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IEC response to Department of State notice

IEC response to Department of State notice

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IEC response to Department of State notice providing documents
IEC response to Department of State notice providing documents

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Published by: Colorado Ethics Watch on Jan 25, 2013
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---------- Forwarded message ----------From: Feldman, Jane <jane.feldman@state.co.us>Date: Thu, Jan 24, 2013 at 2:03 PMSubject: Re: NoticeTo: Suzanne Staiert <Suzanne.Staiert@sos.state.co.us>Suzanne,After discussing the matter with Dan Grossman and Matt Smith individually, the Commission hasdecided to release those documents this time. This decision is largely based on the fact that theCommission is without legal representation on this matter, and therefore will not be able to defend itself within the appropriate time frame. The Commission continues to believe that these matters areprivileged.I am therefore attaching the draft as revised by Matt Smith and the Dissent. Please note that bothdocuments are still drafts, and commissioners have already indicated that they may suggest substantialchanges before the final is released.Jane T. FeldmanExecutive DirectorColorado Independent Ethics Commission1300 Broadway, 12th floorDenver, CO 80203Tel. 720.625.5697Fax 720.625.5696 jane.feldman@state.co.uswww.colorado.gov/ethicscommissionOn Thu, Jan 24, 2013 at 1:19 PM, Suzanne Staiert <Suzanne.Staiert@sos.state.co.us> wrote:Jane,Attached is a copy of the three day notice. It should be hand-delivered shortly.ThanksSuzanne Staiert
 Commissioner Grossman
in the Advisory Opinion.It is beyond reasonable dispute that contributions to a legal defense fund for a publicofficial will inure to the personal benefit of the public official. Therefore, the gift ban of ArticleXXIX precludes such contributions in the following circumstances:
Contributions in any amount from a registered lobbyist;
Contributions from any individual in excess of $53 in a calendar year
The Secretary of State’s contention that contributions to his legal defense fund should be
excepted from the gift ban because being charged with a crime constitutes a special occasion isfar-fetched.Section 3(3)(c) provides an exception to the aforementioned prohibition for gifts or
things of value “[g]iven by an individual who is a relative or personal friend
of the recipient on a
special occasion.” The term “special occasion” is not defined in Article XXIX, and it is doubtful
that the people of Colorado, in adopting Article XXIX, intended that term to include criminalindictments or informations.Moreover, even if a criminal prosecution can be shoe-horned into the special occasionexception, the section specifically limits the exception to gifts from relatives and personalfriends of the recipient. All other contributors must be limited to gifts of $53 and registeredprofessional lobbyists must be precluded from contributing at all.The equitable argument posed by the Secretary in support of his request is that publicservice uniquely exposes high-profile officials to the risk of politically-motivated, harassinglitigation and that a legal defense fund would help protect the personal assets of such officialsfrom frivolous claims.
 However, counsel for the Secretary conceded upon further examination that his requestis limited to a legal defense fund to assist in compensating him for defense of a potentialcriminal action. Criminal actions are initiated by public prosecutors based upon law, evidenceand the pursuit of justice. Whatever vagaries of motivations that may be present in world of civil litigation certainly do not apply in the context of a criminal prosecution.Should the Secretary find himself charged with a committing a crime, the costs of hisdefense are appropriately his to bear. He should not be permitted to use his status as a publicofficial to raise money for his defense in violation of the clear language of Article XXIX.
It should be noted that civil litigants may avail themselves of the provisions of C.R.C.P. 11 if they findthemselves defending frivolous claims and seek reimbursement for legal expenses incurred in suchdefense..
State of Colorado
1300 Broadway, 12
floor, Denver, CO 80203
Ph.: 720.625.5697Fax: 720.625.5696Email: jane.feldman@state.co.us www.colorado.gov/ethicscommission
Dan Grossman
 , Chairperson
Sally H. Hopper
 , Vice-Chairperson
Bill Pinkham
 , Commissioner
Matt Smith
, Commissioner
Jane T. Feldman
 , Executive Director
DRAFT 02/04/13 Advisory Opinion 13-01
(Acceptance of Funds for Defense in Criminal Actions
It would not be a violation of Colorado Constitution Art. XXIX for a publicofficer to establish a legal defense fund and to allow a trustee to solicit funds to defraycosts for defending a criminal proceeding against the officer. Neither the officer nor thetrustee may solicit funds from professional lobbyists or others doing business with theagency. Contributions to this fund, including both the name of donors and the amountof the donation must be publicly disclosed.
The Deputy Secretary of State has submitted a request, on behalf of theColorado Department of State, to the
Independent Ethics Commission (“IEC” or “Commission”) asking whether 
it is permissible to establish a trust fund, and solicitdonations for that fund, to offset expenses the Secretary of State has incurred and maycontinue to incur in a pending criminal investigation. Although the written request is notlimited to funds for defense of a criminal action, the requestor stated at a public IECmeeting that the fund would be used exclusively for criminal defense, acknowledgingthat the State does provide funds for representation in administrative and civil cases.(The Deputy Secretary of State represented that she had been informed by a Deputy

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