A legal defense fund established by a Colorado county clerk to fight possible criminal charges related to a series of election equipment data breaches could run afoul of the state constitutional gift ban, according to an expert on Colorado's ethics amendment.
Embattled Mesa County Clerk Tina Peters is at the center of a months-long controversy surrounding allegations she was involved in leaking sensitive voting equipment data, including system passwords and copies of software used to manage elections in 62 of Colorado's 64 counties. Federal, state and local authorities have launched criminal investigations into the activity.
Peters, a Republican serving her first term, claims the investigations are politically motivated attempts to prevent her from exposing election irregularities she contends are proof of an effort to take over one of the most conservative counties in Colorado.
The gift ban described in a voter-approved constitutional amendment and a series of rulings by Colorado's ethics commission allows public officials to raise funds to cover some legal expenses, but the rules prohibit accepting donations over $65 and forbid soliciting money from lobbyists or others doing business with the official's agency. In addition, any fundraising must meet strict oversight and disclosure requirements.
Peters resurfaced in Grand Junction last week, five weeks after she appeared at an event in South Dakota devoted to airing unfounded allegations that the 2020 election was stolen from former President Donald Trump.
Speaking to supporters at Appleton Christian Church on Sept. 16, Peters vowed to fight for election integrity and asked for donations to finance her legal defense.
"Not only do I need your support in getting to the bottom of the voting irregularities that you have presented to my office, but I need your support to get through these politically motivated legal challenges that have been leveled against me," she said in a video streamed on the Stand for the Constitution Facebook group's page. Peters' appearance at the church was first reported by the Grand Junction Daily Sentinel.
"I am fighting back, and I need you to, too," she said, urging supporters to visit the StandWithTina.org site.
"I need your voices, I need your support, I need your prayers, and I need your financial contribution to ensure that our legal rights will continue. Together, we can fight back, and we can take back our county and our country."
Describing Peters as "the epitome of the American patriot," the site says: "One brave public official has finally stepped forward to blow the whistle on the lack of transparency and security in our elections—and the Left is determined to take her down. Tina needs your help today."
Elsewhere, the site says: "The Tina Peters Legal Defense Fund is Tina’s only way to vigorously defend herself and her colleagues — and keep fighting for what is right, to restore honest elections and preserve our American republic."
The site features multiple links to make contributions by credit card. This statement appears in fine print at the bottom of the page: "All funds contributed through this website will be used to defray fees and expenses incurred by Tina Peters, her colleagues, and others in defending the government investigations or prosecutions and for related civil litigation."
The state's Independent Ethics Commission has ruled that it's OK for public officials covered by Colorado's gift ban — including Peters and other clerks in counties that haven't adopted their own, stricter ethics rules — to raise money to cover certain legal expenses, but the commissioners have also established guidelines Peters appears to be ignoring, a former executive director of the ethics commission told Colorado Politics.
“Mesa County is not a home-rule county so Tina Peters is subject to the jurisdiction of Article XXIX and the Colorado Independent Ethics Commission," said Jane Feldman, who staffed the commission from 2008 to 2013, including when the commission weighed in on similar situations.
The gift ban generally limits gifts — defined broadly as anything of value — to $65 from any one person, except for professional lobbyists, who are barred from giving anything to the public officials and government employees covered by the law.
Added Feldman: "The donations must be publicly disclosed, and must be administered by someone not directly affiliated with the clerk. In addition, no donations may be accepted if the donor is a lobbyist. The solicitation on her website contain none of those conditions, and therefore may cause violations of the gift ban.”
Feldman noted that the commission laid out the rules involving public officials soliciting money for a criminal defense fund in a 2013 advisory opinion issued in response to an inquiry on behalf of Scott Gessler, who was at the time the incumbent secretary of state and was facing a criminal investigation over allegations he used official funds to attend a partisan event. (The investigation didn't result in criminal charges, but the commission determined Gessler violated state ethics law in a ruling that withstood Gessler's appeals all the way to the U.S. Supreme Court.)
"Contributions to this fund, including the name of donors, the relationship of the donor to the officer, and the amounts of the donations and expenditures must be publicly disclosed," the 2013 advisory opinion said.
Gessler, who lost a bid to chair the Colorado Republican Party earlier this year, is one of the attorneys currently representing Peters.
The ethics commission's current executive director, Dino Ioannides, declined to comment on Peters' fundraising efforts, emphasizing to Colorado Politics that he can't provide legal advice. He also noted, "Even small details can bear on the details of a case."
Peters didn't respond to a request for comment.
She's already facing at least two ethics complaints alleging that travel and accommodations provided by Lindell — including flights on a private plane and lengthy stays at multiple hotels in Texas before Peters returned to Colorado — violate the gift ban, one filed with the secretary of state and another filed with the ethics commission.
The secretary of state's elections division on Aug. 30 advised Peters that she had 10 business days to file a notice with the office if she intended to report the gifts in an official filing, in response to a complaint lodged by an officer with the Mesa County Democratic Party.
A spokeswoman for Secretary of State Jena Griswold, a Democrat, told Colorado Politics on Thursday that she couldn't comment on an open investigation.
Griswold is suing Peters to prevent the clerk from overseeing the upcoming November election, following allegations Peters compromised the county's Dominion Voting System equipment after system passwords appeared in a video posted online and copies of the system software showed up on file-sharing sites.