Rowland loses appeal over reimbursement

Leadup to 2013 tax vote gave rise to complaint

Posted 4/5/15

An appellate judge has affirmed an order compelling Elbert County Commissioner Robert Rowland to reimburse $1,000 to the county's general fund due to a violation of campaign law.

The ruling by Judge Gale T. Miller of the Colorado Court of Appeals …

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Rowland loses appeal over reimbursement

Leadup to 2013 tax vote gave rise to complaint

Rowland
Rowland
Posted

An appellate judge has affirmed an order compelling Elbert County Commissioner Robert Rowland to reimburse $1,000 to the county's general fund due to a violation of campaign law.

The ruling by Judge Gale T. Miller of the Colorado Court of Appeals upheld an order by Administrative Law Judge Robert Spencer, who found that Rowland, a Republican, "was an individual responsible for a violation of the Colorado Fair Campaign Practices Act."

Jill Duvall, chairwoman of the Elbert County Democratic Party and Rowland's opponent for the District I commissioner's seat in 2012, petitioned the suit. In her original complaint filed with the Colorado Secretary of State's Office, Duvall alleged that the Board of County Commissioners and Rowland violated the campaign-practices law when the three-member BOCC unanimously authorized $15,000 of county funds to hire a consulting firm ahead of the November 2013 elections, to do what some residents saw as promoting ballot issue 1C, a property tax mill levy increase.

Consultant Timothy Buchanan, president of Timotheos Inc., spoke at four town-hall meetings in October 2013, addressing Elbert County's financial situation at the time and talking of the need to either massively decrease service or raise revenue.

Neither Buchanan nor Rowland, who attended the four meetings, spoke directly to ballot issue 1C, other than a disclaimer read at the beginning of the meeting stating that the proposed mill levy was "not a topic for discussion." However, according to the original complaint, some in attendance raised the issue.

In December 2013, Spencer ruled against the BOCC, noting, "It would be inappropriate to impose a civil penalty against the BOCC itself, as any penalty would likely be satisfied with county funds and ultimately burden the Elbert County taxpayers." Spencer instead held Rowland, who was the only commissioner named in the suit individually, liable for a $1,000 reimbursement to the county.

"I am convinced, as are most others, that this is and has been a personal, politically motivated action by the person I soundly defeated in the election for county commissioner," Rowland said. "To name, individually, a single commissioner, without explanation, for an action admittedly taken while acting as a member of a three-person board is without precedence and does not make any sense unless the motivation is personal and political, which this clearly is."

Duvall said that she specifically named Rowland in her complaint because he was the only commissioner who verbalized the term "mill levy" during the town-hall meetings.

During Rowland's appeal, County Attorney Wade Gateley argued that Rowland's role as a public official protected him from personal liability, and that the administrative law judge "erred" in making Rowland solely responsible for the reimbursement.

Judge affirms ruling

Miller affirmed Spencer's original finding, writing in his opinion, "The appellants have not demonstrated that either issue argued on appeal was raised before the ALJ, and we must assume the transcript supports the administrative judgment."

In addition to her complaint, Duvall also petitioned for an award of her attorney fees on the basis that Rowland's appeal was frivolous, but in his opinion, Miller wrote that he did not consider Rowland's appeal to be "futile, irrational, or unjustified" and denied the award.

With his appeal lost, Rowland has two options. He may appeal Miller's order to the Colorado Supreme Court or he may simply pay the $1,000 reimbursement.

Duvall, who is funding her own legal fees, said, "If Rowland appeals, we will follow whatever procedures are appropriate within the justice system."

Rowland said, "I will not discuss the legal options as they are strategic and need not be discussed outside of counsel or the legal system."

Regardless of the choice Rowland makes, the issue will not likely end there. Last May, Colorado Ethics Watch filed a complaint against Rowland with the Colorado Independent Ethics Commission, asking the IEC to "determine if Commissioner Rowland's official actions constitute a breach of fiduciary duty and public trust according to applicable law."

The basis for the complaint stems from a meeting of the BOCC on Jan. 16, 2014, where Rowland seconded and later voted in favor of a motion made by then-Commissioner Kurt Schlegel authorizing the Elbert County attorney to represent Rowland's appeal of the fine. Commissioner Larry Ross voted against the motion.

According to Luis Toro, Ethics Watch director, the organization became aware of Rowland's vote from a group of concerned Elbert County residents who wished to remain anonymous for fear of retaliation.

The IEC stayed the complaint pending the outcome of Rowland's appeal, but on Feb. 24, Ethics Watch made a request to the IEC to act on the complaint.

There is some speculation that Rowland and Duvall might face each other in the 2016 election for the District I commissioner's seat, but both are not ready to make their intentions public.

"I am keeping my options open," Duvall said.

"The election is two years away," Rowland said, "plenty of time to answer that question."

The Independent Ethics Commission has jurisdiction over all state executive and legislative branch elected officials and employees, and local officials and employees not having home-rule. It is charged with the implementation of Article XXIX of the Colorado Constitution, which addresses the conduct of public officials.

Colorado Ethics watch is a nonprofit 501(c)(3) founded in 2006 by the Citizens for Responsibility and Ethics in Washington (CREW). According to its website, "Ethics Watch executes a comprehensive communications strategy to bring attention to misconduct in public life while also educating the public about ethics, transparency, nonpartisan election administration, and the importance of a strong, independent state and federal judiciary."

The 2013 ballot issue was swamped at the polls, with nearly 86 percent of voters opposing the proposed tax increase.

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