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Ethics Commission's Second Hearing Shows Reform Still Needed

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Yesterday, the Colorado Independent Ethics Commission (IEC) unanimously found no violation of Colorado ethics laws by Rex Burns, the manager of the Boxelder Stormwater Authority in Larimer County, who was alleged to have misused his former position as a Larimer County employee to become the sole candidate for the Authority's manager position. The IEC's deliberations, conducted in public as the result of a lawsuit by the Colorado Independent challenging the IEC's decision to deliberate in secret Colorado Ethics Watch's 2008 complaint against former Secretary of State Mike Coffman, revealed that the IEC was troubled by the hiring process used to select Mr. Burns as the Authority's manager, but did not believe that Mr. Burns himself engaged in any ethical misconduct.

While the procedures used at yesterday's hearing were an improvement over the IEC's first hearing, an Ethics Watch's complaint against former Secretary of State Mike Coffman, the IEC should make more changes to the complaint process.

The IEC's one hour of public deliberation on the complaint starkly contrasts with the five closed-door meetings, later ruled to be illegal, held to deliberate on the first complaint heard by the IEC. The IEC's handling of that complaint, filed by Ethics Watch in 2008 against then-Secretary of State Mike Coffman, generated calls for reform. Yesterday's hearing shows that the IEC is willing to improve its complaint system; however, the IEC is still a long way away from fulfilling its constitutional mandate to "conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint."

For the first time, the IEC did conduct its own investigation of the complaint, and IEC Executive Director Jane Feldman presented the results of the staff investigation at the beginning of yesterday's hearing. In another welcome change from the Coffman hearing, the IEC barred the defense from attacking the complaining party's alleged motives for filing the complaint. Still, the IEC expected the complaining party, Larimer County resident Dr. James L. Fry, to act as a prosecuting attorney. During his closing argument, Dr. Fry called on the IEC to change the system so that persons who present non-frivolous ethics complaints are not required to litigate those cases themselves before the IEC.

Dr. Fry's call unintentionally echoed Ethics Watch's September 2009 recommendation to the IEC (pdf here) that the IEC consider replacing its current adversarial process with a commission-driven investigation and hearing, similar to the process used by the Colorado Springs Independent Ethics Commission to investigate complaints. The hearing procedure used by the state House and Senate Ethics Committees, where questions are asked by Committee members and not by attorneys for complainants or respondents, is another model. It would benefit both complaining parties and those accused of ethical violations for the IEC to control and direct the investigation and ultimate public hearing. The IEC should now start the process of amending its rules so that the IEC itself will bear primary responsibility for investigating complaints and conducting the hearing.