Moonlighting criticism in Colorado secretary of state race raises new questions about an old practice

Republican Secretary of State Wayne Williams’s recent acknowledgement that he spends up to 15 hours a week moonlighting as a private attorney has come under fire from his Democratic rival for office and from watchdogs who warn of potential conflicts of interest. The campaign flap renews a conversation about the ethics of statewide office holders working side jobs.

Williams’s moonlighting has included the defense of clients before the Colorado Civil Rights Commission against accusations of illegal discrimination as defined by the state Williams was elected to represent. 

“Generally, the preference of the rules has been that once you become an elected official of this kind of stature, that you basically would wrap up your legal practice,” said Charles Norton, a veteran trial lawyer who has taught a constitutional law course at the University of Colorado Denver for 25 years. “Because one of the problems is that you can be seen as using your elected office to promote business for your firm.”

Another question, he added, is the appearance of a conflict of interest caused by working for an undisclosed client. In the past, candidates who were elected to a full-time statewide office quit their private businesses — not just law firms — to avoid the appearance of potential impropriety, Norton said.

Williams is not the first statewide elected official to moonlight. State Treasurer Walker Stapleton, this year’s Republican nominee for governor, took office in 2011 and continued to work as a consultant for Sonoma West, a real estate company that Securities and Exchange Commission documents show he previously ran. 

Also in 2011, Williams’s predecessor, Scott Gessler, said he planned to continue doing side work for the Hackstaff Law Group after he took office, but Gessler ultimately scrapped the idea when the firm said it had reservations about clients’ privacy. It also posed a potential minefield of conflicts of interest since the firm also was known for its work in election and campaign law, precisely the area Gessler was elected to oversee.  Also, during that same period, then-state Attorney General John Suthers taught two university classes, boosting his income by about $20,000 to $30,000 a year. 

During a Sept. 8 debate before Club 20, the Western Slope civic group in Grand Junction, Williams told his Democratic challenger, Jena Griswold, that he has continued to practice employment law on the side to augment his $68,500 state salary.

“Do you believe that Coloradans deserve a full-time secretary of state?” Griswold asked him.

“I do, and they have one,” Williams responded, adding that when he first ran for office he was open about the fact that he would continue his private practice, which brings in upwards of $20,000 per year, according to his 2015 and 2016 tax filings. His private law practice, he says, does not infringe on the 50 to 60 hours a week he spends fulfilling the duties of his public office.

In a follow-up interview with The Colorado Independent, Griswold, who has vowed not to take on any outside work if she becomes Colorado’s next secretary of state, doubled down on her criticism of Williams, saying his 10 to 15 hours a week at his private practice add up to 60 hours a month — too much distraction, in her opinion.

No laws against moonlighting

In Colorado, there is no law precluding elected officials from holding side jobs to augment their income. A Feburary 2008 brief from the Denver-based National Conference of State Legislatures on the issue of dual employment notes that Colorado not only allows elected officials to do private-sector work on the side but also places no restrictions on such work.

Complicating things, what’s ethical and what’s not is often a question of guidelines rather than set rules and requires a case-by-case analysis. The Colorado Revised Statutes, in Title 24 Sections 105 and 110, states that the voluntary disclosure of a private interest does not necessarily constitute violations of the public trust.  

Court records provided to The Colorado Independent by Griswold’s campaign underscore the murkiness of how outside work has the potential to conflict with an office holder’s official duties.

The documents detail Williams’s defense of Belvedere Holdings, a Colorado Springs-based landscaping company facing a wrongful termination suit in Colorado’s U.S. District Court involving claims of an Americans with Disabilities Act violation. A clerk for the court confirmed to The Indy the existence of the ongoing case against Belvedere and the involvement of the Law Offices of Wayne Williams as counsel for the defendant.

Belvedere’s president is William Johannsen, who according to campaign finance reports filed with the secretary of state’s office has made three donations totaling $900 to Williams’s reelection campaign within the last year.

Williams’s campaign told The Independent that nothing in the case’s substance overlaps with the official duties of the Secretary of State’s office, which include overseeing elections as well as business and charity licensing.  

But Griswold argues that the moonlighting gig creates conflicts in how Williams manages his time. A scheduling and planning conference in the Belvedere case, for example, was slated for Oct.  2, 2018, at 9.45 a.m., during the secretary of state’s office hours.

“Do you work for Belvedere Holdings, or do you work for the people of Colorado?” Griswold asked at the Club 20 debate. “I personally don’t think you can ethically do both.”

Williams’s spokesperson, Lynn Bartels, strongly dismissed questions from camp Griswold about whether scheduling conflicts have affected Williams’s ability to serve as secretary of state.

“You would not believe the hours and weekends he is working,” she said. “He can’t book an hour for a personal thing?”

Bartels shed light on Williams’ schedule, including the secretary’s attendance at a Colorado Remembers 9/11 event that ended at 9 p.m., as well as an interview at the TV studios of KUSA 9News on a recent Tuesday to talk about National Voter Registration Day — at 6.15 a.m.

“Being an elected official is not a 9-to-5 job,” Bartels said in a follow-up email. “You work all kinds of hours, and the taxpayers have certainly gotten their money’s worth with Secretary Wayne Williams, who is always available and has the experience to make a quick decision when necessary.”  

‘The details matter’

Watchdog groups aren’t totally sold.

“The first issue is whether or not the person has the capacity — secretary of state and other offices are full-time-plus jobs,” said Amanda Gonzalez, executive director of the government watchdog organization Common Cause Colorado. The next question, she says, is whether the nature of that work is related to their public position. “If we are talking about a secretary of state, then if it is work that doesn’t have to do with elections or regulating charities or business, then we might not have an ethical issue. The details matter.”

Gonzalez said she also reviewed the independent Ethics Commission’s opinions on conflicts of interest.

“It’s unfortunate that they do not have an advisory opinion on potential conflicts that could arise from the representation of clients by attorneys who are elected officials,” she said. “This is a piece of clarification that would be useful to have.”

Williams’s campaign staff dismisses any potential for conflict of interest.

“During the time he has served as Secretary, he has never, and will never represent any client in matters before the office so there is nothing to disclose,” Ryan Lynch, a senior consultant for Williams’s reelection bid, wrote in an email.

To Griswold, Norton and others, not knowing what other clients Williams is representing — “the details,” as Common Cause’s Gonzalez put it — makes determining whether there is a conflict of interest nearly impossible. Instead, they argue, voters are left with taking Williams’s word for it.

Matt Arnold, director of the Denver-based Campaign Integrity Watchdog and a transparency advocate who has filed multiple campaign finance violation lawsuits against Williams’s office in the past, echoed Griswold’s criticism of the moonlighting.

“If you are doing any [outside] time whatsoever on your taxpayer-funded job, that’s a problem.” he said. “It is an ethical issue. But I think the vastly more important part of this is the lack of disclosure. Wayne Williams is doing legal work for clients who may be affected by his taxpayer-funded job.”

Such an arrangement could present a “serious conflict of interest,” Arnold added.

Griswold, in her interview with The Indy, called the Secretary of State’s compensation “a good salary” and said she believes additional income “is one of the things that you forgo if you decide to represent the people of Colorado in your exclusive time when you decide to run for one of the [statewide executive] offices.”

Norton went a step further, saying he found Williams’s outside employment “shocking.”

Williams’s campaign accuses Griswold of hypocrisy

Williams’s campaign has responded to ethics criticism from Griswold by questioning her own transparency and accusing her of hypocrisy. “When she announced she was running for secretary of state, she refused to name her clients or even her employer,” wrote Lynch, Williams’s advisor.

“This is the latest example of Jena Griswold’s pattern of ‘Do what I say, not what I do,’” he added. In an interview with The Denver Post in the summer of 2017, Griswold, a lawyer herself, declined to name a company she worked for as outside counsel in addition to her job with her public policy firm, Griswold Strategies.

Chris Griswold, a campaign spokesman and the candidate’s brother, responded by noting that unlike people in the public sector, those in the private sector have no expectation of disclosure: “Jena has had private clients in the past, which is appropriate for a private citizen, but not for a statewide elected officeholder.”

For veteran lawyer Norton, the case is clear. He said, “Frankly, if these folks think they aren’t being paid enough, they should seek a pay increase through the General Assembly and not moonlight.”