Jerry Kopel

Amendment 41 Developments

April 7, 2007

By Jerry Kopel

Several of my comments on Amendment 41 (ethics commission) printed in a February column are now part of the debate.

Attorney General John Suthers is urging the state Supreme Court to dismiss actions against Amendment 41 based on the fact that nothing can happen under Amendment 41 until the five-member commission is appointed. As I stated:

"Without the commissioners being appointed by the legislature, there is no process to hold hearing or render rulings. There is no way for a complaint to be filed or for a governmental agency to obtain a damage payment."

Even if the governor and the Supreme Court Chief Justice wanted to name their nominees, they cannot, under Amendment 41 language, until the legislature appoints their two commissioners.

My second suggestion was to require a two-thirds decision in appointing the commissioners by the House and Senate.

It is clear by reading the House State Affairs committee amendments to SB 210 that the two/thirds vote was not to produce a stalemate, but to ensure that minority Republicans would have a say-so on commissioners chosen by the legislature.

That was made air-tight by stating each house would choose from opposite major political parties. "You choose a Democrat and we will choose a Republican."

As long as the legislature battles in good faith, I don't believe the Supreme Court would step in to force a choice of who to serve as commissioners if the two-thirds requirement is not met during the session. The court will not attempt to insert itself as the choosers, which would give the court members majority control of the commission.

The Senate debate did pick up on one other omission: Is there an appeal process? There was none in Amendment 41, but there is in the Senate version, using the Administrative Code for rule making and the Denver District Court for appeals. I don't know whether the appeal is based on substantive merits of the decision or procedural issues.

When would SB 210 go into effect? It presently sets commissioner authority for July 1, 2007. If the bill is passed into law, separate decisions on the two appointments by the legislature would have to occur before the end of the session in May.

The legislature could set a different time frame of sometime in January 2008 with the summer, fall, and winter to work on a "real" constitutional amendment to replace Amendment 41.

If agreed to by both political parties, the time frame on what is now in SB 210 could then be revised to after the November 2008 election.

Another issue not yet tackled is how to get rid of commissioners  before their term expires. I believe the commissioner chosen by the governor (as provided in Amendment 41) can only be removed for incompetence, neglect of duty or malfeasance in office.

I suggest applying the same terminology for the other four commissioners including the unaffiliated commissioner representing local government and chosen by at least three of the four other commissioners.

There is nothing in the bill or in Amendment 41 requiring other than a continuous two year political affiliation or two years of no political affiliation PRIOR to appointment.

The day AFTER the appointment, the two Democrats could become unaffiliated without violating the constitutional admonition that no more than two members shall be affiliated with the same political party. "Unaffiliated" is not a political party.

Peter Blake of the Rocky Mountain News is absolutely correct in writing that the amended SB 210 requires more than just exceeding the $50 limit on gifts in deciding that complaint is not frivolous. It now requires attempted bribery. And here is where the bill title comes into play.

There are two purposes to Amendment 41: the gift ban, and the commission appointments. SB 210 deliberately limited its scope by having the title limited to the commissioners, as a  I mentioned in the recent column.

The state Supreme Court would be on firm ground to rule (since the bill is severable) that the bribery connotation does not fit under the title.

(Jerry Kopel served 22 years in the Colorado House.)