In November 2006, Colorado voters adopted a constitutional amendment that created an independent ethics commission, which, almost 1 1/2 years later, has claimed not to exist.
Following the opinion issued earlier this month by the Colorado Supreme Court overturning an injunction on the gift ban provisions of Amendment 41, the commission announced that “it will not process complaints, requests for advisory opinions or letter rulings” because it “is not yet in existence” until it appointed the fifth commissioner and adopts rules.
This position is contradicted by the plain language of the constitutional amendment that created it and by the actions of the commission thus far. According to the amendment, the commission “is hereby created” and the Supreme Court opinion agreed that the amendment is self-executing, which means it would “take immediate effect.”
But even more telling are the actions of the commission over the past four months. The purportedly non-existent panel has conducted four formal meetings, each in accordance with the Colorado Open Meetings law. During those meetings, the commission invoked its statutory right to conduct certain business privately in executive sessions.
Even though it claimed not to exist, the commission is already spending the $200,000 appropriated for its operation. It is interviewing candidates for full-time staff and just this week completed the process to identify and name the fifth commissioner. So far, the commission has been doing some pretty heavy lifting, such as considering draft rules and agreeing on a timeline for public comment and adoption of those rules. It even issued a public statement on its own letterhead announcing its non-existence.
Obviously, the commission could do none of these things unless it indeed existed.
In fairness, the commission has recognized the need for swift action and each of the commissioners has undertaken — on a volunteer basis — the monumental task of constructing a new, quasi-judicial process for rendering opinions on ethics issues statewide. The challenge — as Gov. Bill Ritter, Attorney General John Suthers and many others have noted — is that neither the public nor its government officials and employees can afford to wait for answers.
According to the commission’s current schedule, it could take several more months before it will begin hearing complaints and issuing opinions. Meanwhile, the gift ban is reinstated and public officials and employees must interpret the new law without any guidance, and enforcement of ethics laws is at a standstill.
Coloradans must renew the call for action. By attending commission meetings and providing comments during the rule-making process, members of the public can serve as a resource. In addition, both citizens and government officials should not hesitate to submit complaints and requests for advisory opinions. Public participation will put much-needed pressure on the commission to begin performing its voter-mandated role.
Unethical activities will not stop while the commission gets its act together. The time for action is now.
Chantell Taylor is director of Colorado Ethics Watch, a non-profit, legal watchdog group.
