making local government more ethical

How to Make Colorado's Ethics Program More Functional

Colorado has an extremely dysfunctional ethics program, everyone is complaining about it, but approaches to fixing it are sometimes just as dysfunctional. A year ago, I wrote three blog posts about its problems and people's complaints (total gift ban; lack of independence, including ethics commission members making campaign contributions; and ethics code in a constitution).

According to a guest column in the Colorado Springs Gazette this week, the latest "fix" is a bill that "creates liability for members of the [ethics commission] to the extent that they recklessly, intentionally, or willfully violate 'clearly established' rights existing under federal or state law, a standard largely lifted from federal section 1983 litigation."

Section 1983 is the basic federal civil rights law that protects individuals from mistreatment by government officials, such as the police and prison guards. It is strictly a law that protects citizens from government misconduct.

The Colorado bill would instead protect government officials accused of misconduct from citizens sitting on the ethics commission, putting these citizens in a position where they may be sued for violating the rights of officials, something that is inconceivable under §1983.

The author of the guest column, Elliot Fladen, a Colorado attorney who "consulted" on the bill, says that worries about people not wanting to serve on the EC due to this provision are unfounded. He says the violation "would have to be reckless, intentional, or willful."

As a lawyer, Fladen knows that a violation does not have to be reckless, intentional, or willful for an EC member to be sued by a vengeful official. And there's a lot of anger and vengefulness in Colorado politics (this bill is a good example of it). An EC member might face financial ruin from an official seeking retaliation. That's enough to prevent most people from agreeing to sit on an EC.

It's interesting that the bill would ensure that a respondent official would get an attorney, but not, apparently, that a defendant EC member would get an attorney or have her attorney fees paid. In §1983 cases, the plaintiff can sue for attorney fees, but the defendant can get such fees only if the complaint is found to frivolous and without foundation. One presumes this would be true for suits filed under this bill.

This bill is not the way to fix Colorado's dysfunctional ethics program. It is only a way to make it even worse, possibly to destroy it altogether.

The way to fix it is, first, to recognize that the original citizens initiative made some mistakes, and fix them. A revised ethics code should ensure that no one under the EC's jurisdiction has anything to do with the members' selection, and to make sure that members have no involvement in campaigns or parties or anything else that makes them appear biased. The EC also needs to have its own staff and counsel, and the state needs a better gift ban focused on restricted sources. The entire ethics code should be reviewed by neutral people who understand government ethics programs and have no axes to grind. It won't be easy, since the code is in the constitution, but it's better than doing nothing or, worse, trying to destroy the ethics program in clever ways.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548

Elliot Fladen (not verified) says:

Robert,
First off, thank you for including me in this discussion which is both timely and needed.

You conceded that the bill requires not just that the violation be reckless, intentional, or willful violation of another's rights, but that the rights themselves be clearly established. In other words, that an official might disagree with a result by the IEC would be insufficient to bring a suit - there would have to be an allegation that the commission's action violated rights that have been well established and acknowledged. With that in mind, let's take your complaint that the legislation would lead to baseless suits. Pick an official - let's say Shawn Mitchell (he isn't in legislature anymore but let's say he were back for illustrative purposes). Let's say the IEC received a complain about Shawn, afforded him an attorney, informed him of the elements of the charges against him, and then convicted him. Let's say Shawn isn't happy with that result and wants to sue the IEC. What would be the basis for his suit? If it is merely that he is "unhappy" about the result that was reached, that would be insufficient under the statute and would likely be a substantially groundless, frivolous, and/or vexatious suit under C.R.S. 13-17-102 as you indicate. Thus, the IEC member sued would be likely able to recover their attorney fees. Moreover, and I could be mistaken on this point, I believe the AG's office would provide a legal defense in the case of such a suit. See, e.g., C.R.S. 24-10-110(1)(a) (stating that "A public entity shall be liable for . . . [t]he costs of the defense of any of its public employees, whether such defense is assumed by the public entity or handled by the legal staff of the public entity or by other counsel, in the discretion of the public entity, where the claim against the public employee arises out of injuries sustained from an act or omission of such employee occurring during the performance of his duties and within the scope of his employment, except where such act or omission is willful and wanton.")

You also indicate that potential liability would be enough to dissuade some people from serving on the IEC. I am not sure why dissuading people who would intentionally violate the rights of another would be a bad thing. We don't mind that certain potential police officers are "dissuaded" if they abuse their governmental position by beating a suspect in custody - because we want to encourage such a candidate with a predisposition for violating such rights never to serve in the first place. And in this context, dissuading an IEC official who would violate a respondent's rights by, as an example, convicting them without giving them the elements of the offense they are charged with would not be a "bug" of the legislation - it would be a "feature". Finally, the fact that you think "most" or perhaps many/all people would be dissuaded from serving on the IEC on this basis is simply speculation by you at this point. After all, volunteer officials can have liability for their intentional violations of the rights of others yet they still serve. Why would the IEC volunteers be any different?

Moving on to your idea, you suggest that the selection of IEC members be changed so that it isn't selected by anybody under its jurisdiction. While this seems at first blush to be a good idea it has two problems immediately obvious problems: (1) you effectively create a need to elect the IEC as you've eliminated anybody who would be allowed to select them; and more importantly (b) you would need a Constitutional Amendment to follow through on your idea as the selection of IEC members is mandated through Article XXIX of the Colorado Constitution. See Section 5(2)(a) of that Article. As for a better code, I don't have much issue with that but that may need to again be handled through a Constitutional Amendment to the extent it contradicts Article XXIX.

I wrote this back quickly so please excuse any typos or any ungrammatical sentences. Also, although I am an attorney, I am not your attorney. Thus, none of this is legal advice.

Take care and feel free to contact me should you have any questions,
Elliot

Robert Wechsler says:

Your sentence, "I am not sure why dissuading people who would intentionally violate the rights of another would be a bad thing," does not point to the right question. No one is dissuaded because they "would intentionally violate" anyone's rights. They are dissuaded for fear that they will be accused of this by a disgruntled official (and not only after a finding of violation, as you say; it can be based on a procedural decision early in the process).

I would not become an IEC member if this law were passed, and not because I intend to violate anyone's rights. I'm sorry, but your argument doesn't wash.

I've been following government ethics proceedings for years, and have seen numerous suits brought by vengeful officials against ECs and EC members under all sorts of laws, but not ones specially designed to allow them.

As for having to elect the IEC, see my blog post on what is considered the best practice for selecting ethics commission members.

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