The Colorado Independent Ethics Commission recently issued a position statement notifying home-rule municipalities of its intent to consider ethics complaints against local officials and employees if their local ethics codes are less restrictive than state law.

Constitutional Amendment 41, passed by voters in 2006, sets a $59 (adjusted for inflation) gift limit for public officers, legislators, local government officials and government employees as well as for their spouses and dependent children. More than 70 municipalities, however, are designated as home-rule and, therefore, can adopt local ethics rules in lieu of state law. In addition to the opt-out provision, there is also a provision allowing other local governments to adopt stricter ethics rules.

According to the commission, the constitutional provision permitting local governments to enact more stringent rules still applies to those home-rule municipalities choosing to opt out of the state law provisions.

Critics of the position statement, including Colorado Ethics Watch and Colorado Common Cause, believe the commission is misinterpreting Amendment 41; local governments with home-rule powers should be permitted to opt out if they adopt local laws covering the same ground. They dispute any interpretation wherein Amendment 41 simultaneously applies to and does not apply to home-rule municipalities with adopted ethics rules.

City attorneys throughout the state are currently taking no action while the Colorado Municipal League looks at potential legal options.

Colorado Common Cause and Colorado Ethics Watch have filed a complaint against Colorado Secretary of State Scott Gessler alleging Gessler illegally “exceeded his authority to administer and enforce campaign finance laws by dramatically increasing the constitutional threshold for regulation of issue committees.”

At issue is Gessler’s recent adoption of Campaign and Political Finance Rule 4.27, which increased from $200 to $5,000 the threshold at which an issue committee must register and report. The $200 threshold, set by the Colorado Constitution, was found to be too burdensome in the recent Colorado case of Sampson v. Buescher. However, the issue of whether the court determined the $200 threshold to be unconstitutional, as Gessler contended to be the case in a statement released concerning the increased threshold, is central to this action.

“The Secretary is under the mistaken impression that he has authority to rewrite campaign finance laws, not merely make rules to enforce those laws,” said Luis Toro, Executive Director of Colorado Ethics Watch. “Disclosure thresholds are clearly not within the authority of the Secretary of State to change.”

The Colorado Supreme Court has agreed to hear a case brought by Colorado Ethics Watch concerning the so-called “magic words” required of political ads. Colorado Ethics Watch filed the complaint against Senate Majority Fund and Colorado Leadership Fund after the two 527 political organizations ran campaign ads supporting state legislative candidates in the 2008 election but did not register as political committees or submit independent expenditure disclosures for the ads.

An Administrative Law Judge determined, and the Colorado Court of Appeals agreed, registration and reporting were not required because the ads did not contain terms such as “vote for” or “defeat.” It is expected the case will be briefed in early 2011, with oral arguments taking place in the spring.

Seal of the State of Colorado by Svgalbertian on Wikipedia.