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 (<a href="http://www.cityethics.org/content/total-gift-bans-and-legal-defense-fun…; target="”_blank”">total
gift ban</a>; <a href="http://www.cityethics.org/content/when-ec-dependent" target="”_blank”">lack of
independence, including ethics commission members making campaign contributions</a>;
and <a href="http://www.cityethics.org/content/ethics-code-charter" target="”_blank”">ethics code
in a constitution</a>).<br>
<br>
According to <a href="http://gazette.com/we-need-due-process-in-ethics-inquiries/article/1515…; target="”_blank”">a
guest column in the Colorado Springs <i>Gazette this week</a>, 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."<br>
<br>
<a href="http://www.law.cornell.edu/uscode/text/42/1983" target="”_blank”">Section
1983</a> 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.<br>
<br>
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.<br>
<br>
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."<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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