Denver Auditor Timothy O’Brien found in a new report that Denver’s volunteer board that hears ethics complaints and determines if acts violate the city's ethics code suffers from lack of enforcement powers and inability to take complaints anonymously.
"Managers of individual city agencies are responsible for enforcing action on ethics violations,” O’Brien’s office explained. “These deficiencies could hurt the city’s ethical environment.”
In a survey question that 1,237 city employees responded to, 41% said that they had observed unethical behavior and did not report it to the board. They cited fear of retaliation and the expectation of no corrective action taken as the most common justifications for non-reports.
Denver’s ethics code, which dates to 1965, created a five-member volunteer Board of Ethics with one paid employee, the executive director. O’Brien said that the outgoing director of the ethics board in 2019 asked his agency for the audit. The code covers city employees, elected officials, mayoral appointees and unpaid board and commission members.
The board has the power to issue advisory opinions and waivers, hear complaints, and to issue recommendations about alleged ethics code violations. Since 2001, there have been only four board hearings. In 2019, the board had 19 inquiries for an advisory opinion, 16 complaints and 281 unofficial inquiries.
The auditor’s office reviewed the board’s operations previously in 2010, and of the 16 recommendations, the city took four years to implement just one recommendation.
In this audit, O’Brien’s investigators compared Denver’s ethics board to similar bodies in other cities. They applauded the use of a nominating commission to choose board members, finding it to be a more independent model than those methods used elsewhere. However, the audit was highly critical of the requirement that ethics complaints, other than those anonymous reports received through the fraud hotline, require the signature of the person making a complaint.
The auditor’s office originally suggested allowing for anonymity in 2010.
The report also suggested that the board be allowed to initiate its own investigations, and that the city address the discrepancy between the board’s decisions and department heads’ implementation of penalties.
“The board can’t take action on ethics violations, and it may not be told how often its recommendations are followed,” O’Brien said. “The Board of Ethics can review complaints, but there’s no mechanism to allow them to actively ensure there are consequences for bad behavior.”
In related findings, the report also discovered noncompliance with deadlines among elected officials and their appointees for disclosure of gifts worth $50 or more. Two months after the July 31, 2019 deadline for disclosure forms, 12 of the 94 covered officials had failed to turn theirs in.
O’Brien’s auditors recommended that the Clerk and Recorder’s Office make disclosure forms publicly available year-round, instead of blocking access twice per year around the reporting deadlines. The report charged the clerk's office with "not complying with city ordinance or the spirit of the Colorado Open Records Act." Reportedly, technological limitations led to the limited-access periods.
Auditors also recommended that the city implement rules to create a responsible party for bringing officials into compliance for their gift reports. The city does allow for the acceptance of some gifts, but there was "inconsistent and missing information" throughout the disclosure forms that made it impossible to determine the level of compliance.