iec response brief 12172013 gessler v. grossman

8/13/2019 IEC Response Brief 12172013 Gessler v. Grossman

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DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO

1437 Bannock Street, Denver, CO 80202

SCOTT E. GESSLER, individually and in hiscapacity as the Secretary of State of the State of

Colorado,

Plaintiff,

v.

DAN GROSSMAN, SALLY H. HOPPER, BILL

PINKHAM, MATT SMITH and ROSEMARY

MARSHALL in their official capacity as members

of the Independent Ethics Commission and the

INDEPENDENT ETHICS COMMISSION, atribunal of the State of Colorado,

Defendants. COURT USE ONLY

JOHN W. SUTHERS, Attorney General

LISA BRENNER FREIMANN *

First Assistant Attorney General

RUSSELL B. KLEIN*


JOEL W. KIESEY*

Assistant Attorney General

Ralph L. Carr Colorado Judicial Center1300 Broadway, 8th Floor

Denver, CO 80203

Telephone: 720-508-6385

E-Mail: [email protected]

Registration Numbers: 31175, 31965, 38078

*Counsel of Record

Case No. 13 CV 030421

ANSWER BRIEF

Defendants, Dan Grossman, Sally Hopper, Bill Pinkham, Matt Smith and

Rosemary Marshall, in their official capacities as Commissioners, and the

Independent Ethics Commission, through their undersigned counsel, submit the

following as their Answer Brief.

DATE FILED: December 17, 2013 4:17 PM

FILING ID: 85EF5F1FB5D50

CASE NUMBER: 2013CV30421


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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ........................................................................................... v-viii

INTRODUCTION .................................................................................................................... 1

STATEMENT OF THE CASE AND FACTS ..................................................................... 1

A. The Complaint against the Secretary .................................................................. 1

B. The IECs Investigation........................................................................................... 3

C. The Hearing on the Complaint and the IECs Decision................................... 4

ARGUMENT ............................................................................................................................. 5

I. APA Standard of Review......................................................................................... 5

II. The IEC properly exercised its jurisdiction over ethics issues arising under

Article XXIX and other standards of conduct and reporting requirements

as provided by law. ................................................................................................. 6

A. Standard of Review Question of Jurisdiction. .................................... 6

B. The IEC had jurisdiction to address the complaint against the

Secretary......................................................................................................... 7

1. In addition to the gift ban, the IEC has jurisdiction over ethics

issues arising under Article XXIX and other standards of

conduct and reporting requirements............................................... 7

2. The Commission had jurisdiction over the facts of this case and

the standard of conduct set forth in 24-9-105, C.R.S., and other

standards of conduct provided by law............................................. 9

C. The Secretarys argument that the IECs jurisdiction is limited to

the gift ban ignores the plain language of Article XXIX and the

IECs enabling legislation and misplaces reliance on the Bluebook

andDevelopmental Pathways. ................................................................ 11


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D. The IECs jurisdiction extends to misuse of the Secretarys

discretionary fund...................................................................................... 13

III. The IEC did not act arbitrarily and capriciously in determining the

Secretarys expenditures violated the law ........................................................ 15

A. Standard of Review. ................................................................................... 15

B. Because the record supports the IECs decision, it should not be

overturned. ................................................................................................... 16

IV. The IEC did not violate the Secretarys right to due process ....................... 20

A. Article XXIX and the IECs enabling statute are not

unconstitutionally vague. ......................................................................... 20

B. The Secretary received sufficient notice of the charges against

him. ................................................................................................................ 22

C. The IEC did not abuse its discretion in ruling on matters related to

discovery and trial management............................................................. 24

D. The IEC did not abuse its discretion when denying the Secretarys

request to recuse two Commissioners. ................................................... 26

1. Commissioner Marshall. ............................................................... 28

2. Commissioner Grossman. ............................................................. 30

3. Harmless Error. .............................................................................. 31

E. The IEC did not assume an improper prosecutorial role. ................. 32

V. The Secretarys First Amendment challenges should be rejected ............... 33

A. The Secretarys as applied challenge fails as the State has no

obligation to subsidize the exercise of free speech and the Secretaryfailed to raise the issue in the administrative proceeding. ............... 33

B. The IECs jurisdiction over ethics issues arising . . . under any other

standards of conduct and reporting requirements as provided by law

neither is unconstitutionally vague nor overbroad under the First

Amendment. ................................................................................................. 35


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C. Developmental Pathwaysis a gift ban case and has no application to

the present matter...................................................................................... 37

CONCLUSION ....................................................................................................................... 38


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TABLE OF AUTHORITIES

Cases

Cammarano v. United States, 358 U.S. 498 (1959) ........................................ 33-34

Colo. Bd. of Medical Examrs v. Boyle, 924 P.2d 1113 (Colo. App. 1996)......... 22

Colo. Citizens for Ethics in Govt v. Comm. for the Am. Dream, 187 P.3d

1207 (Colo. App. 2008)............................................................................................. 8-9

Colo. Cmty. Health Network v. Colo. General Assembly, 166 P.3d 280

(Colo. App. 2007) .......................................................................................................... 7

Colo. Ethics Watch v. Senate Majority Fund, LLC, 269 P.3d 1248

(Colo. 2012) ................................................................................................................... 7

Colonial Bank v. Colo. Fin. Servs. Bd., 961 P.2d 579 (Colo. App. 1998) .......... 15

DeKoevend v. Bd. of Educ. of W. End Sch. Dist. RE-2, 688 P.2d 219

(Colo. 1984) ................................................................................................................. 32

Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008) ...............11-13, 37

Glendale v. Buchanan, 578 P.2d 221 (Colo. 1978) ................................................ 21

Goebel v. Benton, 830 P.2d 995 (Colo. 1992) .................................................... 27, 29

Horrell v. Dep't of Admin., 861 P.2d 1194 (Colo. 1993)........................................ 34

In re Application for Water Rights of Well Augmentation Subdistrict

of the Cent. Colo. Water Conservancy Dist., 221 P.3d 399 (Colo. 2009)....... 5-6

Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008) ........ 35-36

Johnson v. Dist. Court, 674 P.2d 952 (Colo. 1984) ................................................ 27

Joseph v. Mieka, 282 P.3d 509 (Colo . App. 2012) ..................................... 24, 26, 31

Loonan v. Woodley, 882 P.2d 1380 (Colo. 1994)..................................................... 21

Moody v. People, 159 P.3d 611 (Colo. 2007) ..................................................... 31, 34


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Negron v. Golder, 111 P.3d 538 (Colo. App. 2004) ................................................ 34

Norton v. Colo. State Bd. of Medical Examrs, 821 P.2d 897 (Colo. App.

1991) ............................................................................................................................. 22

People v. Botham, 629 P.2d 589 (Colo. 1981).......................................................... 27

People v. Janousek, 871 P.2d 1189 (Colo. 1994)..................................................... 36

People v. Loveall, 231 P.3d 408 (Colo. 2010)........................................................... 25

Ramseyer v. Colo. Dep't of Soc. Servs., 895 P.2d 1188 (Colo. App. 1995)......... 15

Regan v. Taxation With Representation of Washington, 461 U.S. 540

(1983) .......................................................................................................... 33-34, 37-38

Rocky Mountain Animal Defense v. Colo. Div. of Wildlife, 100 P.3d 508

(Colo. App. 2004)....................................................................................................... 6-7

Shupe v. Boulder Cnty., 230 P.3d 1269 (Colo. App. 2010) ................................... 19

Silverberg v. Colantuno, 991 P.2d 280 (Colo. App. 1998).................................... 25

Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252 (Colo. 2008) .............. 20-21

Smith v. Farmers Ins. Exch., 9 P.3d 335 (Colo. 2000) ............................................ 9

Specialist Rests. Corp. v. Nelson, 231 P.3d 393 (Colo. 2010) ................................ 7

Stamm v. City & County of Denver, 856 P.2d 54 (Colo. App. 1993) .................. 21

Table Servs., Ltd. v. Hickenlooper, 257 P.3d 1210 (Colo. App. 2011)................ 20

The Natl Gay Task Force v. Bd. of Educ. of the City of Okla., 729 F.2d

1270 (10th Cir. 1984) ................................................................................................ 36

United Airlines v. Indus. Claim Appeals Office, 312 P.3d 235(Colo. App. 2013) ....................................................................................................... 34

Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990).................................................... 15

Venard v. Dept of Corrs. , 72 P.3d 446 (Colo. App. 2003)..................................... 27


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Weissman v. Bd. Of Educ., 547 P.2d 1267 (Colo. 1976) ....................................... 32

Wildwood Child & Adult Care Program, Inc. v. Colo. Dep't of Pub.Health & Env't, 985 P.2d 654 (Colo. App. 1999) ................................................ 15

Williams v. Indus. Claim Appeals Office, 128 P.3d 335

(Colo. App. 2006)........................................................................................................ 34

Williams v. Kunau, 147 P.3d 33 (Colo. 2006) ......................................................... 34

Code of Colorado Regulations

8 CCR 1510-1, sec. 7.A................................................................................................... 8

8 CCR 1510-1, sec. 8.A................................................................................................... 8

Colorado Constitution

Article XXIX, Colorado Constitution ....1, 3, 6-9, 11-14, 16, 20, 23-24, 30, 35, 37

Colorado Rules of Civil Procedure

Colo. R. Civ. P. 97 ......................................................................................................... 27

Colorado Rules of Evidence

CRE 403 .......................................................................................................................... 26

CRE 702 .......................................................................................................................... 25

Colorado State Fiscal Rules

1 Code Colo. Regs. 101-1, Rule 5-2.13 ...................................................................... 10

1 Code Colo. Regs. 101-1, Rule 5-2.15 ................................................................ 10-11

1 Code Colo. Regs. 101-1, Rule 5-3.3.2 ..................................................................... 11


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1 Code Colo. Regs. 101-1, Rule 5-7.3 ........................................................................ 10

1 Code Colo. Regs. 101-1, Rule 5-7.4 ........................................................................ 10

1 Code Colo. Regs. 101-1, Rule 5-11.7 ...................................................................... 11

Colorado Statutes

24-4-105, C.R.S. .............................................................................................22, 24-26

24-4-106, C.R.S. ............................................................................................ 1, 5, 6, 38

24-9-105, C.R.S..................................................................... 3-5, 9, 10,17, 22, 33, 37

24-17-102, C.R.S. ...................................................................................................... 3-4

24-18-101, et seq., C.R.S. ........................................................................................ 14

24-18-103, C.R.S. .................................................................................... 3-4, 9, 13, 14

24-18.5-101, C.R.S. .................................................................................................. 6-8

24-21-101, et seq.C.R.S. ........................................................................................ 18

24-30-202, C.R.S. ..................................................................................................... 3-4

United States Constitution

First Amendment, United States Constitution ............................................... 33-38

Sixth Amendment, United States Constitution ..................................................... 25


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INTRODUCTION

This matter is a judicial review of a final agency order issued by the

Independent Ethics Commission acting within the scope of its constitutionally

mandated authority.

The IEC provided the Secretary with fair and adequate notice of the

allegations against him, and gave him a fair opportunity to present evidence on the

ethical issues in this case. The IEC properly reviewed the Complaint against him

and determined that it was not frivolous, conducted an independent investigation

into the allegations of the Complaint, notified the parties of the issues to be

addressed at a hearing, held a public hearing on the allegations, rendered findings

that the Secretary violated ethical rules of conduct which were supported by

substantial evidence and law, and assessed penalties against the Secretary for his

ethical violations.

In doing so, the IEC acted appropriately, consistent with its constitutional

mandate, and within its jurisdiction, as set forth in section 5 of Article XXIX of the

Colorado Constitution. Accordingly, this Court should affirm the IECs action

pursuant to 24-4-106(7), C.R.S.

STATEMENT OF THE CASE AND FACTS

A. The Complaint against the Secretary.

On October 15, 2012, Colorado Ethics Watch (CREW) filed a complaint with

the Independent Ethics Commission (IEC) against Scott Gessler, the current

Colorado Secretary of State (Secretary). CREW supplemented the complaint on


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October 22, 2013 (the complaint and the supplement are together referred to as the

Complaint). Complaint, R. 001032-64.1

In the Complaint, CREW alleged that the Secretary engaged in conduct that

violated his ethical duties as a public official in three ways. Complaint, R. 001032-

64. First, the Secretary allegedly used state funds for airfare to Tampa, Florida to

attend a Republican National Lawyers Association conference (RNLA Conference)

and the Republican National Convention (RNC), for a hotel room at the Ritz

Carlton in Sarasota, Florida for three nights during the RNLA Conference and the

day before the RNC. Complaint, R. 001034-35, 001045-46. Second, CREW alleged

that the Secretary used state funds to pay airline change fees and a hotel

cancellation fee to return early from the RNC when he and his family were

threatened. Id., R. 001035, 001048. Third, CREW alleged that the Secretary

improperly received payment of all remaining funds in his discretionary fund at the

end of the 2011-2012 fiscal year, without presenting receipts or documentation for

the funds. Id., R. 001059-64. CREW complained that the Secretary did not spend

these funds in pursuance of official business. Complaint, R. 001036.

The Secretary responded to the Complaint on December 20, 2012

(Response). Response, R. 000231-732.2The Secretary argued that all

1References to the record are by document title and reference to the electronic page

number, as appropriate, e.g., Complaint, R. 001032-64, and to transcripts by page

and line number, e.g., 6/7/2013 Hearing Tr., p. 313 l. 11 p.379 l. 8.2The Secretary also filed a motion to dismiss the Complaint (R. 000215-30), which

was denied orally by the IEC (1/7/13 Meeting Minutes, R. 001364) and by written

order (R. 000733-35).


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reimbursements and expenditures were proper. Id. Factually, the Secretary did

not dispute that he was reimbursed for the RNLA Conference expenses and costs to

return to Colorado. He also did not dispute that he had received $117.99 pursuant

to his request for the amounts remaining in the discretionary fund. Id.

B. The IECs Investigation.

Pursuant to its constitutional mandate under section 5(1) of Article XXIX of

the Colorado Constitution, on November 5, 2012, the IEC considered the Complaint

(designated Complaint No. 12-07) and made an initial determination that the

Complaint was not frivolous. 11/5/12 Meeting Minutes, R. 001360. After receiving

the Secretarys Response, the IEC appointed an independent investigator. The

investigator presented his findings to the IEC at its public meeting on April 8, 2013

and issued a report (Investigation Report). 4/8/13 Meeting Minutes, R. 001374-

77. A copy of the Investigation Report was later provided to the parties.

Following the investigation, the IEC set a hearing on the Complaint for June

7, 2013, and gave notice to all parties pursuant to its Notice of Hearing and Hearing

Procedures (Notice of Hearing). Notice of Hearing, R. 000878-80. The IEC issued

a Pre-Hearing Order (R. 000881-84) and an Amended Pre-Hearing Order (R.

000937-40) prior to the June 7 hearing. Within both, the parties were notified of

the potential statutory rules that would be considered by the IEC.3The statutes

3The only difference between the two orders is that the Pre-Hearing Order

incorrectly cited to 24-17-102(26), C.R.S., and was corrected in the Amended Pre-

Hearing Order to cite to 24-30-202(26), C.R.S.


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cited and quoted included 24-18-103(1), 24-9-105(1) and (2), 24-17-102(1), 24-30-

202(26), C.R.S., and the State Fiscal Rules. Id.

Two weeks before the hearing, on May 21, 2013, the Secretary paid $1,278.90

to the state of Colorado. Secretarys May 21 Letter, R. 001272.

C. The Hearing on the Complaint and the IECs Decision.

On June 7, 2013, the IEC held a hearing on the Complaint. A copy of the

transcript of the June 7 Hearing is attached and incorporated hereto as Exhibit 1

(6/7/2013 Hearing Tr.).4

Both CREW and the Secretary appeared through counsel at the 11 hour

hearing, presented evidence, examined witnesses and argued before the IEC.

6/7/2013 Hearing Tr., p. 1-387, Ex. 1. Both parties submitted written closings to the

IEC on June 12, 2013. CREWs Closing Argument, R. 001326-40; The Secretarys

Closing Argument, R. 001341-51.

On June 19, 2013, the IEC issued Findings of Fact and Conclusions of Law

(IEC Decision). IEC Decision, R. 001352-58. The IEC found that the Secretary

violated ethical rules in two ways. First, the IEC determined that the $1,278.90

was spent primarily for partisan purposes, and therefore personal purposes . . .

and therefore was a violation of 24-9-105, C.R.S. IEC Decision, R. 001356. Second,

the IEC determined the Secretarys request and receipt of $117.99 was not in

4The IEC believes that the transcript contains differences between the recording

and the transcription of that recording. A copy of the IECs list of changes to the

transcript is attached as Exhibit 2.


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pursuance of official business but was personal in nature . . . . and therefore was a

violation of 24-9-105, C.R.S.5Id.

The IEC found that the Secretary did not violate any ethical rules in

accepting reimbursement for the additional expense incurred in returning to

Colorado as a result of the threats against him and his family. IEC Decision, R.

001356.

Based on its findings, the IEC concluded that the Secretary breached the

public trust for private gain using funds for personal and political purposes . . . .

and imposed a penalty against the Secretary in the amount of $1,514.88. IEC

Decision, R. 001356. The IEC determined this figure by doubling the amounts the

Secretary improperly received ($1,278.90 and $117.99), reduced by the $1,278.90

the Secretary repaid. Id.

ARGUMENT

I. APA Standard of Review.

The IEC agrees with the Secretary that 24-4-106, C.R.S. (2013) of the APA

governs this judicial review. In re Application for Water Rights of Well

Augmentation Subdistrict of the Cent. Colo. Water Conservancy Dist., 221 P.3d 399,

417 (Colo. 2009) (stating APA section 24-4-106 governs judicial review of agency

5One member, Sally Hopper, of the five-member IEC dissented from the findings of

fact and conclusions of law relating to the Secretarys acceptance of reimbursement

of $117.99. IEC Decision, R. 001357. Ms. Hopper otherwise joined in the decision of

the IEC. Id.In addition, a second member of the IEC, Matt Smith, dissented from

assessing a double penalty against the Secretary for his spending of $1,278.90, but

otherwise joined in the decision of the IEC. Id.


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actions and provides the standards for judicial review of the agency action unless a

specific statutory provision conflicts with it.).

Under 24-4-106(7), C.R.S., the court shall affirm the IECs action unless it

finds that the action is arbitrary or capricious, a denial of statutory right, contrary

to constitutional right, power privilege, or immunity, in excess of statutory

jurisdiction, authority, purposes, or limitations, not in accord with the procedures or

procedural limitations of this article or as otherwise required by law, an abuse or

clearly unwarranted exercise of discretion, based upon findings of facts that are

clearly erroneous on the whole record, unsupported by substantial evidence when

the record is considered as a whole, or otherwise contrary to law .

II. The IEC properly exercised its jurisdiction over ethics issues arising

under Article XXIX and other standards of conduct and reporting

requirements as provided by law.

The Secretary argues the IEC lacked jurisdiction over the Complaint,

claiming the IECs jurisdiction is limited to enforcing the ban on gifts.6 The Court

should reject this argument because it ignores the plain language of Article XXIX

and the IECs enabling statute.

A. Standard of Review Question of Jurisdiction.

The question of whether the IEC exceeded its jurisdiction involves the

interpretation of both Amendment XXIX and 24-18.5-101, C.R.S., raising

6The Secretary raised this issue before the IEC. Motion to Dismiss, R.000216-22.

The IEC rejected it. Order on Motion to Dismiss, R. 000733-35. The Secretary again

raised this argument in a Motion for Temporary Restraining Order and/or

Preliminary Injunction. Plaintiffs Motion for Temporary Restraining Order and/or

Preliminary Injunction, p. 12-13. This Court denied it.


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questions of law the Court reviews de novo. Rocky Mountain Animal Defense v.

Colo. Div. of Wildlife, 100 P.3d 508, 513 (Colo. App. 2004) (interpretation of a

constitutional amendment); Specialist Rests. Corp. v. Nelson, 231 P.3d 393, 397

(Colo. 2010) (statutory interpretation). Appellate courts construe statutes according

to their plain and ordinary meaning, and defer to an agencys interpretation of its

own enabling statute. Nelson, 231 P.3d at 397. When interpreting a constitutional

amendment like Article XXIX courts give effect to the electorates intent in enacting

the amendment. SeeColo. Ethics Watch v. Senate Majority Fund, LLC, 269 P.3d

1248, 1253 (Colo. 2012). To determine voter intent, words should be given their

ordinary and popular meaning. Id.at 1253-1254. If the language of the

amendment is clear and unambiguous, it must be enforced as written. Id.at 1254;

Colo. Cmty. Health Network v. Colo. General Assembly, 166 P.3d 280, 283 (Colo.

App. 2007).

B. The IEC had jurisdiction to address the complaint against the

Secretary.

1. In addition to the gift ban, the IEC has jurisdiction over

ethics issues arising under Article XXIX and other

standards of conduct and reporting requirements.

Article XXIX consists of nine sections, not just the gift ban upon which the

Secretary focuses. Section 1 sets forth the amendments purposes and findings,

section 3 is the gift ban, section 5 establishes the IEC, and section 6 sets forth

penalties.


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Article XXIXs section 5 creates the IEC and defines its jurisdiction. This

section also empowers the IEC to hear complaints on ethics issues arising under

Article XXIX and others standards of conduct and reporting requirements as

provided by law. Colo. Const. art. XXIX, 5(1). See alsoColo. Const. art. XXIX,

5(3)(a) (referencing the Commissions jurisdiction to hear complaints on ethics

issues arising under other standards of conduct and reporting requirements). The

IECs enabling statute contains virtually identical language. 24-18.5-101(4)(a),

C.R.S. The clear and unambiguous language of both Article XXIX and the IECS

enabling statute therefore provide that, in addition to the gift ban, the IEC has

jurisdiction over ethics issues arising under other standards of conduct.

Moreover, since its inception, the Commission regularly and consistently has

exercised jurisdiction over ethics issues arising under standards of conduct other

than those contained in Article XXIX. See, e.g.,list of examples of the IEC

exercising jurisdiction over standards of conduct other than those set forth in

Article XXIX, attached and incorporated hereto as Exhibit 3. The Commissions

Rules, adopted pursuant to an explicit grant of authority to administer and enforce

Article XXIX (Colo. Const. art. XXIX, 5(3)(d)), also reflect the Commissions

interpretation of Article XXIX as providing the Commission with jurisdiction to

hear ethics issues arising under standards of conduct other than those set forth in

Article XXIX. See8 CCR 1510-1, sec. 7.A; 8 CCR 1510-1, sec. 8.A. Deference should

be given to an agencys interpretation in construing constitutional provisions and

statutes relevant to its activities. Colo. Citizens for Ethics in Govt v. Comm. for the


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Am. Dream, 187 P.3d 1207, 1214 (Colo. App. 2008). Cf. Smith v. Farmers Ins.

Exch., 9 P.3d 335, 340 (Colo. 2000) (providing that great deference is given to an

agencys interpretation of a statute when that agency is charged with implementing

the statutes provisions).

For these reasons, the Commission has jurisdiction over ethics issues arising

under standards of conduct as provided by law, other than the gift ban.

2. The Commission had jurisdiction over the facts of this

case and the standard of conduct set forth in 24-9-105,

C.R.S., and other standards of conduct provided by law.

The Complaint alleges that the Secretarys Florida trip was manifestly

personal and political, in which he participated only in partisan events, not in

pursuit of state business. Complaint, R. 001036. The Complaint also claims that

the Secretary used discretionary funds for other than official public business. Id.,

R. 001036.

These allegations raise ethics issues regarding the possible misuse of public

funds, issues addressed by standards of conduct set forth in Colorado statutes and

rules. These standards can be found in many places, including Article 18 of Title

24, immediately preceding the IECs enabling statute. Title 24 pertains to State

Government, Article 18 is entitled Standards of Conduct, and Part 1 of Article 18

is Code of Ethics. Under Article 18, Part 1 are provisions regarding Public trust

breach of fiduciary duty, 24-18-103, C.R.S., which provides that a public officer

shall carry out his duties for the benefit of the people of the state.


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undertaken for State purposes and for the benefit of the State. 1 Code Colo. Regs.

101-1, Rule 5-2.15.

Rule 3.3.2 states that travel charged to the State regardless of the funding

source, shall be for the benefit of the State; . . . and is only for the time period

necessary. 1 Code Colo. Regs. 101-1, Rule 5-3.3.2. Rule 11.7 provides that when a

trip is partially related to State Business and personal or political purposes, then

the person shall make a reasonable allocation of the expenses between State

Business and personal or political purposes. . . . 1 Code Colo. Regs. 101-1, Rule 5-

11.7.

As a result, the IEC properly exercised its jurisdiction over the Complaint,

which raised ethics issues arising under standards of conduct provided by Colorado

law. Neither the IECs investigation nor the evidence introduced at hearing gave

rise to facts which required the IEC to dismiss the Complaint for lack of

jurisdiction. SeeIEC Decision, R. 001352-58(setting forth the factual findings,

based on the investigation and the evidence introduced at the hearing, underlying

the IECs decision).

C. The Secretarys argument that the IECs jurisdiction is limited

to the gift ban ignores the plain language of Article XXIX and

the IECs enabling legislation and misplaces reliance on theBluebook andDevelopmental Pathways.

Rather than confront the plain language of Amendment XXIX and the IECs

enabling statute, the Secretary attempts to limit the IECs jurisdiction to violations

of the gift ban. His attempt fails. First, he focuses only on the gift bans language,


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ignoring the remainder of Amendment XXIX and the IEC enabling statute. As set

forth above, the IECs jurisdiction is broad and extends to the violations alleged

here. Second, he misplaces his reliance on the language from the 2006 Bluebook.

As a threshold matter, the Court does not need to consider the Bluebooks language

unless it finds that Amendment XXIX and the IECs enabling statute are

ambiguous with respect to jurisdiction. Colo. Cmty. Health Network, 166 P.3d at

283. In such a case, a court may consider the ballot title, the submission clause and

the Bluebook analysis of the ballot proposal. Id.

Here, the Secretary does not argue that the relevant language is ambiguous;

he just focuses on certain words while ignoring others. Even assuming the

language is ambiguous, which it is not, the Bluebooks Summary and Analysis

section states, on page 10: Any person can file a complaint with the commission

alleging a violation of the proposal, or any other standard of conduct or reporting

requirement specified in law. (emphasis added). The Bluebook therefore supports

the IECs jurisdiction over this matter.

The Secretary also misplaces his reliance onDevelopmental Pathways v.

Ritter, 178 P.3d 524, 526 (Colo. 2008). InDevelopmental Pathways, the Court

reviewed only the constitutionality of the gift ban; it did not address any issues

related to the IECs jurisdiction. In fact, the IEC did not exist at the time the Court

issued its ruling. Moreover, the Attorney Generals office was not representing the

IEC in that matter. The Attorney Generals comments, made while representing


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Governor Ritter, must therefore be viewed in the context of the issues before the

Court, and are not binding on, or even relevant to, this matter.

D. The IECs jurisdiction extends to misuse of the Secretarysdiscretionary fund.

The Secretary also argues that the issue of the proper use of the Secretarys

discretionary fund lies outside of the IECs authority. His argument is not

persuasive. While presuming that the IECs jurisdiction is limited to enforcing the

gift ban, the Secretary argues that his expenditures were not a gift. This misses the

point. The Secretarys actions do not involve the gift ban, but rather, concern

ethical violations arising under Article XXIX and other statutory provisions

addressing how public officials spend state money. Specifically, as the IEC held, his

conduct violates the statute concerning a public officials fiduciary duty to the state

and its people, see 24-18-103(1), C.R.S., and the statute stating that a public

official may spend discretionary funds in pursuance of official business. The

Complaint before the IEC alleges facts violating these laws.

These laws, and the IECs ability to enforce them, undermine several other

arguments the Secretary makes. Although the Secretary argues that he has control

over how he spends his discretionary funds (Opening Brief, p. 15), his control is

limited by the standards of conduct pertaining to public officials. See 24-18-101

et seq., C.R.S. He also argues that the General Assembly has not specified the

standards for spending discretionary funds. Id. It has such funds must be used


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for official business and the IEC properly looked to the State Fiscal Rules for

guidance. IEC Decision, R. 001355.

The Secretary claims he did not and could not influence himself by

spending discretionary funds, (Opening Brief, at p. 18) but he does so under the

assumption that the IECs jurisdiction is limited to the gift ban. As demonstrated

herein, it is not.

Finally, the Secretary argues that the IEC may not create liability based on

24-18-103(1)s statement of purpose. Opening Brief, p. 19-20. This argument also

is misleading. Section 24-18-103 exists under Article 18,s Standards of Conduct,

and Code of Ethics. Subsection one of the statute imposes the mandate that a

public officer shall carry out his duties for the benefit of the people of the state.

24-18-103(1), C.R.S. Subsection two states that a public officer whose conduct

departs from his fiduciary duty is liable to the people of the state 24-18-103(2),

C.R.S. Subsection two also gives the district attorney permissive authority to bring

appropriate judicial proceedings, not exclusiveauthority, as the Secretary suggests.

In sum, none of the Secretarys arguments undermine the conclusion that the

IEC possesses jurisdiction over the alleged violations of Article XXIX and the

Standards of Conduct found in Article 18 or Title 24, C.R.S.


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16

B. Because the record supports the IECs decision, it should not

be overturned.

The IEC concluded that the Secretary violated ethical standards in two ways:

(1) for his reimbursement of $1,278.90 for travel and hotel stay in Sarasota Florida

for the RNLA Conference and the RNC; and (2) for receiving the amount remaining

in his discretionary fund account of $117.99 without supporting documentation or

detail of any expenses incurred. IEC Decision, R. 001352-58. There is substantial

evidentiary and legal support for this determination.

The record supports the IECs conclusion that the Secretary violated his

ethical obligations in receiving reimbursement (in the amount of $1,278.90) for his

trip to the RNLA Conference. Specifically:

The Secretary is a public officer as defined by the Article XXIX, section 2(6),of the Colorado Constitution. 6/7/2013 Hearing Tr. p. 317 ll. 20-23, Ex. 1.

The Secretary flew to Tampa, Florida to attend the RNLA Conferenceprincipally sponsored by the Republican National Lawyers Association on

August 23, 2012, titled National Election Law Seminar. Trial Exhibit S, R.

001238-39; Trial Exhibit N, R. 001175.

The Secretary was invited to attend and to participate in the RNLAConference as a panelist on the topic of The Department of Justice, the Role

of the States, and Voter ID. Trial Exhibit N, R. 001177.

The RNLA Conference took place on August 24-25, 2012 in Sarasota, Florida.Trial Exhibit N, R. 001175.

In order to sign up for the RNLA Conference, a participant must agree withthe RNLA Mission Statement, which includes advancing Republican ideals

and party goals. Trial Exhibits 14& 15, R. 001027-29.

More than one of the topics at the RNLA Conference did not pertain to thelaw in Colorado and was concerned with partisan values and/or politics.

Trial Exhibit N, R. 001175-86.


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The Secretary did not recall details or specifics of the RNLA Conference,including what he discussed as a scheduled speaker. 6/7/2013 Hearing Tr. p.

327 l. 9 - p. 328 l. 14, Ex. 1.

The Secretary stayed at the Ritz-Carlton hotel in Sarasota, Florida on August23, 24, and 25, 2012. Trial Exhibit S, R. 001238.

The amount the Secretary requested reimbursement for the RNLAConference was $1,278.90. This included costs for lodging of $694.37 for

August 23, 24, and 25; airfare to and from Florida of $498.78; meals of

$66.05; and luggage of $20.00. Trial Exhibit 7, R. 001009-10; Trial Exhibit

11, R. 001019-23.

The Secretary received a discounted rate for lodging for August 23 and 24,paying $145.00 per night. The Secretary paid the full rate of $269.00 on

August 25. Trial Exhibit 11, R. 001019-23.

On August 26, 2013, the Secretary travelled from Sarasota, Florida to theRNC in Tampa, Florida. He planned to return to Denver on September 1.

Trial Exhibit S, R. 001238-39.

Costs of lodging and meal associated with the Secretarys stay at the RNCwere paid out of campaign funds, and some personal funds. 6/7/2013 Hearing

Tr. p. 259 ll. 17 20, Ex. 1.

The Secretary was reimbursed $1,278.90 from the discretionary fundsprovided to the Secretary of State pursuant to 24-9-105, C.R.S. Trial

Exhibit 2, 000994-98 (seeline item for payment of $1,452.52 on September 6,

2012).

In requesting reimbursement for the expenses, the Secretary stated that theywere incurred in pursuant of state business and that they were incurred

while meeting with constituents, county clerks, lobbyists, staff and legislators

to discuss state business. Trial Exhibit A, R. 001045.

The Secretary testified that he asked to be reimbursed the $1,278.90 for theRNLA Conference from the discretionary funds because he knew that given

that the sponsor had the word Republican in its name, the conference could

be subject to scrutiny, and he believed that he had more leeway with the use

of these funds than with monies from the Department of States travel

budget. 6/7/2013 Hearing Tr. p. 358 l. 23 - p. 359 l. 18, Ex 1.


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The Secretary repaid $1,278.90 to the state on May 21, 2013, 17 days beforethe scheduled hearing date. Trial Exhibit XX, R. 001272.

There is no legal requirement that the Secretary of State be a licensedattorney. See, e.g., 24-21-101 et seq., C.R.S.

The Secretary of States office was advised by the State Controller inNovember of 2011 that the discretionary fund was to reimburse only

expenses used in pursuance of official state business, and not for personal

use. Trial Exhibit 3, R. 000999-001000.

The record also supports the IECs conclusion that the Secretary violated his

ethical obligations by receiving his remaining discretionary funds (in the amount of

$117.99) without receipts or other supporting documentation. Specifically:

On July 5, 2012, the Secretary requested payment of any remainingdiscretionary funds. Trial Exhibit 1, 000993.

The Secretary did not provide any receipts, documentation, or otherinformation to support reimbursement of these funds. Trial Exhibit 1,

000993.

Other requests for reimbursement from the discretionary fund from theSecretary in evidence contained receipts and/or documentation. Trial ExhibitT, R. 001241-42; Trial Exhibit U, R. 001248-49; Trial Exhibit V, R. 001254-

56; Trial Exhibit X, R. 001264-66; Trial Exhibit Y, R. 001273-80; Trial

Exhibit Z, R. 001281-83; Trial Exhibit AA, R. 001049 (referencing

documentation); Trial Exhibit DD, R. 001113-14; Trial Exhibit EE, R.

001117-18; Trial Exhibit FF, R. 001121-23.

The Secretary of States office was advised by the State Controller that thediscretionary fund was to reimburse only expenses used in pursuance of

official state business, and not for personal use, and that all expenditures

should have supporting documentation. Trial Exhibit 3, R. 000999-001000.

The Secretary testified that he knew that without receipts, amounts paid tohim from his discretionary account would be viewed as personal income

subject to taxation. 6/7/2013 Hearing Tr. p. 349 ll. 2 18, Ex. 1. He did not

know if that money was added to his W-2. Id. The Secretary therefore

treated and intended to treat the reimbursement of the balance of his

discretionary fund as personal income.


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The Secretary was paid $117.99, through payments of $8.99 and $109.00.Trial Exhibit BB, R. 001066.

A reviewing court must uphold an agencys factual findings so long as there is

competent evidence in the record to support them. Shupe v. Boulder Cnty., 230 P.3d

1269, 1273 (Colo. App. 2010). Here the evidence amply supports the IECs factual

findings.

Notably absent from the Opening Brief is any challenge to these facts.

Instead, the Secretary argues that there is no evidence to support the IECs

determination. Opening Brief, p. 25. The record refutes his argument as set forth

previously.

The Secretarys characterization of the payments as proper does not negate

competent evidence in the record to the contrary. Simply because the RNLA

Conference was accredited for continuing legal education credit does not mean that

the charges were not partisan or personal. A grant of CLE credit does not equal

compliance with ethical standards.

Likewise, the Secretarys argument that the $117.99 could be supported

after-the-fact does not alter the substantial and competent evidence in the record

supporting the IECs decision. Even if the Secretary can justify reimbursement for

more than $117.99, that does not change the fact that at the time the Secretary

made his request for reimbursement, it was unsubstantiated and unsupported.

Trial Exhibit 1, 000993.


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Moreover, the Secretary asked for the remaining funds without concern for

whether they were due to him or not. When asked why he took the $117.99, the

Secretary testified that there is [sic] a lot of other expenses that I incur that I don't

get official reimbursement from . . . . 6/7/2013 Hearing Tr. p. 369 ll. 7-9, Ex. 1. The

Secretary also stated that it was not worth his time to go through every single

penny and mile to support the amounts he claimed were due to him. 6/7/2013

Hearing Tr. p. 371 ll. 3-16, Ex. 1. Thus, the Secretary was not asking for

reimbursement for the expenses that his attorneys have now compiled in a

misguided attempt to justify the Secretarys violation.

In sum, there is substantial evidentiary and legal support for the IECs

determination. The decision was neither arbitrary nor capricious.

IV. The IEC did not violate the Secretarys right to due process.

Next, the Secretary argues the IEC violated his right to due process,

advancing five contentions in support of his argument. Each is addressed below,

and each should be rejected.

A. Article XXIX and the IECs enabling statute are not

unconstitutionally vague.

The Secretary argues that the phrase other standards of conduct is

unconstitutionally vague. When faced with a void for vagueness challenge, the

Court examines a constitutional amendment in the same way it would examine a

statute. Table Servs., Ltd. v. Hickenlooper, 257 P.3d 1210, 1214 (Colo. App. 2011).

Both are presumed to be constitutional, and the parties seeking to set a provision


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aside must prove their case beyond a reasonable doubt. Id.; see Simpson v. Cotton

Creek Circles, LLC, 181 P.3d 252, 261 (Colo. 2008). The Court indulges every

reasonable presumption in favor of a constitutional amendment which the people

have adopted at a general election. Glendale v. Buchanan, 578 P.2d 221, 224 (Colo.

1978).

A statute or regulation is void only if it is so vague that persons of common

intelligence must necessarily guess as to its meaning and differ as to its application.

Loonan v. Woodley, 882 P.2d 1380, 1389 (Colo. 1994). Otherwise, it will be upheld if

it provides fair notice of prohibited conduct and its language does not result in

arbitrary and discriminatory enforcement. Id.

Constitutional provisions, like statutes, often contain broad terms to allow

their applicability to various circumstances. Stamm v. City & County of Denver,

856 P.2d 54, 56 (Colo. App. 1993). [G]enerality is not the equivalent of vagueness,

and . . . terms used need not be defined with mathematical precision in order to

withstand a vagueness challenge. Id.

Here, the Secretary claims that the laws creating the IECs jurisdiction are

so vague that [the] Secretary and other elected officials cannot know what is

prohibited. Opening Brief, p. 32. The Secretary focuses on the phrase other

standards of conduct claiming its vagueness is unconscionable and that he could

not know what other standards of conduct could possibly mean.

By making these arguments, the Secretary appears to ignore that he is a

public official subject to specific Standards of Conduct and a Code of Ethics set


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forth by statute, discussed above. The IEC held that the Secretary violated certain

standards of conduct under the Code of Ethics related to his fiduciary duty, set

forth in Article 18. IEC Decision, R. 001352-58. Even in this case, the Secretary

sufficiently understood the primary standard of conduct the IEC applied at the time

the Complaint was filed because he cited to it in his Response to the Complaint.

Response, R. 000239 (footnote 27, citing 24-9-105(1), C.R.S.)

Thus, the phrase other standards of conduct is not so vague that reasonable

persons have to guess at what the phrase means. While the phrase is broad, so are

the standards that apply to public officials, and those at issue in this case are

defined by statute.

B. The Secretary received sufficient notice of the charges against

him.

The Secretary also complains that the IEC failed to identify the charges

against him. The record does not support his complaint, and it does not amount to a

due process violation.

Due process only requires that a respondent be notified of the nature of the

proceedings and apprised of the right to present evidence on his or her own behalf.

Colo. Bd. of Medical Examrs v. Boyle, 924 P.2d 1113, 1117 (Colo. App. 1996); see

Norton v. Colo. State Bd. of Medical Examrs, 821 P.2d 897, 901 (Colo. App. 1991).

Under the APA an agency must give a respondent notice of the the legal authority

and jurisdiction under which [the hearing] is to be held, and the matters of fact and

law asserted. 24-4-105(2)(a), C.R.S.


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Here, the Secretary received sufficient notice under the APA. First, CREWs

original complaint described, in detail, the Secretarys alleged improper

expenditures. Complaint, R. 001032-48. Second, CREW requested fines pursuant

to section 6, of Article XXIX, which imposes liability whenever a public officer

breaches the public trust for private gain. Id., R. 001033. Third, in his response to

the complaint, the Secretary acknowledged that any expenditures out of his

discretionary account must be made in pursuance of official business. Response, R.

000240. Fourth, the Secretary was served with a Prehearing Order and an

Amended Pre-Hearing Order, both of which set forth the specific standards of

conduct and/or reporting requirements at issue, including citations to the fiduciary

duty statute and the discretionary funds statute. Prehearing Order, R. 000881-83;

Amended Prehearing Order, R. 000937-40. Finally, the Secretary appeared at the

hearing, testified on his own behalf, and argued that his expenditures were proper.

6/7/2013 Hearing Tr., p. 313 l. 11 p.379 l. 8.

Although the Secretary states that he asked the IEC to identify the charges

against him, he does not provide any citations to the record, nor does the record

reveal any formal requests for a more definite statement or something similar.

Instead, the record contains motions reiterating the same vagueness arguments

made here, and does not refute the pre-hearing order the Secretary received.

Distilling this case to its essence, the facts are not complicated, were set forth at the

outset, and have not been seriously contested. The violations at issue are also not

mysterious; the conduct at issue is specifically covered by statute and Article XXIX,


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and the Secretary was given notice of those statutes to the extent he was not

already aware of them, and demonstrated his awareness of the discretionary funds

statute in his response to the complaint.

Under these circumstances, the Secretary received notice of the facts and law

at issue and was provided with an opportunity to be heard and to defend himself.

Additionally, even assuming this notice was somehow inadequate, the Secretary has

not shown prejudice. See Joseph v. Mieka, 282 P.3d 509, 520 (Colo. App. 2012)

(concluding there was no prejudice where the respondents received notice of the

witnesses identity and contact information three days before the hearing, cross-

examined him at hearing, and did not articulate what they would have done

differently).

C. The IEC did not abuse its discretion in ruling on matters

related to discovery and trial management.

The Secretary claims he was denied the right to conduct discovery and to

confront witnesses, pointing to the IECs decisions to preclude an expert from

testifying and to preclude former secretaries of state from testifying. The IEC did

not abuse its discretion.

An agency serving an adjudicatory function is granted wide discretion on

matters related to discovery and trial efficiencies. Under the APA, the person or

panel conducting the hearing may exclude incompetent and unduly repetitious

evidence. 24-4-105(7), C.R.S.


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The Secretary does not refer to any discovery rulings in his brief; instead he

argues broadly that the IEC violated his right to confront witnesses under the Sixth

Amendment. As the Secretary recognizes, the Sixth Amendments application is

limited to criminal prosecutions. See People v. Loveall, 231 P.3d 408, 420 n.18

(Colo. 2010).

Nevertheless, citing only to the Sixth Amendment and related authority, the

Secretary argues the IEC violated his due process rights when it limited the

evidence he sought to present. The only evidentiary ruling he cites is the IECs

decision to preclude Kevin Collins testimony, whom the Secretary intended to call

as an expert witness in governmental accounting. 6/7/2013 Hearing Tr., p. 243 ll.

15-16, Ex. 1. The IEC by unanimous decision ruled that the experts testimony

would not be helpful because his expertise lay in auditing, not the state fiscal rules,

and his testimony not relating to the fiscal rules would not be relevant. Id., p. 244 l.

17 p. 254, l. 19, Ex. 1.

Expert testimony must assist the trier of fact to understand the evidence or

to determine a fact in issue. CRE 702. A trial court has broad discretion to

determine the admissibility of expert testimony and will not be reversed absent an

abuse of discretion. Silverberg v. Colantuno, 991 P.2d 280, 291 (Colo. App. 1998).

The IEC did not abuse its discretion. The Secretary argues that his expert

would have opined on what constitutes official business. However, as

Commissioner Grossman stated, we have a pretty straightforward issue as to

whether or not the expenditures we are talking about were appropriate under the


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standards and statute and under the fiscal rules is pretty clear, there has to be

official State business purpose. 6/7/2013 Hearing Tr., p. 246 ll. 2-6, Ex. 1. The

expert was not qualified as an expert with respect to the fiscal rules, and the IEC

concluded that his testimony outside of the fiscal rules was not relevant or helpful,

and was a waste of time under CRE 403. The ruling should not be overturned.

With respect to the prior secretaries of state and other witnesses, the

Secretary fails to cite to the record where the court ruled he was precluded from

calling them. A refusal to issue a subpoena is not the same as a refusal to allow

testimony. To the contrary, the record shows that the IEC authorized the

Secretary to issue subpoenas to former secretaries of state and members of his

office. 5/23/13 Meeting Minutes, R. 001384. Moreover, the Secretary did call

former secretary of state Bernard Buescher. 6/7/2013 Hearing Tr., p. 243 ll. 15-16,

Ex. 1. In any event, the Secretary has not shown how these witnesses testimony

have any relevance to the propriety of his expenditures under the applicable

statues and fiscal rules, and he cannot show prejudice from their failure to testify.

SeeMieka, 282 P.2d at 520.

D. The IEC did not abuse its discretion when denying the

Secretarys request to recuse two Commissioners.

The Secretary also argues his right to due process was violated because two

Commissioners did not recuse themselves. His argument is not persuasive.

Under 24-4-105(3) of the APA, members of an agency may recuse

themselves if a party files, in good faith, a timely and sufficientaffidavit of personal


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bias of a member. (emphasis added). The agency shall rule on the allegations in

such affidavit, and a member may withdraw if he or she deems himself or herself

disqualified for any good reason unless his or her withdrawal makes it impossible

for the agency to render a decision.

On appeal, an adjudicatory hearing is presumed to be impartial, though the

presumption is rebuttable. Venard v. Dept of Corrs., 72 P.3d 446, 449 (Colo. App.

2003). The appellate court treats members of a quasi-judicial panel as judges,

considering the standards set forth in Colo. R. Civ. P. 97. A motion to recuse and

accompanying affidavit are sufficient if they state facts from which it may be

reasonably inferred that the judge has a bias or prejudice that will prevent [the

judge] from dealing fairly with the party seeking recusal. Venard, 72 P.3d at 449

(quoting Johnson v. Dist. Court, 674 P.2d 952, 956 (Colo. 1984) andPeople v.

Botham, 629 P.2d 589, 595 (Colo. 1981)). However, mere allegations, opinions or

conclusions unsubstantiated by facts are not legally sufficient to mandate

disqualification. Goebel v. Benton, 830 P.2d 995, 999 (Colo. 1992).

Here, the Secretary filed motions to recuse Commissioner Marshall (R.

000770-76) and Commissioner Grossman. R. 000861-69. The IEC denied both

motions by unanimous decision from all five Commissioners. 3/4/13 Meeting

Minutes, R. 001370. The IEC later granted the Secretary leave to file an amended

motion to recuse Commissioner Grossman. 4/30/13 Meeting Minutes, R. 001378.

After hearing oral argument, the IEC denied this motion by unanimous vote

because the Motion did not contain facts from which it may be inferred that


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Commissioner Grossman has a bias or prejudice that will prevent him from dealing

fairly with Secretary Gessler or the office of the Secretary of State. 5/6/13 Meeting

Minutes, R. 001382. Commissioner Grossman also stated that the allegations in the

affidavit were false. Id.

The Secretary now argues that the affidavits before the IEC showed that both

Commissioner Marshall and Chairman Grossman were biased. Each argument is

addressed below, and neither shows a bias or prejudice sufficient for recusal.

1. Commissioner Marshall.

The Secretary relies on speculation in asserting that Commissioner Marshall

was biased. Opening Brief, p. 39-42. First, he cites to the statement, made in a

hallway after a hearing over two years ago, that questioned the Secretarys motives

in unrelated legal proceedings. He also cites to her statement that she was going

to keep an eye on the Secretary. Id., p. 41. The Affidavit was made by a member

of the Secretarys staff, based on his recollection of events in the summer of 2011.

The Secretary also speculates that Commissioner Marshall joined a written

order against the Secretary without having fully considered the matter in advance

of her decision. Motion to Recuse Commissioner Marshall, R. 000771. The

Secretary did not submit an affidavit alleging these facts, but rather assumes

[t]here is no evidence that she had even read the Secretarys motion to dismiss

or listened to a recording of the counsels January 7, 2013 oral argument. Id., R.

000771-72. The Secretary ignores the possibility that Commissioner Marshall could

have reviewed the motion and listened to the recording in private, and also ignores


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the likely possibility that she conferred with other members of the panel before

deciding to join the order. In fact, Commissioner Smith stated in an open meeting

that Commissioner Marshall reviewed all the material prior to ruling on

motions 3/4/13 Meeting Minutes, R. 001371. Commissioner Smith also stated

that both Commissioners Marshall and Grossman could be fair and impartial, and

the remaining Commissioners concurred. Id.

These facts, taken as true, do not show bias. The Secretarys argument that

Marshall questioned the Secretarys motives after a 2011 hearing is an opinion

about her subjective belief, not a fact. The hearsay statement upon which the

Secretary bases his argument is vague, ambiguous, and lacks context. Additionally,

the statement was made over two years ago, before Commissioner Marshall began

serving on the IEC. In response to the Secretarys recusal motion, Commissioner

Marshall stated on the record that she could be fair and impartial, and her fellow

Commissioners agreed unanimously. 3/4/13 Meeting Minutes, R. 001371. Thus,

the affidavit does not demonstrate as a matter of fact that Commissioner Marshall

was biased toward the Secretary.

The Secretarys second argument is not supported by any affidavit.

Additionally, his argument is based on speculation as to what Commissioner

Marshall did or did not review or consider before joining the order, and is belied by

Commissioner Smiths comments in open meeting. As a matter of law, his second

argument must be rejected as unsubstantiated by facts. See Goebel, 830 P.2d at

999.


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2. Commissioner Grossman.

The Secretary submitted two affidavits in an attempt to show bias: (1) the

affidavit of Stephen Bouey (R. 000870-71) showing Commissioner Grossmans

campaign contributions; (2) the affidavit of Suzanne Staiert (R. 000896-900),

claiming that, based on hearsay and circumstantial evidence, she believed

Commissioner Grossman referred to her as the Dragon Lady, along with a

transcript of a hearing before the IEC (R. 000901-16) where Commissioner

Grossman stated that he did not instruct an investigator to investigate the

Secretarys use of his discretionary fund on purchasing an alarm system.

None of the affidavits demonstrate bias. The Bouey affidavit merely shows

the Commissioners minor campaign contributions, some of which were to his

friends who ran against the Secretary. A minor campaign contribution to a friend

does not demonstrate a bias against his political opponent for purposes an ethics

inquiry.

Moreover, the voters contemplated that the IECs members would be involved

with different political parties as evidenced by the requirement that the

Commission not be made up of more than two members of a single political party.

Colo. Const. art. XXIX, 5(2)(b) (providing that [n]o more than two members [of

the IEC] shall be affiliated with the same political party.) See alsoColo. Const. art.

XXIX, 5(2)(a) (providing that certain IEC Commissioners are appointed by the

politically elected Colorado senate, Colorado house of representatives, and Colorado

governor).


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The Staiert affidavit does not even concern the Secretary directly, and to the

extent it may relate to him indirectly, it is based on speculation and hearsay. The

transcript fails to show bias, and actually supports Commissioner Grossmans

impartiality. The Secretarys lawyer accused the Commissioner of instructing an

independent investigator to investigate the Secretarys alarm system purchase. The

Secretary did not present any evidence supporting his accusation, and in response,

Commissioner Grossman plainly stated that he gave no such instruction. The

Secretary did not submit an affidavit or any other form of credible evidence to

contrary.

The Secretary did not make his remaining arguments regarding

Commissioner Grossmans bias below, and has therefore waived them. SeeMoody v.

People, 159 P.3d 611, 614 (Colo. 2007). The affidavits and transcript the Secretary

presents do not demonstrate as a matter of fact that Commissioner Grossman was

biased. Instead improperly rely solely on speculation, hearsay, and conjecture.

3. Harmless Error.

Even assuming either or both Commissioners should have recused

themselves, the court may affirm for harmless error. Any error in an

administrative proceeding is harmless if the Respondent does not show prejudice.

Mieka, 282 P.3d at 520. Any error in not recusing was also harmless because the

panel found that the Secretary had committed ethics violations in votes of 5-0

(RNLA Conference trip) and 4-1 (remaining funds in the discretionary account).


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Removing the votes of Commissioners Grossman and Marshall would have resulted

in votes of 3-0 and 2-1.

E. The IEC did not assume an improper prosecutorial role.

Finally, the Secretary contends that his due process rights were violated

because the IEC assumed in improper prosecutorial role by making up its own

legal allegations against the Secretary separate from CREWs complaint. The

Court should reject this final contention.

The Secretary relies primarily onDeKoevend v. Bd. of Educ. of W. End Sch.

Dist. RE-2, 688 P.2d 219, 227 (Colo. 1984). InDeKoevend, a case concerning a

school boards action against a teacher, the Court found that the teachers due

process rights were violated because the schools superintendent and principal

participated in the school boards deliberations. Id. The Court relied on Weissman

v. Bd. Of Educ., 547 P.2d 1267, 1276 (Colo. 1976), which held that it was improper

for the school boards attorney, who had acted in a prosecutorial role during the

evidentiary hearing before the board, to participate in the boards deliberations.

This case is unlikeDeKoevendand Weissman. The Secretary does not argue

that a third party improperly influenced the IECs deliberations. Rather, he claims

the IEC assumed an improper prosecutorial role by essentially doing its job.

Here, the IEC received CREWs complaint, correctly determined that it was

not frivolous, referred the investigation to an independent investigator, and then

issued a pre-hearing order, notifying the respondent of the date of the hearing, the

possible claims against him, and his right to present evidence.


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This record does not demonstrate that the IEC acted as a prosecutor. To the

contrary, it evaluated a complaint, gathered information from an independent

investigation, and then set the matter for a hearing where it heard evidence from

both parties.

V. The Secretarys First Amendment challenges should be rejected.

A. The Secretarys as applied challenge fails as the State has no

obligation to subsidize the exercise of free speech and the

Secretary failed to raise the issue in the administrative

proceeding.

The Secretary argues that his rights to free speech and free assembly were

violated by the IECs finding that the Secretarys attendance and speech at a

Republican sponsored event was improper. Opening Brief, p. 44-45, 46-48. In this

regard, the Secretary argues that a strict scrutiny standard should be applied. Id.,

p. 45.

The Secretary misframes the issue. The IEC did not find that the Secretarys

attendance and speech at the RNLA Conference in and of itself was improper.

Rather, the IEC found that the Secretary violated the ethical standard of conduct in

24-9-105, C.R.S.,by using state fundsto attend and speak at the RNLA

conference.

The government has no obligation to subsidize the exercise of free speech or

assembly. Regan v. Taxation With Representation of Washington, 461 U.S. 540,

545-46 (1983). See e.g. Cammarano v. United States, 358 U.S. 498 (1959)

(upholding a Treasury regulation that denied business expense deductions for


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lobbying activities by deciding that the First Amendment does not require Congress

to subsidize lobbying); Negron v. Golder, 111 P.3d 538 (Colo. App. 2004) (finding no

constitutional right to the government paying for photocopying services). Thus,

strict scrutiny is not applicable. See Taxation With Representation of Washington,

461 U.S. at 549-550 (stating that the Supreme Court has held in several contexts

that a legislature's decision not to subsidize the exercise of a fundamental right does

not infringe the right, and thus is not subject to strict scrutiny).

As a result, the Secretarys first amendment as applied challenges should

be dismissed because the Secretary has no right to have the State subsidize his

First Amendment rights of speech and assembly.

Moreover, the Secretary failed to raise his First Amendment as applied

challenges in the administrative proceedings below. A basic principle of appellate

jurisprudence is that arguments not advanced in the trial court and on appeal

generally are deemed waived. Moody, 159 P.3d at 614. While facial constitutional

challenges may be raised for the first time on appeal from administrative agencys

final action, the same is not be true for as applied challenges. Williams v. Indus.

Claim Appeals Office, 128 P.3d 335, 339 (Colo. App. 2006) (holding that as applied

due process claim not preserved when not brought before agency for determination)

(citing Horrell v. Dep't of Admin., 861 P.2d 1194, 1198 & n.4 (Colo. 1993)), rev'd on

other grounds, Williams v. Kunau, 147 P.3d 33 (Colo. 2006). But see United Airlines

v. Indus. Claim Appeals Office, 312 P.3d 235, 2013 COA 48, 27 (Colo. App. 2013)

(distinguishing Williams and Horrellin dicta).


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Here, the Secretarys failure to raise his as applied First Amendment

challenges before the IEC kept the IEC from making factual determinations that

would have addressed the issues raised for the first time before this Court.

Accordingly, the Secretary did not exhaust his administrative remedies or preserve

this issue for judicial review, and this Court should not consider it now.

B. The IECs jurisdiction over ethics issues arising . . . under any

other standards of conduct and reporting requirements as

provided by law neither is unconstitutionally vague nor

overbroad under the First Amendment.

The Secretary contends that Colorado Constitution, Article XXIXs grant of

jurisdiction to the IEC over ethics issues provided for in any other standard of

conduct and reporting requirements as provided by law is unconstitutionally vague

and overbroad under the First Amendment. Opening Brief, p. 46. The Secretarys

facial challenges should also be denied.

Facial challenges are disfavored because: (1) courts may be forced to rely on

speculation; (2) courts may have to rely on constitutional law when unnecessary; (3)

there is a risk of premature statutory interpretation; (4) courts may have to

formulate constitutional rules broader than those required by the precise facts to

which they would have applied; and (5) they may prevent laws from being

implemented that embody the will of the people. Independence Institute v. Coffman,

209 P.3d 1130, 1136 (Colo. App. 2008).

With respect to the Secretarys First Amendment vagueness challenge, the

IEC incorporates its due process vagueness discussion set forth on pages 20 through


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23 of this Answer Brief. Although a First Amendment vagueness challenge may be

analyzed under stricter vagueness standards than a due process analysis (Coffman,

209 P.3d at 1137), for the same reasons this Court should reject the Secretarys due

process vagueness challenge, so too should this Court reject the Secretarys first

amendment vagueness challenge.

In First Amendment cases, an overbreadth challenge will not void a statute

on its face unless the statute substantially chills constitutionally protected

expression or activity. People v. Janousek, 871 P.2d 1189, 1193 (Colo. 1994).

Invalidating a law as facially overbroad should be done only as a last resort.

Coffman, 209 P.3d at 1140; The Natl Gay Task Force v. Bd. of Educ. of the City of

Okla., 729 F.2d 1270, 1273-74 (10th Cir. 1984). A party may establish a law is

facially overbroad when a substantial number of applications are unconstitutional

in relation to the statutes legitimate sweep. Coffman, 209 P.3d at 1139-40.

The Secretarys brief fails to set forth any, let alone a substantial number of

applications of the IECs jurisdiction which may be viewed as unconstitutional

under the First Amendment. Even application of the IECs jurisdiction to the facts

of this case exemplifies a constitutional application. As previously discussed, the

IECs Order finding that the Secretary could not use state funds to attend a

partisan event does not implicate any first amendment rights as the State need not

subsidize the Secretarys exercise of free speech or any other fundamental right. As

a result, the Secretarys overbreadth challenge should be denied.


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C. Developmental Pathwaysis a gift ban case and has no

application to the present matter.

The Secretary asserts that his First Amendment rights were violated in

exactly the same manner that theDevelopmental Pathwaysplaintiffs feared their

rights were violated. Opening Brief, p. 48-51 (citingDevelopmental Pathways v.

Ritter, 178 P.3d 524 (Colo. 2008)). According to the Secretary, theDevelopmental

Pathwaysdecision supports the Secretarys First Amendment challenges in this

case. Id.

Contrary to the Secretarys assertions, the facts and legal standards applied in

the present case are different from those examined in theDevelopmental Pathways

matter. In that case, the Supreme Courts review was limited solely to Article

XXIXs gift ban provisions. Developmental Pathways, 178 P.3d at 526. In contrast,

this case involves 24-9-105, C.R.S., an ethical standard of conduct provided by

law, outside of Article XXIX. As a result, the Supreme Courts analysis in the

Developmental Pathwayscase is not relevant to the present matter and does not

support the Secretarys First Amendment claims.

The Secretary also argues that the IECs ruling acts as a prior restraint and

has a chilling effect on speech because he can no longer attend CLEs or other social

gatherings for fear of a future ethics complaint. As previously stated, the IECs

ruling did not find his attendance in and of itself at the partisan sponsored CLE

improper. Rather, the IEC found that it was improper to attend a partisan event

with taxpayer funds. As the State does not have to fund the exercise of a


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fundamental right (seeTaxation With Representation of Washington, 461 U.S. at

549-550), there can be no first amendment prior restraint based on the IECs ruling.

CONCLUSION

For the foregoing reasons, the IEC requests that this Court: (1) reject the

Secretarys requests for relief (Opening Brief, p. 51), and (2) affirm the IECs

determination that the Secretary breached the public trust for private gain using

funds for personal and political purposes . . . . and its imposition of a penalty

against the Secretary in the amount of $1,514.88 pursuant to 24-4-106(7), C.R.S.

IEC Decision, R. 001356.

Respectfully submitted this 17th day of December, 2013.

JOHN W. SUTHERS

Attorney General

Pursuant to C.R.C.P. 121, 1-26(7), a printable copy of this E-Served document is maintained in the Office of the Attorney

General for the State of Colorado

/s/ Joel W. Kiesey

LISA BRENNER FREIMANN *


RUSSELL B. KLEIN *


JOEL W. KIESEY *

Assistant Attorney General

Attorneys for DEFENDANTS

*Counsel of Record


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CERTIFICATE OF SERVICE

This is to certify that I have duly filed and served the withinANSWER

BRIEF upon all parties herein via the ICCES E-filing service at Denver , Colorado on

December 17, 2013.

Robert J. Bruce

RJB LAWYER, LLC

1543 Champa Street, Suite 400

Denver, Colorado 80202

Michael R. Davis

LAW OFFICE OF MICHAEL R. DAVIS, LLC

3301 West Clyde Place


David A. Lane

KILLMER, LANE & NEWMAN, LLP

1543 Champa Street, Suite 3400


Pursuant to C.R.C.P. 121, 1-26(7), a printable copy of this E-Served document is maintained in the Office of the AttorneyGeneral for the State of Colorado

/s/ Maria Ruiz

iec response brief 12172013 gessler v. grossman

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