What does it look like when a government body debates and makes decisions in a closed-door executive session? Pretty much the same as it would in public — which the law requires — except that only the meeting’s participants get to see what went into the decision.

For most of its existence, Colorado’s Independent Ethics Commission retreated behind closed doors to talk about the ethical quandaries it had to decide, only to emerge with fully formed decisions that almost always won swift, unanimous approval in a public vote. It was clear the commission hashed things out in secret — because no discussions about the ethical opinions the panel issued took place in public — but until the ethics commission released recordings of its executive sessions to The Colorado Independent as part of an open meetings lawsuit, it was unclear how this happened.

First, though, why does this matter? Colorado Open Meetings Law requires public officials to conduct business in public, carving out very specific exceptions for topics that can be discussed behind closed doors. In general, the law forbids government bodies from convening in private to make decisions — except about narrowly defined topics, such as lawsuit strategies and negotiating positions on land deals, among others.

“To deliberate behind closed doors and issue a ruling — that’s an obvious, plain and unambiguous violation of the Open Meetings Law,” Denver media attorney Steve Zansberg told The Colorado Independent in an earlier interview. “Even if it’s properly convened, they cannot reach a decision, they cannot adopt a position in executive session.”

Zansberg’s law partner, Christopher Beall, is representing the Independent in its lawsuit alleging the ethics commission repeatedly violated open meetings law.

Near the end of the four hours and 20 minutes the commission met behind closed doors on March 19, commissioners forge toward consensus on an ethical question posed by state lawmakers: Do expenses paid by inter-governmental groups fall inside or outside a constitutional ban against gifts to public officials?

In the fourth clip from the March executive session, the discussion lasts one hour, 13 minutes. It’s almost solely devoted to the lawmakers’ question, which the commission still hasn’t answered yet, at least not in public. The commission considers two requests for an opinion, one from the General Assembly and the other from state Sen. Greg Brophy. Does the National Council of State Legislatures and the American Legislative Exchange Council’s designations as “joint governmental agencies” means the groups can pick up the tab for conferences or is that contrary to provisions of Amendment 41?

Here’s the audio from the fourth portion of the March 19 Independent Ethics Commission meeting. To download the mp3 file, right-click on the link. Listen to the recording here:

It’s a thorny question and one that goes to the heart of a central dilemma the commission has faced trying to interpret the sweeping ethics law passed by voters in 2006. When is a payment considered a gift to the state, which is allowed, and when is it a forbidden gift to the individual public official?

After debating the question for close to an hour, commissioners zero in on decision time.

“We have been worrying over this for probably nine or 10 months now, and it is time to give birth to an opinion,” commission chairwoman Nancy Friedman says. “So let’s just decide where we want to go and get this thing out.”

She puts it to her fellow commissioners. “We have to just make a decision,” Friedman says.

“But we can’t decide!” commissioner Sally Hopper exclaims.

“All we have to do is vote,” commissioner Roy Wood remarks.

Then there’s some back-and-forth about whether the commission wants to answer the General Assembly’s or Brophy’s question, or to tackle one head-on and address the other in a footnote. Maybe the commission can answer Brophy’s question in a letter — which would be subject to a Colorado Open Records Act request but otherwise not announced — and put it in a drawer rather than issuing a public opinion. Eventually, Friedman proposes a solution.

“OK. Everybody agree?” Wood asks. Murmurs of assent.

The commission moves into more detailed discussion about definitions and considers how some other states have handled the question.

As the commission prepares to conclude its closed-door meeting and move back into public session, Friedman asks the commission if they’ve reached agreement. They have.

“Where we are is that we’re just doing those three [particular inter-governmental agencies], we’re answering the General Assembly, and we’ve decided that those three are governments,” she says. “Is that where we are?” Hearing no objection, the conversation plunges ahead.

After some brief discussion, Hopper and commissioner Matt Smith propose a way for the panel to approach the commission’s ruling. They are answered with a chorus of “yeah” from the other commissioners.

Problem solved, decision made. Except that this decision would be either short-lived or still-born — more than five months later, the commission still has yet to issue a public ruling on the question. If the March 19 discussion had taken place in public, someone might have asked what happened to the decision, but since no one outside the commission knew about it until this week, no one has.

Listen to more recordings of the ethics commission’s closed-door meetings here.

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As a high-powered lawsuit challenging the constitutionality of the amendment wends its way to court, detractors and supporters are pleading their cases in the court of public opinion, underlining the fact that the showdown over 54 is just the latest skirmish in a larger battle over the evolution of lawmaking at the ballot box instead of at the Legislature.

Critics of Amendment 54, including the attorneys who filed the suit against it last month, say its sprawling reach is a product of the sloppy approach its authors took in drafting it and of the inadequacies of the ballot-initiative process to make laws.

Supporters dismiss those arguments as a misreadings of the amendment or as artful maneuvering. They say the so-called clean-government amendment is a powerful weapon in the fight to combat pay-to-play-style government corruption, the sort that made national tabloid-style news with the indictment of impeached Illinois governor Rod Blagojevich, who allegedly traded state work contracts as well as political positions for campaign contributions and other favors.

Amendment 54 outlaws campaign contributions made by individuals with ties to government contracts, as well as contributions made by their family members.

Yes, that’s the most basic reading and that’s why voters supported it, says Doug Friednash, who with lead counsel and Colorado constitutional lawyer Jean Dubofsky, represents one group of plaintiffs challenging the amendment. “We understand why contributions should be limited. There’s no argument there,” he adds, but this amendment is “so loose, so sloppily drafted,” that it demonstrates the deep flaws in the initiative process to make laws and calls into question the motivation of its authors.

“When you look at how other states address pay-to-play kind of corruption, this amendment looks more like a political missile than something designed to address a serious public policy issue,” says Friednash. “People say it was designed to hit unions. That may well be true, but it does a lot more than that. Look at Connecticut. They dealt with the pay-to-play issue by drafting a tight law that was upheld in federal court. [Connecticut] Governor Rowland’s conviction on corruption stands as a result. But 54 wasn’t drafted narrowly like that to serve a compelling state issue.

“If you’re on a Denver nonprofit board that has a government contract and your brother runs for city council in Rifle, you can’t contribute to his campaign, even though there’s no connection to any of the contracts your nonprofit may be bidding for. … That kind of complication will just expand.”

Once again, a voter-approved Colorado amendment winds up in court
Friednash says the case will likely not be heard for some months, but he is in the process of filing a complaint requesting the court to grant an injunction against implementation of the laws that Amendment 54 puts into effect.

The plaintiffs — including the University of Denver; Pat Hamill, president and CEO of Oakwood Homes and a member of the DU board of trustees; Dan Ritchie, DU chancellor emeritus and chairman and CEO of the Denver Center for the Performing Arts; Denver City Councilman Charlie Brown; and the Children’s Hospital — argue that the amendment violates rights to free speech and association and have received funding for the suit from the nonprofit Colorado Preservation Council, a group organized specifically to oppose the amendment. A second lawsuit arguing similar constitutional violations is being pursued by public employees and trade organizations representing teachers and firefighters.

Gov. Bill Ritter and the executive director of the Department of Personnel and Administration are the defendants in the case.

Tom Lucero, former campaign manager for Clean Government Colorado, the political committee behind the Amendment 54 ballot initiative, and now a candidate for Colorado’s 4th Congressional District, says descriptions of the amendment language as “sloppy” are a red herring, and legal challenges to the amendment were fully expected and merely point to its power to address the problems it was designed to address.

“The language of the amendment was modeled after laws made to address this kind of corruption in other states,” he says, “like those in Connecticut and New Jersey and others. This kind of [legal] fight is not unique to 54, but the courts have all found in favor of those laws.”

Lucero says the Colorado Attorney General’s Office agrees with him that the language of the amendment works. (At press time, the attorney general’s office had yet to respond to requests to confirm the meeting and to comment on Lucero’s interpretation of events.)

“I was called to the AG’s office to walk through the language, and the fact is [AG John Suthers] agreed with me that the amendment does what it says it would do. The matter of constitutionality that they are raising is addressed in the language of the amendment. The attorney general agrees that protected expression is not restricted [by the amendment], that relatives [of people connected to state contracts] are not restricted.”

Central to the lawsuit challenging 54 is the contention that the amendment fails to take into account both the reality of some government contracting and the web-like relationships that define life in any complex society.

“Look at Children’s Hospital,” says Friednash. “The hospital provides care to children on Medicaid, which qualifies as a sole-source state contract. The hospital board raises funds for the hospital. If any board members or other funders also donate money to an election campaign, then Children’s loses the right to treat patients on Medicaid — even though Children’s Hospital is the only place that provides those services.

Lucero believes this line of attack is simply a misreading, maybe innocent, maybe not. Again he points to the maligned language of the initiative.

“The amendment clearly states the government has to solicit three bids. It doesn’t say it has to receive three bids, just solicit three bids… If the government solicits but fails to receive three bids, say, on Medicaid, then Children’s Hospital is unaffected.”

Are ballot proponents acting as an unelected and unaccountable shadow government?
The frustrations generated over the ambiguities of interpretation at the heart of the battle over 54 are intensified by the sense that the debate is part of a larger high-stakes contest over the way we make laws in our country — in other words, over the future workings of our democracy.

According to the bipartisan National Conference on State Legislatures (NCSL), the number of initiatives that have appeared on ballots has doubled from roughly 30 in the 1970s to 60 in the 2000s and that the number has soared since the 1990s. In the past decade, Colorado has joined California and Oregon as a top spot for initiatives. The Colorado ballot last November was the longest in the country, brimming with 14 initiatives, all of them, like 54, proposed constitutional amendments.

The NCSL argues that, despite recent efforts, outdated laws governing the initiative process render it ripe for abuse. The work of gathering the signatures required to place initiatives on ballots, for example, is dominated by a few professional firms with staff who move freely across state lines and who aren’t always required to register in the state they’re working, which makes them almost impossible to prosecute for fraud. Likewise, the people funding initiatives can use tax laws to avoid scrutiny of themselves and their motives, working in effect as anonymous legislators, as was the case with Amendment 54. As The Colorado Independent reported in the fall, the group behind Lucero’s Clean Government Colorado was a nonprofit called Colorado At Its Best, which gave more than $2 million to the campaign and whose members remain anonymous still.

The initiative process is celebrated by supporters as being a less bureaucratic more democratic approach to governance, one that depends directly on the people. But critics see the fact that we are moving away from long-standing congressional procedures toward anonymously funded, loosely regulated law-making operations as a red flag.

“Granted there are a lot of flaws in the legislative process but, as the case [against 54] demonstrates, it’s better than making law with amendments,” says Friednash. “In the Legislature there is a clear and established process of review. Whereas the process to get an amendment on the ballot includes minimal review, and once an amendment passes we’re stuck with it. We have to deal with it.”

Critics of 54 all point to one glaring example of the sloppiness of the initiative language. In attempting to define “family members,” the amendment includes aunts but not uncles. Friednash says a “slip like that would have never happened” in Congress. “Someone somewhere along the line would have pointed out that we have to include uncles as part of the family.”

He says this kind of basic proofreading mistake underlines the fact that it’s not our job as citizens to review the language of laws for errors and constitutionality. “We see the title on the ballot and follow our instincts,” he says.

In Colorado, ballot initiatives are subject to a legislative council hearing and then pass before the Title Board, which consists of representatives from the offices of the secretary of state, the attorney general and the legislative council. The main thrust of these reviews is to determine whether the ballot addresses a single subject and whether or not the title of the amendment is misleading.

Colorado Democratic Rep. Andy Kerr worked to pass a referendum in 2008 that would have made it more difficult to include constitutional amendments on the ballot. His initiative, however, failed to pass.

Lucero says the campaign for Amendment 54 was well underway last spring when he was asked to join. “The thinking behind [passing the law as a ballot initiative] was that they didn’t want the language watered down by the legislative process,” he says.

Yet it was the legislative process that created the laws Lucero says Amendment 54 is based upon and that have held up under repeated legal challenges, laws Friednash described as “tight” and “narrowly drafted to serve a compelling state issue.”

That’s not what the Amendment 54 people have created, says Friednash, adding that what they’ve mostly created is fertile ground for continuing legal battles.

“I’ve worked on a lot of these suits… with [Colorado] Amendments 41 and 42 on the books and with the onslaught of amendments that have appeared in recent years,” Friednash deadpans. “There will be no shortage of work for me.”