A recent ruling in Denver District Court could put some practitioners in Colorado's politicized ethics complaint industry on notice that coming up with allegations and throwing them at the wall to see what sticks might not cut it anymore.
At issue is whether people and organizations can get away with filing ethics and other types of complaints they should know aren't supported by the facts, sometimes referred to as "bad faith" complaints.
The case involves a series of ethics complaints filed by a conservative legal organization with Colorado's Independent Ethics Commission in December 2019. The four complaints — later whittled down to two — alleged former state Rep. Joe Salazar, D-Thornton, violated a state constitutional ban on lobbying by former legislators until they've been out of office for two full years.
Salazar, who mounted an unsuccessful run for attorney general in 2018, served three terms representing Adams County's House District 31.
The complaints — lodged concurrently with the Colorado Secretary of State's Office, which regulates lobbyists — accused Salazar of engaging in lobbying when he took the reins at the environmental advocacy group Colorado Rising right after he left office in early 2019.
The complaints were filed by the right-leaning Public Trust Institute, an operation that sprang up in 2018 and has been going after Democrats and government entities since.
The group, founded by former state House Speaker Frank McNulty, R-Highlands Ranch, "to help restore the public trust in American leadership," was under the direction of attorney and former Deputy Secretary of State Suzanne Staiert when the complaints were filed against Salazar.
Staiert — now known as Suzanne Taheri — is also named in Salazar's lawsuit. Her experience serving as deputy secretary of state turned out to be pivotal in the decisions to toss the complaints and in Salazar's decision to sue her and the institute. Staiert, a Centennial Republican, ran for the General Assembly last year, losing a high-profile race in Arapahoe County's Senate District 27.
The organization that filed the complaints against Salazar is the same group that hounded now-U.S. Sen. John Hickenlooper over dozens of private plane rides the Democrat accepted when he was governor.
Ultimately, that stack of ethics complaints resulted in a contempt citation and a ruling that Hickenlooper had violated a state gift ban on two occasions. The decision also yielded a $2,750 fine and a flurry of bad headlines, tough debate questions and sizzling attack ads. The campaign repercussions started last summer, right before Hickenlooper won the nomination over former state House Speaker Andrew Romanoff, D-Denver, in the Democratic primary, and ran right up to Election Day, when Colorado voters made Republican Cory Gardner a one-term senator.
The particulars of one of the allegations against Salazar involve a press conference he held at the state Capitol, where he encouraged supporters of Colorado Rising to contact lawmakers to urge them to support sweeping oil and gas reform legislation, something the Secretary of State's Office said was OK because it fell under an exception for grassroots lobbying. The office also said Salazar had been hired by the group as an attorney, not a lobbyist, and attorneys advocate for their clients.
Contrary to the complaint's allegations, however, the Secretary of State's Office said Salazar didn't press legislators about any specific legislation at the press conference, since it took place on the first day of session before any legislation had been officially introduced. What's more, he said the group intended to hold the governor and lawmakers accountable and make sure they protected the people and not oil and gas interests — a broad enough sentiment that it couldn't fall under the state's definition of lobbying.
Both the ethics commission and Secretary of State's Office ultimately dismissed the complaints against Salazar. But due to what Salazar describes as the "very particular circumstances" surrounding Staiert's allegations, he turned around and sued Staiert and the Public Trust Institute for malicious prosecution.
In his notice that he intended to sue, according to reporting by Colorado Politics' Marianne Goodland, Salazar called it a "tragic irony" that Staiert, in her capacity as a former deputy secretary of state, was "fully aware that my actions were not a violation of the law (but) maliciously proceeded to file and publicize these complaints against me (in) nothing more than a targeted political hit job."
That's because Staiert had ruled that the kind of behavior she labelled as violations in the complaints had been fine with her when she was actually regulating lobbyists.
"She wasn't just trying to destroy my reputation, she was raising allegations that could have harmed my law license and my ability to make money for my family," Salazar said in a recent interview. "She knew better and didn't care, she was going to use this to score political points and harm my reputation, and she got the beat down."
That beat down came in the form of a March ruling in Denver District Court by Judge Alex Myers, who said Staiert can't use a recently passed law as a defense and called it likely that Salazar's lawsuit alleging malicious prosecution will prevail.
Myers rejected a motion to dismiss filed by Staiert and the institute, who argued that Salazar's lawsuit could be defeated under a 2019 state "anti-SLAPP" statute. It's a legal tool designed to curb a SLAPP — a "strategic lawsuit against participation" — a term and concept invented in the 1980s by University of Denver professors George Pring and Penelope Canan for lawsuits intended to prevent someone from exercising their First Amendment rights to petition the government for a redress of grievances.
Salazar, for his part, has charged that the complaints filed against him by the institute and Staiert count as SLAPPs and calls his lawsuit a "SLAPP-back."
In his ruling, Myers agreed that Salazar demonstrated the complaints had been intended to "embarrass, humiliate and discredit him," a contention bolstered by the fact the institute issued a press release when it filed the complaints asserting that Salazar had broken the law but never issued a follow-up after the Secretary of State's Office and Independent Ethics Commission determined he hadn't.
Myers credited Salazar with presenting evidence that Staiert had "personally issued administrative decisions in which she concluded similar conduct by others was not a violation" of Colorado's lobbying laws, supporting the notion that Staiert "did not subjectively believe" that Salazar had violated the laws — but filed the complaint anyway.
A jury, Myers wrote, could conclude that there hadn't been a good-faith basis for the complaints.
The case is before the Colorado Court of Appeals, which could issue a decision before the end of the year, but there's a good chance that whatever the outcome, the case will be appealed again and wind up before the Colorado Supreme Court before it's over.
Staiert and the institute didn't respond to a request for comment.
"They went well beyond the typical political dragging my name through the mud," Salazar said. "I think the courts are tired of people just raising a thin argument or some arguments that don't have any merit at all. I think that courts are signaling that they are an institution to be valued to be respected. It's the same with a state ethics commission and the Secretary of State's Office, they should be valued and respected."
Mary Estill Buchanan, the Boulder Republican who served two terms as secretary of state and came within fewer than 20,000 votes of the U.S. Senate, owns more than a couple of the state’s political firsts.