Gessler Accuses State Ethics Panel of Overreach

February 5, 2013
By

Gessler is arguing that the dispute falls well beyond the scope of the commission’s jurisdiction

DENVER–The Colorado Independent Ethics Commission was established by voters in 2006 to investigate influence-peddling, not rule on criminal cases.

That’s the argument being made by Secretary of State Scott Gessler in his effort to stop the commission from ruling on a complaint filed against him in October by the left-wing group Colorado Ethics Watch.

Gessler’s attorneys, led by prominent Denver lawyer David Lane, are asking a Denver District Court judge to grant an injunction that would stop the five-member commission from acting on the complaint. The commission was expected to rule on the complaint at its Monday meeting, but pushed the matter back in anticipation of the court hearing Thursday.

Luis Toro, director of Colorado Ethics Watch, accused Gessler of trying to muzzle the commission with his “bullying tactics.”

“Secretary Gessler is obviously desperate to prevent the release on Monday of an investigative report that would likely confirm not only the truth of Ethics Watch’s allegations, but that his conduct violated standards of conduct that prohibit the use of public funds for personal or political purposes,” said Toro in a statement Monday.

In his filing, however, Gessler argues that the commission is doing the bullying by insisting that it has the authority to rule on the complaint. The panel was created by the 2006 passage of Amendment 41, which prohibits public officials from accepting gifts in excess of $50 per year.

The commission’s charge is to rule on potential violations of Amendment 41. The legislature later adopted a bill that was interpreted by the Attorney General as limiting the amendment’s scope to influence-peddling.

The problem, says Gessler, is that he is not accused of accepting a gift. The Ethics Watch complaint contends that Gessler violated three criminal statutes by using his discretionary fund to pay for political expenses, specifically an August 2012 trip to Florida in which he attended Republican-sponsored events.

The Denver District Attorney is investigating the matter. Gessler has denied any wrongdoing, saying the expenditures were related to official business and represented an appropriate use of office funds.

In a motion to dismiss filed with the commission, Gessler argues that the dispute falls well beyond the scope of the commission’s jurisdiction, given that he dispensed the funds to himself and that nobody attempted to influence him.

“[I]t is logically impossible for state funds, directed by the Secretary, to be used to ‘influence’ the Secretary,” argues Gessler in his motion to dismiss the complaint. “In other words, the Secretary cannot ‘influence’ himself.”

The commission refused the dismiss the CEW complaint, saying in its order that it may examine “any potential violation of the Constitution or other standards of conduct or reporting requirements.”

As a result, says Gessler, the commission is asserting “virtually limitless jurisdiction” that extends to violations of the criminal code.

“[I]t violates every notion of fairness for the Commission to haul in the Secretary before the tribunal, subject him to evolving and substandard procedures, chill his ability to carry out his official duties as he sees fit, and force him to respond to allegations over which the Commission lacks jurisdiction,” says the motion for a preliminary injunction.

Jane Feldman, the commission’s executive director, says the maximum penalty in the case of an ethics violation is a fine in an amount double the value of the gift.

 

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