June 23, 2018

Colorado Supreme Court: Formerly Secretary of State Properly Subject to Jurisdiction of Independent Ethics Commission

The Colorado Supreme Court issued its opinion in Gessler v. Smith on Monday, June 4, 2018.

Amendment 41—Independent Ethics Commission—Jurisdiction.

The supreme court considered whether Colorado’s Independent Ethics Commission (the IEC) had jurisdiction pursuant to article XXIX of the Colorado Constitution to hear a complaint based on allegations that then-Secretary of State Scott Gessler (the Secretary) breached the public trust by using money from his statutorily provided discretionary fund for partisan and personal purposes. The IEC investigated the complaint, held an evidentiary hearing, and determined that the Secretary’s conduct breached the public trust. The Secretary sought judicial review of the IEC’s ruling, arguing that the IEC lacked jurisdiction over the case, the relevant jurisdictional language must be narrowly construed to avoid unconstitutional vagueness, and the IEC violated his procedural due process rights. Both the district court and the court of appeals affirmed the IEC’s ruling.

The court held that relevant jurisdictional language in Colo. Const. art. XXIX, § 5 authorizes the IEC to hear complaints involving ethical standards of conduct relating to activities that could allow covered individuals, including elected officials, to improperly benefit financially from their public employment. The court further held that C.R.S. § 24-18-103 is one such ethical standard of conduct. This provision establishes that the holding of public office or employment is a public trust, and that a public official “shall carry out his duties for the benefit of the people of the state.” Because the allegations against the Secretary clearly implicated this standard, the court concluded that the complaint fell within the IEC’s jurisdiction and rejected the Secretary’s jurisdictional and vagueness challenges. Additionally, the court rejected the Secretary’s procedural due process claim because he failed to demonstrate that he suffered any prejudice as a result of the alleged violation.

The court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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