The Colorado Independent Ethics Commission decided on Friday that former Gov. John Hickenlooper violated the provisions of Amendment 41, the state's ethics law, in two of six cases where he accepted private flights in 2018 that went against the amendment's ban on gifts from corporations to elected officials.
Hickenlooper testified for three hours at Friday's hearing, appearing under enforcement of a subpoena issued for his appearance.
In their deliberations, the commissioners reviewed the six trips at issue separately.
March 2018: Commissioning of the USS Colorado, violation
The commissioning ceremony for the attack submarine took place in March 2018. The commission voted 4-1 that a private jet trip and VIP meals were a violation. Commissioner Bill Leone said he was persuaded by the testimony of Sen. Bob Gardner, a Colorado Springs Republican who was also at that event. Gardner paid his own way to the Connecticut launch, including hotels, meals and travel. Hickenlooper, on the other hand, traveled to the event on a plane owned by MDC Holdings, owned by Larry Mizel, a campaign donor and longtime friend. Hickenlooper also attended several VIP dinner events that Gardner was not invited to, and Leone said that also was a violation. Gardner was able to "discharge and serve the state's business without accepting a trip on a private plane and a VIP treatment" accorded to the former governor, Leone said. To allow Hickenlooper to accept those gifts, "we open a can of worms that really impairs the integrity of government and the proper function of government," he said, adding that the offer of the private plane or events could have been accepted by anyone other than the governor.
While the commissioning was part of the governor's official duties, the gifts went beyond what was necessary to facilitate those duties, Leone said.
Commissioner Selina Baschiera indicated she felt the jet trip and meals indicated an appearance of impropriety. Commissioner Yeulin Willett, a former state representative, said the state should pay for the costs of official state functions.
Only Commissioner Elizabeth Espinosa disagreed, stating that the state would have paid for Hickenlooper to go to the commissioning.
January 2018: Trip back from New York, no violation
Hickenlooper went to New York to be at the bedside of his wife while she was having surgery and to participate in a Bloomberg conference. Hickenlooper came back to Colorado on a private jet owned by TTEC and its CEO, Ken Tuckman, a longtime friend.
Leone said he did not believe the jet trip was a violation, and that it was a gift from a personal friend. Several commissioners said he should have listed it on a state-required gifts and honoraria report, but voted 5-0 to decide it was not a violation. Commissioners noted an affidavit from Tuckman that he and his wife own 99% of the company, which made it less of an issue.
July 2018: The Texas wedding, no violation
Hickenlooper officiated at the July 2018 wedding for Kimbal Musk in Dallas and flew on a corporate-owned plane controlled by Musk. Willett said that trip had the "whiff of impropriety," and noted that the company that owned the plane is publicly held. That, and that the friendship with Musk seemed to be less strong, was a significant difference for Willett. Leone said the precedent troubled him, but that the trip back to Colorado was akin to "hitching a ride." However, after the trip, Hickenlooper sent a $1,000 check to a charity favored by Musk, which was never cashed. "This indicates discomfort with the situation," Leone said.
Willett, on several occasions, brought up that Musk's brother, Elon, owns Tesla Motors and that there have been lobbyists at the Capitol on the issue of low- or zero-emission vehicles. Kimbal Musk is on the Tesla board.
But an appearance of impropriety is not enough to find a violation, said Commission Chair Elizabeth Espinosa Krupa, and she implied that Willett may have done independent investigation on the Tesla issue outside of the evidence provided in the hearing. The commission voted 4-1 that it was not a violation.
June 2018: Bilderberg Meeting, violation
In June, 2018, Hickenlooper went to the Bilderberg Meeting in Turin, Italy, an event sponsored in part by Fiat Chrysler. Hickenlooper paid for his flight and lodging, but not the hospitality costs furnished by Fiat Chrysler, which included catering, ground transportation and security. Hickenlooper said he paid $1,500 for all the costs that he was aware of but was never told about the additional hospitality costs.
Commissioners were divided on the issue of a violation. noted a lack of evidence on the costs of those hospitality items, but believe it was likely in excess of $59, the limit on value of gifts to state officials that existed in 2018. "My concern is that it sets a precedent, out of sight, out of mind," said Willett. But Leone said he believed it was a violation, and not unreasonable to rely on a standard of an appearance of impropriety if Hickenlooper should have known the hospitality items had costs. "I want them to be diligent and ask the right questions, and gain that knowledge up front instead of on the back end," said Baschera.
In the end, however, the commission voted unanimously that Hickenlooper violated the gift ban in accepting those hospitality items.
August, 2018: Washington, D.C. to Jackson Hole, Wyoming, no violation
Hickenlooper Chief of Staff Pat Meyers flew the governor from DC to Wyoming on his private plane for an American Enterprise Institute function in which the governor was a featured speaker. The commissioners voted 5-0 that it was not a violation, given that the trip was from one official state function to another and that there was no benefit, either for Meyers or for Hickenlooper.
January, 2018, travel from Washington, D.C. to Centennial Airport, Colorado, no violation
Another trip where Meyers flew Hickenlooper from an official state function back to Colorado, the commission ruled 5-0 that it was not a violation.
The commission will discuss penalties for the violations and sanctions for Hickenlooper's failure to appear Thursday in its next meeting on June 16. While they appreciated Hickenlooper showing up on Friday, Leone indicated sanctions were appropriate given "what the respondent put us through" during the previous two days. Those sanctions could include paying for the legal costs in obtaining the subpoena and the courts costs that followed.
Standard penalties for violating Amendment 41 are usually calculated based on the cost of the prohibited gift, and a fine equivalent to that cost.
Earlier: Hickenlooper answers questions
The former governor, who served two terms in office and is now a Democratic candidate for the U.S. Senate primary on June 30, was questioned by his attorney and by Suzanne Staiert, executive director of the Public Trust Institute that filed the complaints in 2018.
His appearance follows a dramatic, unprecedented Thursday where the commission found Hickenlooper in contempt for his refusal to appear for the remote hearing. The commission had issued a subpoena Monday to compel his appearance at the hearing's first day, on Thursday. Hickenlooper did not show up, and the commission sought and obtained a court order on Thursday to enforce the subpoena.
PTI filed two complaints with the commission, alleging Hickenlooper accepted illegal gifts in the form of jet and other travel expenses to events in New York; Dallas, Texas, Turin, Italy; Connecticut and Jackson's Hole, Wyoming. There were other trips also alleged to have violated Amendment 41 but the commission rejected them because they fell outside the commission's one-year statute of limitations. That limitation, in commission rules, says a complaint must be filed within one year of the alleged violation.
Two lawyers for the former governor are in attendance at the hearing. Marc Grueskin of Denver, who has represented Hickenlooper on the ethics complaints since the beginning, is the attorney of record.
However, Marc Elias, a Democratic heavy-hitter hired by the Democratic Senate Campaign Committee to deal with the subpoena issue, is also on the call.
Hickenlooper's campaign previously said he would not participate in the remote hearing due to concerns over technical issues and his rights to due process. However, Thursday's hearing, after about an hour, was relatively free of the technical issues raised by the campaign.
As of 11 a.m. Friday, the call had well over 150 people on it, including Hickenlooper's wife, Robin, and a slew of Republican activists.
Leone, in his questioning of the former governor, asked Hickenlooper if he had been able to hear the questions and see the people involved, a nod to the legal arguments advanced by Hickenlooper that a Webex virtual hearing would be a technical disaster and potentially a violation of his due process rights. "Is it far from a debacle?" Leone asked. Hickenlooper replied it was not what he had feared, although not the same as being in the same room.
In his responses to the questions from Staiert and Grueskin, the former governor focused his comments on his efforts to promote Colorado in economic development, among the reasons for some of the trips listed in the complaints.
Staiert, in her closing arguments, said that in his last year in office, Hickenlooper lived a lifestyle "out of touch and out of reach with the vast majority of the Coloradans he was supposed to serve. Rather than follow the principles set forth in the Constitution, he traveled the country" in violation of Amendment 41.
She noted that Hickenlooper twice sought advice from the commission regarding his travel, both times after the travel had taken place, she said. The first was in 2011, when Hickenlooper asked about a trip to New York to appear on NBC for a panel on education. The commission said he could not. The second was in 2016, when Hickenlooper was told by the commission he could not accept travel paid for by a for-profit company, in a trip to Italy. After those two opinions, Staiert said, the governor stopped asking for the commission's advice.
Grueskin's closing arguments on Bilderberg noted that there was no "offer" from the conference or its sponsors, and based on a previous IEC ruling on an allegation against Rep. Kim Ransom, without an offer and acceptance there can be no violation.
With regard to the USS Colorado, Hickenlooper wasn't alone on the MDC plane, Grueskin said. The flight also was provided to several other state officials, and as a result the offer was not exclusive to the governor. There was no conflict of interest, Grueskin told the commission, another factor in the commission standards. A potential conflict -- legislation on construction defects, which would affect MDC Holdings -- took place a year before the trip, Grueskin said.
As to the previous advisory opinions, Grueskin said those were valuable opportunities for interface with the oil and gas industry (2011) and with other governors (2016).
Hickenlooper spokeswoman Melissa Miller said in a statement that "The Republicans who launched these attacks pursued 97 allegations, and the Commission dismissed 95 -- a result that shows you they’ve been focused not on the facts but on political smears. Governor Hickenlooper spoke today about how he followed the guidelines in his travel to bring business to Colorado, which went from 40th in job creation to number one in the country while he was governor. We fully expect the special interests who’ve exploited this process to continue to mislead Coloradans with negative attacks because they know John Hickenlooper will be an independent voice in the U.S. Senate."
Frank McNulty, who formed the Public Trust Institute, told Colorado Politics that in October 2018, "we filed a number of charges alleging improper activity by John Hickenlooper during his time as governor. Today, the Colorado Independent Ethics Commission confirmed that Hickenlooper has violated Colorado's ethics laws by accepting gifts illegally from US and foreign corporations."
Former Democratic Speaker of the House Andrew Romanoff, who faces Hickenlooper in a June 30 primary to determine who will face incumbent Republican U.S. Senator Cory Gardner of Yuma in November, said in a statement Friday evening that “I have no sympathy for the Republicans who brought this complaint. Their outrage is hard to stomach. But it wasn’t the GOP that found Mr. Hickenlooper in contempt or in violation of the State Constitution. It was Colorado’s Independent Ethics Commission. The Commission’s message is clear—and Coloradans agree: no one is above the law.”