rocky Mountain News reported, that Lowder also lived in a Denver condominium owned by Paulsen and that the two have shared the same phone number. Chantell Taylor, director of Colorado Ethics Watch, described Lowder’s behavior as possibly illegal. “It appears they’re violating, at a minimum, the state personnel and state laws regarding conflicts of interest — which calls into question all of the contracts that Paulsen has received,” Taylor said. Coffman did not respond directly, but the Rocky reported that officials from his office have asked the attorney general’s office for advice. Meanwhile, SOS spokesman Rich Coolidge reportedly called Taylor’s accusation “completely devoid of facts.”

Which brings us to today, Oct. 6 — the last day to register to vote — and the day marking two weeks before early voting begins in Colorado. Down the line — now including Coffman himself — election officials are urging people to vote from their couches or their kitchen tables.

“I am concerned, yes, I’m actually quite concerned,” says Ken Gordon, the Senate majority leader who lost to Coffman two years ago and is now one of the Democrats vying to replace him as secretary of state. (Coffman is expected to be a shoo-in in the heavily Republican congressional district, leaving Gov. Ritter, a Democrat, to name his replacement.)

“I’m telling people they should vote early, or vote by mail,” says Gordon. “The biggest danger is probably going to be on Election Day and the biggest way to avoid problems is to vote early.”

Says Eagle County Clerk & Recorder Teak Simonton: “We are limited by physical constraints, like parking, and by peoples’ levels of understanding for how they want to vote. No matter what we do, with such a lengthy ballot there will be lines.”

NOTE: Today is the last day to register to vote in the Nov. 4 election. To find out how to register, or to check on your voting status, call the Secretary of State’s Office at 303-894-2200 or go to govotecolorado.com.

On Monday, the Supreme Court announced its unanimous decision to lift the injunction, in place since last year, on the portion of the law that prohibits lawmakers and government workers from receiving gifts from lobbyists and others of more than $50.

The Supreme Court has not yet weighed in on the constitutionality of Amendment 41 — a broadly worded law that many critics contend would result in unintended consequences, including the children of government officials not being able to receive scholarships.

In lifting the injunction, the Supreme Court ruled that “Plaintiffs failed to present a ripe as-applied constitutional challenge to the Amendment’s gift bans because the Amendment’s ethics commission is not yet in existence, and it has not yet had the opportunity to implement the Amendment.”

In a statement, the plaintiffs, representing the group the First Amendment Council, expressed their disappointment:

With this decision there are no ‘winners,’ but there are hundreds and thousands of losers.

“The decision leaves every state and county employee, along with their families, in limbo. Every business and individual that contracts with the state will also continue to be uncertain as to what behavior is acceptable and what is not.”

Meanwhile, Jenny Flanagan, of Colorado Common Cause — which sponsored the original amendment — was clearly thrilled: “This is the second win for the voters,” Flanagan told the Denver Post. “They won in 2006 and they won again today.”

Senate President Peter Groff, meanwhile — who cosponsored legislation last year to set up the voter-mandated ethics commission — issued his own response to the ruling:

“As a lawmaker I respect the ruling of our state’s highest court, though I am disappointed that we are back where we started. However, SB07-210, which I sponsored with Senator [Andy] McElhany last year, created a commission that may now begin to answer some of the questions that surround the ambiguity of Amendment 41.”

However, the four members of the Independent Ethics Commission, which met yesterday afternoon, issued their own statement claiming the commission is not yet operational — and didn’t provide any indication of when it might be. Last April, the Colorado Senate selected Republican former Sen. Sally Hopper to the commission, and the Colorado House of Representatives subsequently selected Democrat Roy Wood to one of the slots.

In September, Gov. Bill Ritter picked Democrat Nancy E. Friedman as the third member of the commission, and in November, Colorado Supreme Court Chief Justice Mary Mullarkey named Republican former state Rep. Phillip M. “Matt” Smith to the fourth slot.

By statute the group must pick a fifth, unaffiliated committee member. But when and how that might happen was not apparent, from the formal statement, complete with the Colorado seal, that members issued on Monday following the ruling — on which two of the four committee members names were misspelled.

25 February 2008

The Colorado Supreme Court today issued its decision in the Developmental Pathways case and stated that the Independent Ethics Commission is not yet in existence until the fifth commissioner is appointed.

The Colorado Independent Ethics Commission, which is currently composed of four citizen volunteers, is working hard to select the fifth commissioner, to hire its Executive Director and to promulgate its rules. Until such time as the fifth commissioner is seated and the rulemaking on our complaint and advisory opinion procedures are in place, the Commission will not process complaints, requests for advisory opinions or letter rulings.

As to any complaints that the Commission may receive prior to such time, the complaining parties will be notified that their complaints will not be processed.

Nancy Friedman
Commissioner & Interim Chair

Sally Hoppner [sic]
Commissioner

Philip [sic] “Matt” Smith
Commissioner

Dr. Roy Wood
Commissioner

The announcement did not include any telephone numbers or contact information for who to call for additional information, including when the commission plans to be operational – and how members of the public should proceed with any complaints in the meantime. Subsequent efforts to reach committee members have been unsuccessful.

The ongoing absence is not lost on Chantell Taylor of Colorado Ethics Watch, whose organization is the only one so far to have filed a complaint with the commission, alleging conflict-of-interest charges against Secretary of State Mike Coffman. For months, Taylor’s group has been agitating for the committee to become operational. On Tuesday, Taylor criticized the commission’s own statement, claiming its nonexistence.

“They are conducting formal meetings and making formal actions and issuing formal statements on their letterhead announcing their nonexistence, and it’s an absurd position to take,” said Taylor.

“It’s a position of convenience — at least that’s my interpretation. They’re stalling so they can take time to be comfortable and fully prepared without being rushed — but here we are [a year and three months] after voters approved Amendment 41 and … they need to get up and running.”

Cara DeGette is a senior fellow at Colorado Confidential and a columnist and contributing editor at The Colorado Springs Independent. E-mail her at cdegette@coloradoconfidential.com