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.
The Attorney General's decision came in the form of a letter (pdf) sent Tuesday from Assistant Attorney General Matthew Grove to the state's Independent Ethics Commission. The Commission is considering whether or not such a fund would violate state anti-corruption laws.
"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.
On Monday, for example, the Ethics Commission five members beat back a series of motions argued by the Secretary of State's lawyers to dismiss a complaint that Gessler charged $1,500 to taxpayers mostly for alleged personal travel. In the end, however, the $1,500 travel expense may be nothing next to the amount taxpayers will pick up for the defense he is mounting against the investigation.
On the taxpayers' dime, Gessler has hired three high-profile attorneys from three separate private-sector law firms- Robert Bruce, Michael Davis and David Lane- to represent him before the Commission. Attorneys with the kind of name-recognition and experience these men possess charge from $300 to $500 or more per hour, according to sources with knowledge of the field. There's little reason to believe Gessler would pare down this star defense team in the face of any criminal charges, but that could change if the Ethics Commission finds the contributors fund he wants to set up runs afoul of the law.
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."
Feldman said that the lawyers the Commission usually taps for help at the attorney general's office, mainly Assistant Attorney General Lisa Brenner-Freeman, are familiar with the Commission's work and with the precedent being established by its record of decisions. The five-member bipartisan commission established by voter-approved Amendment 41 in 2006, operates with an annual legal budget of roughly $68,000. Feldman estimates it would spend $5,000 of that budget on outside counsel "just to get them up to speed."
Feldman said she thought the attorney general's office made a fairly bold statement in sending the letter this week but that the argument detailed in its mere three paragraphs seemed pro forma.
"The letter is surprising for that reason," she said. "It is conclusory not analytical... It basically states the position of the office but doesn't delve into any of the decisions made by the commission in the past that might be relevant."
Attorney General Spokesperson Tyler told the Independent that Suthers felt it was important to put the views of the office on record now, before the Commission began considering the legality of the proposed fund, because any decision will have ramifications for public servants across the state.
The ethics complaint and the Denver criminal investigation against Gessler stem from the $1,500 he charged to taxpayers last year for travel and another $1,500 he charged to his office discretionary funds without submitting receipts.
Left-leaning government watchdog group Colorado Ethics Watch filed the complaint the Ethics Commission is investigating.
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.
"It just speaks to the conclusion we came to a while ago that the [Commission] should have its own representation. This letter sent by the AG just demonstrates how easy it is to put the Commission in a position where it has to look elsewhere for legal advice. To ask the Commission to make decisions on these important matters without counsel is unacceptable. It's not fair to the people of Colorado who voted to establish the Commission and who expect it to be able to properly fulfill its mission."
Toro said the legislature could "easily fix the problem" by upping the Commission's annual budget.
In a 2011 essay for The Huffington Post, Toro made much the same case. Working from a report published by the National Conference of State Legislatures, he explained that 41 states had some version of an ethics commission and that 39 of those commissions enjoyed a greater number of staffers than Colorado's commission.
"The the California Fair Political Practices Commission," Toro wrote, "has 80 full-time staff members." Toro told the Independent that many of the state commissions have their own counsel on staff.
The Ethics Commission is scheduled to meet next the first week of February.