A ruling by the Colorado Court of Appeals last week gave the Colorado Independent Ethics Commission the decision it has sought for years: that it is no longer subject to the state’s open records or open meetings laws.

The decision comes from the commission’s longest-unresolved ethics complaint, filed Feb. 3, 2016, against Mayor Mike Dunafon of Glendale. The complaint, filed by the owner of a Persian rug store in Glendale, alleged Dunafon cast the deciding vote on a development plan for a site owned by his wife, who owns Shotgun Willie’s.

A second complaint was filed in 2017 by the same individual over Dunafon’s vote to approve a liquor license renewal for Shotgun Willie’s, and it also asked the ethics commission to assert its jurisdiction over Glendale. The ethics commission spent the next two years trying to figure out if it had jurisdiction over Glendale, given that the city has its own ethics code, and, under Amendment 41, is allowed to deal with its own ethics issues.

The commission decided in July 2018 to assert jurisdiction because the Glendale code did not contain a gift ban — although that had nothing to do with the Dunafon complaint — and that Glendale’s ethics tribunal is not sufficiently independent to make decisions on ethics complaints. Glendale’s ethics tribunal is the city council on which Dunafon served. 

In December 2016, the ethics commission approved a position statement that clarified it could assert jurisdiction over a home-rule city when the city’s ethics laws lack the gift ban. 

Dunafon sued the ethics commission over the jurisdiction issue, and in January 2019, a Denver District Court judge ruled in his favor, dismissing both ethics complaints and issuing an injunction against the commission, which is under appeal.

Dunafon sued over the 2016 complaint as well, attempting to obtain executive session recordings that discussed his case, as well as written records. A Denver District Court judge ruled that the court lacked “subject matter jurisdiction” over the ethics commission because it is not an agency or “institution” subject to the open records law, that the commission is not a “state public body” subject to the open meetings law. The appeals court last week agreed.

The ethics commission has been sued twice over its insistence that it isn’t subject to the open meetings and open records laws, lawsuits that it lost both times. 

Part of the commission’s logic about not being subject to CORA or the open meetings law is because it is housed in the judicial branch of state government, which is generally not subject to those laws.

However, in a 2015 rule-making statement on access to administrative records, the Colorado Supreme Court disagreed, stating that the Judicial Branch “does not include the Judicial Discipline Commission, Independent Ethics Commission or the Independent Office of the Child Protection Ombudsman,” making those bodies subject to the open government laws.

In 2018, the commission decided to write its own rules on access to commission documents, which drew a flurry of complaints from Colorado Common Cause, the Colorado Press Association and the Colorado Broadcasters Association, as well as editorials criticizing the commission for its lack of transparency.

“There is absolutely no reason that the IEC should not be subject to the FULL Colorado Open Records Act,” the three organizations wrote. “Absent a court decision expressly finding that the IEC is not an entity covered by CORA, we believe the IEC is subject to CORA.”

So what’s different now? A 2019 Colorado Supreme Court ruling involving the Colorado Department of Public Health and Environment that has given the commission leverage on the open records issue. 

In 2019, a group of doctors, identified as “John Does 1-9” in court filings, sued the CDPHE regarding patient certification for medical marijuana use. At issue was a CDPHE referral policy that the plaintiffs claimed was void because it was developed in violation of the state’s open meetings law. On Nov. 12, 2019, the Colorado Supreme Court said otherwise, ruling that an entire state agency could not be a “state public body” under the open meetings law.

The Doe case got the immediate attention of the ethics body. Commissioner Yeulin Willett, a former state lawmaker, raised the possibility in a December 2019 meeting that the ethics commission could be viewed as an “entire state agency” and hence not subject to the open records law.

The ethics commission is part of Amendment 41, the state’s ethics law. It began meeting in 2007 and almost from the beginning has asserted that it is not subject to state transparency laws. The commission is taxpayer funded; its attorney is a member of the Attorney General’s office; it is housed in a taxpayer-funded building — the Ralph Carr judicial building — and it provides ethics training at no cost to local and state government employees. 

Jeff Roberts of the Colorado Freedom of Information Coalition told Colorado Politics on Tuesday that ruling makes clear that the five-member body “is a unique commission that gets to set its own rules for how it operates as it relates to open government and its own transparency.”

Writing for the CFOIC blog, Roberts pointed out that the ruling now leaves unclear on how someone could challenge a denial of commission records or access to a closed IEC meeting.

Josh Weiss, an attorney with Brownstein Hyatt Farber Scheck, which represents Dunafon, told Roberts that if the “IEC decided tomorrow to stop holding public meetings, it’s not clear who could challenge that or whether the IEC would actually be violating any rules given that they appear to operate in a special space where they make their own rules but aren’t really subject to much review.”

Roberts also noted in his blog that during oral arguments with the appeals court, Assistant Attorney General Gina Cannan, who represents the commission, said that even though the open records and open meetings law doesn’t apply to the commission “that doesn’t mean we are in no man’s land. The (state) constitution constrains and governs the IEC and informs this court … and the constitution expressly provides that certain matters are to be public and certain matters are to be kept confidential.”

Weiss said Tuesday the ruling raises a lot of questions. “Does the IEC have to comply with any open meetings law? Is the state ethics body the only one immune from open records law? And how does someone now obtain records from the commission?”

He said they are evaluating their options, including whether to appeal to the Colorado Supreme Court. “It’s a disappointing precedent,” Weiss said Tuesday.

In 2015, the Center for Public Integrity gave Colorado an “F” for its ethics enforcement agency (the commission), ranking it 44th nationwide. In the report, the Center said the “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.”

Since 2015, none of that has changed.