Ethics commission should reject some dubious rules
Rocky Mountain News
Published July 9, 2008 at 12:05 a.m.
The Colorado Independent Ethics Commission has developed a series of draft rules for handling ethics complaints against public officials that, for the most part, are both sensible and easy to understand.
Problem is, we can't square several of those rules with Article XXIX of the Colorado Constitution, aka Amendment 41.
The five-member panel may well adopt the rules on an emergency basis as early as its next scheduled meeting on Friday. But even if the rulemaking process continues for several more weeks, the commissioners should scrap those provisions that conflict with the plain language of the constitution - in other words, the parts that would let the commission shirk some of its duties.
Should the final rules strongly resemble the current draft, the watchdog group Colorado Ethics Watch is one of several parties threatening to sue the commission. If that happens, we believe the courts would be obliged to require a new set of guidelines that hew to the basic mandates of Amendment 41.
The amendment clearly states that the commission can dismiss frivolous complaints. Beyond that, it says, "The commission shall conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint pursuant to written rules adopted by the commission" (our emphasis).
Seems straightforward to us.
The rules under consideration make several noncontroversial clarifications. They say the commission "shall" dismiss frivolous complaints, along with complaints for behavior outside the commission's jurisdiction (the commission has no authority, for instance, to investigate traffic offenses). It may also dismiss complaints against people who are no longer public officials or government employees at the time the complaint was filed. So far, so good.
Beyond that, the rules go astray. They allow the commission to dismiss complaints that allege "de minimis" ethical violations; allegations that include ethical violations involving criminal behavior; allegations that are also pending "before another body with concurrent jurisdiction," including the ethics review process the legislature has established to discipline its own members.
And here's the kicker: The commission may dismiss a complaint if, "within its discretion, [the commission] determines that dismissal is warranted."
Now that's a lot of leeway.
For that matter, what would distinguish a "de minimis" complaint from one with substance? Why should the ethics commission not investigate a public official accused of, say, taking a bribe after criminal charges have been filed? And why should a lawmaker facing a legislative ethics probe - which rarely if ever includes penalties - not also be subject to sanctions by the ethics commission?
As we've said before, Amendment 41 is crudely written. It's a policy sledgehammer allowing the ethics commission little wiggle room.
That's a big reason we argued against the amendment's passage. Had the language of 41 been adopted as a statute, separate enabling legislation could have given the commission some flexibility to use its judgment when presented with complaints charging trivial offenses.
But Amendment 41 is in the constitution. Its language is unambiguous. The ethics commission should not be allowed to wish away a significant portion of its responsibilities.
If the commission finds itself bogged down investigating a host of seemingly inconsequential allegations, then there's a clear remedy: Ask voters to modify or repeal Amendment 41.
Otherwise, the commissioners could themselves be charged with abandoning their constitutional duties and abusing the public trust.
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July 9, 2008
7:02 a.m.
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VVVV writes:
Thanks for the laugh, Rocky. Suggesting that they ask the voters is like suggesting to your newborn baby that he stop crying and go to sleep. The voters, in the absence of government self-control and decently written ballot initiatives, have been forced to pass flawed amendments just to accomplish anything. We know they are flawed, but we also know that if left to their own devices, the government would look the other way in ethics, spend more money than they could ever possibly recover, and generally screw up or circumvent the checks and balances that are supposed to guarantee us a government of, for, and by the people. Government has unofficially labeled the people "the enemy", and until they start acting like they actually speak for us, we will continue to throw up insane roadblocks in our attempt to win the battle.
July 9, 2008
8:32 a.m.
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KaySieverding writes:
I'd like an investigation into "Colorado Intergovernmental Risk Sharing Agency". To begin with, what is it? Don't all organizations have to be a sole proprietorship, a partnership, a corporation, or a government? The Col Sec of State has no record of the organization's existence even though it has over 20 employees. I've been emailing to different PIO in Colorado looking for articles of incorporation for CIRSA but so far found none. A lawyer they employed told me that he would not tell me what kind of organization CIRSA is. The State of Col AG already filed in court that CIRSA is not a state agency. I understand that CIRSA sells insurance to local governments but that doesn't make it a government agency. Defense contractors sell to government also. I never heard of an organization volunteering to be a government. The director is not elected nor does the governor appoint him. They've had the same director for over 20 years and he seems to run CIRSA for his benefit. Why aren't the director's compensation and the names of the board of directors publicly disclosed? The so called audit I looked at didn't even give the names of the people who conducted the audit, only "KPMG", a firm that has been linked to income tax avoidance. I couldn't find any info as to the cost, excluding legal services, of insurance claims that are paid and how many don't get paid. I had a claim there and when I called the examiner said he found it on their computer and I should call back. When I called back he said he had been ordered to hang up on me, which he did. State Farm wouldn't hang up on people and neither would a legitimate government organization. They don't seem to have public information /open records act officer either. I don't understand why CIRSA doesn't seem to pay state and federal income taxes (I claim a % as a whistleblower). Also, what is their maximum exposure thru insurance claims? Would they actually have enough funds to pay for a broken dam or other big claim? Did they insure Grandby where the State picked up the Marvin Heermyer damage? What do we know about their "reinsurers"? One thing I know about government is that slush funds are hard to find and I wonder how the funds from CIRSA are actually used, whether some are diverted to uses by state and local authorities in return for their looking away from CIRSA's operations. I think CIRSA encourages local government bullies by its low deductible insurance policies accompanied by bad faith defense litigation practices such as paying for ex parte conferences and claiming "immunity" for local government officials’ intentional crimes. I looked at a report for an out of state insurance company selling insurance to local governments and that report said it is very important to have full and detailed disclosure of reinsurance contracts but that which I saw by CIRSA is very vague. I traced their reinsurance contracts out of the U.S.
July 9, 2008
8:36 a.m.
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anarchist writes:
Can you say ethics and government in the same sentence without smiling?
July 9, 2008
11:44 a.m.
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KaySieverding writes:
Ethical lapses in government are not inevitable and their frequency and magnitude really vary. They are not cost free. Particular individuals can be really hurt and the costs to taxpayers add up. Businesses need more than anything else consistency and predictability. Ethical problems cause unpredictability. That is now seen with the sub prime mortgage crisis. Apparently 100 years ago the difference between the economies of Mexico and the U.S. were not that different. Some people say that the reason that Mexico's economy is so weak is because of government and business corruption. That not only does the corruption siphon off resources but that people in the know don't invest where they suspect their is corruption. Once corruption gains a hold, it can grow exponentially like dandelions can take over a lawn fast. It is easy for people to avert their eyes from corruption but once they have done so once, they are vulnerable to extortion themselves.
July 9, 2008
12:50 p.m.
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Acemon writes:
Kay - Try to stay on-topic. The editorial does not concern the "Colorado Intergovernmental Risk Sharing Agency," nor another of your ongoing battles, or even the corruption of Mexico.
If you feel those are important issues, write your own letter to the Rocky, but the discussion here is about Amendment 41 and the Colorado Independent Ethics Commission.
July 9, 2008
1:09 p.m.
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KaySieverding writes:
I paid $5 to download some filings by CIRSA from the U.S. Court case Colorado Intergovernmental Risk Sharing Agency v. Northfield Insurance Company. That showed that Northfield provided insurance coverage to Granby with a $250,000 deductible to be paid by CIRSA. But it looks like they did not contribute to the costs of repairing public buildings destroyed by Marvin Heemeyer. Why is that? I think CO taxpayers picked up the whole cost even though Granby had property insurance.
I didn't download everything about this case, but CIRSA sued Northfield for not paying an insurance claim. Yet we have some 200 governments and special districts including dams in Colorado dependent on CIRSA and Northfield to pay claims. These insurance premiums could be money down the drain. I think what we have with CIRSA is an organization that is not accountable as a business normally is to its shareholders and not accountable to voters like a government. An organization that gets money by representing that it will provide insurance and spends it on its employees, without paying much out in claims. The Northfield contract excludes claims based on employee dishonesty. I had a claim on CIRSA based on the City of Steamboat Springs knowingly and intentionally hurting me and my family so that the city council president Kevin Bennett could get away with converting a road to private use and building extra buildings in violation of the zoning and development code. The Routt County tax assessors rolls show that there is only one building at 701 Princeton built in 1950 and in 1970 condition. Anyone can stand on the street and see that there are 4 buildings there and there are photos and plans and public discussion of what was built there in 2000. As adjoining property owner I complained and for that my family and I were persecuted until we moved. Then their lawyer pled government immunity even though I offered proof of criminal acts including extortion, official misconduct and perjury. Why would there be "immunity" for criminal acts?
July 9, 2008
1:16 p.m.
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Acemon writes:
Kay - The editorial is not about you or another of your endless battles. Why are you unable to stay on-topic?
July 9, 2008
1:58 p.m.
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KaySieverding writes:
The article is about government ethics in Colorado. CIRSA is apparently claiming to be a government for tax purposes. I read an interview at the Colorado Municipal League with CIRSA's director referring to them being tax exempt and the financial statements I was able to get show no taxes being accounted for.
Jigsaw.com is a web site offering public information about organizations. It lists CIRSA as having 25-100 employees and $1-10 million in annual revenue. It lists ownership as "other" and as contact names it offers one "administrative specialist" and one "Training and Development Coordinator". Why the secrecy as to who works at CIRSA and who owns CIRSA? They don't list names on their web site.
According to Common Cause "Amendment 41, now Article 29 of the Colorado Constitution, is about eliminating the potential for private gain because of a person’s position in government."
According to Robert M. Ferm and Beth A. Dickhaus, Amendment 41 defines government employees in Colorado as: " “public officer” means “any elected officer, including all statewide elected officeholders, the head of any department of the executive branch, and elected and appointed heads of state boards and commissions.” The definition explicitly excludes from its scope a member of the General Assembly, a member of the judiciary, any local government official, or any member of a board, commission, council, or committee who receives no compensation, other than a per diem allowance or reasonable and necessary expenses.
“local government official” means “an elected or appointed official of a local government but does not include an employee of a local government.”
“government employee” means “any employee, including independent contractors, of the state executive branch, the state legislative branch, a state agency, a public institution of higher education, or any local government, except a member of the general assembly or a public officer.”
Since the State of CO Secretary of State has no record of it as a corporation or other business. So since CIRSA claims to be a government for tax purposes and its managers don't meet the definitions of local government officials and they are not elected nor judges and they don't work for free, shouldn't the Colorado Ethics Commission have jurisdiction over CIRSA? But why did the Col AG say CIRSA is not a state agency?
July 9, 2008
2:11 p.m.
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KaySieverding writes:
The web site of Colorado Ethics Watch says
"Suthers urged not to represent ethics panel
By Chris Rizo, LegalNewsline.com,
May 21, 2008
DENVER, Colo. (Legal Newsline)--A Colorado watchdog group Tuesday called on state Attorney General John Suthers not to serve as legal counsel to the state's new Independent Ethics Commission.
The Republican attorney general drew the ire of Colorado Ethics Watch after he advised the panel's commissioners that they had "no choice" but to be represented by his office, as all state departments are."
I sued some Colorado appointed d.a.s in capacity and they were represented by David Brougham who billed Lloyds of London even providing a claim number and bills referring to the covered staff by name. David Brougham's web site claims that he sometimes represents the State of Colorado, so that would be contrary to the statement that the organization is required to be represented by the CO AG "as all state departments are".
This is helpful to the discussion isn't it?
July 9, 2008
2:17 p.m.
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Acemon writes:
Since nobody seems interested in your latest rant (as evidenced by the utter lack of postings), I guess I'll go away and let you converse with yourself. Bye-bye.
July 9, 2008
2:29 p.m.
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KaySieverding writes:
That is why there is supposed to be resource to the federal courts and why they have whistleblower protection laws. You can't count on the public to defend individuals abused by government or to jump on an issue of government waste and corruption. When lynching was common, photos were taken of hundreds of people standing in front of the bodies without protest.
July 9, 2008
2:52 p.m.
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KaySieverding writes:
I did a little earlier send a fax to CIRSA at 303 757 8950 and requested "what is your form of ownership?", "please send a copy of your articles of incorporation" "please send a copy of a Form 990 T or Form 990 N if you have one" (those are required IRS forms for tax exempts and public disclosure is required), "Do you have an open records or public information officer" (required of all colorado governments), and "who is on your board of directors?". I'll post here their response if any.
July 10, 2008
6:35 a.m.
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Mike_In_Hartsel writes:
KaySieverding give it a break! You've hijacked this thread for your own personal rant. Start a web site.
July 10, 2008
12:32 p.m.
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KaySieverding writes:
Dear Mike
If you have something to say then say it, noone's stopping you. The Colorado Independent Ethics Commission is not my personal issue just because I have a complaint about ethics involving the State of Colorado. I will add also that even though the A.G. told the Ethics Commission that they are forced to hire his department to represent them and cannot hire a different lawyer, the State of CO has what is apparently at least two contracts for representation of its employees by Hall & Evans. According to an email I got from the Public Information Officer, Julie D. Postlethwait:
"The first document is a Department of Law contact, dated March 9, 2000, there isn’t an author but it was signed by: Ken Salazar, Hall & Evan’s CEO – can’t make out the signature, and Chris Trujillo for Arthur Barnhart (then State Controller). The second is contract with DPA’s Risk Management Office, dated February 14, 2008, signed by: Hall and Evens CEO Andrew D. Ringel, Heidi Dineen (AG’s Office) and Robert Jaros for Les Shenfelt (then State Controller)".
July 17, 2008
3:53 a.m.
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KaySieverding writes:
Well it is 10 days after I faxed CIRSA an open records request and I received nothing from them. I did find the names of their board of directors in their newsletters, which I had not seen before. None of them were CPA's, CLEE's or lawyers, even though we are talking a complicated business.
Since they didn't respond to my open records request, I guess that means CIRSA doesn't consider itself to be a government.
By statute in Colorado authorizing government risk sharing organizations in general (not creating CIRSA in particular) CIRSA's director is supposed to personally sign its financial statements. I have two in my possession, one for 2002 and one for 2006. Unless I am missing a page, CIRSA's director did not sign either one. I sent new open records act requests to both Peg Brown at the State of Co insurance commission and CIRSA itself asking for the signature pages but so far there has been no response. So that could be the "smoking gun".