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COURT OF APPEALS

STATE OF COLORADO

2 East 14th Avenue
Denver, CO 80203
District Court for Denver County
Honorable Herbert L. Stern, III
Case No. 13cv0030421

Independent Ethics Commission
Case No. 12-07
SCOTT GESSLER, individually and in his official
capacity as Colorado Secretary of State,

Plaintiff-Appellant,

v.

DAN GROSSMAN, SALLY H. HOPPER, BILL
PINKHAM, MATT SMITH, and ROSEMARY
MARSHALL, in their official capacities as
members of the Independent Ethics Commission,
and THE INDEPENDENT ETHICS
COMMISSION,

Defendants-Appellees.
COURT USE ONLY
Case No. 2014CA670
JOHN W. SUTHERS, Attorney General
MICHAEL FRANCISCO, Asst Solicitor General*
KATHRYN A. STARNELLA, Asst Atty General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Telephone: 720-508-6551; 720-508-6176
E-Mail: michael.francisco@state.co.us;
kathryn.starnella@state.co.us
Registration Numbers: 39111, 43619
*Counsel of Record
APPELLANTS OPENING BRIEF

DATE FILED: September 8, 2014 10:52 PM
FILING ID: C1185D62557B1
CASE NUMBER: 2014CA670


TABLE OF CONTENTS
Page
i

ISSUES PRESENTED FOR REVIEW ................................................ 1
STATEMENT OF THE CASE AND FACTS ...................................... 2
SUMMARY OF THE ARGUMENT ..................................................... 8
ARGUMENT ........................................................................................ 10
I. IEC Lacks Jurisdiction Over This Case ....................................... 10
A. IEC jurisdiction beyond the gift ban is extremely
limited........................................................................................ 11
B. The IEC lacks jurisdiction over the discretionary fund
statute C.R.S. 24-9-105. ........................................................ 17
C. The IEC lacks jurisdiction over the public trust statute,
C.R.S. 24-18-103. ................................................................... 19
D. The IEC lacks jurisdiction over the State Fiscal Rules,
1 CCR 101, et seq. ..................................................................... 21
E. IEC jurisdiction must be limited to avoid constitutional
infirmity. ................................................................................... 22
II. The Secretary complied with all legal requirements, even if
the IEC has jurisdiction. ................................................................ 23
A. The Secretarys CLE attendance complied with the
discretionary fund statute. ...................................................... 23
B. The Secretarys mileage reimbursement complied with
the discretionary fund statute. ............................................... 29
C. The Secretarys conduct complied with purposes
statement of C.R.S. 24-18-103(1). ........................................ 31
D. The Secretarys conduct complied with the State Fiscal
Rules, 1 CCR 101, et seq. ......................................................... 33


TABLE OF CONTENTS
Page
ii

III.The IEC Acted Contrary to the Secretarys Constitutional
Right to Due Process by Denying Him Adequate Notice of
the Legal Charges ........................................................................... 33
A. The IEC denied the Secretary adequate notice by
failing to inform him of the legal charges before the
hearing....................................................................................... 34
B. Factual allegations alone do not satisfy due process
requirements. ............................................................................ 39
C. The lack of notice prejudiced Secretary Gessler by
making it impossible for him to craft a defense.................... 41
CONCLUSION ..................................................................................... 46
CERTIFICATE OF COMPLIANCE................................................... 48
CERTIFICATE OF SERVICE ............................................................ 49






TABLE OF AUTHORITIES
Page
iii


Cases
Blake v. Dept of Pers.,
876 P.2d 90 (Colo. App. 1994) ........................................................ 10
City of Aurora v. Acosta,
892 P.2d 264 (Colo. 1995) ............................................................... 11
Cole v. Arkansas,
333 U.S. 196 (1948) ......................................................................... 34
Colo. Ethics Watch v. Senate Majority Fund,
275 P.3d 674 (Colo. App. 2011) ...................................................... 11
Colorado State Bd. of Dental Examiners v. Micheli,
928 P.2d 839 (Colo. App. 1996) ...................................................... 39
DAlemberte v. Anderson,
349 So. 2d 164 (Fla. 1977) .............................................................. 23
Developmental Pathways v. Ritter,
178 P.3d 524 (Colo. 2008) ............................................................... 11
Excel Corp. v. U.S. Dept of Agri.,
397 F.3d 1285 (10th Cir. 2005) ...................................................... 23
Goebel v. Colo. Dept of Institutions,
764 P.2d 785 (Colo. 1988) ............................................................... 20
Goss v. Lopez,
419 U.S. 565 (1975) ......................................................................... 40
Grayned v. City of Rockford,
408 U.S. 104 (1972) ......................................................................... 22
In re 2000-2001 Dist. Grand Jury (city of Blackhawk),
77 P.3d 779 (Colo. App. 2003) ........................................................ 21
In re Gault,
387 U.S. 1 (1967) ............................................................................. 35
In re Quiat,
979 P.2d 1029 (Colo. 1999) ............................................................. 35
In re Ruffalo,
390 U.S. 544 (1968) ................................................................... 35, 36
Independence Inst. v. Coffman,
209 P.3d 1130 (Colo. App. 2008) .................................................... 34
Karlin v. Foust,
188 F.3d 446 (7th Cir. 1999) .......................................................... 23


TABLE OF AUTHORITIES
Page
iv

Mountain States Tel. & Tel. Co. v. Dept of Labor & Empt,
520 P.2d 586 (Colo. 1974) ............................................................... 41
Rael v. Taylor,
876 P.2d 1210 (Colo. 1994) ............................................................. 35
Ramseyer v. Colo. Dept of Soc. Servs.,
895 P.2d 1188 (Colo. App. 1995) ................................................... 10
Ryan v. Charnes,
738 P.2d 1175 (Colo. 1987) ............................................................. 35
Sigma Chi Fraternity v. Regents of Univ. of Colo.,
258 F. Supp. 515 (D. Colo. 1966) ................................................... 40
Snyder v. Colo. Podiatry Bd.,
100 P.3d 496 (Colo. App. 1991) ................................................ 39, 41
Yellow Freight Sys. Inc. v. Martin,
954 F.2d 353 (6th Cir. 1992) .......................................................... 40
Statutes
C.R.S. 1-13-107 .................................................................................. 15
C.R.S. 18-8-104 .................................................................................. 37
C.R.S. 18-8-114 .............................................................................. 3, 37
C.R.S. 18-8-404 ........................................................................ 3, 15, 44
C.R.S. 18-8-405 .................................................................................. 15
C.R.S. 18-8-407 ........................................................................ 3, 37, 44
C.R.S. 24-17-102 (26) .......................................................................... 6
C.R.S. 24-17-102(1) ....................................................................... 5, 38
C.R.S. 24-18.5-101.............................................................3, 11, 13, 22
C.R.S. 24-18-101 ................................................................................ 15
C.R.S. 24-18-103 ........................................................................ passim
C.R.S. 24-18-104 .......................................................................... 13, 15
C.R.S. 24-18-105 ................................................................................ 16
C.R.S. 24-18-105(2) ........................................................................... 16
C.R.S. 24-18-105(3) ........................................................................... 16
C.R.S. 24-18-108(2)(d)....................................................................... 16
C.R.S. 24-18-109 ................................................................................ 16
C.R.S. 24-18-201 ................................................................................ 16
C.R.S. 24-30-202 ................................................................................ 45
C.R.S. 24-30-202(26) ..................................................................... 6, 38
C.R.S. 24-4-105 ...................................................................... 34, 35, 38


TABLE OF AUTHORITIES
Page
v

C.R.S. 24-4-106(7) ............................................................................. 10
C.R.S. 24-50-101(3)(d)....................................................................... 16
C.R.S. 24-6-202 .................................................................................. 15
C.R.S. 24-6-203 ............................................................................ 13, 15
C.R.S. 24-8-101 .................................................................................. 15
C.R.S. 24-9-104 .................................................................................. 31
C.R.S. 24-9-105 .......................................................................... passim
C.R.S. 24-9-105(1) ...............................................................5, 8, 38, 45
C.R.S. 24-9-105(2) .............................................................5, 38, 39, 45
Other Authorities
BLACKS LAW DICTIONARY 277 ............................................................. 18
Regulation 103, Bd. of Continuing Legal and Judicial Educ. ......... 25
RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE, Vol. 2 9.5
(5th ed. 2010) ................................................................................... 35
Rules
1 CCR 101 ..................................................................................... passim
4 CCR 801 ............................................................................................. 15
State Procurement Code ..................................................................... 15
Constitutional Provisions
Colo. Const. art. XXIX ................................................................. passim
Colo. Const. art. XXIX(1)...................................................14, 17, 18, 19
Colo. Const. art. XXIX(3)...................................................11, 13, 20, 22
Colo. Const. art. XXIX(5)..................................................................... 11
Colo. Const. art. XXIX(6)..................................................................... 17
U.S. CONST. amend. XIV, 1 .............................................................. 34

1

The Secretary of State appeals the Independent Ethics
Commissions decision to impose a personal penalty against the
Secretary for using part of his discretionary fund compensation to
attend a national election law conference and to reimburse miles
driven on official state business. Three independent reasons compel
reversal.

Issues Presented for Review

1. Does the IEC have jurisdiction over other standards of
conduct as provided by law for statutes and rules which
lack any specific standards to guide conduct and which are
not expressly delegated to the IEC?

2. Did the IEC err in finding the Secretary, the Chief Election
Officer for Colorado, was not pursuing official business when
he attended and spoke at a national election law conference
and when he claimed reimbursement for miles driven on
official state business?

3. When the IEC refused to provide the Secretary with notice of
the legal charges he faced in advance of an administrative
hearing, instead providing mere notice of the facts, did it
violate the Secretarys procedural due process rights?



2

Statement of the Case and Facts
During August, 2012 Colorado Secretary of State Scott Gessler
attended a continuing legal education (CLE) conference in Florida
on national elections. [AR p.001070]. The Secretary delivered a
speech on election law at the conference, which was hosted by the
Republican National Lawyers Association. Id.
The Secretary paid for his airfare and lodging for the conference
(totaling $1,278.90) from his annual discretionary fund of $5,000,
given by statute to use in pursuit of official business as he sees
fit, C.R.S. 24-9-105; [AR p.001070]. Upon the conferences
completion, he traveled to the Republican National Convention,
also in Florida, paying for his lodging and meals there out of his
campaign funds.
Prior to his trip to Florida, in early July 2012, the Secretary
requested reimbursement of any remaining discretionary funds in
his discretionary account. [AR p.000020]. Before making this
request the Secretary had traveled throughout the state in his
official capacity, and he had not been reimbursed for those miles
driven. [AR p.001070]. The Secretarys use of his discretionary fund
was consistent with the past practice of previous Secretaries of
State.

3

Colorado Ethics Watch filed two complaints with the IEC in
October 2012 questioning whether the Secretary had used his
discretionary fund improperly. [CF p.106-07]. The first complaint
asserted that the Secretarys use of his discretionary fund to attend
the election law conference may [have] implicate[d] three criminal
statutes, including:
First degree official misconduct, C.R.S. 18-8-404;
Embezzlement of public property, C.R.S. 18-8-407;
Abuse of public records, C.R.S. 18-8-114.
[CF p.106-08]. The complaint was also sent to the Denver District
Attorney and the Denver Chief of Police, both of whom declined to
charge the Secretary with any wrongdoing. [CF p.106-08].
Responding to the complaints, the IEC determined that the
allegations were non-frivolous [AR p.000206], meaning the
complaints presumably alleged that a public officer [Secretary
Gessler] ha[d] accepted or received [a] gift or other thing of value
for private gain or personal financial gain. C.R.S. 24-18.5-101.
Once the commission made its non-frivolous determination, a
lengthy investigation ensued. The IECs investigator discovered,
among other things, that
The Secretary was not a member of the RNLA, nor did the
RNLA require party affiliation to attend its conferences;

4

The Secretary received CLE credit, approved by the Colorado
Supreme Court, for his attendance at the election law
conference;
Previous secretaries of state used their discretionary funds for
various purposes, including cocktail receptions for county
clerks, personal clothing, overseas travel, and, allegedly
taking the entire $5,000 as W-2 income;
There appears to have been no real accounting of these
[discretionary] funds and there is not a history of receipts
being submitted for expenses incurred and charged against
the discretionary fund;
And, there appears to be a history of no real control over the
discretionary fund, no procedures for vouchers and/or receipts
and no specific direction as to how the discretionary fund is to
be used.
[AR p.001070]. Despite the IEC investigators apparent findings
that (1) Secretary Gesslers use of his discretionary fund dovetailed
with past practice, and (2) he used the fund to attend an
educational conference, the IEC continued with its investigation.
Throughout the investigation, the IEC gave the Secretary no
clear indication of the legal charges against him stemming from
this alleged conduct. While the initial complaints asserted three
criminal statutes may apply [CF p.106-08], the IEC expressed
ambivalence regarding which legal rules the Secretarys conduct
implicated until less than six weeks before his hearing. In its
January 2013 meeting, for instance, the attorney for the IEC

5

explained, exactly what standards of conduct [the Secretary may
have violated], we [the IEC] are not at that point yet. [CF p.59].
As noted above, the IEC did not assert any legal charges against
the Secretary until less than six weeks before his hearing. [AR
p.000881]. But even then, the IEC gave neither clear nor fixed legal
charges to the Secretary. Id. In its first pre-hearing order, the IEC
listed five statutes and five state fiscal rules that he may have
violated. Id. But, it also
reserve[d] the right to consider additional standards of
conduct and/or reporting requirements, depending on the
evidence presented, and the arguments made, at the hearing
in this matter.
Id. The five statutes listed were:

Public trustbreach of fiduciary duty, C.R.S. 24-18-103;
Elected state officialsdiscretionary funds, C.R.S.
24-9-105(1);
Elected state officialsdiscretionary funds, C.R.S.
24-9-105(2);
Control system to be maintained, C.R.S. 24-17-102(1);
Control system to be maintained, C.R.S. 24-17-102(26).
Id. The notice also listed five State Fiscal Rules. The five rules
encompass more than 200 sub-rules governing everything from the
purpose of the states accounting practices to whether tickets

6

incurred while traveling for official state business will be
reimbursed. See 1 CCR 101, et seq.
The IEC, again, changed the legal charges that may apply to
the case only one month before the Secretarys hearing. [AR
p.000937]. Swapping C.R.S. 24-17-102(26) for C.R.S.
24-30-202(26), the IEC still reserved the right to consider
additional standards of conduct depending upon the evidence
presented at the hearing. Id.
The irresoluteness of the IEC regarding just which legal rules
applied to the case made preparing a defense difficult for the
Secretary. Fearful of being prejudiced by not knowing the legal
grounds on which the IEC was prosecuting him, the Secretary
raised this problem at least five times before the hearing.
1
The

1
See [CF p.100 (noting, [i]ndeed, it is impossible for the Secretary
to defend himself against some other standard[] of conduct when
he does not even know what that means]; [CF p.72 (by
interpreting other standards of conduct to include undefined
allegations, the complaint violates Secretarys right to a fair
hearing. The point is, we dont know what were defending
against]; [CF p. 85 (noting, if you guys cant figure out what
[the IEC is] alleging, put yourself in Mr. Gesslers shoes, where he
is trying to defend himself against a complaint that is completely
vague]; [CF p.129 (noting, it is impossible for the Secretary to
defend himself when he does not even know what these legal
standards mean]; and [CF p.345.].


7

Prior to the hearing the Secretary also repaid the disputed funds
regarding the national election law conference to avoid any
appearance of impropriety. [CF p.880]. Still, the IEC went forward
with its process and held an 11-hour hearing on June 7, 2013. The
hearing itself mirrored the investigation the precise substantive
and procedural grounds on which the IEC acted were never clear.
At the hearing, a detailed memorandum was submitted cataloguing
the miles driven by the Secretary on official business, as the basis
for the $117 reimbursement request. [AR p.001141-44].
Likewise, the Secretary testified extensively about the election
law conference, his presentation, and how the legal issues related
to his duty as the Chief Election Officer for Colorado. [CF p.687-81].
The Secretary explained, from memory, many details of federal
election law that influence Colorado, including the election clause
of the U.S. Constitution (quoted from memory), various federal
election law statutes, UOCAVA (Uniform Overseas Citizens
Absentee Voter Act), HAVA (Help American Vote Act), NVRA
(National Voter Registration Act), as well as voter ID and logistical
issues with election night disputes. Id. One commissioner described
the detailed testimony as very relevant. [CF p.679(329:21)].

8

After the hearing the IEC found that the Secretarys use of his
discretionary fund to attend the national election law conference
and his request for reimbursement of his remaining discretionary
fund for mileage had both violated C.R.S. 24-9-105 and
24-18-103(1).
2
[AR p.001352]. The Commission imposed a personal
penalty of $1,514.88. Id. The Secretary appealed the IECs ruling to
District Court in Denver, which upheld the IECs findings. [CF
p.552]. This appeal follows. [CF p.891].
Summary of the Argument
This case raises important questions of first impression about
the scope of authority given to the IEC as well as the protection of
the foundational due process right whereby the accused must be
given minimally adequate notice of legal charges before being
sanctioned.
When the Colorado voters passed Amendment 41 in 2006,
creating the IEC, the commission was understood to have
jurisdiction over specific gift bans and limitations contained
therein. Since that time, however, the IEC has operated not only to

2
The Commission also found the use of state funds to return early
from the trip in question due to threats to the Secretary and his
family did not violate any ethical standards of conduct provided by
law. [CF p.880].

9

police gifts, it has found a little-noticed phrase in Amendment 41
(other standards of conduct as provided by law) to provide a
toehold for jurisdiction over any statute or administrative rule
brought to its attention. The IEC has, literally, never found a
statute it did not find to be within its purview. This troubling
power grab has never been tested in court until this case.
3

More troubling, the IEC here imposed a personal penalty on the
Secretary of State, Scott Gessler, because he used part of a
discretionary fund, given by law to be used as the Secretary sees
fit, to attend a national election law conference. It is not difficult to
understand how Colorados Chief Election Officer would benefit
from attending an educational conference about elections. Even so,
the IEC deemed this unethical, at least in this case. A year later,
however, the IEC contradicted the core finding against the
Secretary in this case, without explaining the contradiction, and
approved the Secretary attending the same national election law
conference (sponsored by the same organization). It issued an

3
The lack of judicial review likely reflects the IECs failure to
impose a penalty in any contested Complaint on anyone other than
the Secretary in this Case. The lack of penalties explains the
dearth of judicial review.

10

advisory opinion approving the very conduct it deems unethical in
this appeal. This puts IECs arbitrary findings in stark relief.
Compounding these errors, the IEC violated the Secretarys due
process right by failing to provide adequate notice of the legal
charges being faced. The IEC operated on a trial-first, law-later
system. Despite multiple requests from the Secretary, the IEC
simply refused to explain the legal theory or charges being faced
prior to the fateful hearing. This violates historic standards of
procedural due process.
Argument
I. IEC LACKS JURISDICTION OVER THIS CASE
Standard of Review and Preservation: The court must set aside
any agency action that is arbitrary or capricious, denies a
constitutional right, is in excess of statutory jurisdiction, or is
otherwise contrary to law. C.R.S. 24-4-106(7); see also Blake v.
Dept of Pers., 876 P.2d 90, 95 (Colo. App. 1994); Ramseyer v. Colo.
Dept of Soc. Servs., 895 P.2d 1188 (Colo. App. 1995). The claims
were preserved before the district court. [CF p.563-73].

11

A. IEC jurisdiction beyond the gift ban is extremely
limited.
This is not a gift ban case. Article XXIX certainly gives the IEC
jurisdiction over specific standards of conduct with regard to
certain gifts and related forms of influence peddling. See Art.
XXIX(3); C.R.S. 24-18.5-101. Rather, this case is based on the
IECs claim that their jurisdiction over ethics issues arising under
this article [XXIX] and under any other standards of conduct and
reporting requirements as provided by law. Art. XXIX(5)(1). This
phrase represents the keys to the kingdom for the IEC.
4

Contrary to the IECs extremely broad interpretation of this
constitutional language, this court must look to the plain language
of the provision and give effect to every word. See City of Aurora v.
Acosta, 892 P.2d 264, 267 (Colo. 1995). Additionally, one must
consider the object to be accomplished and the mischief to be
prevented. Colo. Ethics Watch v. Senate Majority Fund, 275 P.3d
674, 682 (Colo. App. 2011). With initiatives in particular, courts

4
Of note, concerns over the possibly sweeping powers of the IEC
led to litigation shortly after the Amendment 41 passed, but before
the IEC was operating. Developmental Pathways v. Ritter, 178 P.3d
524 (Colo. 2008). The claims that First Amendment rights were
violated by vague and overbroad provisions were dismissed as not
ripe. Id. at 533. Similar concerns animate this appeal and now
justiciable.

12

look to intent of the voters as reflected in the official Bluebook. Id.
at 1256. The plain language of Article XXIX reflects a desire to
carefully manage gifts given to public officials and other
government employees as they were perceived as tools of influence.
Consistent with this, the five summary bullets in the Bluebook
mention specifics of the gift ban and the creation of the IEC.
5
There
is no indication that voters intended the IEC would claim to have
jurisdiction over laws as far flung as the discretionary fund
compensation statute or details in the State Fiscal Rules. The
Bluebook shows the voters intended to ban gifts only (plus lobbying
after public service).
Specific to this case and the dispute over other standards of
conduct two principles must guide the interpretation of the
wording in Article XXIX: (1) the phrase requires the General
Assembly to expressly delegate a statute to the purview of the IEC
for enforcement; and (2) any potential statutes to be enforced must
include specific standards to guide conduct.
First, the phrase other standards of conduct and reporting
requirements as provided by law should be understood as
providing the General Assembly with the option of creating

5
2006 Bluebook available at Colorado Legislative Council webpage:
http://1.usa.gov/1lRCF1H

13

additional, specific statutory standards that can be enforced by the
IEC. The requirement that a non-gift ban standard be as provided
by law means the General Assembly can intentionally expand the
jurisdiction of the IEC by statute. This is consistent with the plain
language and intent of Article XXIX which was focused on
detailed gift ban rules, not the varied and broad statutes in Title
24, Article 18, or the State Fiscal Rules. The interpretation also
saves the clause from being unconstitutionally vague.
In the six years since Article XXIX was adopted, the General
Assembly has never expanded by law the jurisdiction of the IEC.
Therefore, until a statute is adopted to the contrary, the IEC lacks
jurisdiction beyond the specifics contained within Article XXIX
itself. In fact, when the General Assembly did adopt a statute
regarding IEC jurisdiction it was limiting, not expanding. See
C.R.S. 24-18.5-101(5)(a)(only allowing for IEC to hear complaints
about gift ban issues).
6


6
At most, the other standards of conduct could be limited to
statutes where the General Assembly has referenced or
incorporated parts of Article XXIX, while stopping short of adopting
a jurisdictional grant. E.g. C.R.S. 24-18-104 (seven references to
specific parts of Article XXIX adopted by amendment); see also
C.R.S. 24-6-203. These statutes are better interpreted as
reflecting conforming amendments. See Art. XXIX(3)(5).


14

Second, Article XXIX must be interpreted in a way that reaches
only laws with specific standards that can guide conduct of state
officers and employees. The clear intent of the voters in adopting
Article XXIX include the finding that covered individuals must
have the benefit of specific standards to guide their conduct
XXIX(1)(e). This intent that penalties only be enforced from specific
standards comports with basic due process requirements. See part
E, infra (explaining due process requirements).
Contrary to these clear interpretive guidelines, the IEC and the
district court below embrace a theory of other standards of
conduct that is unlimited in reach and contravenes the cabined
wording and specific intent of Article XXIX. Nothing in this appeal
explains what limit, if any, exists on the other standards of
conduct fount. The district court, for example, admitted the other
standards of conduct wording appears vague, but it went on to
dismiss concerns:
[the phrase others standards of conduct] is limited by
and reporting requirements provided by law. This
limiting phrase means the IEC can only prosecute
public officers who have violated applicable legal
standards. That qualification means that public officers
are, therefore, on notice for any infraction that could
prompt an IEC investigation.

15

[CF p.863]. This only begs the question: which laws in the Colorado
Revised Statutes, and which Rules of the thousands published
yearly, are within the applicable legal standards? The district
court provided no answer. The so-called limiting phrase, provides
no limit any law can easily qualify.
For its part, the IEC has only offered ipse dixit laws
proclaimed by the IEC to be a standard of conduct are within the
IECs jurisdiction. In this litigation, the IEC has proudly
proclaimed a list of actions where it has exercised jurisdiction over
so-called other standards of conduct. The list reflects a startling
swath of laws and rules over which the IEC admits to claiming
jurisdiction:

4 CCR 801, Rule 1-11 (Compl. 08-01);
7

State Procurement Code (Compl. 10-05);
C.R.S. 18-8-404 (Compl. 08-01);
C.R.S. 18-8-405 (Compl. 08-01);
C.R.S. 1-13-107 (Compl. 08-01);
C.R.S. 24-6-202 (AO 09-06);
C.R.S. 24-6-203 (AO 10-18);
C.R.S. 24-8-101 (AO 10-18);
C.R.S. 24-18-101 et seq. (AO 09-06);
C.R.S. 24-18-103 (AO 11-11);
C.R.S. 24-18-104 (AO 09-06);

7
The cited IEC Complaints (Compl.), Advisory Opinions (AO)
and Letter Rulings (LR) are available on the IEC website
https://www.colorado.gov/pacific/iec/

16

C.R.S. 24-18-105(2), (3) (Compl. 10-6);
C.R.S. 24-18-105 (Compl. 11-03), (Compl. 12-06), (AO
11-11);
C.R.S. 24-18-105(2) (AO 09-06);
C.R.S. 24-18-105(3) (LR 10-06);
C.R.S. 24-18-108(2)(d) (AO 11-11);
C.R.S. 24-18-109 (Compl. 11-03), (Compl. 12-06), (AO
12-01);
C.R.S. 24-18-201 (LR 10-06), (AO 11-11), (AO 12-01),
(AO 10-08);
C.R.S. 24-50-101(3)(d) (Compl. 08-01);
See [AR p.000624-25]. It appears the only limit on how broadly
other standards of conduct will reach is the creativity of
adversaries who file complaints, or the creativity of the IEC when it
finds laws and standards beyond those in a formal complaint.
These claims of jurisdiction have been universally untested by
judicial review.
At times the IEC has suggested, in tension with the broad list
above, that other standards of conduct may refer to all of Title 24,
Article 18 (Standards of Conduct). This would not account for the
claim to have jurisdiction over the discretionary fund statute at the
heart of the IECs findings against the Secretary. C.R.S. 24-9-105.
And regardless, the IEC cannot have jurisdiction over all of Article
18. Consider C.R.S. 24-18-105, a part of Article 18 the IEC has
repeatedly claimed authority over, where the statute itself states

17

that the standards are only a guide and cannot constitute
violations as such of the public trust. Cf Art. XXIX(6).
B. The IEC lacks jurisdiction over the discretionary
fund statute C.R.S. 24-9-105.
The IEC has no jurisdiction over the discretionary fund in
particular for three reasons. First, under Article XXIX, the IEC
cannot police the compensation of public officials or any other state
employee. COLO. CONST. art. XXIX(1)(d) (other than
compensation provided by law). For the first time ever, however,
the IEC claimed jurisdiction over a compensation statute, C.R.S.
24-9-105, which delineates a discretionary fund as a component of
the compensation provided by law for Colorados four statewide
elected officials. All of Article 9 in Title 24 concerns compensation.
Because Article XXIX excludes compensation from the IEC, the
entire case against the Secretary based on his use of the
discretionary fund statute was outside the constitutional
jurisdiction of the IEC. It is that simple.
Neither the IECs Findings nor the district court below
addressed the compensation problem. It was raised below. [CF
p.570-71]. In addition to the definitive placement in Article 9
(Compensation of State Officers), the discretionary fund statute
bears all the marks of compensation. It is a benefit given for doing

18

the job of a state official. See BLACKS LAW DICTIONARY 277
(Compensation: Remuneration and other benefits received in
return for services rendered). Legislative history bolsters this
conclusion. Without doubt, C.R.S. 24-9-105 is compensation
provided by law, in the exclusionary words of Article XXIX.
Second, the IEC has no jurisdiction over the discretionary fund
statute because the statute lacks any specific standards to guide
[Public Officials] conduct, as required by Article XXIX(1)(e). The
statute merely states that the four statewide public officials can
use the funds in pursuance of official business as each elected
official sees fit. C.R.S. 24-9-105. As the IEC noted, the statute
does not even include a definition of official business, and it would
be metaphysically impossible to define a specific standard in the
statute for how each elected official sees fit. In other words, the
discretionary fund statute does not contain the required specific
standards to guide conduct that are a prerequisite for IEC
jurisdiction.
Third, the discretionary fund statute has not been amended by
the General Assembly to provide the IEC jurisdiction. Without an
express jurisdictional grant, the law is not as provided by law as
required in Article XXIX.

19

C. The IEC lacks jurisdiction over the public trust
statute, C.R.S. 24-18-103.
The IEC likewise lacks jurisdiction over the generic purpose
statement in C.R.S. 24-18-103 for two reasons. First, there is no
specific standard to guide conduct, as required by Article
XXIX(1)(e). The statute is so broad and undefined (likely
undefinable) that any conduct by any state employee could be
implicated. The hortatory statute states:
A public officer, member of the general assembly, local
government official, or employee shall carry out his
duties for the benefit of the people of the state.
The noble intentions behind such a broad statement are certainly
laudatory. But they do not contain any specific guidance for the
tens of thousands of employees of the State of Colorado who, day-
by-day, carry out duties of the most diverse sort. Consider the sheer
breadth of duties undertaken by employees and officers of the
State of Colorado. For CDOT, duties include everything from
navigating complex financial instruments to holding signs for
temporary construction zones. Even department policies about a
dress code or proper decorum could fall under this statute. Every
aspect of work can be understood as part of a duty.
By way of comparison, the all-encompassing reach of the public
trust statement contrasts with the gift ban standards in Article

20

XXIX, which are correctly within the purview of the IEC. The gift
ban includes numerous specific requirements, with definitions, and
eight detailed exclusions. See Art. XXIX(3)(3)(a)-(h). The gift ban
restrictions encompass 672 words and only govern a very narrow,
predictable swath of conduct: accepting things of value worth more
than $53.00. The relevant portion of the public trust statement is a
mere sentence, pronouncing that people shall carry out his [or her]
duties for the benefit of the people of the state, covering virtually
all conduct by all officers and employees of the state. C.R.S.
24-18-103(1). The generic statute lacks the requisite specific
standards to be enforced by the IEC.
Consistent with this, the Colorado Supreme Court has held that
general statements of legislative intent with set forth policy
aspirations do not create enforceable rights or duties. See, e.g.,
Goebel v. Colo. Dept of Institutions, 764 P.2d 785, 802 (Colo. 1988).
The only enforceable aspect of C.R.S. 24-18-103 is the second
section, given to district attorneys to enforce, and the IEC made no
finding of a fiduciary duty violation under the statute.
Second, the General Assembly has not amended the public trust
statute to provide the IEC jurisdiction. To the contrary, C.R.S.
24-18-103 has been expressly given over to district attorneys for

21

enforcement, not the IEC.
8
Without an express jurisdictional grant,
the law is not as provided by law as required in Article XXIX.
D. The IEC lacks jurisdiction over the State Fiscal
Rules, 1 CCR 101, et seq.
The State Fiscal Rules, 1 CCR 101 et seq., are not an
independent source of authority for the IEC for two reasons. First,
The State Fiscal Rules are not legal prescriptions or ethical codes of
conduct. They are policies for state agencies concerning internal
controls, accounting policies, and financial reporting. Purpose of
State Fiscal Rules, p.1.
Second, consistent with this internal control document, it is
expressly the responsibility of the chief executive officer of each
state agency to ensure compliance with these fiscal rules. Id.
The State Fiscal Rules do not give the IEC any responsibility or
enforcement authority. The Rules are not as provided by law to
the IEC, as required by Article XXIX.

8
There is one case related to the following section in the statute
governing fiduciary duties, C.R.S. 24-18-103(2), a statute not at
issue here. In re 2000-2001 Dist. Grand Jury (city of Blackhawk),
77 P.3d 779, 786 (Colo. App. 2003), affd 97 P.3d 921 (Colo. 2004).

22

E. IEC jurisdiction must be limited to avoid
constitutional infirmity.
If the IEC is permitted to claim jurisdiction over any law and
any rule, then the grant of authority over other standards of
conduct would be constitutionally vague and overbroad. As
confirmed by statute, the IEC may only hear complaints about gifts
that are for private gain or personal financial gain which are in
turn limited to gifts offered by a person seeking to influence an
official act. C.R.S. 24-18.5-101(5)(a), (b)(II). Without this
limitation, there is good reason to believe even the comparatively
specific guides of conduct governing gifts in Article XXIX(3) would
be unconstitutionally overbroad.
For other standards of conduct, the same constitutional
concerns apply in spades. The breadth of conduct that could be
made subject to personal penalty cannot be interpreted as
extending without boundary. The Supreme Court has long warned,
[v]ague laws will trap the innocent by not offering fair warning.
Grayned v. City of Rockford, 408 U.S. 104 (1972). Critically, to
prevent arbitrary and discriminatory enforcement, laws must
provide explicit standards for those who apply them. Id.
When a law includes a penalty, courts are particularly diligent
at enforcing vagueness standards. Karlin v. Foust, 188 F.3d 446,

23

458 (7th Cir. 1999). Under the IECs unbound interpretation of
other standards of conduct, it is impossible for anyone to know
what the standards are that must be hewed at the cost of an
individualized double penalty. See Excel Corp. v. U.S. Dept of Agri.,
397 F.3d 1285, 1297 (10th Cir. 2005); see also DAlemberte v.
Anderson, 349 So. 2d 164 (Fla. 1977).
These serious concerns can easily be avoided by interpreting
Article XXIX, consistent with the language and intent of the voters,
to apply primarily to gift ban issues as well as other specific guides
to conduct that may be delegated by the General Assembly
expressly to the IEC. None of the statutes or rules applied against
the Secretary in this case fall within the IECs jurisdiction.
II.THE SECRETARY COMPLIED WITH ALL LEGAL
REQUIREMENTS, EVEN IF THE IEC HAS JURISDICTION.
Standard of Review and Preservation: See Argument I above.
The issue was preserved. [CF p.574-84].
A. The Secretarys CLE attendance complied with the
discretionary fund statute.
The conduct in this case complied with the discretionary fund
statute as a matter of law. The discretionary fund makes the
propriety expenditures subject to the judgment of each elected
official. The Secretary saw fit to use part of his discretionary fund

24

to travel to a national election law conference. It was pure legal
error for the IEC to find that the conduct violated the statute;
ignoring the Secretarys judgment that the expenditure was proper.
The IEC substituted its own judgment for that of each elected
official in the statute, thereby reading read the key phrase out of
the statute. Only each elected official can judge the appropriateness
of expenditures, and hence compliance, with the discretionary fund
statute. This is consistent with the undisputed past practice of how
other elected officers used the discretionary fund. [CF
p.718(47:2-5); AR p.000283-85].
Even setting this fatal flaw aside, the IECs explanation for how
the Secretary violated the discretionary fund statute is arbitrary
and capricious. The entire explanation:

Secretary Gessler spent $1278.90 of his discretionary
account primarily for partisan purposes, and therefore
personal purposes, to fly to Florida to attend the RNLA
conference and thereafter attend the RNC. As a result,
Secretary Gessler violated the ethical standard of
conduct contained in C.R.S. section 24-9-105, by using
funds from his discretionary account for other than
official business. By so doing, Secretary Gessler
breached the public trust for private gain in violation of
C.R.S. section 24-18-103(1).


25

[CF p.880]. All that can be gleaned from this is that attending the
CLE conference organized by the RNLA was primarily for partisan
purposes, and therefore personal purposes and thus was for other
than official business. Id. The extensive record, however,
contravenes this conclusory finding.
First, the Colorado Supreme Court Board of Continuing Legal
and Judicial Education authorized CLE credit for the RNLA
program the Secretary attended. [AR p.001158]. The Supreme
Court board thus found the RNLA national seminar on election law
was an education activity which has as its primary objective the
increase of professional competence of registered attorneys and
judges. Regulation 103, Bd. of Continuing Legal and Judicial
Educ., http://www.coloradosupremecourt.com/pdfs/CLE/Rules.pdf
(emphasis added). That the conference was organized by a
Republican lawyers group was irrelevant to the educational value
and benefit of the conference, as determined by the Colorado
Supreme Court board.
Second, uncontroverted evidence showed how the Secretary, who
serves as Colorados Chief Election Official, benefited from
attending at a national election-law seminar. The Secretary
participated on a panel entitled The Department of Justice, the

26

Role of the States, and Voter ID, with fellow panelists including
government officials and a former U.S. Department of Justice trial
attorney specializing in voting rights. [AR p.001177]. The value to
Colorado is not hard to ascertain. The U.S. Department of Justice
has the legal authority and practice of investigating State election
law practices and enforcing various federal statutes against States.
The Secretary testified at length about the benefits of the
conference. [CF p.678-81]. Other panels the Secretary attended
included Voting Before Election Day: Military Overseas, Absentee,
and Early Voting; Poll Closing and Opening; Provisional Ballots;
and After Election Day: Recounts and Contests. [AR p.001175-86;
CF 635]. All manifestly related to the work of Colorados Chief
Election Official.
The IEC never explains why it failed to credit the evidence. The
evidence demonstrated how meeting and learning from national
election-law practitioners and experts is relevant and useful to the
official duties of the Secretary of State. In fact, the testimony about
the details of the election law conference and how they related to
Colorado elections was so extensive that members of the IEC
openly joked about having earned CLE credit simply by listening to
the voluminous testimony. [CF p.678(325:11-13), 680(333:15-18)].

27

Even more to the point, the evidence presented in this case
mirrors the material provided to the IEC for Advisory Opinion
14-10 and 14-13, whereby the Secretary and Deputy Secretary of
State were advised by the IEC that attending the 2014 RNLA was
entirely ethical and consistent with law.
9
As the IEC has officially
stated, the value of the RNLA national election conference is
overwhelming:

Among other things, the Secretary of State is charged by
statute with the duty to enforce the provisions of
Colorados elections code, supervise the conduct of
congressional vacancies and state wide ballot issues in
Colorado, to serve as the chief state election official
under the federal law Help America Vote Act of 2002,
to coordinate Colorados responsibilities under the
federal National Voter Registration Act of 2002, to
promulgate rules for the proper administration and
enforcement of Colorados election laws and to review

9
See AO 14-10 (July 23, 2014) (it would not be a violation of
Colorado Constitution Art. XXIX for the Colorado Secretary of
State to accept a registration waiver to the Republican National
Lawyer Associations (RNLA) National Election Law Seminar,
food and beverage at the event, airfare costing approximately and
one night of lodging, based on the facts presented to the
Commission.); and AO 14-13 (July 23, 2014) (It would not violate
the Colorado Constitution Art. XXIX for the Deputy Secretary of
State to accept travel expenses from her office to accompany the
Secretary of State to the Republican National Lawyers
Associations National Election Law Seminar.) available at
https://www.colorado.gov/pacific/iec/opinions-indexed-date-2014


28

practices and procedures of county clerk and recorders
and election officials in the conduct of congressional
vacancies and the registration of electors in Colorado.
1-1-107, C.R.S.
AO 14-13. Just so then and now.
The IECs findings in this case area arbitrary the same
conduct declared partisan and unethical here, was deemed to be
ethical, raising no legal violations a year later. For all the reasons
the 2014 RNLA was deemed to be relevant to the duties of the
Secretary, the 2012 RNLA was likewise relevant to the duties of
the Secretary. The IECs finding to the contrary was arbitrary and
capricious.
Third, numerous officials within state government were aware of
the Secretarys use of the discretionary fund for this purpose and
found no legal or ethical impropriety. Chief of Staff Gary
Zimmerman testified that the expenditures were proper. [CF
p.647(203:18-25); 648(204:1-4)]. Likewise, Colorado State
Controller Robert Jaros, whose job is to enforce the State Fiscal
Rules, found no fault with the expenditures. [CF p.724].
Fourth, undisputed evidence revealed a long-standing
Department of State policy (adopted prior to Secretary Gessler) of
paying for lawyer-employees CLEs. [CF p.660-61]. The existence
and legality of this policy were never questioned in the record. The

29

Secretarys use of discretionary funds to pay for part of national
election law CLE was therefore consistent with a valid state policy
and thus within the scope of official business, not a matter of
personal, private gain.
The finding that the Secretary violated the discretionary fund
statute by attending the national election law conference must be
overturned as legal error and arbitrary and capricious.
B. The Secretarys mileage reimbursement complied
with the discretionary fund statute.
The Secretarys use of discretionary fund dollars to reimburse
the Secretary for official state travel cannot, as a matter of law, be
a violation of the statute. The Secretary saw fit to use $117 of the
$5,000 discretionary fund for this menial purpose. The IEC has no
legal right to substitute its own judgment on a matter given
entirely to the discretion of the Secretary.
Setting aside the IECs lack of legal authority to judge the
reimbursement, the finding that the $117 expenditure was an
ethics issue must be overturned. According to the IEC, the request
was originally made without any documentation or detail of
expenses and was thus not in pursuance of official business but
was personal in nature. [CF p.880]. This conclusion ignored all the
evidence in the record, unrebutted, that the Secretary traveled

30

hundreds of miles on official business and was thus rightly
entitled to reimbursement.
The Secretary subsequently submitted a memorandum
reflecting the miles driven in support of his request for the $117
(the memorandum reflected $616 of unreimbursed miles driven).
[AR p.001141-42]. No record evidence questioned that the Secretary
had driven the claimed miles, that the travel was for official
business, or that the Secretary had not previously claimed the
miles for reimbursement.
The only possible basis of complaint, therefore, was the timing of
when the detailed memorandum was submitted. But even if the
timing may have been less than ideal, there was no evidence, either
factually or legally, that the Secretary was prohibited from turning
in details of the miles after-the-fact. (To the extent IRS regulations
underlie the receipt requirement, there would be no concern with
the timing as taxes were not filed in the interim.) Furthermore, the
Colorado State Controller testified at the hearing that receipts
were not strictly required. [CF p.664(270:12-30)]. The State
Controllers office likewise testified that a memorandum for
expenses was allowable [AR p.001138-39].

31

Finally, elected officials (including the Secretary) have a
statutory right to be reimbursed for miles driven. See C.R.S.
24-9-104 (Mileage allowances). That statute says nothing about
timing of a memorandum documenting miles, or even the need for
any particular documentation.
The IEC had no factual basis to conclude the Secretarys
reimbursement of $117 for miles driven on official business was
somehow a violation of an ethics issue merely because the
detailed breakdown [AR p.001141] came after the initial request.
The finding was arbitrary and capricious.
C. The Secretarys conduct complied with purposes
statement of C.R.S. 24-18-103(1).
While less than clear, the IEC cited the generic public trust
statement in C.R.S. 24-18-103(1) as being violated in conjunction
with the claimed violations of the discretionary fund statute, C.R.S.
24-9-105. [CF p.880]. Given the specifics of the IECs findings,
this statute must be treated as derivative of the discretionary fund
statute. As to both the travel reimbursement and mileage
reimbursement, the IEC found the conduct was not for official
business, as stated in the discretionary fund statute and thus [b]y
so doing, Secretary Gessler breached the public trust for private
gain in violation of C.R.S. section 24-18-103(1). [Id. 2, 3

32

(emphasis added)]. The IEC appears to have not found an
independent violation of the public trust statement, but rather to
have piggybacked on the discretionary fund statute. In the view of
the IEC, because the conduct violated the discretionary fund
statute, then ipso facto the public trust statute was violated.
Overturning IECs conclusions under the discretionary fund statute
should end the analysis: the derivative finding under the public
trust statute likewise falls.
Even if treated as an independent violation, however, the IECs
findings are mistaken. First, as a matter of law, there are no
enforceable specific standards in the purpose statement, and thus
there is no legal standard to have been violated. Second, the
expansive evidence about how the election law conference related to
Colorados Chief Election Officers duties precludes any possible
violation of the public trust statute. Likewise with the evidence
presented of the Secretarys travel for official business that formed
the basis of the request for $117 for mileage traveled. The finding
of any violation of the purpose statement was therefore contrary to
law and arbitrary and capricious.

33

D. The Secretarys conduct complied with the State
Fiscal Rules, 1 CCR 101, et seq.
Despite some confusion, the IEC did not make any finding of the
Secretary violating the State Fiscal Rules. The IEC referenced the
State Fiscal Rules as part of the applicable law, but the Rules
were never referenced in the legal conclusions of the order. [CF
p.879-80]. The IEC did, however, referenced various Fiscal Rules as
part of its interpretation of the discretionary fund statute. Perhaps
mistaken by the IECs repeated threat to find a violation of the
Rules, the district court incorrectly stated, twice, that the IEC
concluded the Secretary violated the State Fiscal Rules, [CF
p.863].
The record does not reflect any violation of the State Fiscal
Rules, and certainly no independent violation, making any funding
that the Secretary violated the State Fiscal Rules invalid.
III. THE IEC ACTED CONTRARY TO THE SECRETARYS
CONSTITUTIONAL RIGHT TO DUE PROCESS BY DENYING
HIM ADEQUATE NOTICE OF THE LEGAL CHARGES
Standard of Review and Preservation: See Argument I above.
The issue was preserved. [CF p.584-93; AR p.000226-28].
Serious procedural due process violations require the IECs
findings to be thrown out. This Court, however, can and should
avoid such a constitutional finding by applying the rules of

34

statutory construction and administrative review above, leading to
the IECs findings being overturned even before weighty
constitutional deficiencies are adjudicated. See Independence Inst.
v. Coffman, 209 P.3d 1130, 1136 (Colo. App. 2008).
The IEC failed to provide the Secretary with adequate notice of
the legal charges against him, thus violating his constitutional
right to due process. No principle of procedural due process is more
clearly established than that notice of the specific charge [is
amongst] the constitutional rights of every accused. Cole v.
Arkansas, 333 U.S. 196, 201 (1948); see also U.S. CONST. amend.
XIV, 1.; COLO. CONST. art. II, 25; U.S. CONST. amend. XIV, 1;
and C.R.S. 24-4-105 (Any person entitled to notice of a hearing
shall be given timely notice of the time, place, and nature thereof,
the legal authority and jurisdiction under which it is to be held, and
the matters of fact and law asserted.) (emphasis added).
A. The IEC denied the Secretary adequate notice by
failing to inform him of the legal charges before the
hearing.
The IEC failed to notify the Secretary of the legal charges
against him before the June 7, 2013 hearing, thus violating his
constitutional and statutory right to adequate notice. An
administrative agency must give adequate notice of the legal

35

charges to an accused individual before a binding hearing
commences. See C.R.S. 24-4-105(2)(a). In contexts ranging from
administrative hearings, where due process requirements are
relaxed, to criminal proceedings, where due process requirements
are most rigorous, an adjudicatory body may not change legal
charges during or after a hearing commences or reserve the right to
do so.
10

In Ruffalo, for example, the Ohio Supreme Court violated an
attorneys right to adequate notice where, in the context of his
disciplinary hearing, the Ohio Court gave him notice of some of the

10
See e.g., In re Ruffalo, 390 U.S. 544, 551 (1968) (emphasis added)
(noting, in the context of a lawyers disbarment proceedings, [t]he
charge must be known before the proceedings commence); In re
Gault, 387 U.S. 1, 33-34 (1967) (emphasis added) (explaining that
[n]otice, to comply with due process requirements, must be given
sufficiently in advance of scheduled court proceedings so that
reasonable opportunity to prepare will be afforded, and it must set
forth the alleged misconduct with particularity ); In re Quiat, 979
P.2d 1029, 1038 (Colo. 1999) (legal charges must be given with
particularity before hearing); Rael v. Taylor, 876 P.2d 1210 (Colo.
1994); Ryan v. Charnes, 738 P.2d 1175, 1177 (Colo. 1987); see also
RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE, Vol. 2 9.5
(5th ed. 2010) (describing due process in administrative
proceedings).


36

legal charges against him before the hearing only to modify them
after listening to testimony:
[P]etitioner had no notice that [a particular issue]
would be considered a disbarment offense until after
[he testified] at length on all the material facts
pertaining to this phase of the case.
The charge must be known before the proceedings
commence. [Hearings] become a trap when, after they
are underway, the charges are amended on the basis of
testimony of the accused. He can then be given no
opportunity to expunge the earlier statements and
start afresh.
How the charge would have been met had it been
originally included in those leveled against petitioner
no one knows.
This absence of fair notice as to the reach of the
grievance procedure and the precise nature of the
charges deprived petitioner of procedural due process.
390 U.S. at 550-52 (citations omitted) (emphasis in original).
Here, like the offending court in Ruffalo, the IEC failed to give
the Secretary notice of the legal charges against him before his
hearing. Rather, the best the Secretary received was notice of his
alleged factual wrongdoing and an ever-changing list of statutes
that may apply to [the] case. [AR. p.00081]. The IEC did exactly
what Ruffalo warned against when, in the Pre-Hearing and

37

Amended Pre-Hearing Orders, it reserve[d] the right to consider
additional standards of conduct and/or reporting requirements,
depending upon the evidence presented, and the arguments made, at
the hearing in this matter. [AR p.000081, 000937 (emphasis
added)]. Ostensibly, the IEC reserved the right to make up new
charges, prejudicing the Secretary in his ability to craft a defense.
Even worse, the Secretary requested that the IEC clarify the
legal charges against him on at least five separate occasions.
11
The
IEC was well aware of the procedural deficiency in its process; it
simply chose to do nothing about it. The IEC presented the
Secretary with a changing array of potential statutes that possibly
applied to his case. First, the original complaint stated that the
Secretarys conduct may implicate several laws against public
corruption, including three criminal statutes. [CF p.106-07].
12

Second, the allegations against the Secretary were completely
changed in the IECs Pre-Hearing Order which guessed that six
separate standards may apply to the Secretarys case, including

11
See n.1 supra (detailing objections).
12
C.R.S. 18-8-104 (First degree official misconduct), C.R.S.
18-8-407 (Embezzlement of public property), and C.R.S.
18-8-114 (Abuse of public records).

38

five different statutes. [AR p.000881].
13
Third, the IEC modified the
statutes that may apply to the Secretarys case removing one
statute and adding another. [AR p.000937].
14
Finally, the Findings
issued after the Hearing relied on two statutes and cited several
Fiscal Rules. [CF p.880].
Such vacillations alone contravene the law that an individual
subject to an administrative hearing in Colorado receive timely
notice of the matters of fact and law asserted. C.R.S. 24-4-105.
The IEC never definitively notified the Secretary of the legal
charges against him. Rather, it informed him that the statutes and
regulations he potentially violated were subject to change during or
after the hearing. [AR p.000081; 000937]. Because the Secretary
could not know on what legal ground to craft his defense, the IEC
denied him his constitutional and statutory right to adequate
notice of charges.

13
Citing C.R.S 24-18-103(1) (Public trust breach of fiduciary
duty), 24-9-105(1) (Elected state officials discretionary finds),
24-9-105(2) (same), 24-17-102(1) (Control system to be maintained),
and 24-17-102(26) (provision governing the state controller), and
the State Fiscal Rules.
14
Dropping C.R.S 24-17-102(26) for C.R.S. 24-30-202(26)
(Procedures vouchers and warrants rules penalties).

39

B. Factual allegations alone do not satisfy due process
requirements.
Factual allegations by themselves, as the IEC and the court
below erroneously found, do not satisfy the requirement that an
accused individual receive adequate notice. According to the district
court,
[E]ven though Gessler began the hearing unaware of the
specific rules and statutes that the IEC ultimately found he
violated, because he was aware of the facts and the conduct
the IEC found suspect, the Court finds that the IEC provided
Gessler sufficient notice to satisfy the due process
requirements under the APA.
[CF p.866]. On its face, C.R.S. 24-4-105(2)(a) repudiates the
district courts holding, requiring that notice include both the
matters of fact and law asserted. Id. (emphasis added); see also,
Colorado State Bd. of Dental Examiners v. Micheli, 928 P.2d 839,
840 (Colo. App. 1996) (citations omitted) (explaining, [l]egislative
words and phrases should be given effect according to their plain
and ordinary meaning). Overwhelming precedent hold that due
process requires notice to include both factual and legal allegations,
unlike the mere factual notice given to the Secretary.
15


15
See e.g., Micheli, 928 P.2d 839, 842 (Colo. App. 1996) (internal
quotation marks and citations omitted)(explaining, notice must
include the matters of fact and law asserted); Snyder v. Colo.
Podiatry Bd., 100 P.3d 496, 501 (Colo. App. 1991) (due process
requires adequate notice of opposing claims); Sigma Chi

40

In Goss v. Lopez, 419 U.S. 565, 579 (1975), for instance, a high
school suspended nine students but violated their constitutional
rights by denying them adequate notice of the legal charges against
them. The students understood the factual circumstances
underlying their suspensions, but never knew on what legal
grounds the school suspended them. Id., at 570-71. The Court
explained that due process required only minimal protection in
school suspension cases but that low bar included notice of the
charges because [t]he risk of error is not at all trivial, and it
should be guarded against if that may be done without prohibitive
cost or interference with the educational process. Id., at 579-81.
Here, like the high school in Goss, the IEC notified the Secretary
of the factual allegations underlying the charges against him, but
not the legal charges or theory. The IEC and district court acted
contrary to law by finding that factual allegations alone satisfied
the due process requirement of adequate notice. [CF p.866 (the
factual allegations contained in the Complaint are sufficiently

Fraternity v. Regents of Univ. of Colo., 258 F. Supp. 515, 528 (D.
Colo. 1966) (same); Yellow Freight Sys. Inc. v. Martin, 954 F.2d
353, 357 (6th Cir. 1992) (citation omitted) (noting, [t]o satisfy the
requirements of due process, an administrative agency must give
the party charged a clear statement of the [legal] theory on which
the agency will proceed with the case).

41

specific to provide notice to the [Secretary] of the case against
him.)]. To be sure, the IEC could have cured this legal defect by
providing the Secretary with timely notice of the legal charges
against him before the hearing. This it refused to do.
C. The lack of notice prejudiced Secretary Gessler by
making it impossible for him to craft a defense.
The Secretary suffered prejudice when the IEC did not notify
him of the legal charges against him, limiting his ability to defend
himself. As courts have frequently opined, the purpose of providing
adequate notice to an accused individual is to make proceedings
fundamentally fair, i.e. allowing him to craft his defense. See
Mountain States Tel. & Tel. Co. v. Dept of Labor & Empt, 520 P.2d
586, 588-89 (Colo. 1974) (noting, [t]he essence of procedural due
process is fundamental fairness. This embodies adequate advance
notice and an opportunity to be heard prior to state action resulting
in deprivation of a significant property interest.); Snyder, 100 P.3d
at 501-02. Here, the IEC prejudiced the Secretary in two ways.
First, the Secretary was unable to prepare a defense to ambiguous
rules he only may have violated. Second, Secretary Gessler did
not know all the additional standards of conduct and/or reporting
requirements the IEC could have chosen to entertain. [AR
p.000081, 000937].

42

First, the IEC statement that the State Fiscal Rules may apply
to the Secretarys case failed to protect his constitutional right to
prepare a defense. Along this line, the IEC listed five separate
provisions of Colorados Fiscal Rules in its Pre-Hearing Orders. [AR
p.00081]. Given that none of the rules actually applied to the
Secretarys alleged factual misconduct, it was unclear how he might
have to defend himself against the five listed rules. For example, it
is anybodys guess how the third noticed rule, Rule 2-7, OFFICIAL
FUNCTIONS AND TRAINING FUNCTIONS, would apply to the
Secretarys case. This rule defines Official Function as any
meeting conference, meal, or other function that is hosted by a
[Colorado] state agency or institution of higher education, attended
by guest and/or state employees, and held for official state
business. Id. (emphasis added). It defines Training Function as,
A meeting, conference, or other function which is hosted by a state
agency or institution of higher education, attended by customers of
the state and/or state employees, . Id. (emphasis added). How
could this have applied to an expenditure of discretionary funds for
travel? The IEC never explained how this Rule even could have
applied.
16
The IECs notice thus prejudiced the Secretary by making

16
Rule 2-8, the fourth rule listed by the IEC, fares no better as it
governs miscellaneous compensation and other benefits,

43

him unsure how to defend himself against charges that were
unexplained and not apparently applicable to his conduct.
Worse, the fifth fiscal rule listed by the IEC was Rule 5-1,
governing travel. Id. at 5-1. Presumably, Rule 5-1 should have been
the most relevant to the Secretarys case, but it contains more than
150 separate rules, ranging from travel authorizations to travel
advances. Here are just a few of Rule 5-1s sub-rules:
3.3 deals with an employee travelers responsibilities while
away;
5.3 explains the dollar amount an employee may obtain in
advance of his travel;
6.6 governs miscellaneous expenses that may be reimbursed
by the state;
7.5 notes reimbursement cannot be sought for traffic fines or
parking tickets;
10.2 governs the use of state credit cards for travel expenses

Id. The IEC did not cite to any specific rule or rules in 5-1, leaving
the Secretary to guess how he might have violated any of the 150+
rules therein or what evidence to put on regarding rule 5-1. [AR.
p.000081, 00937]. Moreover, next to its citation to Rule 5-1, the IEC
indicated Rule 5-1 encompassed all other guidance listed on the
State comptrollers website, everything from information on

governing such items clean air transit benefit, and state owned
housing, and bookstore discounts, again all things that have no
apparent connection to the facts of this case. Id.

44

employee benefits to state services for employees. Id. Notifying the
Secretary of such expansive potential charges underscores the
reality that he did not know the legal basis for his hearing. Notice
of everything amounted to notice of nothing.
The IECs obfuscation of the real legal charge against him made
any defense of that charge far more difficult. At a minimum, the
Secretary and his attorneys had to wade through and be prepared
for the details and specifics of numerous State Fiscal Rules, when
ultimately; this diversion was never pursued by the IEC.
Second, like the vague citation to various fiscal rules, the IECs
changes to the statutes and regulations that potentially applied to
the Secretarys case similarly prejudiced his ability to craft an
adequate defense. Apart from the nebulous additional standards of
conduct and/or reporting requirements that the IEC reserved the
right to entertain during the hearing, the IEC proceeded for the
first seven months after October, 2012 under three different legal
theories that may have applied to his case. [CF 106-07.] The list
included: (1) First degree official misconduct, C.R.S. 18-8-404;
(2) Embezzlement of public property, C.R.S. 18-8-407; and
(3) Abuse of public records, C.R.S. 18-8-114 [CF p.107-08]. The
Secretary was only left to guess at how, in the eyes of the IEC, his

45

travel to an election conference and mileage reimbursement could
have violated these statutes.
Next, about a month before the hearing, the IEC began anew
under five new legal theories, including the State Fiscal Rules and
other non-specified standards that might apply. [AR. p.00081,
00937]. That list included:
Public trust--breach of fiduciary duty, C.R.S. 24-18-103;
Elected state officials--discretionary funds, C.R.S.
24-9-105(1);
Elected state officials--discretionary funds, C.R.S.
24-9-105(2);
Control system to be maintained, C.R.S. 24-17-102;
Procedures--vouchers, warrants, and checks--rules
penalties, C.R.S. 24-30-202.
Id. At such a late date, the Secretary then rushed to prepare his
defense.
It is hard to imagine that the Secretary could defend himself
against such nebulous legal charges like all other guidance listed
on the State Comptrollers website or additional standards of
conduct and/or reporting requirements the IEC chose to entertain,
depending upon the evidence presented, and the arguments made,
at the hearing in this matter. Likewise, preparing a defense
would be hampered in the face of five different statutes and scores
of pages of unenforceable, non-applicable State Fiscal Rules. Such a

46

parade of legal theories is akin to a criminal defendant being
charged under ten different criminal theories, all the while the
court reserving the right to entertain any other theory under the
common law or the criminal code. Could a criminal defendant craft
an adequate defense without being prejudiced in such
circumstances? No, and neither could the Secretary defend himself
when the IEC listed laws or regulations that did not apply to his
case and reserved the right to consider any other laws or
regulations after his hearing, depending upon his or any other
testimony or evidence presented at the hearing. This prejudice
resulted from the denial of the Secretarys right to due process.
The district courts conclusion that mere factual notice (bereft of
legal notice) was sufficient does not comport with well-established
legal requirements. By depriving the Secretary of notice regarding
the legal charges against him, the IEC violated basic procedural
due process rights.
Concl usion
For the foregoing reasons, the IECs findings must be
overturned.



47

Respectfully submitted this 8th day of September 2014.


JOHN W. SUTHERS
Attorney General


s/ Michael Francisco
MICHAEL FRANCISCO*
Assistant Solicitor General


48

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of
C.A.R. 28 and C.A.R. 32, including all formatting requirements set
forth in these rules. Specifically, the undersigned certifies that:

The brief complies with C.A.R. 28(g).

Choose one:
x It contains 9,411 words.
It does not exceed 30 pages.

The brief complies with C.A.R. 28(k).

X For the party raising the issue:
It contains under a separate heading (1) a concise statement
of the applicable standard of review with citation to
authority; and (2) a precise location in the record (R.__,
p.___), not to an entire document, where the issue was raised
and ruled on.

For the party responding to the issue:
It contains, under a separate heading, a statement of
whether such party agrees with the opponents statements
concerning the standard of review and preservation for
appeal, and if not, why not.

X I acknowledge that my brief may be stricken if it fails to
comply with any of the requirements of C.A.R. 28 and C.A.R.
32.

_/s/ Michael Francisco_____


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CERTIFICATE OF SERVICE
This is to certify that I have duly served the within APPELLANTS
OPENING BRIEF upon all parties herein via ICCES and by email
this 8th day of September, 2014 addressed as follows:
Colorado Court of Appeals
2 East 14th Avenue
Denver, Colorado 80203

Denver County District Court
1437 Bannock Street
Division 376
Denver, Colorado 80202

Counsel for Defendants-Appellees:
Lisa Brenner Freimann, First Assistant Attorney General
Russell B. Klein, First Assistant Attorney General
Joel W. Kiesey, Assistant Attorney General

Counsel for Amicus Curiae Colorado Ethics Watch:
Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, Colorado 80202

Counsel for Amicus Curiae Colorado Common Cause:
Martha M. Tierney
Heizer Paul LLP
2401 15th Street, Suite 300
Denver, Colorado 80202


/s/ Michael Francisco