Denver District Court judge slaps state ethics commission with injunction

The Ralph Carr Judicial Building, which houses the Colorado Independent Ethics Commission.

A Denver District Court judge has issued an injunction that puts the state's Independent Ethics Commission on notice that it no longer has jurisdiction over the ethics rules of home-rule cities such as Denver and Colorado Springs.

On Jan. 4, Judge Edward Bronfin dismissed two ethics complaints against Glendale Mayor Mike Dunafon, including one that has been under review by the ethics commission for three years.

In January 2016, Colorado Ethics Watch filed a complaint against Dunafon. The complaint alleged that Dunafon, as a member of the Glendale City Council, voted on a development plan and special use permit for a business owned by his wife.

The vote initially deadlocked at 3-3, with Dunafon recusing himself. He later returned to the Feb. 3, 2015, meeting and broke the tie, approving the permit.

The complaint alleged Dunafon failed to disclose to the Secretary of State's office his ties to the businesses owned by his wife.

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A second complaint, filed in 2017 by MAK Investments, alleged Dunafon improperly voted on a consent agenda that included the renewal for a liquor license for Shotgun Willie's, also owned by his wife.  

The problem the Independent Ethics Commission (IEC) ran into when deciding whether to accept the complaint was whether the IEC had jurisdiction over the city of Glendale, which is a home-rule city, among several dozen in the state. 

Part of Amendment 41, the voter-approved ethics law approved by voters in 2006 (and which was supported by now-Gov. Jared Polis) deals with ethics codes set up by home-rule cities and counties. It says Amendment 41 does not apply to "home rule cities or counties that have adopted charters, ordinance or resolutions that address the matters covered" under the amendment.

In 2006, shortly after the passage of Amendment 41, the city of Glendale adopted its own code of ethics. A second code of ethics was also adopted for the mayor and members of the city council.

But the IEC, in deciding in June 2018 that it had jurisdiction over Glendale, decided the Glendale ethics code didn't contain every provision laid out in Amendment 41. Commissioners pointed specifically to the lack of a gift ban in the Glendale code, although that provision had nothing to do with the Dunafon complaints.

In December 2016, the commission issued a position statement that outlined the circumstances under which it could assert jurisdiction over a home rule entity. Among the provisions the commission said an ethics code had to have to be in compliance with Amendment 41: a gift ban.

An ethics code also had to have an independent commission to review complaints; a complaint, investigative and enforcement process; and a provision for penalties for violations.

A second problem with the Glendale ethics code, in the commission's view, was that violations are reviewed and decided by the city council, rather than an independent investigator.

In 2017, Luis Toro, who headed Colorado Ethics Watch, said the problem of jurisdiction could affect employees and elected officials who believe they are following those local ethics codes, and then someone files a complaint with the state commission and the commission could impose a sanction for not following state law. 

After the commission decided last June to exercise jurisdiction over Glendale, the next step was to launch a formal investigation into the complaints. That still hasn't happened, now three years after the complaint was filed. 

Usually, the IEC's executive director, Dino Ioannides, handles those investigations, in addition to his other responsibilities, which include training, writing legal opinions and even managing the logistics of the commission's monthly meetings. But for the Glendale complaint, Ioannides recused himself. That left the commission with the task of finding an outside investigator. 

In the December 2018 meeting, commissioners noted that they had taken several bids, but due to problems with the applicants, the commission had to start over with the application process, which they decided to postpone until after Judge Bronfin's ruling.

Bronfin looked not only at the language of the amendment but at the intent of the amendment's backers. Bronfin reviewed a Title Board hearing, held by the Secretary of State's office, in which an attorney for the measure's backers (Colorado Common Cause) was asked about the home rule issue.

The board asked if a home rule city or county could have an ethics code that was weaker than Amendment 41. The response: yes.

"Home rule prevails," Bronfin wrote in his ruling, "whether the ethics code is more, equal or less stringent" than Amendment 41.

In his conclusion, Bronfin wrote that "any decision made by the IEC is deemed null and void and is vacated. Any and all pending and further IEC investigations as about the complaints against Mayor Dunafon are permanently enjoined."

Bronfin's ruling could open the door to challenges in another open case where the commission has asserted its jurisdiction when it found a home rule entity's code lacking.

In 2017, a complaint was filed against Weld County Commissioner Julie Cozad over her attendance at a dinner that was paid for by Noble Energy, an oil and gas company with major operations in Colorado.

In February 2018, the commission ruled it had jurisdiction over the Cozad complaint and Weld County based on the same problem that it had with Glendale: lack of a gift ban. Weld County challenged the commission's decision, but the case is still proceeding.

The commission has not met since the ruling and is expected to discuss it at its Jan. 14 meeting.

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