Former Gov. John Hickenlooper is refusing to participate in a remote hearing to decide the ethics complaint against him, according to a motion filed by his attorney, Mark Grueskin, on Friday.
The motion asks the Independent Ethics Commission to reconsider their decision to hold a remote hearing on the complaint on June 4. The hearing was initially scheduled for next Wednesday, May 27.
The request was based on concerns that technological problems, as evidenced by a May 19 practice session, render a remote hearing a "threat to due process that should, under any other condition, lead a tribunal to rethink its order."
Should the commission refuse to reconsider its order to either allow for written testimony or reschedule for when it can be conducted in person, Hickenlooper will file a motion in Denver District Court to determine whether "a compromised hearing satisfies Respondent’s fundamental due process rights," the motion said.
The commission was planning to use WebEx to hold the hearing. According to the motion, a practice session held on May 19 was riddled with technological snafus. The commission's vice-chair, William Leone, was unable to access the meeting for 10 minutes, could not use the "raise your hand" function to ask questions or navigate the software in order to view the participants.
"Commissioners repeatedly expressed an inability to see or hear one another" during the session, the motion said. Commissioner Yeulin Willett was unable to connect via video. Assistant Attorney General Gina Simonson had trouble with her video connection and another assistant attorney general who tried to help commissioners with technological support lost her audio connection.
Commissioners and others working remotely are "plainly unfamiliar with the technology, and hobbled by inferior internet connections and no on-site technological support, there is no assurance that any of these issues will be resolved by June 4," the motion stated.
Grueskin also raised concerns about his ability to represent the former governor in a remote hearing, which he said would prohibit him from "securely or adequately preparing" the governor for the hearing since they cannot meet in person. That's because both Grueskin and Hickenlooper, according to the motion, are at "increased risk for complications in the event" that either catch the virus.
A remote hearing also infringes on Hickenlooper's right to have his counsel present with him during the hearing, and it would hamper Grueskin's ability to represent the governor, given the "vagaries of a largely non-secure and potentially unreliable internet-based platform."
The motion also pointed out that the Public Trust Institute, the complainant in the matter, agreed on April 30 that the commission should not hold a remote web-based hearing without Hickenlooper's consent.
But there is precedent for compelling someone to participate in an ethics hearing, and that dates back to the case against then-Secretary of State Scott Gessler.
In 2012, Colorado Ethics Watch filed complaints against Gessler, alleging he had used taxpayer money to attend a partisan event, the Republican National Lawyers Association conference in Tampa, which was held just prior to the Republican National Convention. Gessler also was accused of using a petty cash fund in his office without providing receipts.
The ethics commission found he had violated the state ethics law, Amendment 41, and ordered him to repay the conference costs, the amount taken from petty cash and a fine equal to both. Gessler repaid the travel money to the Secretary of State's office but a Denver District Court judge delayed payment of the fine and petty cash until the legal process was over. He lost every appeal, all the way to the U.S. Supreme Court in 2018, and, threatened with collections, he finally paid the fine a year ago.
Colorado taxpayers paid for both Gessler's legal representation and the commission's legal representation from the Attorney General's office, for a total cost estimated at more than $515,000.
Gessler declined to testify in the ethics commission hearing. A representative of the Attorney General's office obtained a court order compelling Gessler's appearance and testimony, according to Suzanne Staiert, who at the time was deputy Secretary of State and is now director of the Public Trust Institute.
The ethics complaints against Hickenlooper are tied to travel he took in 2018, travel "on private jets owned by for-profit corporations both domestically and internationally," according to the original complaint, which also said Hickenlooper "illegally accepted luxury hotel accommodations and expensive travel expenses from corporations."
A 31-page investigative report, conducted by the commission and released last November, did not draw any conclusions nor make any recommendations as to further action. The report focused on travel related to a June 2018 trip to Turin, Italy, for the Bilderberg Meeting, an annual forum "designed to foster dialogue between Europe and North America," travel to Connecticut in March 2018 for the commissioning of the USS Colorado; private travel to New Jersey in January 2018 and to a wedding in Texas in April 2018; and travel to Jackson Hole, Wyoming, in August 2018 to attend the American Enterprise Institute’s Jackson Hole Symposium.
Hickenlooper said in his response that the trips to Jackson Hole and the commissioning of the USS Colorado in Connecticut were tied to his official capacity as governor. Payment for air travel to the Bilderberg meetings was paid for "by either earned air miles or his personal credit card. The cost for the conference was several thousand dollars, which includes hotel, food, ground transportation and other event expenses. Respondent stated that these conference costs were paid personally by him."
The former governor provided credit card receipts for hotel costs.
The original complaint was filed in October 2018, before the end of Hickenlooper's term in office, by the Public Trust Institute. Former Republican Speaker of the House Frank McNulty created the institute two days before filing the first complaint. The Hickenlooper campaign claims the PAC America Rising is behind the complaint, and that the complaints are frivolous and politically-motivated.
Hickenlooper campaign spokeswoman Melissa Miller tweeted that "Governor Hickenlooper has answered the commission’s questions and wanted to appear in person to testify months ago but will not forfeit his due process rights."
Hickenlooper's legal costs have been paid for by the state with federal funds distributed to Colorado under the Jobs and Growth Tax Reconciliation Act of 2003. Republican state lawmakers have sought, without success, an audit of the use of those funds. He faces former Speaker of the House Andrew Romanoff of Denver in a primary challenge for the right to face U.S. Sen. Cory Gardner of Yuma in the November election.