Colorado § 24-18.5-101 - Independent ethics commission - establishment - membership - subpoena power - definitions.

§ 24-18.5-101. Independent ethics commission - establishment - membership - subpoena power - definitions.

(1) As used in this article, unless the context otherwise requires:

(a) "Article XXIX" means article XXIX of the state constitution approved by the voters at the 2006 general election.

(b) "Commission" means the independent ethics commission created in section 5 (1) of article XXIX.

(2) (a) The independent ethics commission, originally established in the office of administrative courts in the department of personnel created in section 24-30-1001, is hereby transferred to and established in the judicial department as an independent agency, effective on June 10, 2010. The commission shall consist of five members. The appointing authorities for the commission members, the order of appointment of such members, and other requirements pertaining to commission membership shall be as specified in section 5 (2) of article XXIX. Subject to the requirements of paragraph (b) of this subsection (2), the member appointed by the senate pursuant to section 5 (2)(a)(I) of article XXIX shall be appointed by the president of the senate with the approval of two-thirds of the members elected to the senate. Subject to the requirements of paragraph (b) of this subsection (2), the member appointed by the house of representatives pursuant to section 5 (2)(a)(II) of article XXIX shall be appointed by the speaker of the house of representatives with the approval of two-thirds of the members elected to the house of representatives.

(b) In connection with the appointment of commission members, no more than two members appointed to the commission shall be affiliated with the same political party.

(c) The commission members shall be appointed to four-year terms; except that the first member appointed by the senate and the first member appointed by the governor shall initially serve two-year terms. Appointments to the commission by the senate and the house of representatives shall be made no later than May 1, 2007, and the initial terms of commission members shall commence July 1, 2007.

(3) Commission members shall serve without compensation; except that commission members shall be reimbursed for the actual and necessary expenses that they incur in carrying out their duties and responsibilities as commission members.

(4) In accordance with the provisions of section 5 of article XXIX, the powers and duties of the commission shall be as follows:

(a) To hear complaints, issue findings, and assess penalties on ethics issues arising under article XXIX and other standards of conduct and reporting requirements as provided by law; and

(b) (I) To issue advisory opinions and letter rulings on ethics issues arising under article XXIX and other standards of conduct and reporting requirements as provided by law.

(II) The commission shall prepare a response to a request for an advisory opinion from a public officer, member of the general assembly, local government official, or government employee as to whether particular action by such officer, member, official, or employee satisfies the requirements of article XXIX as soon as practicable after the request is made to the commission.

(III) Any person who is not a public officer, member of the general assembly, local government official, or government employee may submit a request to the commission for a letter ruling concerning whether potential conduct of the person making the request satisfies the requirements of article XXIX. In such case, the commission shall issue a response to the request as soon as practicable.

(IV) Each advisory opinion or letter ruling, as applicable, issued by the commission shall be a public document and shall be promptly posted on a website that shall be maintained by the commission; except that, in the case of a letter ruling, the commission shall redact the name of the person requesting the ruling or other identifying information before it is posted on the website.

(5) (a) Subject to the provisions of paragraph (c) of this subsection (5), the commission shall dismiss as frivolous any complaint filed under article XXIX that fails to allege that a public officer, member of the general assembly, local government official, or government employee has accepted or received any gift or other thing of value for private gain or personal financial gain.

(b) For purposes of this subsection (5):

(I) "Official act" shall have the same meaning as set forth in section 24-18-102 (7).

(II) "Private gain" or "personal financial gain" means any money, forbearance, forgiveness of indebtedness, gift, or other thing of value given or offered by a person seeking to influence an official act that is performed in the course and scope of the public duties of a public officer, member of the general assembly, local government official, or government employee.

(c) This subsection (5) is repealed if the Colorado supreme court holds, in response to one or more written questions submitted by the general assembly pursuant to section 3 of article VI of the state constitution, that the standard of accepting or receiving "any gift or other thing of value for private gain or personal financial gain" specified in paragraph (a) of this subsection (5) is unconstitutional in applying section 3 (1) or (2) of article XXIX.

(6) Pursuant to the provisions of section 5 (1) of article XXIX, the commission shall adopt reasonable rules as may be necessary for the purpose of administering and enforcing the provisions of article XXIX and any other standards of conduct and reporting requirements as provided by law. Any rules shall be promulgated in accordance with the requirements of article 4 of this title.

(7) Subject to available appropriations, the commission may employ such staff as it deems necessary to enable it to carry out its functions in accordance with the requirements of this article and article XXIX.

(8) No subpoena requiring the attendance of a witness or the production of documents shall be issued by the commission unless a motion to issue any such subpoena has been made by one member of the commission and approved by no fewer than four members of the commission.

(9) Any final action of the commission concerning a complaint shall be subject to judicial review by the district court for the city and county of Denver.

(10) Any state employee on the staff of the commission as of June 10, 2010, shall be transferred with the agency and shall become an employee of the agency.

Source: L. 2007: Entire article added, p. 650, § 1, effective April 26. L. 2010: (2)(a) and (4)(b)(II) amended and (10) added, (HB 10-1404), ch. 405, p. 2002, § 1, effective June 10. L. 2011: (2)(b) amended, (HB 11-1315), ch. 191, p. 737, § 1, effective May 19.

ANNOTATION

Law reviews. For article, "The Practitioner's Guide to Amendment 41 and the Colorado Independent Ethics Commission", see 38 Colo. Law. 37 (Oct. 2009).

As personification of state, governor proper party defendant in suit contesting constitutionality of article XXIX (amendment 41) at time of its filing. The evaluation of whether a person or entity is a proper party in a lawsuit must be determined in light of relevant facts and circumstances. Here, there was no alternative entity for plaintiffs to sue in order to challenge article XXIX. Colorado has long recognized the practice of naming the governor, in his role as state's chief executive, as proper defendant in cases where a party seeks to "enjoin or mandate enforcement of a statute, regulation, ordinance, or policy". The only appropriate state agent for litigation purposes was the governor. Prior to creation of the independent ethics commission (commission), the governor was appropriate party defendant in a constitutional challenge. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008).

Considering both language of article XXIX and voters' intent in initiating it, article XXIX is self-executing in that it does not require any further action by the general assembly to be effective. A constitutional provision is self-executing when the provision appears to take immediate effect and no further action by the general assembly is required to implement the right given. Here, article XXIX can take effect without any further action by the general assembly. Its provisions do not merely lay out bare principles without any means of implementation; rather, the article has a built-in mechanism for operation. It provides for the creation of the commission that, once in existence, will be independent of the general assembly and will promulgate necessary rules to implement and enforce gift bans and other ethical standards. There is no indication that voters intended to require further legislative action with respect to article XXIX. To the contrary, voters used initiative process to avoid possibility that general assembly would prevent them from establishing commission that would enforce gift bans against general assembly's members as well as other government employees. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008).

Because preliminary injunction issued before commission came into existence and before it had opportunity to act in furtherance of this article, plaintiffs failed to present a ripe as-applied constitutional challenge. Relief plaintiffs seek is only available in a successful facial challenge, not in an as-applied challenge. In order for plaintiffs to obtain a declaration that article is unconstitutional as applied, there must be an actual application or at least a reasonable possibility of enforcement or threat of enforcement. As of the time of suit, the commission was not yet in existence, and it had not yet acted to enforce the gift bans. No enforcement or threat of enforcement of the gift bans had occurred. Therefore, concerns expressed by plaintiffs were merely speculative interpretations of what might occur once commission is operative. As such, district court did not have jurisdiction to grant preliminary injunction. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008).

Article XXIX vests the general assembly with authority to enact legislation involving situations where the commission has enforced a penalty against an official. But the general assembly cannot enact legislation that "limit[s] or restrict[s]" the commission's powers. Because article XXIX only permits the general assembly to act with respect to the commission's enforcement actions, the general assembly cannot constitutionally enact legislation pertaining to any commission decisions that do not involve enforcing penalties. While the general assembly may authorize judicial review of an enforcement decision by the commission, it may not encroach upon the commission's decision not to enforce. Therefore, the commission's decision to dismiss a complaint as frivolous is not subject to the judicial review provision in subsection (9). Colo. Ethics Watch v. Indep. Ethics Comm'n, 2016 CO 21, 369 P.3d 270.

As counsel for a government entity, requestor is authorized to submit a request for a letter ruling under subsection (4)(b)(III). Indep. Ethics Comm'n Letter Ruling 24-01.

The scope of subsection (9) is necessarily limited to enforcement actions. But the commission's dismissal of a complaint as frivolous does not involve the enforcement of penalties; rather, it represents the commission's decision not to enforce. Thus, subsection (9) sanctions judicial review of the commission's enforcement decision without unconstitutionally trespassing on the commission's power to dismiss frivolous complaints. Colo. Ethics Watch v. Indep. Ethics Comm'n, 2016 CO 21, 369 P.3d 270.

Subsection (9) establishes a district court's subject matter jurisdiction over matters involving the commission. The plain language of subsection (9) limits that jurisdiction to review of "final action[s] of the commission concerning a complaint." Thus, to the extent the commission's access to records rule (records rule) may be read to grant the district court jurisdiction to review the IEC's nonfinal actions, it is invalid. Dunafon v. Krupa, 2020 COA 149, 477 P.3d 785.

District court did not have subject matter jurisdiction under subsection (9) to review appellant's request for records pursuant to records rule. The commission's denial of appellant's records did not involve enforcing any penalties and is not a final decision concerning the complaint against him. The commission may decide not to enforce a penalty against appellant but should it do so, he can seek judicial review of that decision and the commission's denial of his records request at that point. Dunafon v. Krupa, 2020 COA 149, 477 P.3d 785.

ARTICLE 19

Payment of Postemployment Compensation to Government-supported Employees

24-19-101. Legislative declaration.

24-19-102. Definitions.

24-19-103. Prohibition against postemployment compensation - exception.

24-19-104. Terms of employment contracts - public inspection.

24-19-105. Settlement agreements - public inspection - filing with the department of personnel.

24-19-106. Existing employment contracts - contract extensions.

24-19-107. Open records.

24-19-108. Exceptions - definition.

24-19-109. Enforcement of article - civil suit.