PART I
by Charles C. Bonniwell
David vs. Goliath: The little town of Glendale is fighting the IEC for the rights of all citizens and home rule cities in Colorado.
The City of Glendale and its officials have been caught in a maze of Star Chamber proceedings before the Colorado Independent Ethics Commission (IEC). They have been fighting for eight long years with no end in sight over a minor mix up in a City Council meeting in May of 2015. They, like almost anyone and everyone who has appeared before the IEC, have tales of woe to tell.
The IEC was created when the Colorado voters approved Amendment 41 to the state constitution titled “Ethics in Government” in 2006, promoted by now Governor Jared Polis, who was then co-chair of “Colorado for Clean Government.” Polis was made a multi-millionaire due to his mother’s floral business and objected to usually poorly paid politicians and bureaucrats getting gifts or any benefit worth more than $50.
Limitless Power
All Powerful: The IEC, a little-known bureaucratic entity, has become so powerful, that even the biggest political heavyweights are no match for it.
But the key to the Glendale quagmire and the horror shows of many who find themselves before the IEC was a little noticed catch-all provision of Article XXIX, Section 5, which says that the IEC can “hear complaints, issue findings, and assess penalties … on ethics issues … under any other standards of conduct and reporting requirements as provided by law.” Under an expanded interpretation of that provision the IEC may one day control the entire state, including doctors, lawyers, architects, judges, and anyone else if it wishes.
The key to the IEC assuming more and more power over the state and its citizens was to do it slowly while hopefully not alarming the courts or the media until it became too powerful to stop. The IEC stayed under the radar until a lawyer, Bill Leone, who headed up a New York firm’s white collar crime unit in New York City, was appointed by Governor John Hickenlooper. The appointment was to his everlasting regret. The IEC is composed of five members, one appointed by the Governor, one by the State House of Representatives, one by the Chief Justice of the Colorado Supreme Court, and one by the other four commissioners. No more than two members can belong to the same political party.
Leone
Power Is Where Power Goes: New York lawyer Bill Leone ruled over the IEC for eight years with an iron fist and crushed all who appeared before the organization.
Considered by his critics to be a narcissist megalomaniac, Leone began expanding the IEC powers in every direction after his appointment. A former interim U.S. Attorney, he was considered for firing by the U.S. Justice Department. He was passed over for a permanent position. Nominally a Republican, Hickenlooper believed he was, in reality, a Democrat he could safely appoint.
The IEC would eventually become known by political insiders as a place where ethics was ignored but where you could destroy your political opponents no matter how powerful. One of those shadowy lawyer insiders was a Democrat interim Secretary of State Bernie Buescher, appointed by Democrat Governor Bill Ritter when Republican Mike Coffman resigned as Secretary of State in 2009. During his two years as Colorado Secretary of State he learned he could bring devasting charges on minor matters to destroy political opponents. He brought that knowledge to the Denver law firm of Ireland Stapleton in an “of counsel” position in their Grand Junction office.
The Meatgrinder
The IEC’s power comes from the fact that the IEC acts as judge, jury, and executioner, with no checks or balances. All one has to do is file a complaint, no matter how trivial, claiming any minor conflict of interest or gift over $64. The IEC, behind closed doors in secret meetings, determines if it has “jurisdiction” which depends on arbitrary, obtuse standards of which there is little rhyme or reason, but appears to be whether the members politically like or dislike the target citizen.
Insider: Bernie Buescher, a shadowy lawyer, is believed by those in the know to be an expert in the dark arts involving the IEC.
If they would like to go after the target citizen, they appoint an investigator which is normally its executive director Dino Ioannides, or it is farmed out to private investigators. The accused have no rights or protection. The IEC decides whether it wants to go ahead or not and if so an attorney from the Colorado Attorney General’s office acts as prosecuting attorney with the IEC as the judge and jury. The complainant who has started the process has no role or obligations and is not required to spend money. The target citizen faces tens of thousands or even hundreds of thousands of dollars in fees if he or she wishes to fight the complaint.
If the IEC finds for its own attorney and finds the target guilty, then it imposes its penalty, which for gifts, is twice the amount of the gift, but in other cases who knows. While the target citizen is often facing a couple of hundred dollars fine they must also pay massive attorney fees, which is why most target citizens simply fold and admit guilt regardless of the veracity of the complaint. If by some miracle you are found not guilty of the complaint, you are not entitled to a reimbursement.
The complainant incurs no costs in the proceedings and has the thrill of its political opponent pleading guilty to an ethics complaint. If the target citizen does fight the charges, they will incur the huge legal fees and will likely be found guilty by the IEC kangaroo court. If the IEC doesn’t take the case you still have the advantage of politically embarrassing your political opponent/ citizen target by filing an ethics complaint.
Scott Gessler
Victim: As Colorado Secretary of State, Scott Gessler became the first victim of the IEC’s expanded powers.
The first political whale that was captured by Leone and the IEC was Republican Colorado Secretary of State Scott Gessler. He had flown to Tampa in 2012 to attend and speak at the “National Election Law Seminar,” a two-day continuing legal education conference. Under Colorado law, each of five statewide elected officials, including the Secretary of State, has access to a modest annual discretionary fund to spend “in pursuance of official business.” Left-leaning Colorado Ethics Watch filed a complaint asserting it did not consider Gessler’s trip in furtherance of official business and charged that Gessler had failed to turn in receipts for another $117 taken from the discretionary fund.
The Colorado Supreme Court in 2018 in Smith v. Gessler shot down the argument that the IEC’s jurisdiction was limited to “matters of gifts, influence pleading, and standards of conduct, and reporting requirements that expressly delegate enforcement to the IEC.” Instead, the court bought hook, line, and sinker that jurisdiction of the IEC covers any complaints “under any other standards of conduct … as provided by law.”
Gessler’s legal fees fighting the IEC, which were covered by the state, eventually reached approximately a half a million dollars. The total fine was only a little over one thousand dollars. The IEC as a political monster was born. Political insiders, both Republican and Democrat, knew that filing a complaint with the IEC would likely bankrupt a target citizen if they sought to fight it.
John Hickenlooper
Victim 2: Former Governor John Hickenlooper was so broken by the IEC, that he stopped fighting in order to end the proceedings.
After Leone’s four-year term was up on the IEC in 2017, Governor Hickenlooper apparently refused to reappoint the power-hungry Leone. So Leone went to the Republican president of the Senate, Kevin Grantham, to reappointment him for another four year term. Hickenlooper was about to learn about political payback from the now all-powerful IEC and Commissioner Leone.
Hickenlooper had traveled at various times on planes of friends while he was governor. Hickenlooper was running for U.S Senate against incumbent Republican Cory Gardner. Republican operatives like fomer Republican Speaker of the House Frank McNulty had seen what Democrats had done to Scott Gessler and decided two could play the game. They had Republican interest groups file a complaint for those trips and other items and Commissioner Leone was waiting with bated breath.
Even the former Governor did not have any chance against the IEC, even with the state covering his legal fees involved in fighting the IEC. When he refused to comply with the IEC subpoena, the IEC went to court and the judge ruled his refusal was in contempt. Hickenlooper refused to testify and basically laid over so as not to delay the inevitable, as he was suffering politically. He incurred a fine of $2,750 but at least was free from the political monster that the IEC had become.
Part II Next Edition
In Part II next month, learn how the IEC regularly rolls over average citizens without a thought. Learn how the Village of Glendale was trapped in the IEC meatgrinder, and how it has tried to fight off the all-powerful IEC.