When Secretary of State Scott Gessler needs legal help, the office of Attorney General John Suthers typically represents him. But in the case of ethics and criminal investigations into Gessler's alleged misuse of public funds, Suthers has stayed out of it due to a potential conflict-of-interest. Suthers is, however, weighing in on a part of the case through a letter to the Independent Ethics Commission in which he says he supports one of Gessler's recent requests. The full letter is on view below.
To some watchdog advocates, the move is problematic -- and it's one that has become a bit of a headache for the Independent Ethics Commission, too.
Gessler, the state's chief election officer and the subject of last week's cover story, has faced a great deal of scrutiny for using state funds to go to Florida last summer for a trip that involved two GOP-related events.
The accusations that he should not have spent state money eventually prompted the Denver District Attorney's office and the Independent Ethics Commissions, or IEC, to launch full investigations -- both of which are ongoing. Gessler, a Republican, has always maintained his innocence, arguing in official filings that he only used his office's funding for official business and that the accusation is an unmerited attack from a liberal group.
Despite Gessler's requests for dismissal, the Ethics Commission is pushing forward with its inquiry this month.
One of his most recent filings with the IEC was a request for an "advisory opinion" regarding the establishment of a legal defense fund that would help him pay his attorneys in the criminal investigation. In the ethics case, Gessler has hired his own attorneys, but he was able to use his office's official legal budget to pay them. In the criminal case, Gessler also hired private attorneys, However, he has been paying them out of pocket.
A legal defense fund, his office argues, would allow him to collect donations to help cover legal fees for his criminal defense. There's not much of a precedent for this kind of fund and there are questions around whether it could violate Colorado's Amendment 41, which prohibits gifts to public officials.
An opinion from the IEC saying that this is allowed would essentially protect Gessler from accusations of further unethical acts if he were to create the fund.
Suthers, a Republican who has supported Gessler in other controversies, sent a short letter on January 8 to the IEC, saying that he believes this legal defense fund would not constitute a violation of Amendment 41.
The letter, on full view below and first reported by the Colorado Independent, reads:
Contributions to a legal defense fund would not per se amount to an attempt to influence an official act. Id. Moreover, the risk or perception of undue influence associated with a contribution to a legal defense fund may be mitigated by eliminating the possibility of quid pro quo contributions. The Attorney General submits that an arrangement that: (1) places appropriate limits on the public official's solicitation of contributions, and (2) either ensures transparency or establishes a blind trust would be consistent with the concerns that Amendment 41 identifies.
Signed by Assistant Attorney General Matthew Grove, the letter functions as an official statement in support of Gessler's request -- and the IEC can take it into consideration as it debates the merits of the fund.
Carolyn Tyler, a spokeswoman for the Attorney General's office, tells us that Suthers wanted to weigh in because this is a situation that has wider implications than this single request from Gessler.
"He believes the issue of whether a public official can raise funds for a legal defense...for a criminal investigation or prosecution has ramifications far beyond this particular case," says Tyler. "It was appropriate to inform the Independent Ethics Commission of the AG's [opinion]."
Continue for response from the IEC and Colorado Ethics Watch. But Luis Toro, director of Colorado Ethics Watch, which filed the original complaints that led to both investigations, says in the same way that it's inappropriate for Suthers to represent Gessler, it's wrong for him to come out in support of the Secretary of State's request.
"Not only is the attorney general himself subject to Amendment 41, he is...subject to the temptation to have the Ethics Commission go easy on people," says Toro. "It's...completely unacceptable.... It creates a conflict-of-interest."
Jane Feldman, executive director of the IEC, is also not pleased with letter -- because it forced Assistant Attorney General Lisa Brenner-Freimann, who typically works closely with Feldman as the IEC's legal support, to recuse herself from the case.
"Personally, I'm disappointed that the AG sent the letter, given that it doesn't add anything to the discussion," says Feldman, noting that the argument offers no substantive analysis. Rather, it simply asserts that Gessler's request is appropriate.
Spending time handling this conflict, and losing Brenner-Freimann as a result, contributed to Feldman's decision to push back a scheduled telephone meeting to discuss Gessler's request, she notes.
She says it's a challenge that the AG's office can no longer advise the IEC in this case.
Toro argues that the current situation calls to mind to a larger problem his group has highlighted in the past. CEW has argued that IEC should have the resources to hire its own independent counsel as needed to avoid conflicts.
"John Suthers has said, 'I want them to approve it,'" Toro says, arguing that Brenner-Freimann could not be expected to work with the IEC in this case. "Your boss has said it should be decided a certain way."
Feldman feels situation is unique. "This has really been the first time it has...posed a problem for the commission."
Although the AG's office has appeared before the commission before -- and while there have been questions in the past about having the AG represent the IEC -- Feldman says, "This is the first time they have sent a letter of this nature."
Feldman says it's frustrating because she doesn't expect the letter to have an impact on the final decision.
"The commission obviously has reviewed [the letter], but because it doesn't have any analysis, I don't think it will sway them...or really have much effect," she says.
In regard to concerns about conflict-of-interest, Tyler, Suthers' spokeswoman, reiterates that the AG felt it was appropriate to weigh in because the issue doesn't end with Gessler.
"There are other elected officials in the state that are interested in the [Attorney General's] opinion," she says.
Continue for the full letter and for Gessler's original request. Here's the letter from the Attorney General's office.
And here's Gessler's original request to the IEC for an opinion on a legal defense fund.
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