Guv, GOP in dispute over panel appointee

Senate objected to her service on rights commission

Despite being rejected by the Colorado Senate to continue to serve on the Colorado Civil Rights Commission, Clifton resident Heidi Hess remains on the statewide panel that enforces anti-discrimination laws.

Gov. John Hickenlooper chose to keep her on the commission, a move his office said is legal but one Senate Republicans question.

Republicans, who have a one-vote majority in the Senate, were surprised to learn from The Daily Sentinel that she was still on the seven-member commission. Regardless, Senate President Kevin Grantham, R-Canon City, said such rejections of governor appointees happen so rarely that he was having his staff investigate the matter.

Sen. Jerry Sonnenberg, however, agreed that while the governor has the legal right to keep her on the panel until he finds a replacement, even until her new term expires in 2021, he said Hickenlooper is violating the spirit of the Colorado Constitution, which requires consent from the Senate on such appointments.

“It is ridiculous, but apparently that is within his purview and within his right to do so, to go around the Senate that way,” said the Sterling Republican, who led the effort to reject Hess’ confirmation. “It absolutely is against the spirit of the Constitution, but I think it’s completely inappropriate for the governor to wave his middle finger at the Senate.”

Sonnenberg, who said he plans to introduce a bill during next year’s session to prevent such things from happening again, had persuaded the Senate just days before the Colorado Legislature ended this year’s session earlier this month to reject Hess’ reappointment on the commission, a move that caught many off guard.

Sonnenberg’s argument was that Hess appeared to be a representative of small business, something he said was inappropriate because Hess had advocated for a failed bill earlier in the session to allow employees to sue their bosses over discrimination cases in state court.

Kurtis Morrison, legislative liaison for the governor, however, said she has always been an at-large member of the panel, and her re-appointment documents made that clear. At the time, however, the commission’s website listed her as a business representative, which the governor’s office said was an error.

Morrison said there’s a “holdover provision” in the Constitution that allows the governor to keep someone on a crucial commission such as this one until a replacement can be found.

The commission, which is charged with enforcing the state’s anti-discrimination laws and hears specific cases related to that for such things as employment and housing, is required to have at least two members who represent business.

Two others are to represent local government, while the remaining three members are to be from the public at large. At least four of those members must represent groups commonly discriminated against. Hess is the Western Slope community organizer for One Colorado, the state’s largest LGBT advocacy group.

Hess didn’t respond to messages requesting comment.

A week before the legislative session ended May 11, Hess appeared before the Senate State, Veterans & Military Affairs Committee. As vice chairman of that five-member panel, Sonnenberg chaired her hearing because its chairwoman, Sen. Vicki Marble, R-Fort Collins, was out sick. Sen. Ray Scott, R-Grand Junction, was filling in for Marble.

Sonnenberg and Sen. Owen Hill, R-Colorado Springs, extensively questioned her about her role as a business representative on the panel, with Hess responding that she works “in business” but doesn’t own one of her own. At no time did the question of whether she was on the panel as an at-large representative come up.

The panel voted 3-2 to confirm her, with Scott joining Democrats supporting her reappointment. Scott later joined the 17 other Republicans in the full Senate in rejecting her confirmation.

Others who asked not to be named said the real reason why Hess’ appointment was rejected was a retaliatory move by Republicans who were upset over the governor’s veto of SB139 in April, a measure to extend indefinitely the state’s excise tax credit on sales of non-cigarette tobacco products.

Even though that bill cleared the Legislature with wide bipartisan support, Republicans couldn’t muster enough votes to override Hickenlooper’s veto. An override requires a two-thirds vote in the 65-member House and the 35-member Senate, but the effort failed in the Senate on a party-line 17-17 vote, with Marble not voting because she was ill. The House never voted to override the veto.

The governor’s office said Hess will continue to serve on the panel “until the governor appoints a successor,” saying that could take as long as March 2021, when her current appointment is due to expire.

The Colorado Attorney General’s Office has looked at the issue, but expressed no concerns that Hess’ continued role on the commission would jeopardize any votes she takes, including in discrimination cases.

“We are aware of the unusual situation that currently exists,” said Annie Skinner, spokeswoman for Attorney General Cynthia Coffman. “Both the governor and the Senate have important roles to play in this appointment and confirmation process in Colorado, and we expect this will be resolved in the next legislative session.”


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