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Reporter, Not Gessler, Started Conversation About Moonlighting

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Colorado Secretary of State Scott Gessler told KHOW radio's Craig Silverman yesterday that he "purposely decided to have this conversation to start talking and telling the people of Colorado what was going on before" starting to moonlight for his old law firm.

But do you "purposely decide" to start conversation, if you have to be asked about it by a pesky journalist before you start talking about it?

I don't think so.

In Gessler's case, it was the Denver Business Journal that started the conversation by asking Gessler about his planned moonlighting.

"I was tipped to it by someone," said the Journal's Ed Sealover, who broke the story Friday. "And I approached him, and he agreed to sit down and talk."

So Gessler should be giving himself credit not for starting the conversation, but for agreeing to continue it. The rest of us should be thanking Sealover for doing his job so well.

And once Sealover got Gessler ignited, other media types like Craig Silverman, have done a good job getting more information on the table, including Gessler's statement that he hopes to do legal work at home with a sleeping toddler in the house. I wish Silverman had asked Gessler if he plans to add surcharge for pulling that off.

"I'm not hiding anything," Gessler told Silverman yesterday. "And when it comes to conflicts and what not, most state legislators do stuff on the side, even though they are state legislators. There has been a lot of, well, several that I know, I haven't fully researched it, but you know state-wide office holders who also had things on the side. And I think that's appropriate. At the end of the day, we want people who have connections to the real world. We want people who face the same struggles that other people do, whether it's family obligations or other things. I think I fit in that category, but you want people who face those and have those connections, and I think the difference between, or the reason why there is a lot of attention on me, is because I want to be up front about this. And I purposely decided to have this conversation to start talking and telling the people of Colorado what was going on before I did anything."

Partial transcript of Scott Gessler Interview on the Caplis and Silverman Show, Monday, January 24, during the 5 p.m. hour.

Craig: Tell everybody about your background.... How long have you been a lawyer?

Gessler: I graduated from Michigan, passed the bar in 1990, so I guess you could say 21 years. I didn't practice law during all of that time. There were about eight years in there where I primarily focused on business stuff and didn't practice full time. So about 12, 13 years total full-time as a lawyer.

Craig: ...How many employees do you have in the Office of the Secretary of State?

Gessler: We've got about 130 here....

Craig: Tell us what you were doing before you ran for Secretary of State....

Gessler: Well, I was a partner in a law firm, Hackstaff Gessler, now Hackstaff Law Group. I had done that, I was with a guy named Jim Hackstaff, for about five years, actually almost six now.

Craig: How big of a law firm was it?

Gessler: When I left there, which was a few weeks ago, we had I think about 10 attorneys and about 13, 14 people total.

Craig: Now the situation that's gotten everybody talking about you, and it's great for talk radio, so thanks for doing it, is you want to do some law work for your old law firm. Tell us in your own words how that came about.

Gessler: Well, obviously I've got service to the state, and that's very important to me, but I also have some family obligations. And so the current salary is a lot lower than what I had been making for quite a while so I wanted to, still want to, supplement that a little bit. So the challenge that I have had is to make sure there are no conflicts. So that anything I do is completely segregated from any election law work or anything that the Secretary of State does, that it's temporary and focused in nature, so that I don't have any conflicts. And then I also want to make sure that I don't have the appearance of conflict. And my view on that is, right now I'm not doing anything. I'm not practicing or doing any work outside of the Secretary of State's Office. But I've sort of started this conversation, I've sort of revealed to everyone, obviously, what I'm thinking of doing. So I wanted to be really open and up front with that even before I do anything. I know people talk about transparency a lot, and I want to make sure I am transparent.

Craig: So this is not a done deal? You're still thinking about doing it?

Gessler: I'm still thinking about it. I mean, I'm planning on doing it. I've asked the Attorney General to sort of give me their views on it as well, because I want another set of eyes on this. But I'm planning, I'm expecting to do it. At the end of the day, there has to be work for me to do. It has to be an area where there are not conflicts. And I still want to get another set of eyes to review that, too.

Craig: How would that work...?

Gessler: I'd be an independent contractor, and I'd pretty much be limited to sort of research and writing. So I wouldn't represent anybody in court, or anything like that. It would pretty much be narrow research and writing. I'd be an independent contractor, for just very specific temporary projects that did not involve the Secretary of State's Office.

Craig: What about clients whom you'd be working for? Would it be that they wouldn't have any use for that law firm on any issue that could touch the Secretary of State's Office?

Gessler: I think the answer is generally yes, generally yes. And from my knowledge of the firm, since I used to be part of it, there are a lot of clients there. They do a lot of transactional work. But also litigation work, for example two people who have a property dispute or an appellate action where they are helping client that's just very limited to a specific project, whether it's a specific litigation or Court of Appeals project or something along those lines that doesn't touch the Secretary of State's Office.

Craig: How much would be making per hour with this independent contractor work?

Gessler: I don't know. I think that's going to be on a case-by-case basis depending on what the rate is. But usually depending on what the hourly rate is that's billed out, my sense is that I'd get about a third of that. So if it were $240 per hour, I'd bring in about $80 per hour.

Craig: Have you and your former partners researched this...?

Gessler: I did the research, spent a lot of time on it to cross the t's and dot the i's. That's why I feel comfortable, like I'm on solid ground, certainly with the bar association and ethics. They put out a lot of formal opinions, researching the ethics rules. And they have a very long opinion talking about temporary attorneys and how that interacts with the law firm and the fact that you don't become part of the law firm as long as you have the fire walls in place.

Craig: What about the appearance of impropriety...?

Gessler: Well, I think that's a fair discussion to have, and that's exactly why I put this out front and center, right away, early on, to tell people what I'm doing and make it very clear that I'm not involved in the election law activity and that they aren't sharing things with me. I'm not advising them or giving them any strategy. And at the end of the day, and they know this as well because we've had these conversations. I mean, I think they are great attorneys and they'll do great work for anyone, but if, for example, they sue the Secretary of State's Office, I intend to win that lawsuit. You could be friends away from the courtroom, but when it comes to the courtroom, my first is to the people of the state of Colorado and to the Secretary of State's Office.

Craig: ...You have a big job...How do you have time to do more [than run the Secretary of State's Office]?

Gessler: Well, what I'm looking to do is spend no more than about five hours every weekend. So this is not a huge number of hours that I'm looking at. It's pretty limited. It's what I think is sort of the minimum that I need to do to square my family obligations and state service. I've been very clear, I'm not asking from anything from the taxpayer, except the opportunity to do a small amount on the side. And the other think I would say is this. Look, I'm being up front about this. I'm not hiding anything. And when it comes to conflicts and what not, most state legislators do stuff on the side, even though they are state legislators. There has been a lot of, well, several that I know, I haven't fully researched it, but you know state-wide office holders who also had things on the side. And I think that's appropriate. At the end of the day, we want people who have connections to the real world. We want people who face the same struggles that other people do, whether it's family obligations or other things. I think I fit in that category, but you want people who face those and have those connections, and I think the difference between, or the reason why there is a lot of attention on me, is because I want to be up front about this. And I purposely decided to have this conversation to start talking and telling the people of Colorado what was going on before I did anything.

Craig: Would you agree that if you worked 20 hours on the weekend, it would carry over to your ability to be Secretary of State...?

Gessler: You know, I think that's a valid point. What I'm looking at is something pretty limited to five hours a weekend where I can do this at home. So I sort of have the flexibility to be at home if I need to spend 10 minutes here or something, while the baby's, a toddler now--she always tells us she's not a baby anymore--So if she's sleeping, or something along those lines, I can be there. So, yeah, if it were 20 hours a week or 40 hours a week, yeah, I think you're right. I'm looking at something five hours a weekend.

Craig: Without question, a lot of practicing lawyers serve in the state house....But isn't that a part-time position in the Legislature and weren't you elected to a full-time job?

Gessler: Well, I think some of the legislators, and my heart goes out to them, because I think, really, for a lot of them, it's a full-time position. I mean, they are answering constituent concerns year round, they are meeting in committees year round, but your point is right. I mean, we thoroughly expect people to be sort of citizen legislators. But I think, you know, as a matter in the past, I mean we've got sort of citizen executive-branch people too. You know, if you're still focused on the Secretary of State's Office, which I am, and I will continue to be, and you are not burdening yourself in such a way that you cannot spend the time on it. And if you're also making good decisions. I mean, yes, there are 130 people here, but I don't think we want a Secretary of State who's going to assume responsibility for, you know, every time the toilet flushes to make sure everything is right. I mean, we've got great staff here that do good jobs. And my job is to sort of make sure that this office is headed in the policy directions that we need to be headed in, that we're doing the right thing along those lines, that I am reviewing what staff is doing and helping tweak it, or make sure things are running well. Yeah, that's a busy job, but I think we also recognize that it's not like I'm working, or any executive branch officer, works 200 hours per week. It's supposed to be manageable. And to be honest with you, if I didn't have to do this on the side, I wouldn't.

Craig: ...ProgressNow is saying resign from the Secretary of State Office, Scott Gessler. Is there any chance of that...?

Gessler: I'm not resigning. ProgressNow, they've got their job to do, which is attack Republicans. They are going to do that anyway. Here's a group that screams for transparency, and I provide transparency and they scream louder. So that ain't going to happen. I'll go to plan B and I'll look into maybe teaching at a university. I've taught election law at the CU Law School in the past. Maybe something along those lines. I will find a way to figure it out.