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UPDATE: Statement from Colorado Ethics Watch on Secretary of State Scott Gessler's lawsuit: Yesterday, the team of lawyers who have been representing Colorado Secretary of State Scott Gessler at the public’s expense filed suit in Denver District Court, seeking a temporary restraining order that would prevent the Colorado Independent Ethics Commission (IEC) from finishing its […]

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.

UPDATE: The Colorado Independent’s John Tomasic with more IEC coverage:

The travel expenses charged by Gessler come from attendance at the Republican Party convention in Florida and to a Republican National Lawyers Association meeting this past summer. Gessler was not a delegate to the Republican convention, a fact confirmed for the Independent by Spokesman for the state Republican Party Justin Miller. On his reimbursement forms, Gessler said he was conducting state business.

Peg Perl, staff counsel at Ethics Watch, told the Independent it was gratifying to see the commission stay focused on the substance of the case.

“We’re happy the commission members are taking their responsibility seriously,” she said in a phone interview. “They voted unanimously that this complaint was not frivolous when they took it up and they decided unanimously today to investigate it on the merits. Gessler’s attorneys cast aspersions on Ethics Watch, calling our motives into question, and they attacked the way the Ethics Commission conducts business. But the fact remains that these are questionable transactions with public funds and Coloradans have a right to know what happened.”

Perl added that the complaint filed by her organization was based on published news reports and documents from the secretary of state’s office obtained through an Open Records Act request. She said the commission will have greater investigative power to look into the spending through its subpoena powers.

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It’s been a long time coming, reports the Fort Collins Coloradoan’s Patrick Malone:

Colorado’s Independent Ethics Commission on Monday denied Secretary of State Scott Gessler’s request to end its investigation of his use of public funds. Gessler’s deputy, in turn, asked the commission for permission to accept monetary donations outside of the constitutional gift limit to defend him against criminal allegations.

Democratically aligned Colorado Ethics Watch filed complaints against Gessler with the Independent Ethics Commission and the Denver district attorney’s office over his use of public funds to pay for part of a trip in August to Florida where Gessler attended a GOP lawyers’ function and the Republican National Convention.

Colorado Ethics Watch also asked the ethics commission and prosecutors to investigate Gessler’s acceptance of personal payments to empty the balance of his office’s discretionary fund.

Malone reports that embattled Colorado Secretary of State Scott Gessler’s three high-powered defense lawyers, David Lane, Robert Bruce, and Michael Davis, are being paid by the state to defend Gessler in the Independent Ethics Commission proceedings against him. Not so with Denver District Attorney Mitch Morrissey’s criminal investigation of Gessler over essentially the same dubious reimbursements, and cleaning out his discretionary account of remaining funds. In a criminal case, even related to his duties, Gessler has to pick up the tab for his own legal defense–unless he can carve out a fresh loophole in Amendment 41:

In the request for an advisory opinion from the ethics commission, Deputy Secretary of State Suzanne Staiert advocates allowing donations to a legal defense fund for Gessler. In the document, Staiert argues that political rivals can financially harm public officials whose policies they oppose.

She states that donors to the fund would not curry the influence of a public official, because the public official would not directly benefit from the donations that are paid to his lawyers.

We would be more sympathetic to Gessler’s plight, recognizing that legal harassment is at least hypothetically possible against public officials. Unlike most frivolous legal harassment, though, this isn’t getting dismissed out of hand. In fact, the IEC has decided that the case has merit. That’s not proof of guilt, of course, but citizens must pay for their own criminal defense in most cases–even when they are eventually found not guilty. A criminal investigation (and prosecution, if any) has a much higher standard than, say, a frivolous civil lawsuit. Is Gessler implying that the Denver DA is a “political rival” seeking to “financially harm” him?

Also, it’s not like we’re talking about a policy issue or consequential official action being defended. Although related to his office, the underlying charge boils down to essentially misuse of funds–whatever descriptive term you want to use for that, we’ve heard several.

Either way, how would a donation to Gessler’s legal defense fund not be of “direct benefit” to Gessler, when the alternative is him paying out of pocket? And how then would that be permissible under Amendment 41? That would be awfully hard to swallow even if the circumstances surrounding this alleged malfeasance did inspire much sympathy.

Which, if you haven’t been paying attention, they don’t.

After the Fort Collins Coloradoan’s Patrick Malone broke the story Tuesday night, Tim Hoover of the Denver paper follows up today with more details from Colorado Secretary of State Scott Gessler’s spokesman about two taxpayer-funded trips he took last summer: one to Washington, D.C. to speak at a Heritage Foundation press conference for the True […]