May 20, 2008

Yesterday, Attorney General John Suthers made a formal address to the Independent Ethics Commission (IEC), advising the commissioners that they had “no choice” but to be represented by his office. Colorado Ethics Watch released the following statement in response:

When voters approved Amendment 41, they created an ethics commission that is required to be independent from the officials it polices. The Colorado Supreme Court has interpreted this voter mandate to mean that, unlike other state boards and commissions, the Independent Ethics Commission must be “separate and distinct” from both the executive and legislative branches. As a member of the executive branch, the attorney general’s representation of the IEC would nullify that independence.

And yet, Attorney General Suthers advised the commissioners that attorneys in his office must conduct a legal review of all formal opinions issued by the IEC and warned that IEC staff could be engaging in the unauthorized practice of law without such a review. According to Attorney General Suthers, the IEC cannot act independently of the attorney general and his staff. This interpretation flouts both the voter mandate and the Colorado Supreme Court’s recent interpretation of the IEC’s status.

In fact, the attorney general and his staff have an unavoidable conflict of interest with actions of the IEC. Every advisory opinion, policy statement and formal decision issued by the IEC will be precedent-setting for the attorney general and the employees in his office. It would therefore be inappropriate for the attorney general to serve as counsel for the IEC.

Attorney General Suthers acknowledged that he and the attorneys in his office could recuse themselves from IEC matters due to conflicts of interest, in which case the IEC could retain independent counsel. We were disturbed, however, that Attorney General Suthers discounted the inherent conflict in his office giving legal counsel on actions of the IEC while being subject to its jurisdiction. Indeed, to uphold his professional responsibility as an attorney to avoid conflicts of interest, Attorney General Suthers should have advised the IEC that he and his staff cannot ethically represent the IEC in connection with complaints, advisory opinions or requests for letter rulings.

Ethics Watch urges Attorney General Suthers to withdraw as the IEC’s counsel and clear the way for the IEC to hire independent counsel. Only then will the IEC be able to fulfill its mission to independently enforce ethics in our state and local government.