STATE OF COLORADO Department of State

1700 Broadway
Suite 200 Denver, CO 80290

Scott Gessler
Secretary of State Suzanne Staiert
Deputy Secretary of State

November 18, 2013 Ms. Diane E. Ray State Auditor Office of the State Auditor 200 East 14th Avenue Denver, Colorado 80203-221 RE: Request for a performance audit of the Independent Ethics Commission Dear Ms. Ray: In November of 2012, I attended my first meeting of the Independent Ethics Commission (IEC). In my capacity as Deputy Secretary of State, I filed a handful of advisory opinion requests. I also attended numerous meetings related to an ethics complaint filed against the Colorado Secretary of State (the Secretary). My interactions and observations of the IEC have been concerning, to say the least. I am writing you to request a performance audit of the IEC. My experiences with the IEC in general, and with its Executive Director in particular, over the last 13 months raise significant concerns regarding the IECs: adherence (or lack thereof) to state law; failure to recognize, much less implement, standard notice and due-process procedures; and overall disregard for public access and transparency. Please note that this request has nothing to do with the substance of the complaint or proceedings against the Secretary; rather, my observations involve procedural matters that are unacceptable for any state board or commission to engage in. Below is a list of the IECs numerous errors. 1. The IEC operates without transparency in violation of Colorado Open Meetings and Open Records laws. a. The IEC and its Executive Director failed to notify the Secretary of the complaint filed against him and ignored repeated requests for a copy of the complaint. My first encounter with the IEC Executive Director was on November 5, 2012, the evening before the 2012 presidential election. The IEC voted to investigate the matter and the Executive Director immediately notified the complainant and commented to the media. The IEC never notified the Secretary of the complaint; the Secretary had to learn of the complaint against him through the media. I called the IECs Executive Director, Jane Feldman, at 5:30 that evening to request a copy of the
Main Number Fax TDD/TTY (303) 894-2200 (303) 869-4861 (303) 869-4867 Web Site E-mail www.sos.state.co.us public.elections@sos.state.co.us

complaint. Ms. Feldman informed me she did not have time to stand at the copy machine and make me a copy. Rather, she would serve the complaint in the next few days. She could have simply sent me the complaint electronically. Instead she did have the time to send an e-mail to the Commission chair complaining she had a bad day and that I had yelled at her. Two days later Ms. Feldman contacted our Deputy Attorney General and inquired as to whether he would accept the complaint. He notified her that she should serve the complaint to me, which she did so in electronic form. Put plainly, the Executive Directors actions to constantly keep the complaint from the Secretary and me are unconscionable. b. The IEC and its Executive Director failed to inform the Secretary or the public of when and where they held their meetings in direct violation of Colorado law. In December of 2012 I filed an advisory opinion request to establish a legal defense fund for the Secretary. I attended my first of many disturbing meetings in January of 2013. It was unclear where the IEC would be meeting and I looked to the website for notice. There was no notice posted. I called the Secretarys attorney and he informed me they would be meeting in the new judicial building. At the meeting I objected to the lack of public notice. After questioning my veracity, the IEC checked the website to determine for themselves that the Executive Director failed to post notice of the meeting. Ms. Feldman insisted it was a website problem. The IECs attorney then asked the room if everyone who wants to be in the meeting is present. Such a question is evidence of her and the IECs complete lack of awareness of Colorados Open Meetings Law. How could anyone possibly know if everyone who wanted to attend the meeting was present when the Executive Director never posted, either online or otherwise, when and where the meeting would be held? I remain perplexed as to how anyone could answer that question. Even after I raised my objection, the IEC, on the advice of their attorney, held the meeting anyway. It should be noted that Colorado Ethics Watch, the entity that filed several complaints against Republicans with the IEC, receives notice emails from the Executive Director that contain the time and location of IEC meetings. Apparently the Executive Director has time to email Ethics Watch but not inform the rest of the people of Colorado. The IEC cannot be allowed to continue in this fashion. c. Instead of addressing its own violations, the IEC questioned whether I had standing to object to their procedures. In what would become a yearlong shell game, the IEC pivoted from their own failures insisting instead that I didnt have standing to raise the objection. Again, the IECs thought process here is troubling. Any member of the public has standing to attend an IEC meeting and object to their blatant disregard for Open Meetings Law. The Chair (Dan Grossman) then requested that I waive any objection to the lack of notice. I had to inform him that I did not have authority to waive objection on behalf of the citizens of Colorado. d. The IEC does not record all of its meeting, requiring attendees to arrange for their own court reporters or recordings.

After the meeting, I requested the recording, only to discover that meetings were not recorded. Despite the fact that they have recording equipment present, they intentionally turn the recording off unless they are conducting a hearing. Shockingly, the IEC is not keeping record of any public comment, discussion about advisory opinions, or discussion of motions. The only way to adequately establish a record of the IEC proceedings requires in-person attendance with recording equipment or a court reporter. Unfortunately, the IEC often takes items out of order on the agenda and it is impossible to guess with any accuracy when an item will be raised. This is has resulted in hours of wasted time listening to topics as mundane as whether the Executive Director will have a window in her new office. e. The Executive Director schedules IEC meetings in rooms that are very difficult for the public to access. Not only must the public go to unusual lengths to determine the time and location of meetings, but it must also go through great hassle to actually attend. On several occasions, the Executive Director scheduled meetings in the new judicial center behind several locked doors and layers of security. At least twice, the IEC held their meeting in a room that required members of the public to: go through security at the front door of the judicial center, check in at the main desk, sign in (if they werent on a guest list prepared by the Executive Director), present a photo ID, have their picture taken, be escorted by Colorado State Patrol up the elevator, ring a doorbell to gain access to the floor, be buzzed in, and be escorted to the meeting room. This process took nearly 30 minutes. Again, the IEC seems to conduct itself in ways to make it as hard as possible for the public to gain access to their proceedings. In no way does such an entry process allow for transparency. f. The IEC refuses to make available to the public documents that they are discussing in open meetings. In early 2013 I attended a meeting to discuss my request for a legal defense fund. At the meeting, the IEC discussed an opinion. Each Commissioner had a copy and I requested a copy to follow the discussion. The Chair said that it was a privileged attorney/client document. I informed the IEC and their attorney that the attorney/client privilege is waived when there are third parties present. After some discussion, the Commission held a vote on whether to waive the non-existent privilege. They voted to provide me the document, but then specifically told me not to expect this type of courtesy in the future. This discussion again shows the IEC prefers secrecy over transparency in direct violation of the Open Meetings Law and Open Records Law. It also highlights the complete lack of awareness on even the most basic legal doctrines. It astounded all in attendance that the IEC actually thought they could use the attorney/client privilege to discuss a document when there were several other people in the room. Later in the spring of 2013, the IEC had a new draft of the legal defense fund opinion. It was again discussed at an open meeting and I was refused a copy because it was a draft. I again formally requested the document but this time was told that the document was denied as work product. I responded that the analysis failed for two reasons: 1) the work product exception is only available for elected officials and no member of the IEC or its staff is elected; and 2) Colorados Open Records Act specifically exempts, [A]ny materials that would otherwise

constitute work product if such materials are produced and distributed to the members of a public body for their use or consideration in a public meeting.1 Never one to be deterred by the law, the IEC Executive Director responded that my request was still denied, but this time based on deliberative process. But the exception she cited requires the custodian to provide an affidavit stating the reasons the document would harm the public interest if released. Upon my request for the affidavit, the Executive Director turned over the document with a cover letter indicating that she was only doing so because she lacked the legal resources to fight the request, despite the fact that the IEC has an attorney who attends every minute of their hours-long meetings.. Her prepared cover letter was then immediately and curiously requested by Colorado Ethics Watch, the entity that filed the complaint against the Secretary, under the Open Records Act. The Executive Director immediately fulfilled their request, and Ethics Watch promptly posted it on their website. Finally, in May of 2013, the IEC met in a telephone meeting to discuss the other standards of conduct the Secretary was alleged to have violated. They began to list off the standards from a draft order. In hopes of avoiding the previous experiences, our office requested the document the day before. The IEC ignored the request and when I asked during the meeting if they could send me an electronic copy, they responded that they had three days to respond. In fact, the Open Records Act allows three days to respond to requests only when the document is not readily available. In sum, it is appalling that a commission designed to uphold ethical principles would go to such lengths to avoid public disclosure. Their behavior is a mockery to the Colorado Sunshine laws. 2. The IEC engages in intimidation tactics including discrimination and public disparagement. a. The IEC ignored my statutory authority as Deputy Secretary of State and used Open Records laws to attempt to obtain my personnel file. As mentioned above, at my first appearance before the IEC, I objected to one of many procedural irregularities. The chair asked me what authority I had to make the objection. I advised him that as the Deputy Secretary of State I was authorized by statute to act in any matter on behalf of the Secretary.2 The IEC did not look up the law; rather the chair dismissively told me I was not authorized to speak for the Secretary. Around this same time, the Executive Director began to show an unusual amount of hostility toward my involvement; it was as though she had a personal problem with me. In the Spring of 2013, she sent the Secretary of States office a records request for the personnel rules related to non-classified employees. I advised her she would need to contact the Secretarys attorney for matters related to his case. She responded that her request was not related to his case. This resulted in great puzzlement in our office as to why she would be interested in our personnel rules outside of the ongoing case. Taken at face value, her response could only mean that she C.R.S. 24-72-202(6)(a)(II)(A)
C.R.S. 24-21-105.

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was looking for information related to other non-classified employees, which could only be me or the Secretarys Chief of Staff, who had had no involvement in the proceedings before the IEC b. The IECs Executive Director, while acting in her investigatory role, made disparaging and potentially-damaging comments about me while interviewing my peers. Under the IECs procedures, the Executive Director acts as the IECs investigator, participates in the proceedings, and drafts opinions. Disregarding her duty to stay neutral, during a witness interview, she told the prior Deputy Secretary of State, Bill Hobbs, that the IEC referred to me as the Dragon Lady. The Secretary moved to recuse the Executive Director based upon the comment and the IEC denied the motion and refused to take any responsibility for the comment. Two months later I was speaking with a local government colleague. As we discussed the IEC deficiencies, she exclaimed, Oh, youre the Dragon Lady! She then told me the Executive Director had called her the week before and ranted about the case and specifically about me, referring to me in this same sexist, derogatory manner. c. To remove me from the proceedings, the IEC sought to charge the Secretary in his personal capacity so I could no longer participate on his behalf. The obsession of the IEC was also demonstrated in its own opinions and court pleadings. In denying the Secretarys motion to dismiss, the IEC went out of its way to specifically find that I was not authorized to speak for the Secretary. In a Denver District Court pleading, the IEC objected to my signing the pleadings. Further, they asked that the Secretary be removed in his official capacity and instead named only in his personal capacity. This legal maneuver was of no advantage to the IEC except to divest the Secretary of my ability to speak for him. The court properly denied the motion, but it did not deter the IEC in their quest. 3. The IEC refuses to carry out their statutory obligations to issue advisory opinions. In December of 2012, I submitted my first request for an opinion relating to a legal defense fund. In my request, I set forth the legal framework for the decision and asked the Attorney Generals assistance in making the request. The Attorney General routinely appears on behalf of state officials before the IEC. However, in my case the Executive Director went straight to the media, complaining she was disappointed by the Attorney Generals involvement. She publicly criticized the Attorney Generals analysis before the board had even met to discuss the Attorney Generals opinion. Aside from their complete lack of professionalism and fairness, the most egregious act of the IEC is their routine disregard of their limited jurisdiction. The IEC has authority only over gifts to state employees. The purpose is to curb influence peddling. Despite this limited authority, it acts as a super governmental body applying an ever-moving target: other standards of conduct. These other standards are completely undefined and apparently subject to change at the IECs whim.

After the Secretarys complaint, I became concerned about the IECs purported authority over the fiscal rules and department spending. In an attempt to define the standards, I requested two advisory opinions: one related to my own travel; and another related to departmental travel. The IEC is required to promptly rule on advisory opinions from public employees. However, on my requests they refused to rule until after the Secretarys case, because it was too close to his situation. The requests were met with condescending hostility and the Chair accused me of trying to trick them. In response to their refusal I requested the Attorney General file suit on my behalf demanding a response. The IEC then issued what could only be called a non-opinion. Rather than answer the request as they have for every other public officer, it directed me back to the fiscal rules. It steadfastly refused to issue an opinion on the second request until after the Secretarys case. When the IEC did address it some eight months later, most of the events contemplated for department travel had already occurred. Of the ones remaining, the IEC indicated it couldnt rule without knowing the mission statements of the sponsors, the duties of the employee that would attend, and the agenda. The IEC essentially sought to substitute their judgment for the department, down to evaluating the courses within the trainings. Recognizing the utter futility of seeking a legitimate response, I withdrew the request. Conclusion A performance audit is necessary because the IEC has no oversight and does not adhere to even the most basic due process procedures and transparency requirements. To date, the IEC has operated in the dark. There is no accountability for their actions and the Executive Director is given unfettered discretion. As demonstrated by my experience and other testimonials, the IEC is operating without standards. They disregard their legislative mandates and any due process requirements. They appear to only be concerned with a path that destroys reputations while capturing media attention. I strongly recommend a performance audit to determine if the IEC is meeting the legislative intent, complying with laws and regulations, operating efficiently and providing effective services to the public. I have no doubt that the voters who passed Amendment 41 would be alarmed by the IECs procedures and complete lack of transparency. Sincerely,

_________________________________ Suzanne Staiert Deputy Secretary of State