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 [1]; lack of independence, including ethics commission members making campaign contributions [2]; and ethics code in a constitution [3]).

According to a guest column in the Colorado Springs Gazette this week [4], 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 [5] 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

203-230-2548