Ethics commission says no to paying for Jena Griswold's private security

Colorado's Independent Ethics Commission gave a hard no Tuesday to a request for private security for Colorado Secretary of State Jena Griswold.

The issue wasn't that Griswold shouldn't be protected, but rather who would have paid for it.

Earlier this month, Griswold revealed that she has been getting online threats, some tied to false allegation that the 2020 election was fraudulent. That included threats of physical harm, some which Denver7 news forwarded to the Colorado State Patrol for investigation.

The ethics commission Tuesday reviewed a request from the Democratic Association of Secretaries of State (DASS) to pay for private security for Griswold. The threats did not rise to the level of requiring the Colorado State Patrol to provide that security, according to the discussion during the meeting. 

Griswold currently serves as the organization's chair. DASS is a 527 political organization, based in Washington, D.C. As a 527,  it must disclose its donors. The name comes from the section in the tax code that spells out the rules.

But commissioners took a dim view of DASS paying for the security for several reasons. Commissioner (and former Republican state Rep.) Cole Wist raised concerns about the security detail, which would cover Griswold in her official capacity, regardless of the type of event.

That could include campaign events, the DASS representatives said. The other issue, which was a problem for newly appointed Commissioner Sarah Mercer. She said it raised an appearance of impropriety to pay Griswold directly for the security detail, not the Department of State..

Neil Reiff, a lawyer representing DASS, argued that the security detail would be a benefit to the state, part of a five-pronged test the commission developed several years ago to evaluate gifts and other items of monetary value that are provided to elected officials and other covered employers under Amendment 41, the voter-passed code of ethics for public officials in Colorado.

Reiff outlined the five-prong test in an effort to persuade the commissioners to OK the payments to Griswold. He noted that the offer is to the head of a state agency, and that the threats would not exist were it not for Griswold's position as secretary of state.

DASS has no plans to contribute to the Griswold's re-election campaign, he said, and the organization does not anticipate having any business before the Department of State or the Secretary.

But based on records from TRACER, the state's campaign finance database, DASS also appears to employ backdoor ways to get money to preferred candidates.

In September 2018, less than two months before the general election, 25 contributed $3,000 to the Colorado Democratic Party. In the time between that contribution and the 2018 election, the state party gave Griswold's campaign more than $30,000. 

Among DASS contributors in 2018, according to IRS records: $50,000 from Coloradan Merle Chambers, who has contributed or raised substantial funds for woman Democratic candidates, including in 2020 to Griswold's Leadership PAC and to her 2018 campaign.

The last factor is whether the gift is educational or business-related, and to that, Reiff said the purpose is to provide security for any public event so that Griswold can do her job without fear or reprisal.

"It's clearly related to the secretary's business activities," he said, asking that the commission rule that it is not a prohibited gift.

Normally, the Colorado State Patrol provides security to the governor. DASS representatives said the Department of State has been using a small discretionary account, about $25,000, to pay for security for Griswold for official events, but that money is almost gone. 

DASS officials said Griswold would have to issue a request for proposal (RFP) should she want to spent more than $25,000 for security. Issuing an RFP would take several months. Reiff also noted that a budget committee — presumably the Joint Budget Committee — was reviewing a request for funds for Griswold security, but Reiff said there was no indication they would say yes. "The secretary is in between a rock and a hard place" with no assurance from the state that they would provide security, he said.

Joint Budget Committee staff told Colorado Politics that the Department of State has not sent the committee a request for private security under the committee's 1331 process, which is reserved for emergency supplementals. 

The State Patrol has not stepped in to provide security, Reiff explained, because the threats — mostly through social media — don't rise to the threshold for state police support.

Then there's the issue of what kinds of events the security detail would handle, which troubled Wist. 

"One of the tough issues for me is to understand where the line is between work and the secretary's official capacity and political work and appearances that are political in nature," Wist said. "Are we to conclude that all appearances by the secretary would be in her official capacity?" Reiff replied that all appearances, official or political, are in her capacity as a public official. "There is no distinction. She's always acting in her official capacity."

That led Wist to raise the question on whether the security could be seen as a campaign contribution. That's outside the purview of the commission, Reiff responded.

If money were to be raised by DASS to pay for Griswold's security, they have an extensive process for contributions and would ensure it didn't cause a conflict of interest, Reiff explained.

"Until there is adequate security and resources for threat monitoring, we want to make sure secretaries have security, given the heightened rhetoric targeting election officials," according to a DASS official.

There was also some back and forth around the issue of just how those threats are being assessed, which DASS representatives said was being done by a contractor. That raised concerns for commissioners, although a DASS official said they hadn't made the assessment in Colorado, because of the request in front of the commission, but had done so in other states.

DASS has not, however, provided security in those other states; a nonprofit 501(4) organization had taken care of those costs. 

Mercer raised concerns about a third party doing threat assessments, especially if the information is supposed to be confidential. 

Vice chair Selina Baschiera asked about the potential for DASS to influence the policy-making of the secretary of state.

"We do not have a policy or lobbying arm," according to DASS officials.

However, according to a 2020 IRS 8872 report, the association regularly employs Hilltop Public Solutions, a well-known political consulting firm that has offices in Washington, D.C., and Denver (run by longtime Democratic political operative Craig Hughes).

Hilltop has long worked with Democratic campaigns, both nationwide and in Colorado, including on Griswold's 2018 campaign.

After a brief executive session in which the commission consulted with its lawyer from the Attorney General's Office, Mercer said that she had reservations about the DASS request, citing the appearance of impropriety in paying Griswold directly for the security costs, and stated the request would violate Amendment 41's prohibition on gifts.

Wist agreed, stating the issue for him was the lack of a meaningful distinction between work in an official capacity versus work in a political capacity. That's relevant, he added. 

"It's not lost on this commission" that the threats create anxiety for elected officials, Wist said. "But there is a more appropriate source for resources to provide the kind of security and protection for the secretary of state that is justified and warranted."

The commission then voted unanimously to find that the request would violate Amendment 41. 

It's not uncommon for members of Congress to use campaign funds to pay for private security. Both U.S. Reps. Jason Crow, D-Aurora, and Joe Neguse, D-Lafayette, who served as impeachment managers, paid thousands of dollars for private security in 2020 and this year, according to FEC records. The Secretary of State's Office has not responded to a request on whether Colorado statewide candidates could do the same.

Clarification: According to the Secretary of State's office, security for official events is covered under the Department of State budget and not from a discretionary account, despite the claims by DASS representatives. That security, however, does not extend to unofficial or campaign events, and that would likely have been the limit of DASS' involvement.