Secretary of State to intervene in court ruling

Gessler's office to oppose judge's decision to fine commissioner

Posted
Rowland

A spokesperson for Colorado Secretary of State Scott Gessler has confirmed that Gessler's office will attempt to nullify a recent ruling by an administrative judge who fined Board of County Commissioners Chairman Robert Rowland $1,000 for violating Colorado's Fair Campaign Practices Act.

“We are planning to intervene in the case,” Andrew Cole, a spokesperson for the Secretary of State, said on Jan. 24.

“The judge directed the commissioner to personally pay the fine to the county, which is not what the constitution directs,” said Cole. “In addition, we have some broader First Amendment concerns with the ruling and what it could mean for elected officials going about their work.”

Rowland said he was encouraged by the Secretary of State's support, adding, “I am a long way away from writing that check.”

Cole said lawyers in the Colorado Attorney General's office are currently working on Gessler's response to the judge's controversial ruling, which was issued on Dec. 24.

On Jan. 16, the BOCC held a special meeting during which commissioners voted 2-1 to appeal the judge's ruling — with Commissioners Rowland and Kurt Schlegel voting in favor of the appeal and Commissioner Larry Ross casting the dissenting “no” vote, arguing an appeal would be an additional drain on county resources.

“It's kind of a fluid situation right now but my objective is to file the appeal before the end of January,” said County Attorney Alex Beltz, who explained that filing an appeal “effectively stops the clock” on the judge's deadline for Rowland to pay the fine.

Since the ruling was made public Jan. 4, Rowland said that he has also heard from a number of other county commissioners around the state, as well as from the CCI — Colorado Counties Inc., a statewide nonprofit which supports county commissioners, mayors and city and town councilmembers.

“Everybody I've talked to, except Jill Duvall, is very upset by this ruling,” said Rowland.
Duvall, an Elbert County resident who ran against Rowland in the 2012 election and who is chair of the Elbert County Democratic Party, filed the original complaint with the Secretary of State's office in early December and a one-day hearing was held in a courtroom in downtown Denver on Dec. 13.

Because it had to be reviewed, Judge Robert Spencer's subsequent ruling was not made public until early January.

Duvall alleged Rowland violated the Fair Campaign Practices Act by spending county funds to hire consultant Tim Buchanan, who Duvall claimed had urged voters — at four pre-election public meetings sponsored by the county — to support Ballot Issue 1C, which sought to raise property taxes to help offset the county's near-insolvent financial position.

County voters defeated that ballot initiative by an 8-1 margin this past November.

At the Dec. 13 hearing, Duvall was represented by Elizabeth attorney Lark Fogel, who also ran unsuccessfully for county commissioner in 2012.

In his ruling, the judge states: “At no time during the town hall meetings did the consultant or Commissioner Rowland specifically ask voters to vote for Ballot Issue 1C. Nevertheless … because the meetings occurred shortly before the election and the consultant's presentation was obviously designed to underscore the county's need for increased revenue, the meetings could not be reasonably interpreted as anything but a plea for passage of Ballot Issue 1C.”

The judge concluded that Rowland and the BOCC “no doubt intended to comply with the FCPA and to act in the best interests of their county, but they nonetheless violated the FCPA by spending public money to urge voters to support a pending ballot issue.”

Because Duvall had named him personally in her complaint, the judge ordered Rowland “as an individual responsible for the improper expenditure to reimburse the county general fund the amount of $1,000 within 30 days.”

In most cases, the Secretary of State's office is the governmental entity responsible for enforcing and collecting fines issued by administrative judges but with Gessler announcing his intention to oppose the decision to fine Rowland, technically, the power to try to enforce the fine would fall to the complainant in the case, Jill Duvall.

“At two of the public meetings, I personally heard Robert Rowland repeatedly say `mill levy, mill levy,' ” said Duvall. “The county is guilty of using county money to promote a ballot issue. They were wrong and had their hands slapped.”

When informed the Secretary of State's office was planning to get involved, Duvall said, “I hadn't heard anything about that. It sounds very political to me.”