Ambiguous wording in the April 14 decision of Colorado's Independent Ethics Commission (IEC) will come in for close scrutiny following an official complaint Mike Coffman lodged with the state supreme court against attorney Chantell Taylor, director of Colorado Ethics Watch (CEW). The Associated Press reported September 24 that in a letter he mailed the previous day Coffman, who currently represents Colorado's 6th Congressional District, accused Taylor of having misrepresented the IEC to have "found that he 'technically violated state law' when he was secretary of state." While there is room for honest disagreement, I believe the context of the disputed language supports Taylor's interpretation of the ruling.
The IEC's ruling dismissed the complaint CEW filed against Coffman on February 13, 2008. The first of the two charges in the complaint alleged that Coffman allowed a subordinate - a political ally named Dan Kopelman - to operate a side business in violation of state law and personnel rules. CEW charged a) that Coffman had been aware of Kopelman's side business well before his deputy, William Hobbs, formally brought it to his attention in May 2007, and b) that in failing to take action earlier, Coffman himself violated state law and personnel rules that hold agency heads and hiring authorities responsible and accountable for the activities of their subordinates.
Coffman's complaint against Taylor revolves around the following sentence from the ruling: "The IEC finds that although there may have been a technical violation of state law, this was mitigated by the vigorous and immediate remedial action taken by both Coffman and Hobbs." In an April 14 press release CEW stated regarding the Kopelman charge: "The IEC found that Coffman technically violated state law by allowing a senior employee to operate a partisan side business." In its September 24 article the AP reported, "In his complaint letter to the commission, Coffman said the finding of a technical violation referred only to possible illegal activity by his employee and not to Coffman."
So who's right? Let's look at the IEC's "technical violation" sentence in context:
The First Claim of Relief alleges violations of C.R.S. § 24-50-101(3)(d) and 4 CCR § 801, Rule 1-11. This statute provides that "heads of principal departments...shall be held responsible and accountable for the actual operation and management of the state personnel system for their respective departments." State Personnel Rule 1-11 provides that "[a]ll appointing authorities, managers, and supervisors are accountable for compliance with these rules and state and federal law, and for reasonable business decisions, including implementation of other policy directives and executive orders."
The IEC agrees that Coffman, as the head of the agency, was responsible and accountable for the overall management of the Secretary of State's Office. However, it does not believe that this necessarily means that he can be held personally responsible under ethical standards for every activity of each individual employee. Coffman reasonably relied on Mr. Hobbs and other managers in his department to oversee the daily operations of the office. Mr. Hobbs testified that he was responsible for reviewing and approving requests for outside businesses of employees. Mr. Hobbs was also an appointing authority. The State Personnel Rules impose an affirmative duty on the employee to request approval to engage in any outside business, and Kopelman had not done so. Further, there was no evidence that Mr. Hobbs had had any knowledge of Kopelman's outside business.
Once Coffman and his management team were made aware of the problem, they immediately undertook an investigation to assure the integrity of information at the Secretary of State's Office, and disciplined Kopelman. This discipline included a demotion, loss of pay differential, and transfer out of the Elections Division. Coffman also requested investigations by the Colorado Attorney General and the State Auditor, and accepted the Auditor's recommendation that oversight of this issue needed strengthening. There is no evidence that Coffman attempted to conceal the incident from the public. The IEC finds that although there may have been a technical violation of state law, this was mitigated by vigorous and immediate remedial action taken by both Coffman and Mr. Hobbs.
As pled in the complaint, in order to find Coffman in violation of an ethical standard, the Commission must find, by a preponderance of the evidence, that Coffman knew or should have known that Kopelman was operating an outside business, or that he knowingly ignored the situation in order to benefit himself or Kopelman.
The facts before the IEC do not support a finding under the preponderance of the evidence standard that Coffman knew or should have known about the outside business being conducted by Kopelman. [emphasis added]
Taylor disagreed with the IEC's conclusion that the evidence in the case was insufficient to demonstrate that Coffman knew or should have known about Kopelman's side business, and readers can review CEW's closing brief and its April 14 press release to understand why. However, CEW having declined to appeal the decision, that matter is officially settled.
The pending issue is Coffman's complaint against Taylor. Did she, as Coffman charged, misrepresent to whom the IEC attributed "a technical violation of state law"? I think not.
The IEC appears to have meant the following: the law, strictly interpreted, does indeed hold Coffman (along with Hobbs) technically responsible for Kopelman's illegal operation of a side business, but a) this technical violation of law does not equate to a violation of an ethical standard, and b) the action Coffman (and Hobbs) took mitigates the guilt one might nevertheless assign for this technical lapse.
Coffman's reading of the key sentence appears to be that Kopelman alone was in technical violation of state law, and action Coffman and Hobbs took mitigated the consequences to the public of that technical violation. This is plausible, but I disagree with it.
It will be interesting to see whether the IEC clarifies this issue and how this story develops.