The office of Colorado Secretary of State Wayne Williams has cleared the executive director of Democrats for Education Reform (DFER) on a complaint accusing her of lobbying lawmakers at the state Capitol without being a registered lobbyist.

But in a May 16 letter to DFER Executive Director’s Jen Walmer and former research director Jack Teter, DJ Davis, deputy director of business and licensing for the Secretary of State, said the pair should register as lobbyists anyway because his office just isn’t sure they aren’t engaging in lobbying activity.

The complaint against Walmer and Teter was filed by public education advocate Ilana Spiegel in April 2017 and alleged that Walmer and Teter had engaged in illegal unregistered lobbying on bills, that they met frequently with lawmakers both with and without their registered lobbyist present, and sent emails to lawmakers advocating for bills.

Democrats for Education Reform made the news in April when the Colorado Democratic State Assembly approved a resolution demanding that the New York-based organization take the word “Democrat” out of the name of their Colorado chapter. That’s because the chapter had failed to seek permission to use “Democrat” in its name. It’s a violation of state law to use the name of a political party without the party’s consent.

A “Use of Name Committee” for the state Democratic Party has started an investigation into DFER’s use of “Democrat,” but a spokesman for the state Democratic Party did not respond to a request for comment or on the timeline for the party’s investigation.

The May 16 decision by Davis, the licensing official in Williams’ office, said that Teter, who is no longer with DFER, had lobbied on at least four bills during the 2017 session, as evidenced by sign-in sheets. Davis said Walmer testified on five measures and engaged in at least “182 legislator-related communications,” the SOS letter said; Teter had 104 legislator-related communications.

The state’s definition of lobbying includes “communicating directly with a covered official for the purpose of aiding in or influencing” a lawmaker on a bill. A second definition applies to a “professional lobbyist,” which is a person who is paid to lobby. Professional lobbyists must register with the Secretary of State.

Some of Teter’s activities, according to the Davis letter, said Teter had engaged in talks with lawmakers on bills in the presence of lobbyist Moira Cullen, who had been hired by Education Reform Now Advocacy, the entity that pays Walmer’s salary. Neither the testimony in committee hearings nor the meetings with lawmakers where Cullen was present violate state law, Davis’ letter said.

Where the problem lies is when Teter and Walmer lobbied legislators without Cullen being present.  These other interactions “may constitute lobbying” that violates state law and requiring lobbyist registration. But without knowing the exact content of those discussions, the letter said, it’s unclear whether those interactions were really violations.

Should the pair continue to lobby without their lobbyist being present, they should register as lobbyists, the letter recommended.

That appears unlikely, according to a statement from DFER spokesperson Erika Soto Lamb. In a statement to Colorado Politics Monday night, Lamb said “we’re glad that the Secretary of State found that there was ‘no violation of lobbying laws’ with regard to providing testimony at a public hearing.” As to the issue of Walmer registering as a lobbyist, Lamb pointed out that ERNA already has two registered lobbyists in Colorado.

Spiegel told Colorado Politics Tuesday that “for public schools to work for all, not just the well-connected, parents, educators, students, and community members responsible for protecting Colorado’s public schools have a right to know how much time and money is being spent gaining access to elected officials and the legislative process. Thank you to the Colorado Secretary of State’s office for putting highly paid, out of state-funded, corporate lobbyists on notice.”