gessler's petition for certiorari vs. independent ethics commission

8/20/2019 Gessler's Petition for Certiorari vs. Independent Ethics Commission

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SUPREME COURT, STATE OF COLORADO

2 East 14th Avenue

Denver, CO 80203

On Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 14CA0670

SCOTT GESSLER, individually and in his official

capacity as Colorado Secretary of State,

Petitioner,

v.

DAN GROSSMAN, SALLY H. HOPPER, BILL

PINKHAM, MATT SMITH, and ROSEMARY

MARSHALL, in their official capacities as

members of the Independent Ethics Commission,

and the INDEPENDENT ETHICS COMMISSION,

Respondents.

COURT USE ONLY

Case No.: 2015SC462

MICHAEL FRANCISCO, Special Asst. Att’y Gen.

MICHAEL R. DAVIS, Special Asst. Att’y Gen.

3301 West Clyde Place

Denver, CO 80211

Telephone: 303-325-7843

Email: [email protected], [email protected]

Registration Numbers: 39111, 39788

PETITION FOR WRIT OF CERTIORARI

TO THE COLORADO COURT OF APPEALS


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ISSUES PRESENTED

Colorado voters created the Independent Ethics Commission (IEC) to

protect against the potential for interest groups or individuals to buy

access or influence government actors by giving them gifts or other

things of value. In the years following Amendment 41’s passage,

however, the IEC has expanded its mandate by decreeing itself the

authority to oversee almost all aspects of public officials or employeescompliance with any law or regulation, including in this case the use of

discretionary public funds. Also in this case, the IEC provided the

defendant with insufficient pre-hearing notice of the charges against

him and threatened to add additional charges after the hearing.

The questions presented are:

(1) Does the IEC have jurisdiction under the phrase “any

other standards of conduct” in Colo. Const. art.

XXIX(5)(1) to penalize any public employee for

violating any Colorado law?

(2) Is the phrase “other standards of conduct” in Colo.

Const. art. XXIX(5)(1) unconstitutionally vague?

(3) Does procedural due process require pre-hearing notice

to explain how laws are violated, or may notice simply

list laws and reserve the right to add charges after the

hearing?


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OPINIONS BELOW

The court of appeals opinion is attached as Appendix A and can be

found at Gessler v. Grossman, __ P.3d __, No. 2015 COA 62 (Colo. App.,

May 7, 2015). The district court order and IEC order are attached as

Appendix B and C, respectively.

JURISDICTION

The court of appeals issued its opinion on May 7, 2015. No petition

for rehearing was filed. This Court has granted extensions of time to

seek certiorari through August 10, 2015.

STATEMENT OF THE CASE

Amendment 41 proposed a new article (XXIX) to the Colorado

Constitution entitled “Ethics in Government.” The ballot title described

the Amendment as prohibiting “persons who are professionally involved

with government activities” from “soliciting or accepting certain

monetary or in-kind gifts,” prohibiting lobbyists from giving “anything

of value,” prohibiting revolving-door representations for two years,

establishing penalties, and setting up a commission. The Amendment

applies broadly to all state government employees, all county and

municipal government officials, and lobbyists, government contractors,


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public officers and members of the General Assembly. See Article

XXIX(2).

Colorado’s four statewide elected officers have long received a modest

appropriation from the “Elected state officials – discretionary funds”

statute to use as they “see fit” for the pursuit of “official business.”

C.R.S. § 24-9-105. The funds are subject to annual appropriation,

legislative review and audit, as well as review from the StateController. Colorado Secretaries of State have used the funds for a wide

variety of activities, including cocktail receptions for county clerks,

personal clothing, overseas travel, and taking the amount as W-2

income, all without incident. [AR p.1070].

This case arises out of the IEC’s imposition of a penalty on the

Secretary of State for how he chose to use portions of the discretionary

fund. In 2012, the Secretary gave a presentation on election law at a

national election law CLE conference hosted by the Republican

National Lawyers Association (and accredited by this Court’s CLE

Board). The Secretary also drove his personal vehicle around the state

for official business. He received reimbursement of $1278.90 for the

CLE conference and $117.99 for mileage from the statutory

discretionary fund.


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From these mundane facts, Colorado Ethics Watch filed both a

criminal complaint and a complaint with the IEC. The Denver District

Attorney declined to file charges, but the IEC engaged in a vigorous

investigation, which culminated in an 11-hour hearing. The Secretary

testified extensively at the hearing about the election law conference,

his presentation, and how the legal issues related to his duty as the

Chief Election Officer for Colorado, all without rebuttal. The IEC

ultimately found the Secretary violated the discretionary fund statute

and imposed a penalty of $1,514.88. The Secretary appealed to the

District Court in Denver and then the Colorado Court of Appeals.

In a published opinion, the Court of Appeals ratified the IEC’s

unbounded view of its own jurisdiction, holding that the Commission is

empowered to investigate and enforce private complaints regarding any

“law[] already in existence,” 2015 COA 62, ¶ 16, and upheld the penalty.

This petition followed.


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REASONS TO GRANT THE WRIT

I.

THE EXPANSION OF THE IEC’S JURISDICTION TO ENCOMPASS

EVERY STATE LAW OR RULE PRESENTS A NOVEL QUESTION OF

SUBSTANCE THIS COURT SHOULD REVIEW .

In a case of first impression, the Court of Appeals endorsed an

expansive theory of commission jurisdiction that must be reviewed to

protect the tens of thousands of government employees whose every

action may now be subject to scrutiny by the IEC. This substantial

jurisdictional question has not yet been decided by this Court.

A.

The fears of IEC overreach that this Court did not reach in

Developmental Pathways v. Ritter , 178 P.3d 524 (Colo. 2008),

are now ripe for review.

Shortly after the voters of Colorado passed Amendment 41 this Court

took up a case concerned with ways the IEC, once constituted, might act

to chill the free speech of government employees. Developmental

Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). The petition there raised

several constitutional objections to the IEC’s potential jurisdiction over

the gift ban provisions in Article XXIX. The Court did not reach these

critical issues, however, because the case was not ripe:

[I]n actuality, no enforcement or threat of enforcement of the

gift bans has occurred. It is the Commission that will

implement the Amendment and develop rules to guide the

enforcement of the gift bans. Perhaps, in the future, there


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may be truth to the concerns expressed by Plaintiffs, but

that is for the Commission to consider as it enforces the

Amendment, not for this court at this time.

Id. at 534-35. The time has now come. The IEC continues to exercise

jurisdiction in a growing number of non-gift ban cases. This represents

profound mission creep. Relying on a little-noticed phrase in Article

XXIX, “other standards of conduct and reporting requirements as

provided by law,” the IEC claims it can penalize any government

employee for any conduct that is referenced in any Colorado statute.

This jurisdictional expansion has reached its apex in this case.

The fears in Developmental Pathways have proven justified. The

IEC’s assertion of unlimited jurisdiction – and the Court of Appeals’

ratification of that view – amplifies the concerns that this Court was

jurisdictionally prevented from addressing in Developmental Pathways.

Presented with a well-developed record in a fully justiciable case, this

Court now has a sound vehicle to review novel questions of importance

that have so far evaded review.


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B. The voters intended the IEC to focus on Article XXIX’s gift

ban and influence peddling provisions; not to broadly

police all laws as “other standards of conduct.”

The IEC’s practice of asserting jurisdiction over every conceivable

law under “other standards of conduct” goes well beyond the intent of

the Colorado voters who created the IEC. The commission was always

understood to have jurisdiction over the carefully meted gift limitations

in Article XXIX(3). See generally 2006 Bluebook, p.9-11 (“Amendment

41 expands the current prohibitions to cover other gifts and things.”);

Davidson v. Sandstrom, 83 P.3d 648, 655 (Colo. 2004) (looking to

Bluebook for voter intent in case of ambiguity). Importantly, the

General Assembly endorsed this view in the session immediately

following the adoption of Article XXIX. See Zaner v. City of Brighton,

899 P.2d 263, 267 (Colo. App. 1994), citing Denver v. Board of Comm’rs,

77 P. 858, 861 (Colo. 1904) (“While it is not conclusive with the courts,

nevertheless a contemporaneous legislative construction of a statute or

constitutional provision is persuasive.”).

The IEC’s enabling statute requires “the commission [to] dismiss as

frivolous any complaint … that fails to allege that [a covered individual]

has accepted or received any gift or other thing of value for private gain

or personal financial gain.” C.R.S. § 24-18.5-101(5)(a). The definitions of


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“private gain” and “personal financial gain” make clear the General

Assembly’s view that Article XXIX was focused on influence peddling:

“‘Private gain’ or ‘personal financial gain’ means any money,

forbearance, forgiveness of indebtedness, gift, or other thing of value

given or offered by a person seeking to influence an official act…” C.R.S.

§ 24-18.5-101(5)(b)(II) (emphasis added). Thus, a covered gift must come

from someone outside government, seeking to influence government

with that gift. By way of contrast, moneys appropriated through the

legislative process, coming from government, and directed for a

particular government use, are not a thing of value coming from

someone outside government.

As the Secretary argued below, the IEC’s asserted basis for

jurisdiction in this case, “other standards of conduct and reporting

requirements as provided by law,” is best interpreted as providing the

General Assembly with the ability to carefully and prospectively expand

the mission of the IEC by “providing by law” for specific provisions to be

enforced by the IEC. The IEC has consistently refused to offer any

limiting interpretation; claiming instead that any law or regulation falls

within its purview. This troubling jurisdictional claim has never been

tested or verified in court – until now. This Court should grant


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certiorari to consider whether the IEC’s jurisdiction extends beyond the

gift ban contained in Article XXIX.

C. Without review, the IEC will continue to act under the

theory that “other standards of conduct” provides

unbounded jurisdiction.

In the wake of the rulings below, the IEC has no functional

jurisdictional limits. The District Court and Court of Appeals both

affirmed the IEC’s broad theory of jurisdiction, whereby the IEC

exercises review over such minutiae as whether receipts returned for

mileage reimbursement by a government employee were timely (an

actual basis for imposing a penalty against the Secretary in this case).

The District Court, for example, admitted that the “other standards of

conduct” wording “appears vague,” but it went on to dismiss the

Secretary’s concerns because the term “other standards” is qualified by

the words “provided by law,” and thus “the IEC can only prosecute

public officers who have violated applicable legal standards.” App. B, 3.

This “limiting phrase” provides no limit – any law can easily qualify.

Unable to defend the District Court’s tautological theory, the IEC

relies on ipse dixit. Laws proclaimed by the IEC to fall within

“standards of conduct” thereby fall within the IEC’s jurisdiction. A


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partial list of “other standards of conduct” that the IEC has ruled upon

demonstrates the extraordinary breadth of its claim:

Subject Law / Rule IEC Action

Personnel Board Rules 4 CCR 801, Rule 1-11 (Compl. 08-01);

First Degree Official

Misconduct

C.R.S. § 18-8-404 (Compl. 08-01)

Second Degree Official

Misconduct

C.R.S. § 18-8-405 (Compl. 08-01)

Election Offenses; Violation

of Duty

C.R.S. § 1-13-107 (Compl. 08-01)

Public Official Disclosure

Law; Disclosure--Contents

C.R.S. § 24-6-202 (AO 09-06)

Public Official Disclosure

Law; Reporting by

incumbents and elected

candidates--gifts, honoraria,

and other benefits

C.R.S. § 24-6-203 (AO 10-18);

Governor-Elect--Transition

to New Administration

C.R.S. § 24-8-101 (AO 10-18);

Code of Ethics C.R.S. § 24-18-101 to

113

(AO 09-06)

Public Trust; Breach of

Fiduciary Duty

C.R.S. § 24-18-103 (AO 11-11); This

case

Rules of conduct for allpublic officers, members of

the general assembly, local

government officials, and

C.R.S. § 24-18-104 (AO 09-06)


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employees

Ethical principles for public

officers, local governmentofficials, and employees

C.R.S. § 24-18-105(2),

(3)

E.g. (Compl. 10-

6)

Rules of conduct for public

officers and state employees

C.R.S. § 24-18-108(2)(d) (AO 11-11)

Rules of conduct for local

government officials and

employees

C.R.S. § 24-18-109 E.g. (Compl. 11-

03)

Proscribed Acts Related to

Contracts; Interests in

Contracts

C.R.S. § 24-18-201 E.g. (LR 10-06)

State Personnel System

Act; Prohibited Activities of

Employees

C.R.S. § 24-50-117 (Compl. 08-01)

Discretionary Fund C.R.S. § 24-9-105 This case

State Fiscal Rules 1 CCR 101 et seq. This case

Embezzlement of PublicProperty C.R.S. § 18-8-407

This case

Abuse of Public Records C.R.S. § 18-8-114 This case

Control System to Be

Maintained

C.R.S. § 24-17-102(1),

(26)

This case

See [AR p.624-25]. The only apparent limit on what constitutes “other

standards of conduct” is the creativity of those who file complaints with

the IEC.


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The Court of Appeals opinion did nothing to cabin the IEC’s theory of

jurisdiction. Similar to the District Court, the opinion interprets “as

provided by law” to mean simply “laws already in existence.” 2015 COA

62, ¶16. If not addressed by this Court, the IEC will have free rein to

hear any and all complaints brought before it as a “standard of

conduct.” Attempts by the accused employees or officials to have

complaints dismissed will, no doubt, be met with appeals to the Gessler

v. Grossman opinion as proof that the IEC has unlimited jurisdiction.

D. The IEC’s claim of jurisdiction over the discretionary fund

statute proves the dangers of unchecked IEC jurisdiction.

The IEC’s claim to have jurisdiction in this case demonstrates the

problems with allowing the IEC to operate under the no-limits theory of

jurisdiction.

1.

The IEC should not be given jurisdiction over

compensation from the discretionary fund.

Under Article XXIX, the IEC cannot police the compensation of

public officials or any other state employee. Article XXIX(1)(d) (“…other

than compensation provided by law…”). The discretionary fund is

compensation. All of Title 24 Article 9 concerns compensation. Yet,

despite the fact that compensation is beyond the purview of the IEC, it


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deemed compliance with the discretionary fund statute to fall within

the “other standards of conduct” language of Article XXIX.

Interpreting Article XXIX as encompassing the discretionary fund

statute not only exceeds the gift-ban mandate already discussed; it also

runs counter to Amendment 41’s express goal of ensuring that “specific

standards” will be available to “guide [public officials’] conduct.” Article

XXIX(1)(e). The IEC wrongly substituted its own judgment for that ofthe Secretary, who is given legally conclusive judgment in the

discretionary fund statute. In addition, there are multiple, longstanding

levels of oversight for the use of public funds, including annual

appropriation, legislative audit, and ultimately grand jury actions.

C.R.S. § 16-5-205.5(5)(a)-(d) (grand jury authority oversight for public

funds). The Secretary’s use of public funds was thoroughly overseen

(including by a grand jury that cleared his use of the funds). The IEC

thus, without legal warrant, substituted its own judgment and

oversight for these processes.

If the IEC can quibble with the details of how a $5,000 appropriation

of public funds are expended, there is nothing to stop it from sitting in

judgment over every expenditure of the more than $25,000,000,000


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annually appropriated in Colorado. The authority to judge the drop

entails the authority to judge the entire bucket.

2.

The IEC’s own decisions based on “other

standards of conduct” jurisdiction are

irreconcilable.

The facts of this case mirror those the IEC considered in Advisory

Opinions 14-10 and 14-13, in which the IEC advised the Secretary and

Deputy Secretary of State that attending the 2014 RNLA was entirely

ethical. In those later actions the IEC officially affirmed the value of the

RNLA national election law conference specifically for the Secretary of

State:

Among other things, the Secretary of State is charged by statute

with the duty to enforce the provisions of Colorado’s elections

code, supervise the conduct of congressional vacancies and state

wide ballot issues in Colorado, to serve as the chief state election

official under the federal law “Help America Vote Act of 2002”, to

coordinate Colorado’s responsibilities under the federal “National

Voter Registration Act of 2002”, to promulgate rules for the proper

administration and enforcement of Colorado’s election laws and to

review practices and procedures of county clerk and recorders and

election officials in the conduct of congressional vacancies and the

registration of electors in Colorado. § 1-1-107, C.R.S.

AO 14-13.


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There is no justification for finding the Secretary’s attendance at

the 2012 RNLA unethical, while almost simultaneously declaring his

attendance at the 2014 RNLA ethical. The inconsistent conclusions

stand as proof that the IEC cannot reliably and consistently enforce

“other standards” beyond the intended areas of the gift ban.

3.

The IEC’s mishandling of the Secretary’s mileage

reimbursement highlights the risk of broad IEC

jurisdiction.

The Secretary’s use of discretionary fund dollars to be reimbursed for

official state travel cannot, as a matter of law, be unethical. The

Secretary saw fit to use $117.99 of the $5,000 discretionary fund for this

undeniably legitimate purpose. The IEC had no legal basis to substitute

its own judgment on this matter.

According to the IEC, the mileage request was originally made

“without any documentation or detail of expenses” and was thus “not in

pursuance of official business but was personal in nature.” [CF p.880].

But the IEC conceded the Secretary traveled hundreds of miles on

“official business,” without previous reimbursement. It also conceded

the Secretary subsequently submitted a memorandum reflecting the

miles driven in support of his request for the $117.99 (the memorandum


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reflected $616 of unreimbursed miles driven). The Colorado State

Controller even testified that receipts were not strictly required. The

IEC refused to consider the documentation as relevant, a refusal upheld

below. 2015 COA 62, ¶¶47-50. A mere failure to provide receipts at the

time of request was simply declared unethical, without any reference to

law.

II. THE IEC HAS A CTED IN V IOLATION OF THE CONSTITUTION.

There are two serious constitutional infirmities with the IEC’s

jurisdictional claim and conduct below that provide substantial

questions not yet decided by this Court and that call out for supervisory

review. In addition, the IEC’s inability to act within constitutional

constraints calls into question its capability to exercise jurisdiction over

a broad reading of “other standards of conduct.”

A. The IEC’s broad interpretation of “other standards of

conduct” is unconstitutionally vague.

The IEC has successfully claimed jurisdiction over any law, under

the guise of “other standards of conduct” in Article XXIX(5)(1). This

interpretation makes the provision facially, unconstitutionally vague.

The Supreme Court has long warned that “[v]ague laws will trap the

innocent by not offering fair warning.” Grayned v. City of Rockford, 408


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U.S. 104 (1972). Critically, “to prevent arbitrary and discriminatory

enforcement, laws must provide explicit standards for those who apply

them.” Id. But under the IEC’s unbounded interpretation of “other

standards of conduct,” it is impossible for anyone to know what the

standards are that must be followed at the cost of an individualized

double penalty. This constitutional infirmity can and should be avoided

by adopting a judicially imposed limiting interpretation to the IEC’s

jurisdiction.

B. The IEC violated the Secretary’s Procedural Due Process

Rights.

In this case, the IEC operated on a trial-first, law-later system. First,

despite multiple requests from the Secretary, the IEC simply refused to

explain the legal theory or charges being faced prior to the hearing. The

Secretary received only a skeletal notice, aptly described by the District

Court as notice of “only” facts. App. B, 6. Procedural due process

requires more from pre-hearing notice than a bare listing of laws, like

the skeletal listing provided by the IEC in this case.

Second, the IEC “reserve[d] the right to consider additional

standards of conduct and/or reporting requirements, depending upon

the evidence presented, and the arguments made, at the hearing in this


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matter.” [AR p.000937] This is plainly unconstitutional. See, e.g., In re

Ruffalo, 390 U.S. 544, 551 (1968) (rejecting after-the-fact charges as due

process violation). Nobody can properly defend against the unknown; for

each statement or fact could be used against the accused in

unpredictable ways. The Secretary’s defense was prejudiced by this

constitutional violation.

These procedural due process violations so far deviated from bedrockdue process right that this Court should exercise its power of

supervisory review.

III.

E XPANDING THE IEC’S JURISDICTION TO COVER ANY LAW OR

REGULATION UNDER “OTHER STANDARDS OF CONDUCT”

THREATENS THE RIGHTS OF ALL GOVERNMENT SERVANTS, NOT

JUST THE SECRETARY.

Without review, the IEC will continue to operate as though it has

jurisdiction over any conceivable transgression of a statute or

regulation. This has harmed the Secretary in this case, and it raises the

specter of an unaccountable commission capable of similarly

overreaching for complaints lodged against any of the more than 32,000

state employees and thousands of local government officials.

Simply put, if the IEC can second-guess discretionary expenditures

under the discretionary fund, then there is no statute beyond its reach.


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The IEC’s core theory is that the Secretary’s conduct violated the

discretionary fund because his choice of how to appropriate state

money, as he “sees fit,” did not satisfy the IEC’s judgment of the

appropriation statute’s purpose. That logic applies to all appropriations,

especially the many appropriations that are not by their terms

“discretionary.”

The potential for abuse and discriminatory enforcement due tovague, ill-defined jurisdiction that the Court foresaw in Developmental

Pathways has come to fruition. The IEC’s action under “other standards

of conduct” has been self-contradictory. There is no reasonable way to

square the IEC’s imposition of a double penalty against the Secretary

for attending the 2012 RNLA, because it was not in pursuance of

“official business,” with the IEC’s advisory opinion declaring the use of

state funds to attend the 2014 RNLA to be ethical.1 It looks arbitrary

because it is.

1 Similarly, and just as conflicted, the IEC found the presence of

“partisan” activity at the 2014 Democratic Governor’s Association to be

compatible with official business at the very same gathering. See IEC

Compl. 13-11.


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Review is particularly needed because the IEC has no prosecutorial

discretion to decline non-frivolous complaints, increasing the burdens

on citizens if the IEC acts beyond its proper jurisdiction. Article

XXIX(3)(c) (“The commission shall conduct an investigation ...”)

(emphasis added).

Without this Court’s careful consideration of these substantial legal

issues, the IEC may continue to extend its reach beyond the voters’intent to guard against quid pro quo corruption by limiting gifts to

government officials. The sound interpretive limits on “other standards

of conduct” suggested by the Secretary in this case, and rejected by the

Court of Appeals, will allow the IEC to avoid the constitutional

problems raised herein while restoring the important, limited mission of

the IEC granted by Amendment 41.

Critically, the IEC’s exercise of authority over “other standards” will

most often not be subject to judicial review. First, most covered

individuals lack the resources to challenge an IEC imprimatur of ethical

misconduct. Second, the damage to many individuals will be done even

in cases where the IEC fails to reach an adverse decision. Absent a

formal finding, there is no possible judicial review regardless of the

damage inflicted.


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Instead of policing the specific gift-ban provisions at the core of

Article XXIX, the IEC now sits in judgment over any law or regulation

that has arguably been transgressed by a public official or employee, be

they a public university professor, a civil servant working for a state

agency, a municipal council member, a state senator, or the Governor.

Such a jurisdictional expansion warrants this Court’s careful review.

CONCLUSION

This Court should grant the writ of certiorari.

Respectfully submitted this 10th day of August, 2015.

MICHAEL FRANCISCO

______/s______________

Michael Francisco, #39111

Special Ass’t Att’y Gen

MRDLaw

.


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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R.32, including all formatting requirements set forth in that rule.

Specifically, the undersigned certifies that:

The brief complies with C.A.R. 28(g). Choose one:

It contains 3,794 words.

It does not exceed 30 pages.

The brief does not comply with CAR 28(g) because it exceeds the

word and/or page limit. A motion to accept the over length briefhas been filed contemporaneously with the brief.

MICHAEL FRANCISCO

/s/ Michael Francisco


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CERTIFICATE OF SERVICE

This is to certify that I have duly served the within PETITION FOR WRIT OF

CERTIORARI TO THE COLORADO COURT OF APPEALS upon Respondents,

DAN GROSSMAN, SALLY H. HOPPER, BILL PINKHAM, MATT SMITH, and

ROSEMARY MARSHALL and the INDEPENDENT ETHICS COMMISSION via

email on August 10, 2015.

Michael Francisco _________________

gessler's petition for certiorari vs. independent ethics commission

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