GUEST COLUMN: We need due process in ethics inquiries

Elliot Fladen Updated: February 27, 2014 at 7:16 am • Published: February 25, 2014 | 12:00 am 0

It is February in Denver and that means the state legislative season is upon us. Each weekday, various committees consider bills that were submitted by the end of last month. Up soon is an interesting bill, House Bill 14-1258 by U.S. Senate candidate Amy Stephens - a bill to protect due process in proceeding before the Independent Ethics Commission, otherwise known as the "IEC". What makes this bill interesting are three things: (a) the fact that involves the IEC; (b) the rights that the bill seeks to protect; and (c) the manner in which the bill seeks to protect those rights.

The IEC was created through Amendment 41, which Colorado voters passed by initiative in 2006. From even before its inception, the IEC was embroiled in lawsuit over whether the standards it was to enforce were an abridgment of Coloradans' First Amendment rights. The Colorado Supreme Court ultimately denied such challenges in 2008 by ruling that while the IEC was "a superagency, a commission set apart from the legislative and executive branches of government so as to supervise the ethical conduct of both branches" that because it "ha[d] not yet had the opportunity to act . . . that [the] challenges . . . [were] not ripe for adjudication." Since that ruling, and especially recently, ethics complaints have been filed against some of the most prominent politicians in the state in an increasing game of tit-for-tat of Democrats against Republicans.

What is concerning though is while the complaints filed with the IEC increase, so does the angst that the IEC does not have adequate protections for the rights of those that come before it and may be a "star chamber".

HB14-1258 wades into this debate by enshrining two key rights. First it creates the right to know the "elements of the charges" that one faces when going before the IEC. Second, it creates the right to have a state-provided attorney in such a proceeding. Neither of these rights are particularly controversial, especially when one remembers that state employees and officials are covered Amendment 41's gift ban which prevents them from raising money for a legal defense through donations and arguably also accepting pro bono legal services.

The controversial element of HB14-1258 instead is Section 2 of the bill. That section creates liability for members of the IEC 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. While there is a safe harbor for commissioners who abstain from an act or omission causing a violation of such rights, concern is being raised around the State Capitol that creating liability for IEC members is inappropriate and will "dissuade" people from wishing to serve on the commission.

Such concern is misplaced. Remember, IEC commissioners will not be liable under the bill for "accidentally" violating rights - the violation would have to be reckless, intentional, or willful. We have already decided as a society to hold other governmental actors, such as police officers, liable when they abuse their governmental position by intentionally violating the rights of others. That such a concern may "dissuade" some from serving in government is not a "bug" of such a societal policy; it is a "feature".

After all, the sort of person who would use their governmental office to intentionally violate the rights of others is the exact sort of person we would want to "dissuade" from having governmental authority in the first place. And, just as the Colorado Supreme Court decided in 2008 that it was premature to restrict Amendment 41, such a conclusion is even more apt here when looking at whether this bill would dissuade people from serving on the IEC: after all, volunteer support for police forces are found across the state despite the already present risk of liability for intentionally violating others' rights.

As such, HB14-1258 is not only timely, but it is also good policy. Any proceeding which can drag in as many high profile individuals as the IEC needs to have both some basic procedural protections and also an effective means of enforcing the same. HB14-1258 provides each of those. Accordingly, legislators who oppose it need to either offer a reason better than overblown fears of dissuading volunteers from serving on the IEC or be exposed as believing due process in front of the IEC is an unimportant concern.

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Elliot Fladen is a Colorado attorney who consulted on the formation of HB14-1258.

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