Welcome to another round of the back-and-forth between Secretary of State Scott Gessler and the Independent Ethics Commission. In response to an IEC investigation launched in November, Gessler, as represented by attorney David Lane, is seeking a temporary restraining order; see it below. Gessler spokesman Andrew Cole says the suit was filed in "an attempt to protect the secretary's rights."
As we've reported, Colorado Ethics Watch -- an organization that says it's nonpartisan but its opponents call left-leaning -- obtained internal documents through open-records request that show, in its view, that Gessler misused public funds.
How? Gessler attended a Republican National Lawyers Association election-law training in Sarasota, Florida in August, and then went to Tampa, Florida to spend the week there during the Republican National Convention. His request for reimbursements (a total of $1,452.52) says the nature of the spending was not "personal or political," Colorado Ethics Watch maintains.
As a result of CEW's complaints, the Independent Ethics Commission launched an investigation, while Denver District Attorney Mitch Morrissey is looking into whether or not Gessler committed any crimes -- something the Secretary of State has denied since the allegations first surfaced.
The latest suit argues that the Independent Ethics Commission "has exceeded its jurisdiction granted to it by Amendment 41," a measure in the Colorado Constitution that focuses on a "gift ban, lobbying bans or influence peddling."
By "asserting broad jurisdiction over an ethics complaint against the Secretary, which cites potential violations of three criminal statutes" unrelated to Amendment 41, the IEC has gone beyond its mandate, the suit maintains. The potentially far-reaching effects are detailed in the following excerpt:
The Secretary will suffer irreparable harm, as the Commission has hauled him in before the tribunal, subjected him to evolving and substandard procedures, and forced him to respond to criminal (or some other unspecified legal) allegations over which the Commission clearly has no jurisdiction. This illegal assertion of jurisdiction also has harmed or will harm the Secretary's reputation and his ability to carry out his official duties as he sees fit. Preliminary-injunctive relief is appropriate, because monetary damages are likely unavailable, an injunction will preserve the status quo pending a trial on the merits, and the public interest is served by reigning in agencies that act beyond their authority.
Spokesman Cole elaborates in more laymen-friendly terms.
"They have not laid forth anything beyond criminal charges, which is what Ethics Watch filed in their complaint," Cole says. "Our attorneys have asked repeatedly what they're investigating beyond that, but all the evidence they have related to the criminal complaints, which they don't have jurisdiction over.
"In the American justice system, someone has to explain to you what you're charged with, because if you don't know that, you can't defend yourself," he adds. "And that's the challenge here."
Cole emphasizes that "from the beginning, the Secretary has said he's open to the review of this. But we have to do it in a way that follows due process, and we don't think that's what's going on at the Ethics Commission right now. They just have to lay out what they're investigating, and they have to lay out the charges against him so he can defend himself -- and they haven't been able to do that beyond these criminal charges. So the filing is an attempt to protect his rights."
A hearing about the motion is expected to take place in Denver District Court this next Thursday, February 7. In the meantime, the Denver Post reports that the IEC is expected to release a report about its findings in regard to Gessler on Monday, February 4.
Here's the complete motion for a temporary restraining order or preliminary injunction.
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More from our Politics archive: "Scott Gessler says he's innocent as Ethics Commission begins investigation."