January 14, 2013 01:59 PM UTC

Suthers Has Gessler's Back, Perfect Timing Edition

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• by: Colorado Pols

As the Colorado Independent’s John Tomasic reported Friday evening:

Colorado Attorney General John Suthers’ office this week made what’s sure to be a controversial decision to officially support Secretary of State Scott Gessler’s effort to establish a legal defense fund. The fund would host contributions from private donors willing to cover costs tied to a Denver District Attorney criminal investigation into reimbursements Gessler charged to his office for alleged unofficial expenses…

“In the Attorney General’s view,” Grove wrote, “the propriety of a legal defense fund is governed by conflict of interest principles… The Attorney General submits that an arrangement that: (1) places appropriate limits on the public official’s solicitation of contributions, and (2) either ensures transparency or establishes a blind trust would be consistent with [constitutional] concerns…”

Suthers and Gessler are both high-profile Republican figures in the state, and the letter, which Attorney General Spokesperson Carolyn Tyler told the Independent was approved by Suthers, is sure to fuel complaints about backscratching among top state Republican officials. It will also likely renew questions about the power of the state’s understaffed Ethics Commission, which is tasked with investigating official misconduct but hobbled by a tiny budget and no staff attorneys to turn to for advice on legal questions. Indeed, the Grove letter underlines the way the story of Gessler’s alleged misuse of a relative small amount of public money seems to grow into a larger story about government ethical standards and oversight each month as new chapters pile onto the narrative.

Basically, Attorney General John Suthers’ office argues that Secretary of State Scott Gessler would not violate Amendment 41, the Colorado law barring “private gain” by state employees that could in turn influence an official action, by setting up a legal defense fund. The AG’s office says that if appropriate safeguards restricting Gessler’s ability to solicit contributions are defined, and the arrangement “either ensures transparency or establishes a blind trust,” it would be permissible under Amendment 41. Read the very brief memo here.

The thing is, whether or not that opinion is correct, the role of the Attorney General’s office as both counsel for state employees and the Independent Ethics Commission investigating Gessler is turning into a conflict all by itself. Tomasic of the Independent continues:

Ethics Commission Director Jane Feldman believes the Commission’s consideration of the matter has been complicated by the Attorney General’s official position in support of the fund. She told the Independent that Grove’s letter raises conflict-of-interest concerns because the Attorney General is tasked by the state constitution with providing counsel to the Ethics Commission in its deliberations.

“It’s disappointing that the AG’s office weighed in on this without discussing it with us,” Feldman said. “Now we effectively lose the services of the attorney general’s office in considering the legality of the fund. If we need advice, we’ll have to hire outside counsel.”

…Ethics Watch Director Luis Toro told the Independent he thought the attorney general’s office had crossed a line in taking a position in favor of the Gessler defense fund and that the move bolsters an argument his organization has been making for years that the state’s Ethics Commission should have its own counsel on staff, independent from any of the government agencies or offices it might have to investigate.

“The AG’s office said it wouldn’t be involved in Gessler’s criminal defense, yet here it’s involved, isn’t it?” Toro said. “In fact the AG went out of its way, tripping over itself, to get involved. Whose hat is the AG wearing? Is it counsel for the Ethics Commission or for Scott Gessler? Now they’ve handicapped the Commission by leaving the members without its usual counsel.”

Given the obvious partisan political relationship between Republican Attorney General Suthers and Secretary of State Gessler, this situation reveals the folly of using the AG’s office as counsel for the ethics commission at all–since the AG’s role as counsel for state employees arguably makes the conflict the IEC is complaining about in this case inevitable.

Says Colorado Ethics Watch, this problem would be best solved by properly funding the IEC, which would allow it to retain its own legal counsel. For that to happen, of course, lawmakers in Colorado would need to start treating the IEC, and for that matter Amendment 41 as a whole, as something more than a bastard stepchild they would really prefer just go away.

As it stands now, our GOP Attorney General has demonstrated a clever way to subvert it.