At its meeting on Tuesday, Feb. 17, the Colorado Independent Ethics Commission (IEC) contemplated multiple matters regarding Archuleta County and Pagosa Springs.
On the topic of Archuleta County, the commission took steps to resolve a pair of cases stemming from 2022 concerning allegations made against Warren Brown and Alvin Schaaf as Archuleta County commissioners.
In November 2022, attorney Matt Roane filed ethics complaints against the pair after it was revealed that they were accepting mileage reimbursement for driving in their personal vehicles between their homes and offices.
The complaints suggest that Colorado statute allows county commissioners to accept reimbursements for mileage incurred while engaging in business on behalf of the county and notes that the county also pointed toward its employee handbook as authorizing the reimbursement.
Roane asks several questions in the complaints, including if the commissioners are employees whose conduct is governed by the handbook; if not, where the resolution authorizing the reimbursement is; if so, if driving to and from work constitutes being engaged in business on behalf of the county; and if accepting the reimbursement for mileage incurred commuting is in violation of the state’s gift ban.
The IEC unanimously voted the complaints nonfrivolous on July 11, 2023.
The complaints were later merged by the IEC.
At Tuesday’s meeting, IEC Executive Director Dino Ioannides explained that a draft investigative report on the matter is ready and has been for some time, but that it hasn’t been able to release it to the parties due to having only two IEC commissioners who can vote on the matter.
Two IEC commissioners, Lori Laske and Sarah Mercer, have recused themselves on the matter due to conflict of interest. The previous fifth IEC commissioner was also recused from the cases.
Ioannides explained the IEC still doesn’t have an appointment by the governor to fill the vacant seat, adding later he’s hearing an appointment is imminent, but that he doesn’t know what that means.
He indicated that, unless the commission invokes the rule of necessity, it will continue to not have a quorum to approve the reports and release them to the parties.
Ioannides explained the rule of necessity is both a common law principle and that Colorado Revised Statute 24-18-110 would allow for disclosing conflicts of interest and acting on a matter.
He suggested the commission could appoint a hearing commissioner and delegate that person the authority to approve the report, but suggested there would be a chance the commission would have to invoke the rule of necessity again the in future.
Ioannides and Zach Fitzgerald of the Colorado Attorney General’s Office then explained more about the statute and common law principle.
Fitzgerald told the commission that there is a reality that sometimes there will be so many conflicts of interest a board is “paralyzed,” but that a board member could explain their contact and, hopefully truthfully, state that it won’t impact their judgment and vote on an issue.
He added the IEC conflicts policy also considers that the rule of necessity may come into play.
He also acknowledged the statutory provision.
IEC Commissioner Dan Wolf suggested he supported hiring a hearing officer to get the report out, adding he hates to have it sitting there.
Following more discussion on the steps, with Ioannides acknowledging he had never done this before, the board went into closed session.
Laske requested the closed session to ask questions to help her understand the process since she would be affected.
Following the closed session, Laske announced she would invoke the rule of necessity and acknowledged a professional relationship with Brown in her role as Alamosa County commissioner, but stated it won’t impact her judgment.
Mercer remained recused.
Wolf then asked IEC Commissioner Cyril Vidergar if he would be willing to serve as a hearing officer.
After he responded he is willing, he was appointed via unanimous consent.
The board then voted 3-0 to delegate the authority to approve the final investigative report.
In an email to The SUN Wednesday, Ioannides notes he expects the report to be approved for issuance to the parties in the coming weeks.
He explains, “After an investigative report is released to the parties, there are a few procedural steps that typically occur,” with those steps including:
• The IEC will issue a notice of issues for hearing “ that sets forth the potential violations that the IEC will consider at hearing.”
• The IEC will set a hearing date and serve a notice of hearing upon the parties.
• Within 30 days after the notice of hearing is served, each party must provide to the IEC and other parties prehearing disclosures of evidence relevant to the alleged violations, including copies of all relevant documents and other exhibits; a list of all persons who may have knowledge regarding the facts of the case, and a short statement regarding the relevant facts or opinions about which the person has knowledge; and a list of which witnesses the disclosing party intends to call to testify at hearing.
• Within 40 days after the IEC serves the notice of hearing, the parties must confer and file a joint list of stipulated facts that will be deemed admitted at the hearing.
• At least seven days before the hearing, the parties may request approval for the issuance of subpoenas.
Ioannides notes the above process “is not set in stone,” adding, “Parties may settle or file motions that will affect the timeline and the hearing.”
Jurisdiction over town
Also on the IEC’s agenda Tuesday was a request for issuance of position statement regarding the IEC’s jurisdiction over the Town of Pagosa Springs.
In explaining the request to the board, Ioannides indicated the requestor, Rosanna Dufour, was present.
He explained the request did not originally come in as a request for a position statement, but came in as a request for jurisdictional ruling, which the IEC does not have a mechanism for.
He informed the commission the town is a home-rule town and acknowledged litigation over similar issues before adding that the IEC’s issuing a statement is discretionary and it is not obliged to do so.
He added there were two questions for the IEC to answer: whether or not it wanted to issue a statement, and, if so, how it would answer the question.
After discussing the matter in closed session, the commission voted unanimously to decline to issue a statement on the matter.
No additional details about the matter were disclosed.
randi@pagosasun.com
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