Secretary of State Scott Gessler is the subject of this week's cover story in part because he's facing criminal and ethics investigations for his alleged misuse of funds. On Monday, the state's Independent Ethics Commission voted unanimously to continue its investigation despite his requests for dismissal. But that's not his only request with the commission. Gessler's staff also presented a proposal for the creation of a "legal defense fund" that would help him pay his attorneys.
At question is Gessler's use of state money to go to Florida this summer, where he attended a Republican National Lawyers Association event and then the Republican National Convention. Gessler, a Republican, has argued that the first event was part of his official business and that public dollars were not used for the RNC in Tampa, which he attended in support of Mitt Romney.
But after advocacy group Colorado Ethics Watch -- which has closely scrutinized the secretary of state -- made its accusation, both the Independent Ethics Commission and the Denver District Attorney decided to launch formal investigations into Gessler, the state's chief election officer. Those processes began around election day in November and are moving forward this month.
At the IEC meeting on Monday, in which Gessler's requests for dismissal were denied on several grounds, his staff also discussed his proposal for a so-called legal defense fund. Officially, Gessler's office is asking the IEC for an "advisory opinion" on whether he is allowed to set up a fund that could collect donations to help him pay his legal fees. The full document from his staff is on view below.
As the request notes, Colorado's Amendment 41 prohibits gifts to public officials -- but would donations to a legal defense fund violate the gift ban?
Gessler argues no. For one thing, there would be no personal financial gain for a legal fund. In addition, donations in this area would "raise no appearance of impropriety," his team believes.
The request for an IEC opinion on the matter, signed by Gessler deputy Suzanne Staiert, who presented it at the Monday meeting, says public officials are often sued and incur significant legal expenses for which they are personally liable. Being able to create this kind of fund would thus set an important and needed precedent for elected officials, the document argues. Staiert writes: "[D]isallowing the establishment of, and donations to, a legal defense fund discourages bright and driven people from seeking or accepting public office."
Rich Coolidge, a spokesman for Gessler, says there is no precedent for this kind of fund. "That's why we went to the Independent Ethics Commission to seek their guidance."
Continue for more details on the IEC request from the secretary of state's office. Gessler has been able to use his office's legal budget to pay attorney fees to respond to the ethics inquiry at the IEC. But for the DA's criminal investigation, he is responsible for his lawyers' checks.
"The Secretary has to pay for it out of his pocket," says Coolidge. "In order to offset that...[this is] an opportunity for him to set up a blind account.... People can donate to it, but the secretary won't know who is giving money to it."
The request outlines a similar model at the federal level, in which the office holder appoints a trustee to manage the account and there are specific parameters on how contributions can be made.
Typically, the Colorado Attorney General's Office would represent Gessler in legal matters. But due to possible conflict of interest in the ethics inquiry, that office is not involved (although Gessler was allowed to use his office's budget to hire outside counsel).
Jane Feldman, executive director of the IEC, believes that two commissioners are in favor of allowing such a fund; one is opposed and one is undecided. (Feldman, as executive director, does investigations and makes reports but does not actually vote.)
She says the IEC will have a telephone meeting on the matter on January 17 and may issue an opinion immediately or shortly thereafter.
"The commission has the authority to give advice," she explains.
If the IEC wrote an opinion back deeming the fund appropriate, the resulting document would function as protection against litigation or further complaints against Gessler for his office's spending habits.
"They are really trying to create a new animal," says Peg Perl, staff counsel for Colorado Ethics Watch, who attended the IEC meeting on Monday and listened to the Secretary of State proposal. The question, she says, is "What could be possible under our Constitution?"
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