By court order, District Attorney Mitch Morrissey late yesterday filed his response to Ethics Watch's complaint based on the DA's failure to prosecute Senator McElhany for potential crimes in 2007. Colorado Ethics Watch Director Chantell Taylor released the following statement in response:

"Yesterday, District Attorney Morrissey filed a response with the Denver District Court that was full of excuses and distractions. Senator McElhany has now twice admitted using PAC money to pay for the official website of the senate minority office, which is a flagrant violation of state law. The DA makes a tortured argument that communication activities by senate staff – who are paid by the state and use state time and computers to perform these activities – might not qualify as “official” functions and therefore the law wasn’t violated. In that case, the DA is suggesting that taxpayer dollars are funding “unofficial” functions of senate staff, which is also a violation of the law. Clearly the DA’s refusal to investigate has nothing to do with the amount of evidence presented and everything to do with his reticence to prosecute ethics violations by public officials. The evidence could not be clearer, and we hope the judge will agree that District Attorney Morrissey should forthwith initiate prosecution."

The following are specific responses to some of the DA's main arguments:

1) The DA’s response claimed that Ethics Watch did not provide the DA with proof beyond a reasonable doubt that any crimes had occurred.

Proof beyond a reasonable doubt is the standard required in order to convict a person for a crime. The DA need only probable cause to launch a criminal investigation. It is the DA’s role to investigate and gather evidence to prosecute a criminal complaint, not to let a case languish without any action and then cite lack of evidence as an excuse.

2) The DA’s response claimed that Ethics Watch did not provide “real evidence” or “concrete evidence” that Senator McElhany received monies in connection with the development or operation of coloradosenatenews.com.

Senator McElhany was twice quoted in newspapers as saying he took PAC money to pay for the site. If the DA or any of his investigators did even half as much work as the reporters, Senator McElhany would have told him that too, and then maybe he’d consider the evidence “real” or “concrete.” It is a violation of C.R.S. § 24-6-203 to use private funds to defray costs for official functions. Senator McElhany has twice admitted taking private PAC money to pay for coloradosenatenews.com, which he dubbed the “official communications arm” of the Senate Minority Office.

3) The DA’s response claimed that communications is not an “official function” of the Senate Minority Office.

If the activities associated with running coloradosenatenews.com are not official functions, then the Senate Minority Office has committed other violations of law because staff persons performing those activities are paid for with state funds. In other words, taxpayer dollars should not be supporting unofficial functions of a senator.

4) The DA does not explain why it took a law suit for him to respond to Ethics Watch’s complaint.

For more than a year, Deputy DA Dick Reeve continuously evaded inquiries from Ethics Watch and in April informed Ethics Watch that the DA did not find enough evidence to do an investigation. Although he promised he’d be sending Ethics Watch a formal letter in this regard, Ethics Watch received no formal response.

5) Senator McElhany was quoted as saying there was no law against using PAC money to pay for the website.

It is a violation of C.R.S. § 24-6-203(3.5) to use private funds to defray costs for official functions. Senator McElhany voted in favor of the statute in 2006.