Colorado gets D+ grade in 2015 State Integrity Investigation

Introduction

Colorado is not a state with a tradition of scandal-scarred government. Its governors don’t tumble from power in disgrace, and indictments of lawmakers and lobbyists aren’t the norm.

Periodic instances of impropriety do occur, largely at the local level. And just last year, Colorado’s Independent Ethics Commission fined a sitting statewide public official for the first time ever after finding that then-Secretary of State Scott Gessler had used public money for personal and political gain. Only one state lawmaker has pleaded guilty to public corruption in the past two years.

By-and-large, government under the gold dome of the capitol in Denver is seen as largely sleaze-free. “Colorado politics,” said Mike Littwin, a longtime political columnist here, “are boringly clean.”

There is, however, a stark difference between not having a reputation for public corruption and not being at risk for it.

Yes, there is good news on the accountability front: Colorado has a transparent state budget process, generally accountable executive and legislative branches, and a robust, well-staffed office of the State Auditor.

But then there’s the risk: government here has ways to keep public information secret. Gift reports, personal financial disclosures, and money-in-politics filings of politicians and judges are not audited for compliance. The state’s ethics commission, staffed with a single professional, is understaffed, under-funded, and lacks independence: it relies on the attorney general’s office for legal counsel — even though that office is also subject to the commission’s oversight.

On the enforcement side in the Centennial State, it is citizens who must prosecute complaints against public officials whom they believe have acted improperly. Citizens must also pay their own way through the court system to prove public wrongdoing while public officials accused of malfeasance can rely on public money for their defense.

And so Colorado received an overall grade of D+ and a numerical score of 67, ranking it 13th nationally (tied with Illinois) in the State Integrity Investigation, an assessment of state government accountability and transparency conducted by the Center for Public Integrity and Global Integrity. While the score is nearly identical to the one given in 2012, the scores are not directly comparable because of changes made to improve and update the project and its methodology, such as eliminating the category for redistricting, a process that occurs only once every 10 years.

Access to information: “A huge, gaping hole”  

The worst scoring category for Colorado is access to information.

There are daunting obstacles to obtaining information through the state’s open records laws, and there is no formal appeals process outside of the court system for someone denied a record. Because Colorado doesn’t have a centralized process for handling public records requests, different government entities handle such requests in different ways.

Law enforcement is an area of serious concern. While “records of official action,” like arrest reports, are generally public, Colorado law authorizes local police to decide whether to release or withhold a wide range of other records (think footage from police body cameras), if they feel that releasing those records would be “contrary to the public interest.”

In 2012, a ruling by the state Court of Appeals affirming the judicial branch as exempt from some aspects of the Colorado Open Records Act made it even easier for courts to keep secret certain administrative records. In practice this affected one of the state’s biggest recent news events: the death penalty trial of mass murderer James Holmes, who shot up an Aurora movie theater, killing 12 people and wounding 70 others. When reporters wanted to know how much taxpayer money was going to pay for death penalty cases in Colorado, the public defender’s office wouldn’t say — because it didn’t have to.

When it comes to the Colorado Open Records Act, “There’s a huge, gaping hole right now,” said Steve Zansberg, the state’s leading media attorney. “One of the three branches of government is not subject to our open records act by its own ruling.”

Transparency in the legislative branch has also come in for criticism. A May 2015 investigation by Denver’s KUSA 9News found all 100 members of the Colorado Legislature use private e-mails to conduct state business, giving them control over what to release if they get an open records request. “There’s no accountability,” said reporter Jeremy Jojola. “They decide what you get to see.”

Beyond the accountability issue is “a need to update our statute to kind of bring it into the 21st Century to account for the fact that so much information is electronic,” said Jeffrey Roberts, director of the Colorado Freedom of Information Coalition.

A Gift ban loophole: let’s split the checks

In 2006, Colorado voters passed a constitutional amendment creating, among other items, gift rules for politicians. The measure limits gifts that elected officials and most public employees can receive to those valued at less than $50, subject to inflation.

But there’s a loophole. While the Independent Ethics Commission has looked with disfavor on attempts to skirt the law, it remains unsettled whether a group of individuals could chip in the legal limit for one large gift, say, for a car or a trip to Honolulu.

Private party ethics enforcement: bring on the ‘nutty activists’

Colorado’s reputation for clean government might have a lot to do with how difficult it can be to uncover examples of bad behavior. Money-in-politics reports and financial disclosures filled out by the state’s politicians and judges aren’t formally audited in ways that could detect problematic campaign finance issues.

So instead, rooting out ethics violations in Colorado falls mostly to the private sector. That can mean rival campaign operatives, nonprofits, political groups with agendas or the unlikely average citizen who just might have the time and resources to prove their case in court.

“Colorado is the only state where private citizens are expected to prosecute ethics complaints at their own expense while the state pays for the defense of officials accused of wrongdoing,” said Luis Toro, director of Colorado Ethics Watch, a nonprofit watchdog. His group, which doesn’t disclose its donors, pursued the successful complaint against the former secretary of state for using state money to attend a political event. Ethics Watch had to pay to fight the case at its own expense.

But while Colorado’s private party enforcement for campaign finance might save money and avoid partisanship issues, it can also bring politically motivated complaints, said Mario Nicolais, a Denver attorney who practices in campaign finance compliance. “It also means that there are some real nutty activists bringing and prosecuting claims,” he said.