The Colorado Observer
April 1, 2014
Lawyers for Compass Colorado, the conservative group that filed the ethics complaint, were surprised to learn that the Democratic governor’s legal team had already reviewed two drafts of the IEC investigator’s report that the Compass attorneys had not yet seen.
Even so, commissioners insisted on proceeding Monday with oral argument on the governor’s motion to dismiss the complaint and rejected Compass attorney Geoff Blue’s effort to delay the hearing until both sides had examined the report.
“Considering that the motion to dismiss is also a motion for summary judgment and incredibly fact-based, I would request that we would delay the hearing today on oral argument until after we receive that report, so we can use those facts in preparing for the oral argument,” said Blue.
The complaint alleges that Hickenlooper violated the state’s gift ban by allowing the Democratic Governors Association (DGA) to pick up the tab for food and lodging at last year’s Aspen conference. His attorneys have moved to dismiss the complaint, calling it frivolous and arguing that Hickenlooper was exempt from the gift ban because he rendered services by serving as the event’s host.
The commission also voted unanimously Monday to turn down Blue’s request to subpoena additional information from the DGA, including the amount of money raised at the conference and the identity of the event’s top sponsors.
Commissioners cited the difficulty in issuing subpoenas to an out-of-state group, with Commissioner Matt Smith adding that “the commission has enough information in front of it.”
“I don’t think the value is worth the trouble and the expense,” said Commissioner William Leone.
Leone assured Compass attorneys Blue and Alex Hornaday that the commission would not rule on the motion to dismiss until after both sides had seen the report. The next hearing on the matter is scheduled for April 14
“We won’t decide the case until after that information has been made available, but I really think there are some legal issues here that it would be helpful for us to have argument on [today], to help guide our review of the facts,” said Leone.
Leone didn’t explore how the governor’s attorneys obtained the report, only noting that “a draft of the report was somehow shared with the governor’s office by our investigator.” He also downplayed the importance of the report, saying it was merely a compilation of interviews and that “I’m not really seeing a blockbuster fact out there.”
Hickenlooper legal counsel Jack Finlaw agreed, saying, “We don’t expect that that report is going to have any new facts that haven’t been disclosed in the interrogatories or the documents that we’ve produced.”
But Blue pointed out that the report was apparently important to the governor’s legal team. Hickenlooper’s attorneys have filed a request to leave available the option of filing a motion to strike the report, which Blue said suggested that “there are going to be facts in there they’re not happy with.”
“They’re aware of what’s in the report, whereas we have no idea. So we’re at a distinct disadvantage here in that sense,” said Blue. “Like you said, the report may change nothing. We just don’t know. That’s my problem: I just don’t know what the report’s going to do.”
Compass Colorado executive director Kelly Maher issued a statement after the four-hour hearing criticizing the commission for allowing what she described as an uneven playing field.
“A critical aspect of any hearing process is allowing both sides equal access to material information,” said Maher. “The fact the governor’s counsel has reviewed drafts of the investigator’s report not once, but twice, when we have yet to see it at all certainly elevates our curiosity about the drafts’ contents and raises concerns about the transparency of this process.”
The squabble over the investigator’s report comes a month after the commission refused a Compass request to send the complaint to an administrative law judge. The group had cited concerns about fairness because three of the panel’s five members are past Hickenlooper campaign contributors.
The commission cannot by law have more than two members who belong to the same political party, but former U.S. Attorney Leone, a Republican, donated $1,000 to the Hickenlooper campaign in 2011. The commission’s two Democrats, Bob Bacon and Rosemary Marshall, also chipped in to the governor’s 2010 election bid.
Secretary of State Scott Gessler accused the panel of bias after it found he had “breached the public trust for personal gain” last year by attending a Republican lawyers’ convention on the state’s dime.
Gessler noted that two of the five commissioners on the panel had donated to the campaigns of his political opponents.