When a Boulder man recently tried to file an ethics complaint against Denver District Attorney Mitch Morrissey, he discovered a glaring loophole in the way that the office is overseen — one that has city and state officials scratching their heads. Essentially, there is no ethical oversight of the Denver District Attorney.
Jerry Greene discovered the loophole when he tried to submit a complaint about the D.A. to the State Independent Ethics Commission, an advisory committee tasked with clarifying whether actions by government officials have violated the public's trust. He was told by the Commission to take up his complaint to the Denver Board of Ethics instead. But when Greene went to the city, he was told to go to the state. In other words, both the city and state declined to address his complaint because each thought that the other was responsible.
And it turns out that the conflicting messages reveal an unsolved technicality when it comes to ethical oversight of the D.A.
"I was shocked," says Amy DeVan, executive director of the State's Independent Ethics Commission, when she heard that Greene was referred back to her commission. DeVan has headed the IEC since September 2014, and wonders, "How can this be new? I don't know what has been done in the past, but this means there is a whole department being passed over."
DeVan says that her commission referred Greene's complaint (in which he accused the D.A. of ignoring his request to waive a service of summons) to Denver's ethics board because the D.A. receives his salary from the city, and because Denver is a home-rule city, meaning it can override the state in some areas of jurisdiction.
But while "follow the money" is usually a good rule of thumb to determine which government oversees various officials — whether they are paid for by the city or the state – the District Attorney actually receives funds from both.
"This incident has raised some confusion," admits Michael Henry, who is the Denver Board of Ethics' executive director.
Henry says that the primary reason the city's ethics board passed the buck on Greene's request was because of a 2001 opinion by a Denver city attorney, which clearly states that the District Attorney is not a city employee and is therefore exempt from the city's code of ethics.
A spokeswoman for the District Attorney, Lynn Kimbrough, confirmed that the D.A. is not bound by the city's code of ethics, although she says that Morrissey voluntarily adheres to them and doesn't believe he has ever violated them.
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But what makes the city's reliance on a 2001 opinion confusing is that it predates the creation of the State's Independent Ethics Commission, which wasn't established until 2006. Now both ethics committees acknowledge that Greene's complaint has highlighted a need to clarify their jurisdictions.
"Citizens need to have somewhere to go [to file a complaint]," says DeVan.
Henry agrees, saying, "We will probably be looking at this together in the next couple of months." He hopes to establish a procedure before the the next time an ethics complaint is lodged against the D.A.
At least in the case of Greene, he rescinded his complaint when, after six weeks, the D.A.'s office finally responded to his waive-of-service request. It's not clear if this truly constituted a breach of ethics to begin with, although Greene says that he is glad to have exposed the lack of accountability in overseeing the District Attorney.