Colorado’s Independent Ethics Commission on Friday discussed — but did not approve — a request from Secretary of State Scott Gessler that would allow him to set up a special criminal defense fund for himself, through which he could receive donations from relatives and personal friends.
Postponing the decision until March 4 is reasonable. There are a number of problems with Gessler’s request, but they can be remedied by attaching some conditions to his request.
All of this is due to Amendment 41, the 2006 ballot measure that established ethics standards for elected public officials and government employees. The same measure created the IEC and set limits on the amount of gifts a person may receive.
In the past few months, a significant portion of the IEC’s workload has involved one man: Scott Gessler. He has been the subject of complaints filed by groups such as Ethics Watch, and he has filed documents seeking the IEC’s advice.
One of the complaints has to do with Gessler’s decision to use the end-of-year balance of a discretionary fund in his office for his own use, without providing any receipts. Another involves Gessler’s use of public money from his office to travel to Florida last August and make stops at both the Republican National Convention and the Republican National Lawyers Association convention.
Separately from the IEC, the Denver District Attorney’s Office is looking into possible criminal charges against Gessler for his handling of the discretionary funds.
In defending himself before the IEC, Gessler can use public funds and lawyers. But, if criminal charges are filed, he must use his own money. Hence his recent request to the IEC.
Amendment 41 allows public officials to accept money from personal friends and relatives above the normal limits for “special occasions.” That term isn’t defined in the amendment, but it was generally believed to be for events such as birthdays or weddings. Gessler argues it should also apply to criminal prosecutions, and therefore he should be allowed to create a legal defense fund that eliminates the Amendment 41 gift limits.
Gessler’s request is understandable. No public official should have to face personal bankruptcy to defend criminal charges — especially ones with a political component, as is often the case for elected officials. Private citizens, after all, can seek help from friends and relatives to help pay their legal costs.
One problem with this is that Amendment 41 also doesn’t define “personal friend.” Gessler would be prohibited from taking money from registered lobbyists, but beyond that, he could claim anyone as a personal friend.
Also, the IEC’s power to demand transparency for a legal defense fund is questionable. But Gessler said he is willing to abide by a requirement that he release donor information.
Additionally, if the court case didn’t use all the money in the legal defense fund, it’s not clear what legally must be done with it. Again, Gessler told The Daily Sentinel he is willing to abide by some transparent manner of returning or disposing of the funds if he is allowed to create the legal defense fund.
The IEC should allow Gessler to create a legal defense fund under the special-occasions exemption of Amendment 41, but only if it establishes conditions to guarantee transparency and to equitably dispose of unspent money.