Judge Robert L. McGahey, Jr. of the Denver District Court today dismissed a portion of Ethics Watch’s complaint against the Colorado Independent Ethics Commission (“IEC”), challenging the IEC’s advisory opinion that a legislator’s acceptance of a gift of a trip to Turkey would not violate Amendment 41’s gift ban. Judge McGahey accepted the IEC’s position that advisory opinions are not subject to judicial review because they are “neither the issuance of a general regulation nor the determination of particular rights in adjudication.” The ruling means any legislator or other public officer covered by Amendment 41 who seeks an advisory opinion cannot actually rely on the IEC’s opinion and could still be subject to a complaint.

The ruling does not affect Ethics Watch’s claim that the IEC violated the Open Meetings Act by debating the advisory opinion in secret. Today’s ruling permits the open meetings claim to proceed.

“We thought it bizarre that the IEC would argue that its advisory opinions have no legal effect, but the court bought that argument essentially gutting any value in receiving an advisory opinion in the first place,” said Ethics Watch Director Chantell Taylor. “The silver lining in this ruling is that the Turkey opinion, which effectively allowed a legislator to circumvent the gift ban by making the dubious argument that the junket at issue was actually a gift to the state, has no precedential value. Effectively, the IEC is back at square one; three years after Amendment 41 was passed the IEC has yet to enter a legally binding decision interpreting any of its provisions.

Ethics Watch calls on the IEC to immediately amend its rules to clarify that advisory opinions are, in fact, final and binding decisions about the application of ethics laws to the requesting party, and if the IEC will not act, the legislature should explicitly provide by statute that IEC advisory opinions are subject to judicial review. Until then, public officials are on notice that they cannot rely on any opinion they’ve received or intend to seek from the IEC.”