gessler opening brief

8/11/2019 Gessler Opening Brief

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COURT OF APPEALSSTATE OF COLORADO

2 East 14th AvenueDenver, CO 80203District Court for Denver CountyHonorable Herbert L. Stern, IIICase No. 13cv0030421

Independent Ethics CommissionCase No. 12-07SCOTT GESSLER, individually and in his official

capacity as Colorado Secretary of State,

Plaintiff-Appellant,

v.

DAN GROSSMAN, SALLY H. HOPPER, BILLPINKHAM, MATT SMITH, and ROSEMARYMARSHALL, in their official capacities asmembers of the Independent Ethics Commission,and THE INDEPENDENT ETHICSCOMMISSION,

Defendants-Appellees.

COURT USE ONLY

Case No. 2014CA670

JOHN W. SUTHERS, Attorney GeneralMICHAEL FRANCISCO, Asst Solicitor General*KATHRYN A. STARNELLA, Asst Atty General*Ralph L. Carr Colorado Judicial Center1300 Broadway, 10th FloorDenver, CO 80203Telephone: 720-508-6551; 720-508-6176

E-Mail: [email protected];[email protected] Numbers: 39111, 43619*Counsel of Record

APPELLANTS OPENING BRIEF

DATE FILED: September 8, 2014 10:52 PMFILING ID: C1185D62557B1CASE NUMBER: 2014CA670


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TABLE OF CONTENTSPage

i

ISSUES PRESENTED FOR REVIEW ................................................ 1

STATEMENT OF THE CASE AND FACTS ...................................... 2

SUMMARY OF THE ARGUMENT ..................................................... 8

ARGUMENT ........................................................................................ 10

I. IEC Lacks Jurisdiction Over This Case ....................................... 10

A. IEC jurisdiction beyond the gift ban is extremelylimited........................................................................................ 11

B. The IEC lacks jurisdiction over the discretionary fundstatute C.R.S. 24-9-105. ........................................................ 17

C. The IEC lacks jurisdiction over the public trust statute,C.R.S. 24-18-103. ................................................................... 19

D. The IEC lacks jurisdiction over the State Fiscal Rules,1 CCR 101, et seq . ..................................................................... 21

E. IEC jurisdiction must be limited to avoid constitutionalinfirmity. ................................................................................... 22

II. The Secretary complied with all legal requirements, even ifthe IEC has jurisdiction. ................................................................ 23

A. The Secretarys CLE attendance complied with thediscretionary fund statute. ...................................................... 23

B. The Secretarys mileage reimbursement complied withthe discretionary fund statute. ............................................... 29

C. The Secretarys conduct complied with purposesstatement of C.R.S. 24-18-103(1). ........................................ 31

D. The Secretarys conduct complied with the State FiscalRules, 1 CCR 101, et seq . ......................................................... 33


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TABLE OF CONTENTSPage

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III.The IEC Acted Contrary to the Secretarys ConstitutionalRight to Due Process by Denying Him Adequate Notice of

the Legal Charges ........................................................................... 33

A. The IEC denied the Secretary adequate notice byfailing to inform him of the legal charges before thehearing....................................................................................... 34

B. Factual allegations alone do not satisfy due processrequirements. ............................................................................ 39

C. The lack of notice prejudiced Secretary Gessler by

making it impossible for him to craft a defense.................... 41 CONCLUSION ..................................................................................... 46

CERTIFICATE OF COMPLIANCE................................................... 48

CERTIFICATE OF SERVICE ............................................................ 49


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TABLE OF AUTHORITIESPage

iii

Cases

Blake v. Dept of Pers. ,876 P.2d 90 (Colo. App. 1994) ........................................................ 10

City of Aurora v. Acosta ,892 P.2d 264 (Colo. 1995) ............................................................... 11

Cole v. Arkansas ,333 U.S. 196 (1948) ......................................................................... 34

Colo. Ethics Watch v. Senate Majority Fund ,275 P.3d 674 (Colo. App. 2011) ...................................................... 11

Colorado State Bd. of Dental Examiners v. Micheli ,928 P.2d 839 (Colo. App. 1996) ...................................................... 39

DAlemberte v. Anderson ,349 So. 2d 164 (Fla. 1977) .............................................................. 23

Developmental Pathways v. Ritter ,178 P.3d 524 (Colo. 2008) ............................................................... 11

Excel Corp. v. U.S. Dept of Agri.,397 F.3d 1285 (10th Cir. 2005) ...................................................... 23

Goebel v. Colo. Dept of Institutions ,764 P.2d 785 (Colo. 1988) ............................................................... 20

Goss v. Lopez ,419 U.S. 565 (1975) ......................................................................... 40

Grayned v. City of Rockford ,408 U.S. 104 (1972) ......................................................................... 22

In re 2000-2001 Dist. Grand Jury (city of Blackhawk) ,77 P.3d 779 (Colo. App. 2003) ........................................................ 21

In re Gault ,387 U.S. 1 (1967) ............................................................................. 35

In re Quiat ,

979 P.2d 1029 (Colo. 1999) ............................................................. 35In re Ruffalo ,

390 U.S. 544 (1968) ................................................................... 35, 36Independence Inst. v. Coffman ,

209 P.3d 1130 (Colo. App. 2008) .................................................... 34 Karlin v. Foust ,

188 F.3d 446 (7th Cir. 1999) .......................................................... 23


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TABLE OF AUTHORITIESPage

iv

Mountain States Tel. & Tel. Co. v. Dept of Labor & Empt ,520 P.2d 586 (Colo. 1974) ............................................................... 41

Rael v. Taylor ,876 P.2d 1210 (Colo. 1994) ............................................................. 35Ramseyer v. Colo. Dept of Soc. Servs .,

895 P.2d 1188 (Colo. App. 1995) ................................................... 10Ryan v. Charnes ,

738 P.2d 1175 (Colo. 1987) ............................................................. 35Sigma Chi Fraternity v. Regents of Univ. of Colo. ,

258 F. Supp. 515 (D. Colo. 1966) ................................................... 40Snyder v. Colo. Podiatry Bd. ,

100 P.3d 496 (Colo. App. 1991) ................................................ 39, 41Yellow Freight Sys. Inc. v. Martin ,954 F.2d 353 (6th Cir. 1992) .......................................................... 40

Statutes C.R.S. 1-13-107 .................................................................................. 15C.R.S. 18-8-104 .................................................................................. 37C.R.S. 18-8-114 .............................................................................. 3, 37C.R.S. 18-8-404 ........................................................................ 3, 15, 44C.R.S. 18-8-405 .................................................................................. 15

C.R.S. 18-8-407 ........................................................................ 3, 37, 44C.R.S. 24-17-102 (26) .......................................................................... 6C.R.S. 24-17-102(1) ....................................................................... 5, 38C.R.S. 24-18.5-101.............................................................3, 11, 13, 22C.R.S. 24-18-101 ................................................................................ 15C.R.S. 24-18-103 ........................................................................ passimC.R.S. 24-18-104 .......................................................................... 13, 15C.R.S. 24-18-105 ................................................................................ 16C.R.S. 24-18-105(2) ........................................................................... 16

C.R.S. 24-18-105(3) ........................................................................... 16C.R.S. 24-18-108(2)(d)....................................................................... 16C.R.S. 24-18-109 ................................................................................ 16C.R.S. 24-18-201 ................................................................................ 16C.R.S. 24-30-202 ................................................................................ 45C.R.S. 24-30-202(26) ..................................................................... 6, 38C.R.S. 24-4-105 ...................................................................... 34, 35, 38


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The Secretary of State appeals the Independent Ethics

Commissions decision to impose a personal penalty against the

Secretary for using part of his discretionary fund compensation to

attend a national election law conference and to reimburse miles

driven on official state business. Three independent reasons compel

reversal.

I ssues Presen ted for Review

1. Does the IEC have jurisdiction over other standards ofconduct as provided by law for statutes and rules whichlack any specific standards to guide conduct and which arenot expressly delegated to the IEC?

2. Did the IEC err in finding the Secretary, the Chief ElectionOfficer for Colorado, was not pursuing official business whenhe attended and spoke at a national election law conferenceand when he claimed reimbursement for miles driven onofficial state business?

3. When the IEC refused to provide the Secretary with notice ofthe legal charges he faced in advance of an administrativehearing, instead providing mere notice of the facts, did itviolate the Secretarys procedural due process rights?


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Colorado Ethics Watch filed two complaints with the IEC in

October 2012 questioning whether the Secretary had used his

discretionary fund improperly. [CF p.106-07]. The first complaint

asserted that the Secretarys use of his discretionary fund to attend

the election law conference may [have] implicate[d] three criminal

statutes, including:

First degree official misconduct, C.R.S. 18-8-404; Embezzlement of public property, C.R.S. 18-8-407; Abuse of public records, C.R.S. 18-8-114.

[CF p.106-08]. The complaint was also sent to the Denver District

Attorney and the Denver Chief of Police, both of whom declined to

charge the Secretary with any wrongdoing. [CF p.106-08].

Responding to the complaints, the IEC determined that the

allegations were non-frivolous [AR p.000206], meaning the

complaints presumably alleged that a public officer [Secretary

Gessler] ha[d] accepted or received [a] gift or other thing of value

for private gain or personal financial gain. C.R.S. 24-18.5-101.

Once the commission made its non-frivolous determination, a

lengthy investigation ensued. The IECs investigator discovered,among other things, that

The Secretary was not a member of the RNLA, nor did theRNLA require party affiliation to attend its conferences;


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The Secretary received CLE credit, approved by the ColoradoSupreme Court, for his attendance at the election law

conference; Previous secretaries of state used their discretionary funds for

various purposes, including cocktail receptions for countyclerks, personal clothing, overseas travel, and, allegedlytaking the entire $5,000 as W-2 income;

There appears to have been no real accounting of these[discretionary] funds and there is not a history of receiptsbeing submitted for expenses incurred and charged againstthe discretionary fund;

And, there appears to be a history of no real control over thediscretionary fund, no procedures for vouchers and/or receiptsand no specific direction as to how the discretionary fund is tobe used.

[AR p.001070]. Despite the IEC investigators apparent findings

that (1) Secretary Gesslers use of his discretionary fund dovetailed

with past practice, and (2) he used the fund to attend an

educational conference, the IEC continued with its investigation.

Throughout the investigation, the IEC gave the Secretary no

clear indication of the legal charges against him stemming from

this alleged conduct. While the initial complaints asserted three

criminal statutes may apply [CF p.106-08], the IEC expressed

ambivalence regarding which legal rules the Secretarys conduct

implicated until less than six weeks before his hearing. In its

January 2013 meeting, for instance, the attorney for the IEC


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explained, exactly what standards of conduct [the Secretary may

have violated], we [the IEC] are not at that point yet. [CF p.59].

As noted above, the IEC did not assert any legal charges against

the Secretary until less than six weeks before his hearing. [AR

p.000881]. But even then, the IEC gave neither clear nor fixed legal

charges to the Secretary. Id. In its first pre-hearing order, the IEC

listed five statutes and five state fiscal rules that he may have

violated. Id. But, it also

reserve[d] the right to consider additional standards ofconduct and/or reporting requirements, depending on theevidence presented, and the arguments made, at the hearingin this matter.

Id . The five statutes listed were:

Public trustbreach of fiduciary duty, C.R.S. 24-18-103; Elected state officialsdiscretionary funds, C.R.S.

24-9-105(1); Elected state officialsdiscretionary funds, C.R.S.

24-9-105(2); Control system to be maintained, C.R.S. 24-17-102(1); Control system to be maintained, C.R.S. 24-17-102(26).

Id. The notice also listed five State Fiscal Rules. The five rules

encompass more than 200 sub-rules governing everything from the

purpose of the states accounting practices to whether tickets


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incurred while traveling for official state business will be

reimbursed. See 1 CCR 101, et seq.

The IEC, again, changed the legal charges that may apply to

the case only one month before the Secretarys hearing. [AR

p.000937]. Swapping C.R.S. 24-17-102(26) for C.R.S.

24-30-202(26), the IEC still reserved the right to consider

additional standards of conduct depending upon the evidence

presented at the hearing. Id.

The irresoluteness of the IEC regarding just which legal rules

applied to the case made preparing a defense difficult for the

Secretary. Fearful of being prejudiced by not knowing the legal

grounds on which the IEC was prosecuting him, the Secretary

raised this problem at least five times before the hearing. 1 The

1 See [CF p.100 (noting, [i]ndeed, it is impossible for the Secretaryto defend himself against some other standard[] of conduct whenhe does not even know what that means]; [CF p.72 (byinterpreting other standards of conduct to include undefinedallegations, the complaint violates Secretarys right to a fairhearing. The point is, we dont know what were defendingagainst]; [CF p. 85 (noting, if you guys cant figure out what[the IEC is] alleging, put yourself in Mr. Gesslers shoes, where heis trying to defend himself against a complaint that is completelyvague]; [CF p.129 (noting, it is impossible for the Secretary todefend himself when he does not even know what these legalstandards mean]; and [CF p.345.].


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Prior to the hearing the Secretary also repaid the disputed funds

regarding the national election law conference to avoid any

appearance of impropriety. [CF p.880]. Still, the IEC went forward

with its process and held an 11-hour hearing on June 7, 2013. The

hearing itself mirrored the investigation the precise substantive

and procedural grounds on which the IEC acted were never clear.

At the hearing, a detailed memorandum was submitted cataloguing

the miles driven by the Secretary on official business, as the basis

for the $117 reimbursement request. [AR p.001141-44].

Likewise, the Secretary testified extensively about the election

law conference, his presentation, and how the legal issues related

to his duty as the Chief Election Officer for Colorado. [CF p.687-81].

The Secretary explained, from memory, many details of federal

election law that influence Colorado, including the election clause

of the U.S. Constitution (quoted from memory), various federal

election law statutes, UOCAVA (Uniform Overseas Citizens

Absentee Voter Act), HAVA (Help American Vote Act), NVRA

(National Voter Registration Act), as well as voter ID and logistical

issues with election night disputes. Id. One commissioner described

the detailed testimony as very relevant. [CF p.679(329:21)].


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After the hearing the IEC found that the Secretarys use of his

discretionary fund to attend the national election law conference

and his request for reimbursement of his remaining discretionary

fund for mileage had both violated C.R.S. 24-9-105 and

24-18-103(1). 2 [AR p.001352]. The Commission imposed a personal

penalty of $1,514.88. Id . The Secretary appealed the IECs ruling to

District Court in Denver, which upheld the IECs findings. [CF

p.552]. This appeal follows. [CF p.891].

Summary of the Argument

This case raises important questions of first impression about

the scope of authority given to the IEC as well as the protection of

the foundational due process right whereby the accused must be

given minimally adequate notice of legal charges before being

sanctioned.

When the Colorado voters passed Amendment 41 in 2006,

creating the IEC, the commission was understood to have

jurisdiction over specific gift bans and limitations contained

therein. Since that time, however, the IEC has operated not only to

2 The Commission also found the use of state funds to return earlyfrom the trip in question due to threats to the Secretary and hisfamily did not violate any ethical standards of conduct provided bylaw. [CF p.880].


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police gifts, it has found a little-noticed phrase in Amendment 41

(other standards of conduct as provided by law) to provide a

toehold for jurisdiction over any statute or administrative rule

brought to its attention. The IEC has, literally, never found a

statute it did not find to be within its purview. This troubling

power grab has never been tested in court until this case. 3

More troubling, the IEC here imposed a personal penalty on the

Secretary of State, Scott Gessler, because he used part of a

discretionary fund, given by law to be used as the Secretary sees

fit, to attend a national election law conference. It is not difficult to

understand how Colorados Chief Election Officer would benefit

from attending an educational conference about elections. Even so,

the IEC deemed this unethical, at least in this case. A year later,

however, the IEC contradicted the core finding against the

Secretary in this case, without explaining the contradiction, and

approved the Secretary attending the same national election law

conference (sponsored by the same organization). It issued an

3 The lack of judicial review likely reflects the IECs failure toimpose a penalty in any contested Complaint on anyone other thanthe Secretary in this Case. The lack of penalties explains thedearth of judicial review.


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advisory opinion approving the very conduct it deems unethical in

this appeal. This puts IECs arbitrary findings in stark relief.

Compounding these errors, the IEC violated the Secretarys due

process right by failing to provide adequate notice of the legal

charges being faced. The IEC operated on a trial-first, law-later

system. Despite multiple requests from the Secretary, the IEC

simply refused to explain the legal theory or charges being faced

prior to the fateful hearing. This violates historic standards of

procedural due process.

Arg ument

I. IEC L ACKS J URISDICTION O VER T HIS C ASE

Standard of Review and Preservation : The court must set asideany agency action that is arbitrary or capricious, denies a

constitutional right, is in excess of statutory jurisdiction, or is

otherwise contrary to law. C.R.S. 24-4-106(7); see also Blake v.

Dept of Pers. , 876 P.2d 90, 95 (Colo. App. 1994); Ramseyer v. Colo.

Dept of Soc. Servs ., 895 P.2d 1188 (Colo. App. 1995). The claims

were preserved before the district court. [CF p.563-73].


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A. IEC jurisdiction beyond the gift ban is extremelylimited.

This is not a gift ban case. Article XXIX certainly gives the IEC

jurisdiction over specific standards of conduct with regard to

certain gifts and related forms of influence peddling. See Art.

XXIX(3); C.R.S. 24-18.5-101. Rather, this case is based on the

IECs claim that their jurisdiction over ethics issues arising under

this article [XXIX] and under any other standards of conduct andreporting requirements as provided by law. Art. XXIX(5)(1). This

phrase represents the keys to the kingdom for the IEC. 4

Contrary to the IECs extremely broad interpretation of this

constitutional language, this court must look to the plain language

of the provision and give effect to every word. See City of Aurora v.

Acosta , 892 P.2d 264, 267 (Colo. 1995). Additionally, one must

consider the object to be accomplished and the mischief to be

prevented. Colo. Ethics Watch v. Senate Majority Fund , 275 P.3d

674, 682 (Colo. App. 2011). With initiatives in particular, courts

4 Of note, concerns over the possibly sweeping powers of the IECled to litigation shortly after the Amendment 41 passed, but beforethe IEC was operating. Developmental Pathways v. Ritter , 178 P.3d524 (Colo. 2008). The claims that First Amendment rights wereviolated by vague and overbroad provisions were dismissed as notripe. Id. at 533. Similar concerns animate this appeal and now

justiciable.


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look to intent of the voters as reflected in the official Bluebook. Id.

at 1256. The plain language of Article XXIX reflects a desire to

carefully manage gifts given to public officials and other

government employees as they were perceived as tools of influence.

Consistent with this, the five summary bullets in the Bluebook

mention specifics of the gift ban and the creation of the IEC. 5 There

is no indication that voters intended the IEC would claim to have

jurisdiction over laws as far flung as the discretionary fund

compensation statute or details in the State Fiscal Rules. The

Bluebook shows the voters intended to ban gifts only (plus lobbying

after public service).

Specific to this case and the dispute over other standards of

conduct two principles must guide the interpretation of the

wording in Article XXIX: (1) the phrase requires the General

Assembly to expressly delegate a statute to the purview of the IEC

for enforcement; and (2) any potential statutes to be enforced must

include specific standards to guide conduct.

First, the phrase other standards of conduct and reporting

requirements as provided by law should be understood as

providing the General Assembly with the option of creating

5 2006 Bluebook available at Colorado Legislative Council webpage:http://1.usa.gov/1lRCF1H
http://1.usa.gov/1lRCF1Hhttp://1.usa.gov/1lRCF1H


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additional, specific statutory standards that can be enforced by the

IEC. The requirement that a non-gift ban standard be as provided

by law means the General Assembly can intentionally expand the

jurisdiction of the IEC by statute. This is consistent with the plain

language and intent of Article XXIX which was focused on

detailed gift ban rules, not the varied and broad statutes in Title

24, Article 18, or the State Fiscal Rules. The interpretation also

saves the clause from being unconstitutionally vague.

In the six years since Article XXIX was adopted, the General

Assembly has never expanded by law the jurisdiction of the IEC.

Therefore, until a statute is adopted to the contrary, the IEC lacks

jurisdiction beyond the specifics contained within Article XXIX

itself. In fact, when the General Assembly did adopt a statute

regarding IEC jurisdiction it was limiting, not expanding. See

C.R.S. 24-18.5-101(5)(a)(only allowing for IEC to hear complaints

about gift ban issues). 6

6 At most, the other standards of conduct could be limited tostatutes where the General Assembly has referenced orincorporated parts of Article XXIX, while stopping short of adoptinga jurisdictional grant. E.g. C.R.S. 24-18-104 (seven references tospecific parts of Article XXIX adopted by amendment); see alsoC.R.S. 24-6-203. These statutes are better interpreted asreflecting conforming amendments. See Art. XXIX(3)(5).


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Second, Article XXIX must be interpreted in a way that reaches

only laws with specific standards that can guide conduct of state

officers and employees. The clear intent of the voters in adopting

Article XXIX include the finding that covered individuals must

have the benefit of specific standards to guide their conduct

XXIX(1)(e). This intent that penalties only be enforced from specific

standards comports with basic due process requirements. See part

E, infra (explaining due process requirements).

Contrary to these clear interpretive guidelines, the IEC and the

district court below embrace a theory of other standards of

conduct that is unlimited in reach and contravenes the cabined

wording and specific intent of Article XXIX. Nothing in this appeal

explains what limit, if any, exists on the other standards of

conduct fount. The district court, for example, admitted the other

standards of conduct wording appears vague, but it went on to

dismiss concerns:

[the phrase others standards of conduct] is limited byand reporting requirements provided by law. This

limiting phrase means the IEC can only prosecutepublic officers who have violated applicable legalstandards. That qualification means that public officersare, therefore, on notice for any infraction that couldprompt an IEC investigation.


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[CF p.863]. This only begs the question: which laws in the Colorado

Revised Statutes, and which Rules of the thousands published

yearly, are within the applicable legal standards? The district

court provided no answer. The so-called limiting phrase, provides

no limit any law can easily qualify.

For its part, the IEC has only offered ipse dixit laws

proclaimed by the IEC to be a standard of conduct are within the

IECs jurisdiction. In this litigation, the IEC has proudly

proclaimed a list of actions where it has exercised jurisdiction over

so-called other standards of conduct. The list reflects a startling

swath of laws and rules over which the IEC admits to claiming

jurisdiction:

4 CCR 801, Rule 1-11 (Compl. 08-01); 7 State Procurement Code (Compl. 10-05); C.R.S. 18-8-404 (Compl. 08-01); C.R.S. 18-8-405 (Compl. 08-01); C.R.S. 1-13-107 (Compl. 08-01); C.R.S. 24-6-202 (AO 09-06); C.R.S. 24-6-203 (AO 10-18); C.R.S. 24-8-101 (AO 10-18);

C.R.S. 24-18-101 et seq . (AO 09-06); C.R.S. 24-18-103 (AO 11-11); C.R.S. 24-18-104 (AO 09-06);

7 The cited IEC Complaints (Compl.), Advisory Opinions (AO)and Letter Rulings (LR) are available on the IEC websitehttps://www.colorado.gov/pacific/iec/
https://www.colorado.gov/pacific/iec/https://www.colorado.gov/pacific/iec/


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C.R.S. 24-18-105(2), (3) (Compl. 10-6); C.R.S. 24-18-105 (Compl. 11-03), (Compl. 12-06), (AO

11-11); C.R.S. 24-18-105(2) (AO 09-06); C.R.S. 24-18-105(3) (LR 10-06); C.R.S. 24-18-108(2)(d) (AO 11-11); C.R.S. 24-18-109 (Compl. 11-03), (Compl. 12-06), (AO

12-01); C.R.S. 24-18-201 (LR 10-06), (AO 11-11), (AO 12-01),

(AO 10-08); C.R.S. 24-50-101(3)(d) (Compl. 08-01);

See [AR p.000624-25]. It appears the only limit on how broadly

other standards of conduct will reach is the creativity of

adversaries who file complaints, or the creativity of the IEC when it

finds laws and standards beyond those in a formal complaint.

These claims of jurisdiction have been universally untested by

judicial review. At times the IEC has suggested, in tension with the broad list

above, that other standards of conduct may refer to all of Title 24,

Article 18 (Standards of Conduct). This would not account for the

claim to have jurisdiction over the discretionary fund statute at the

heart of the IECs findings against the Secretary. C.R.S. 24-9-105.

And regardless, the IEC cannot have jurisdiction over all of Article

18. Consider C.R.S. 24-18-105, a part of Article 18 the IEC has

repeatedly claimed authority over, where the statute itself states


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that the standards are only a guide and cannot constitute

violations as such of the public trust. Cf Art. XXIX(6).

B. The IEC lacks jurisdiction over the discretionaryfund statute C.R.S. 24-9-105.

The IEC has no jurisdiction over the discretionary fund in

particular for three reasons. First, under Article XXIX, the IEC

cannot police the compensation of public officials or any other state

employee. C OLO . CONST . art. XXIX(1)(d) (other than

compensation provided by law). For the first time ever, however,

the IEC claimed jurisdiction over a compensation statute, C.R.S.

24-9-105, which delineates a discretionary fund as a component of

the compensation provided by law for Colorados four statewide

elected officials. All of Article 9 in Title 24 concerns compensation.Because Article XXIX excludes compensation from the IEC, the

entire case against the Secretary based on his use of the

discretionary fund statute was outside the constitutional

jurisdiction of the IEC. It is that simple.

Neither the IECs Findings nor the district court below

addressed the compensation problem. It was raised below. [CF

p.570-71]. In addition to the definitive placement in Article 9

(Compensation of State Officers), the discretionary fund statute

bears all the marks of compensation. It is a benefit given for doing


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the job of a state official. See B LACK S L AW D ICTIONARY 277

(Compensation: Remuneration and other benefits received in

return for services rendered). Legislative history bolsters this

conclusion. Without doubt, C.R.S. 24-9-105 is compensation

provided by law, in the exclusionary words of Article XXIX.

Second, the IEC has no jurisdiction over the discretionary fund

statute because the statute lacks any specific standards to guide

[Public Officials] conduct, as required by Article XXIX(1)(e). The

statute merely states that the four statewide public officials can

use the funds in pursuance of official business as each elected

official sees fit. C.R.S. 24-9-105. As the IEC noted, the statute

does not even include a definition of official business, and it would

be metaphysically impossible to define a specific standard in the

statute for how each elected official sees fit. In other words, the

discretionary fund statute does not contain the required specific

standards to guide conduct that are a prerequisite for IEC

jurisdiction.

Third, the discretionary fund statute has not been amended by

the General Assembly to provide the IEC jurisdiction. Without an

express jurisdictional grant, the law is not as provided by law as

required in Article XXIX.


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C. The IEC lacks jurisdiction over the public truststatute, C.R.S. 24-18-103.

The IEC likewise lacks jurisdiction over the generic purpose

statement in C.R.S. 24-18-103 for two reasons. First, there is no

specific standard to guide conduct, as required by Article

XXIX(1)(e). The statute is so broad and undefined (likely

undefinable) that any conduct by any state employee could be

implicated. The hortatory statute states: A public officer, member of the general assembly, localgovernment official, or employee shall carry out hisduties for the benefit of the people of the state.

The noble intentions behind such a broad statement are certainly

laudatory. But they do not contain any specific guidance for the

tens of thousands of employees of the State of Colorado who, day-

by-day, carry out duties of the most diverse sort. Consider the sheer

breadth of duties undertaken by employees and officers of the

State of Colorado. For CDOT, duties include everything from

navigating complex financial instruments to holding signs for

temporary construction zones. Even department policies about a

dress code or proper decorum could fall under this statute. Every

aspect of work can be understood as part of a duty.

By way of comparison, the all-encompassing reach of the public

trust statement contrasts with the gift ban standards in Article


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XXIX, which are correctly within the purview of the IEC. The gift

ban includes numerous specific requirements, with definitions, and

eight detailed exclusions. See Art. XXIX(3)(3)(a)-(h). The gift ban

restrictions encompass 672 words and only govern a very narrow,

predictable swath of conduct: accepting things of value worth more

than $53.00. The relevant portion of the public trust statement is a

mere sentence, pronouncing that people shall carry out his [or her]

duties for the benefit of the people of the state, covering virtually

all conduct by all officers and employees of the state. C.R.S.

24-18-103(1). The generic statute lacks the requisite specific

standards to be enforced by the IEC.

Consistent with this, the Colorado Supreme Court has held that

general statements of legislative intent with set forth policy

aspirations do not create enforceable rights or duties. See, e.g. ,

Goebel v. Colo. Dept of Institutions , 764 P.2d 785, 802 (Colo. 1988).

The only enforceable aspect of C.R.S. 24-18-103 is the second

section, given to district attorneys to enforce, and the IEC made no

finding of a fiduciary duty violation under the statute.

Second, the General Assembly has not amended the public trust

statute to provide the IEC jurisdiction. To the contrary, C.R.S.

24-18-103 has been expressly given over to district attorneys for


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enforcement, not the IEC. 8 Without an express jurisdictional grant,

the law is not as provided by law as required in Article XXIX.

D. The IEC lacks jurisdiction over the State FiscalRules, 1 CCR 101, et seq .

The State Fiscal Rules, 1 CCR 101 et seq. , are not an

independent source of authority for the IEC for two reasons. First,

The State Fiscal Rules are not legal prescriptions or ethical codes of

conduct. They are policies for state agencies concerning internal

controls, accounting policies, and financial reporting. Purpose of

State Fiscal Rules, p.1.

Second, consistent with this internal control document, it is

expressly the responsibility of the chief executive officer of each

state agency to ensure compliance with these fiscal rules. Id. The State Fiscal Rules do not give the IEC any responsibility or

enforcement authority. The Rules are not as provided by law to

the IEC, as required by Article XXIX.

8 There is one case related to the following section in the statutegoverning fiduciary duties, C.R.S. 24-18-103(2), a statute not atissue here. In re 2000-2001 Dist. Grand Jury (city of Blackhawk) ,77 P.3d 779, 786 (Colo. App. 2003), affd 97 P.3d 921 (Colo. 2004).


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E. IEC jurisdiction must be limited to avoidconstitutional infirmity.

If the IEC is permitted to claim jurisdiction over any law and

any rule, then the grant of authority over other standards of

conduct would be constitutionally vague and overbroad. As

confirmed by statute, the IEC may only hear complaints about gifts

that are for private gain or personal financial gain which are in

turn limited to gifts offered by a person seeking to influence anofficial act. C.R.S. 24-18.5-101(5)(a), (b)(II). Without this

limitation, there is good reason to believe even the comparatively

specific guides of conduct governing gifts in Article XXIX(3) would

be unconstitutionally overbroad.

For other standards of conduct, the same constitutional

concerns apply in spades. The breadth of conduct that could be

made subject to personal penalty cannot be interpreted as

extending without boundary. The Supreme Court has long warned,

[v]ague laws will trap the innocent by not offering fair warning.

Grayned v. City of Rockford , 408 U.S. 104 (1972). Critically, to

prevent arbitrary and discriminatory enforcement, laws mustprovide explicit standards for those who apply them. Id.

When a law includes a penalty, courts are particularly diligent

at enforcing vagueness standards. Karlin v. Foust , 188 F.3d 446,


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458 (7th Cir. 1999). Under the IECs unbound interpretation of

other standards of conduct, it is impossible for anyone to know

what the standards are that must be hewed at the cost of an

individualized double penalty. See Excel Corp. v. U.S. Dept of Agri.,

397 F.3d 1285, 1297 (10th Cir. 2005); see also DAlemberte v.

Anderson , 349 So. 2d 164 (Fla. 1977).

These serious concerns can easily be avoided by interpreting

Article XXIX, consistent with the language and intent of the voters,

to apply primarily to gift ban issues as well as other specific guides

to conduct that may be delegated by the General Assembly

expressly to the IEC. None of the statutes or rules applied against

the Secretary in this case fall within the IECs jurisdiction.

II.T HE S ECRETARY COMPLIED WITH ALL LEGALREQUIREMENTS , EVEN IF THE IEC HAS JURISDICTION .

Standard of Review and Preservation : See Argument I above.

The issue was preserved. [CF p.574-84].

A. The Secretarys CLE attendance complied with thediscretionary fund statute.

The conduct in this case complied with the discretionary fund

statute as a matter of law. The discretionary fund makes the

propriety expenditures subject to the judgment of each elected

official. The Secretary saw fit to use part of his discretionary fund


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to travel to a national election law conference. It was pure legal

error for the IEC to find that the conduct violated the statute;

ignoring the Secretarys judgment that the expenditure was proper.

The IEC substituted its own judgment for that of each elected

official in the statute, thereby reading read the key phrase out of

the statute. Only each elected official can judge the appropriateness

of expenditures, and hence compliance, with the discretionary fund

statute. This is consistent with the undisputed past practice of how

other elected officers used the discretionary fund. [CF

p.718(47:2-5); AR p.000283-85].

Even setting this fatal flaw aside, the IECs explanation for how

the Secretary violated the discretionary fund statute is arbitrary

and capricious. The entire explanation:

Secretary Gessler spent $1278.90 of his discretionaryaccount primarily for partisan purposes, and thereforepersonal purposes, to fly to Florida to attend the RNLAconference and thereafter attend the RNC. As a result,Secretary Gessler violated the ethical standard ofconduct contained in C.R.S. section 24-9-105, by usingfunds from his discretionary account for other thanofficial business. By so doing, Secretary Gesslerbreached the public trust for private gain in violation ofC.R.S. section 24-18-103(1).


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[CF p.880]. All that can be gleaned from this is that attending the

CLE conference organized by the RNLA was primarily for partisan

purposes, and therefore personal purposes and thus was for other

than official business. Id. The extensive record, however,

contravenes this conclusory finding.

First, the Colorado Supreme Court Board of Continuing Legal

and Judicial Education authorized CLE credit for the RNLA

program the Secretary attended. [AR p.001158]. The Supreme

Court board thus found the RNLA national seminar on election law

was an education activity which has as its primary objective the

increase of professional competence of registered attorneys and

judges. Regulation 103, Bd. of Continuing Legal and Judicial

Educ., http://www.coloradosupremecourt.com/pdfs/CLE/Rules.pdf

(emphasis added). That the conference was organized by a

Republican lawyers group was irrelevant to the educational value

and benefit of the conference, as determined by the Colorado

Supreme Court board.

Second, uncontroverted evidence showed how the Secretary, who

serves as Colorados Chief Election Official, benefited from

attending at a national election-law seminar. The Secretary

participated on a panel entitled The Department of Justice, the
http://www.coloradosupremecourt.com/pdfs/CLE/Rules.pdfhttp://www.coloradosupremecourt.com/pdfs/CLE/Rules.pdfhttp://www.coloradosupremecourt.com/pdfs/CLE/Rules.pdf


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Role of the States, and Voter ID, with fellow panelists including

government officials and a former U.S. Department of Justice trial

attorney specializing in voting rights. [AR p.001177]. The value to

Colorado is not hard to ascertain. The U.S. Department of Justice

has the legal authority and practice of investigating State election

law practices and enforcing various federal statutes against States.

The Secretary testified at length about the benefits of the

conference. [CF p.678-81]. Other panels the Secretary attended

included Voting Before Election Day: Military Overseas, Absentee,

and Early Voting; Poll Closing and Opening; Provisional Ballots;

and After Election Day: Recounts and Contests. [AR p.001175-86;

CF 635]. All manifestly related to the work of Colorados Chief

Election Official.

The IEC never explains why it failed to credit the evidence. The

evidence demonstrated how meeting and learning from national

election-law practitioners and experts is relevant and useful to the

official duties of the Secretary of State. In fact, the testimony about

the details of the election law conference and how they related to

Colorado elections was so extensive that members of the IEC

openly joked about having earned CLE credit simply by listening to

the voluminous testimony. [CF p.678(325:11-13), 680(333:15-18)].


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Even more to the point, the evidence presented in this case

mirrors the material provided to the IEC for Advisory Opinion

14-10 and 14-13, whereby the Secretary and Deputy Secretary of

State were advised by the IEC that attending the 2014 RNLA was

entirely ethical and consistent with law. 9 As the IEC has officially

stated, the value of the RNLA national election conference is

overwhelming:

Among other things, the Secretary of State is charged bystatute with the duty to enforce the provisions ofColorados elections code, supervise the conduct ofcongressional vacancies and state wide ballot issues inColorado, to serve as the chief state election officialunder the federal law Help America Vote Act of 2002,to coordinate Colorados responsibilities under thefederal National Voter Registration Act of 2002, topromulgate rules for the proper administration andenforcement of Colorados election laws and to review

9 See AO 14-10 (July 23, 2014) (it would not be a violation ofColorado Constitution Art. XXIX for the Colorado Secretary ofState to accept a registration waiver to the Republican NationalLawyer Associations (RNLA) National Election Law Seminar,food and beverage at the event, airfare costing approximately andone night of lodging, based on the facts presented to theCommission.); and AO 14-13 (July 23, 2014) (It would not violatethe Colorado Constitution Art. XXIX for the Deputy Secretary ofState to accept travel expenses from her office to accompany theSecretary of State to the Republican National Lawyers

Associations National Election Law Seminar.) available athttps://www.colorado.gov/pacific/iec/opinions-indexed-date-2014
https://www.colorado.gov/pacific/iec/opinions-indexed-date-2014https://www.colorado.gov/pacific/iec/opinions-indexed-date-2014


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practices and procedures of county clerk and recordersand election officials in the conduct of congressional

vacancies and the registration of electors in Colorado. 1-1-107, C.R.S.

AO 14-13. Just so then and now.

The IECs findings in this case area arbitrary the same

conduct declared partisan and unethical here, was deemed to be

ethical, raising no legal violations a year later. For all the reasons

the 2014 RNLA was deemed to be relevant to the duties of theSecretary, the 2012 RNLA was likewise relevant to the duties of

the Secretary. The IECs finding to the contrary was arbitrary and

capricious.

Third, numerous officials within state government were aware of

the Secretarys use of the discretionary fund for this purpose and

found no legal or ethical impropriety. Chief of Staff Gary

Zimmerman testified that the expenditures were proper. [CF

p.647(203:18-25); 648(204:1-4)]. Likewise, Colorado State

Controller Robert Jaros, whose job is to enforce the State Fiscal

Rules, found no fault with the expenditures. [CF p.724].

Fourth, undisputed evidence revealed a long-standing

Department of State policy (adopted prior to Secretary Gessler) of

paying for lawyer-employees CLEs. [CF p.660-61]. The existence

and legality of this policy were never questioned in the record. The


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Secretarys use of discretionary funds to pay for part of national

election law CLE was therefore consistent with a valid state policy

and thus within the scope of official business, not a matter of

personal, private gain.

The finding that the Secretary violated the discretionary fund

statute by attending the national election law conference must be

overturned as legal error and arbitrary and capricious.

B. The Secretarys mileage reimbursement compliedwith the discretionary fund statute.

The Secretarys use of discretionary fund dollars to reimburse

the Secretary for official state travel cannot, as a matter of law, be

a violation of the statute. The Secretary saw fit to use $117 of the

$5,000 discretionary fund for this menial purpose. The IEC has nolegal right to substitute its own judgment on a matter given

entirely to the discretion of the Secretary.

Setting aside the IECs lack of legal authority to judge the

reimbursement, the finding that the $117 expenditure was an

ethics issue must be overturned. According to the IEC, the request

was originally made without any documentation or detail of

expenses and was thus not in pursuance of official business but

was personal in nature. [CF p.880]. This conclusion ignored all the

evidence in the record, unrebutted, that the Secretary traveled


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hundreds of miles on official business and was thus rightly

entitled to reimbursement.

The Secretary subsequently submitted a memorandum

reflecting the miles driven in support of his request for the $117

(the memorandum reflected $616 of unreimbursed miles driven).

[AR p.001141-42]. No record evidence questioned that the Secretary

had driven the claimed miles, that the travel was for official

business, or that the Secretary had not previously claimed the

miles for reimbursement.

The only possible basis of complaint, therefore, was the timing of

when the detailed memorandum was submitted. But even if the

timing may have been less than ideal, there was no evidence, either

factually or legally, that the Secretary was prohibited from turning

in details of the miles after-the-fact. (To the extent IRS regulations

underlie the receipt requirement, there would be no concern with

the timing as taxes were not filed in the interim.) Furthermore, the

Colorado State Controller testified at the hearing that receipts

were not strictly required. [CF p.664(270:12-30)]. The State

Controllers office likewise testified that a memorandum for

expenses was allowable [AR p.001138-39].


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Finally, elected officials (including the Secretary) have a

statutory right to be reimbursed for miles driven. See C.R.S.

24-9-104 (Mileage allowances). That statute says nothing about

timing of a memorandum documenting miles, or even the need for

any particular documentation.

The IEC had no factual basis to conclude the Secretarys

reimbursement of $117 for miles driven on official business was

somehow a violation of an ethics issue merely because the

detailed breakdown [AR p.001141] came after the initial request.

The finding was arbitrary and capricious.

C. The Secretarys conduct complied with purposesstatement of C.R.S. 24-18-103(1).

While less than clear, the IEC cited the generic public truststatement in C.R.S. 24-18-103(1) as being violated in conjunction

with the claimed violations of the discretionary fund statute, C.R.S.

24-9-105. [CF p.880]. Given the specifics of the IECs findings,

this statute must be treated as derivative of the discretionary fund

statute. As to both the travel reimbursement and mileage

reimbursement, the IEC found the conduct was not for official

business, as stated in the discretionary fund statute and thus [b]y

so doing , Secretary Gessler breached the public trust for private

gain in violation of C.R.S. section 24-18-103(1). [ Id. 2, 3


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(emphasis added)]. The IEC appears to have not found an

independent violation of the public trust statement, but rather to

have piggybacked on the discretionary fund statute. In the view of

the IEC, because the conduct violated the discretionary fund

statute, then ipso facto the public trust statute was violated.

Overturning IECs conclusions under the discretionary fund statute

should end the analysis: the derivative finding under the public

trust statute likewise falls.

Even if treated as an independent violation, however, the IECs

findings are mistaken. First, as a matter of law, there are no

enforceable specific standards in the purpose statement, and thus

there is no legal standard to have been violated. Second, the

expansive evidence about how the election law conference related to

Colorados Chief Election Officers duties precludes any possible

violation of the public trust statute. Likewise with the evidence

presented of the Secretarys travel for official business that formed

the basis of the request for $117 for mileage traveled. The finding

of any violation of the purpose statement was therefore contrary to

law and arbitrary and capricious.


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D. The Secretarys conduct complied with the StateFiscal Rules, 1 CCR 101, et seq .

Despite some confusion, the IEC did not make any finding of the

Secretary violating the State Fiscal Rules. The IEC referenced the

State Fiscal Rules as part of the applicable law, but the Rules

were never referenced in the legal conclusions of the order. [CF

p.879-80]. The IEC did, however, referenced various Fiscal Rules as

part of its interpretation of the discretionary fund statute. Perhapsmistaken by the IECs repeated threat to find a violation of the

Rules, the district court incorrectly stated, twice, that the IEC

concluded the Secretary violated the State Fiscal Rules, [CF

p.863].

The record does not reflect any violation of the State Fiscal

Rules, and certainly no independent violation, making any funding

that the Secretary violated the State Fiscal Rules invalid.

III. T HE IEC A CTED C ONTRARY TO THE S ECRETARY SC ONSTITUTIONAL R IGHT TO D UE P ROCESS BY D ENYINGH IM A DEQUATE N OTICE OF THE L EGAL C HARGES

Standard of Review and Preservation : See Argument I above.

The issue was preserved. [CF p.584-93; AR p.000226-28].

Serious procedural due process violations require the IECs

findings to be thrown out. This Court, however, can and should

avoid such a constitutional finding by applying the rules of


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statutory construction and administrative review above, leading to

the IECs findings being overturned even before weighty

constitutional deficiencies are adjudicated. See Independence Inst.

v. Coffman , 209 P.3d 1130, 1136 (Colo. App. 2008).

The IEC failed to provide the Secretary with adequate notice of

the legal charges against him, thus violating his constitutional

right to due process. No principle of procedural due process is more

clearly established than that notice of the specific charge [is

amongst] the constitutional rights of every accused. Cole v.

Arkansas , 333 U.S. 196, 201 (1948); see also U.S. CONST . amend.

XIV, 1.; C OLO . C ONST . art. II, 25; U.S. CONST . amend. XIV, 1;

and C.R.S. 24-4-105 (Any person entitled to notice of a hearing

shall be given timely notice of the time, place, and nature thereof,

the legal authority and jurisdiction under which it is to be held, and

the matters of fact and law asserted.) (emphasis added).

A. The IEC denied the Secretary adequate notice byfailing to inform him of the legal charges before thehearing.

The IEC failed to notify the Secretary of the legal chargesagainst him before the June 7, 2013 hearing, thus violating his

constitutional and statutory right to adequate notice. An

administrative agency must give adequate notice of the legal


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charges to an accused individual before a binding hearing

commences. See C.R.S. 24-4-105(2)(a). In contexts ranging from

administrative hearings, where due process requirements are

relaxed, to criminal proceedings, where due process requirements

are most rigorous, an adjudicatory body may not change legal

charges during or after a hearing commences or reserve the right to

do so. 10

In Ruffalo , for example, the Ohio Supreme Court violated an

attorneys right to adequate notice where, in the context of his

disciplinary hearing, the Ohio Court gave him notice of some of the

10 See e.g. , In re Ruffalo , 390 U.S. 544, 551 (1968) (emphasis added)(noting, in the context of a lawyers disbarment proceedings, [t]hecharge must be known before the proceedings commence); In reGault , 387 U.S. 1, 33-34 (1967) (emphasis added) (explaining that[n]otice, to comply with due process requirements, must be givensufficiently in advance of scheduled court proceedings so thatreasonable opportunity to prepare will be afforded, and it must setforth the alleged misconduct with particularity ); In re Quiat , 979P.2d 1029, 1038 (Colo. 1999) (legal charges must be given withparticularity before hearing); Rael v. Taylor , 876 P.2d 1210 (Colo.1994); Ryan v. Charnes , 738 P.2d 1175, 1177 (Colo. 1987); see alsoR ICHARD J. P IERCE , J R ., A DMINISTRATIVE L AW T REATISE , Vol. 2 9.5(5th ed. 2010) (describing due process in administrativeproceedings).


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legal charges against him before the hearing only to modify them

after listening to testimony:

[P]etitioner had no notice that [a particular issue]would be considered a disbarment offense until after [he testified] at length on all the material factspertaining to this phase of the case.

The charge must be known before the proceedingscommence. [Hearings] become a trap when, after they

are underway, the charges are amended on the basis oftestimony of the accused. He can then be given noopportunity to expunge the earlier statements andstart afresh.

How the charge would have been met had it beenoriginally included in those leveled against petitioner no one knows.

This absence of fair notice as to the reach of thegrievance procedure and the precise nature of thecharges deprived petitioner of procedural due process.

390 U.S. at 550-52 (citations omitted) (emphasis in original).

Here, like the offending court in Ruffalo , the IEC failed to give

the Secretary notice of the legal charges against him before his

hearing. Rather, the best the Secretary received was notice of his

alleged factual wrongdoing and an ever-changing list of statutes

that may apply to [the] case. [AR. p.00081]. The IEC did exactly

what Ruffalo warned against when, in the Pre-Hearing and


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Amended Pre-Hearing Orders, it reserve[d] the right to consider

additional standards of conduct and/or reporting requirements,

depending upon the evidence presented, and the arguments made, at

the hearing in this matter. [AR p.000081, 000937 (emphasis

added)]. Ostensibly, the IEC reserved the right to make up new

charges, prejudicing the Secretary in his ability to craft a defense.

Even worse, the Secretary requested that the IEC clarify the

legal charges against him on at least five separate occasions. 11 The

IEC was well aware of the procedural deficiency in its process; it

simply chose to do nothing about it. The IEC presented the

Secretary with a changing array of potential statutes that possibly

applied to his case. First, the original complaint stated that the

Secretarys conduct may implicate several laws against public

corruption, including three criminal statutes. [CF p.106-07]. 12

Second, the allegations against the Secretary were completely

changed in the IECs Pre-Hearing Order which guessed that six

separate standards may apply to the Secretarys case, including

11 See n.1 supra (detailing objections).12 C.R.S. 18-8-104 (First degree official misconduct), C.R.S. 18-8-407 (Embezzlement of public property), and C.R.S. 18-8-114 (Abuse of public records).


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five different statutes. [AR p.000881]. 13 Third, the IEC modified the

statutes that may apply to the Secretarys case removing one

statute and adding another. [AR p.000937]. 14 Finally, the Findings

issued after the Hearing relied on two statutes and cited several

Fiscal Rules. [CF p.880].

Such vacillations alone contravene the law that an individual

subject to an administrative hearing in Colorado receive timely

notice of the matters of fact and law asserted. C.R.S. 24-4-105.

The IEC never definitively notified the Secretary of the legal

charges against him. Rather, it informed him that the statutes and

regulations he potentially violated were subject to change during or

after the hearing. [AR p.000081; 000937]. Because the Secretary

could not know on what legal ground to craft his defense, the IEC

denied him his constitutional and statutory right to adequate

notice of charges.

13 Citing C.R.S 24-18-103(1) (Public trust breach of fiduciaryduty), 24-9-105(1) (Elected state officials discretionary finds),24-9-105(2) (same), 24-17-102(1) (Control system to be maintained),and 24-17-102(26) (provision governing the state controller), andthe State Fiscal Rules.14 Dropping C.R.S 24-17-102(26) for C.R.S. 24-30-202(26)(Procedures vouchers and warrants rules penalties).


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B. Factual allegations alone do not satisfy due processrequirements.

Factual allegations by themselves, as the IEC and the court

below erroneously found, do not satisfy the requirement that an

accused individual receive adequate notice. According to the district

court,[E]ven though Gessler began the hearing unaware of thespecific rules and statutes that the IEC ultimately found heviolated, because he was aware of the facts and the conductthe IEC found suspect, the Court finds that the IEC providedGessler sufficient notice to satisfy the due processrequirements under the APA.

[CF p.866]. On its face, C.R.S. 24-4-105(2)(a) repudiates the

district courts holding, requiring that notice include both the

matters of fact and law asserted. Id. (emphasis added); see also,

Colorado State Bd. of Dental Examiners v. Micheli , 928 P.2d 839,840 (Colo. App. 1996) (citations omitted) (explaining, [l]egislative

words and phrases should be given effect according to their plain

and ordinary meaning). Overwhelming precedent hold that due

process requires notice to include both factual and legal allegations,

unlike the mere factual notice given to the Secretary. 15

15 See e.g., Micheli , 928 P.2d 839, 842 (Colo. App. 1996) (internalquotation marks and citations omitted)(explaining, notice mustinclude the matters of fact and law asserted); Snyder v. Colo.

Podiatry Bd. , 100 P.3d 496, 501 (Colo. App. 1991) (due processrequires adequate notice of opposing claims); Sigma Chi


46/55


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specific to provide notice to the [Secretary] of the case against

him.)]. To be sure, the IEC could have cured this legal defect by

providing the Secretary with timely notice of the legal charges

against him before the hearing. This it refused to do.

C. The lack of notice prejudiced Secretary Gessler bymaking it impossible for him to craft a defense.

The Secretary suffered prejudice when the IEC did not notify

him of the legal charges against him, limiting his ability to defend

himself. As courts have frequently opined, the purpose of providing

adequate notice to an accused individual is to make proceedings

fundamentally fair, i.e. allowing him to craft his defense. See

Mountain States Tel. & Tel. Co. v. Dept of Labor & Empt , 520 P.2d

586, 588-89 (Colo. 1974) (noting, [t]he essence of procedural dueprocess is fundamental fairness. This embodies adequate advance

notice and an opportunity to be heard prior to state action resulting

in deprivation of a significant property interest.); Snyder , 100 P.3d

at 501-02. Here, the IEC prejudiced the Secretary in two ways.

First, the Secretary was unable to prepare a defense to ambiguous

rules he only may have violated. Second, Secretary Gessler did

not know all the additional standards of conduct and/or reporting

requirements the IEC could have chosen to entertain. [AR

p.000081, 000937].


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First, the IEC statement that the State Fiscal Rules may apply

to the Secretarys case failed to protect his constitutional right to

prepare a defense. Along this line, the IEC listed five separate

provisions of Colorados Fiscal Rules in its Pre-Hearing Orders. [AR

p.00081]. Given that none of the rules actually applied to the

Secretarys alleged factual misconduct, it was unclear how he might

have to defend himself against the five listed rules. For example, it

is anybodys guess how the third noticed rule, Rule 2-7, OFFICIAL

FUNCTIONS AND TRAINING FUNCTIONS, would apply to the

Secretarys case. This rule defines Official Function as any

meeting conference, meal, or other function that is hosted by a

[Colorado] state agency or institution of higher education, attended

by guest and/or state employees, and held for official state

business. Id. (emphasis added). It defines Training Function as,

A meeting, conference, or other function which is hosted by a state

agency or institution of higher education , attended by customers of

the state and/or state employees, . Id. (emphasis added). How

could this have applied to an expenditure of discretionary funds for

travel? The IEC never explained how this Rule even could have

applied. 16 The IECs notice thus prejudiced the Secretary by making

16 Rule 2-8, the fourth rule listed by the IEC, fares no better as itgoverns miscellaneous compensation and other benefits,


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him unsure how to defend himself against charges that were

unexplained and not apparently applicable to his conduct.

Worse, the fifth fiscal rule listed by the IEC was Rule 5-1,

governing travel. Id. at 5-1. Presumably, Rule 5-1 should have been

the most relevant to the Secretarys case, but it contains more than

150 separate rules, ranging from travel authorizations to travel

advances. Here are just a few of Rule 5-1s sub-rules:

3.3 deals with an employee travelers responsibilities whileaway;

5.3 explains the dollar amount an employee may obtain inadvance of his travel;

6.6 governs miscellaneous expenses that may be reimbursedby the state;

7.5 notes reimbursement cannot be sought for traffic fines orparking tickets;

10.2 governs the use of state credit cards for travel expenses

Id . The IEC did not cite to any specific rule or rules in 5-1, leaving

the Secretary to guess how he might have violated any of the 150+

rules therein or what evidence to put on regarding rule 5-1. [AR.

p.000081, 00937]. Moreover, next to its citation to Rule 5-1, the IEC

indicated Rule 5-1 encompassed all other guidance listed on the

State comptrollers website, everything from information on

governing such items clean air transit benefit, and state ownedhousing, and bookstore discounts, again all things that have noapparent connection to the facts of this case. Id.


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employee benefits to state services for employees. Id. Notifying the

Secretary of such expansive potential charges underscores the

reality that he did not know the legal basis for his hearing. Notice

of everything amounted to notice of nothing.

The IECs obfuscation of the real legal charge against him made

any defense of that charge far more difficult. At a minimum, the

Secretary and his attorneys had to wade through and be prepared

for the details and specifics of numerous State Fiscal Rules, when

ultimately; this diversion was never pursued by the IEC.

Second, like the vague citation to various fiscal rules, the IECs

changes to the statutes and regulations that potentially applied to

the Secretarys case similarly prejudiced his ability to craft an

adequate defense. Apart from the nebulous additional standards of

conduct and/or reporting requirements that the IEC reserved the

right to entertain during the hearing, the IEC proceeded for the

first seven months after October, 2012 under three different legal

theories that may have applied to his case. [CF 106-07.] The list

included: (1) First degree official misconduct, C.R.S. 18-8-404;

(2) Embezzlement of public property, C.R.S. 18-8-407; and

(3) Abuse of public records, C.R.S. 18-8-114 [CF p.107-08]. The

Secretary was only left to guess at how, in the eyes of the IEC, his


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travel to an election conference and mileage reimbursement could

have violated these statutes.

Next, about a month before the hearing, the IEC began anew

under five new legal theories, including the State Fiscal Rules and

other non-specified standards that might apply. [AR. p.00081,

00937]. That list included:

Public trust--breach of fiduciary duty, C.R.S. 24-18-103; Elected state officials--discretionary funds, C.R.S.

24-9-105(1); Elected state officials--discretionary funds, C.R.S.

24-9-105(2); Control system to be maintained, C.R.S. 24-17-102; Procedures--vouchers, warrants, and checks--rules

penalties, C.R.S. 24-30-202.

Id. At such a late date, the Secretary then rushed to prepare hisdefense.

It is hard to imagine that the Secretary could defend himself

against such nebulous legal charges like all other guidance listed

on the State Comptrollers website or additional standards of

conduct and/or reporting requirements the IEC chose to entertain,

depending upon the evidence presented, and the arguments made,

at the hearing in this matter. Likewise, preparing a defense

would be hampered in the face of five different statutes and scores

of pages of unenforceable, non-applicable State Fiscal Rules. Such a


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parade of legal theories is akin to a criminal defendant being

charged under ten different criminal theories, all the while the

court reserving the right to entertain any other theory under the

common law or the criminal code . Could a criminal defendant craft

an adequate defense without being prejudiced in such

circumstances? No, and neither could the Secretary defend himself

when the IEC listed laws or regulations that did not apply to his

case and reserved the right to consider any other laws or

regulations after his hearing, depending upon his or any other

testimony or evidence presented at the hearing. This prejudice

resulted from the denial of the Secretarys right to due process.

The district courts conclusion that mere factual notice (bereft of

legal notice) was sufficient does not comport with well-established

legal requirements. By depriving the Secretary of notice regarding

the legal charges against him, the IEC violated basic procedural

due process rights.

Conc lus ion

For the foregoing reasons, the IECs findings must beoverturned.


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Respectfully submitted this 8th day of September 2014.

JOHN W. SUTHERSAttorney General

s/ Michael Francisco

MICHAEL FRANCISCO*Assistant Solicitor General


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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements ofC.A.R. 28 and C.A.R. 32, including all formatting requirements setforth in these rules. Specifically, the undersigned certifies that:

The brief complies with C.A.R. 28(g).

Choose one:x It contains 9,411 words.

It does not exceed 30 pages.

The brief complies with C.A.R. 28(k).

X For the party raising the issue:It contains under a separate heading (1) a concise statementof the applicable standard of review with citation toauthority; and (2) a precise location in the record (R.__,p.___), not to an entire document, where the issue was raisedand ruled on.

For the party responding to the issue:It contains, under a separate heading, a statement ofwhether such party agrees with the opponents statementsconcerning the standard of review and preservation forappeal, and if not, why not.

X I acknowledge that my brief may be stricken if it fails tocomply with any of the requirements of C.A.R. 28 and C.A.R.32.

_/s/ Michael Francisco _____


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CERTIFICATE OF S ERVICEThis is to certify that I have duly served the within APPELLANTS

OPENING BRIEF upon all parties herein via ICCES and by email

this 8th day of September, 2014 addressed as follows:

Colorado Court of Appeals2 East 14th AvenueDenver, Colorado 80203

Denver County District Court

1437 Bannock StreetDivision 376Denver, Colorado 80202

Counsel for Defendants-Appellees :Lisa Brenner Freimann, First Assistant Attorney GeneralRussell B. Klein, First Assistant Attorney GeneralJoel W. Kiesey, Assistant Attorney General

Counsel for Amicus Curiae Colorado Ethics Watch :Luis ToroMargaret PerlColorado Ethics Watch1630 Welton Street, Suite 415Denver, Colorado 80202

Counsel for Amicus Curiae Colorado Common Cause: Martha M. Tierney

Heizer Paul LLP2401 15th Street, Suite 300Denver, Colorado 80202

gessler opening brief

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