June 25, 2019

Colorado Court of Appeals: Evaluative Report Is Not Campaign Contribution

The Colorado Court of Appeals issued its opinion in Keim v. Douglas County School District on Thursday, May 7, 2015.

Campaign Finance—Fair Campaign Practices Act Contribution.

The Douglas County School District (District) is a political subdivision of the state and is subject to the Colorado Fair Campaign Practices Act (FCPA). Petitioner Keim alleged that in 2009, the District began implementing a reform agenda, and that after the 2011 school board election, all seven members of the District’s board supported this agenda, as did their newly appointed superintendent. Keim was a candidate for one of four open positions on the board in the November 2013 election.

On February 6, 2013, the District signed an Independent Contractor Agreement with the American Enterprise Institute (AEI). The AEI Agreement provided a white paper denominated the Hess Report. There were no declared candidates for the board when the AEI Agreement was signed. AEI’s fee was $30,000, paid by the District and the Douglas County School District Foundation. The District’s payment was funded by a grant from the Daniels Fund.

The record reflected that the content of the Hess Report was influenced by the District and that revisions were made to it as requested by the District. The final version of the Hess Report was received in September 2013. It promoted the reform agenda and discussed the current board and how it could fuel reform. It noted that the American Federation of Teachers might spend substantial sums to defeat incumbents in the upcoming election. On September 18, the District included an Internet link to the Hess Report in its weekly e-newsletter, which reached approximately 85,000 Douglas County residents.

Keim filed this action, alleging the District had used public resources “to support a slate of candidates running for school board in violation of the FCPA.” Keim also alleged that District resources were used in the “research, compilation, preparation and dissemination” of the Hess Report, that it was political in nature, and that it was being used to influence the outcome of the election. Following a trial, the administrative law judge (ALJ) determined that by contracting for and disseminating the Hess Report, the District had made a contribution in violation of the FCPA. The District appealed.

The FCPA prohibits political subdivisions from making “any contribution in campaigns involving the nomination, retention, or election of any person to any public office.” “Contribution” is defined in Colo. Const. art. XXVIII, § 2(5) as “[a]nything of value given, directly or indirectly, to a candidate for the purpose of promoting the candidate’s nomination, retention, recall, or election.” The case turned on the meaning of “given, directly or indirectly, to the candidate.” The Court of Appeals found that this phrase requires that a thing of value be put in the possession of or provided to a candidate or someone acting on the candidate’s behalf, with the intention that the candidate receive or make use of the thing of value provided to promote the candidate’s election.

The Court found that the evidence did not support the ALJ’s conclusion, because the Hess report was not given, directly or indirectly, to a candidate. The order was therefore reversed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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