Month: March 2017

  • New Standard for Education Services under IDEA Still Open to Interpretation

    by Julie Pelegrin

    Since 1975, the federal “Individuals with Disabilities Education Act” (IDEA) has required states to provide a “free appropriate public education,” or FAPE, to each child with a disability. People are reasonably clear—though not completely—on what “free,” “public,” and “education” mean. But the courts have struggled with what “appropriate” means. Last week, the U.S. Supreme Court, in deciding the case of Endrew F. v. Douglas Cty. School Dist. RE-1, handed down the latest interpretation: The educational services and supports a child receives must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

    So, how did the Court arrive at this particular standard? And what difference is it likely to make for public schools and children with disabilities going forward?

    The last time the U.S. Supreme Court considered what Congress meant when it required a FAPE for each child with a disability was in 1982. The case of Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley centered on first grader Amy Rowley, who had a hearing impairment. Her individualized education plan (IEP) called for her to be fully integrated into the regular classroom and to spend time with a special tutor and a speech therapist. Amy’s teacher used a wireless device that transmitted to an FM hearing aid that Amy wore. Amy made excellent academic progress under these arrangements, better than many of the children who were not hearing impaired, but she didn’t fully understand everything going on in the classroom. Her parents sued the state claiming that her IEP should require the school to provide a sign language interpreter, giving Amy educational opportunities that were equal to those enjoyed by her non-hearing-impaired peers.

    That was the first case in which the Court had to interpret the level of education that children with disabilities are entitled to under IDEA. The Court rejected Amy’s parents’ argument that she was entitled to services that would give her opportunities equal to those of children who did not have a disability. But it also rejected the state’s argument that a FAPE was merely aspirational and that IDEA did not create any substantive right to an education.

    Instead, the Court held that IDEA guarantees a substantively adequate program of education to all children with disabilities. This guarantee is satisfied if a student’s IEP requires educational services and supports that “are reasonably calculated to enable the child to receive educational benefits.” In the case of a child who is fully integrated into a regular classroom, like Amy, “educational benefits” means the child receives passing grades and is advancing from grade level to grade level. Since Amy was earning good grades and moving from grade to grade, the Court found that she was receiving a FAPE and her IEP was sufficient; she was not entitled to a sign language interpreter.

    However, the Court refused to establish a single test for determining the adequacy of education benefits for all children with disabilities. The severity and types of disabilities cover such a broad spectrum that adequacy could vary widely from child to child. In applying the Rowley standard over the last 35 years, the courts have generally said that an educational benefit is adequate if it confers “some educational benefit” on the child.

    This standard led Endrew F. and his parents to the U.S. Supreme Court. Endrew—referred to as Drew in the case—was diagnosed with autism when he was two years old. His parents enrolled him in Douglas County Schools (DCS), where he received an IEP. The educational services and supports that he received under the IEP enabled him to make some progress. He progressed from kindergarten to fourth grade but was still exhibiting disruptive behaviors that inhibited his ability to access learning in the classroom. Drew’s IEP had not changed significantly over the years, and in April 2010 when his parents received his proposed IEP for fifth grade, they decided to pull him out of DCS and enroll him in a private school for children with autism—Firefly Autism House.

    At Firefly, Drew received a new behavioral intervention plan and higher academic goals, and Drew made good progress for six months. When DCS suggested a new IEP to Drew’s parents in November 2010, they decided it looked too much like the old IEP and sued the school district. They claimed DCS was not providing a FAPE for Drew and therefore, under IDEA, they were entitled to reimbursement for the cost of tuition at Firefly.

    The administrative law judge, the federal district court judge, and the Tenth Circuit Court of Appeals judges all applied the Rowley standard and sided with DCS. While Drew may not have made a lot of progress academically or behaviorally at DCS, he had made some progress. The Tenth Circuit specifically found that the law required only that he make “merely more than de minimis” progress— which means more than a negligible amount of progress. Under this standard, DCS was meeting the requirements of IDEA with Drew’s IEP, and Drew and his parents were not entitled to more services.

    The U.S. Supreme Court disagreed—unanimously. Specifically, they disagreed with the Tenth Circuit’s interpretation of the Rowley case. The Court reminded the Tenth Circuit that in Rowley they refused to set a standard for what constitutes educational benefits. A child’s IEP must focus on the individual child and his or her unique needs and be designed to enable the child to make educational progress. A child with disabilities is still not entitled to services that will guarantee to the child educational opportunities that are equal to those of his or her peers without disabilities. But the child’s educational program must be “appropriately ambitious in light of his circumstances” and afford “every child…the chance to meet challenging objectives.”

    So that’s the new standard: A child’s IEP must be reasonably designed to enable the child to make progress “appropriate in light of the child’s circumstances.” The Court recognized that this is a standard, not a formula, but it is “markedly more demanding” than the “merely more than de minimis” progress standard that the Tenth Circuit applied. As a standard it is still open to interpretation, and the courts are supposed to give deference to school district experts in deciding what level of progress is appropriate for a child.

    It remains to be seen whether Drew’s parents will be reimbursed for the tuition they paid to Firefly for their son’s education. The Tenth Circuit will have to determine whether the services in the IEP provided by DCS would have enabled Drew to make progress that was appropriate to his circumstances. While Drew made significant progress with certain services at Firefly, the court could conclude that the services offered by DCS would have been sufficient for “appropriate” progress.

    And it remains to be seen whether the new standard will result in real changes in the services that schools provide to children with disabilities. The Court’s decision does not answer the question of whether a school must provide the highest, most expensive services to enable a student to make the most progress or whether less expensive services that result in good progress are sufficient. There is a great deal of room to debate how much progress is appropriate in light of a child’s circumstances— almost as much room as existed when deciding whether a child received an educational benefit.

  • An Overview of the Colorado Attorney General’s Office and Its Relationship to the General Assembly

    by Abby Chestnut

    “If I am going to pick and choose the laws I defend, I wouldn’t be doing my duty as attorney general.” – Kelly Ayotte, Former Attorney General for New Hampshire

    The “duty to defend” is commonly understood to be central to the role of the state attorney general, but this duty is also one that serves the General Assembly. Without an institution that is charged with enforcing and defending the state’s laws, the work of the state legislature could be ignored and thereby rendered ineffectual. The Attorney General (AG) ensures that the laws that the General Assembly labors to produce each session have an effect on the lives of Coloradans.

    Created by the Colorado Constitution, the office of Attorney General, housed in the Department of Law, is technically an executive branch agency. However, the AG’s Office in Colorado is headed by an independently elected attorney general who can serve a maximum of two four-year terms. The Colorado AG is charged with serving as the legal counsel for every department or division of the state and representing the state in any action in which the state is a party or is interested, with few exceptions. The Attorney General does not represent the legislative branch, though the General Assembly may request a formal attorney general opinion from the AG on questions of law. In terms of specific powers, the Colorado Supreme Court has held that the Attorney General gets his or her authority from two places: the common law—unless the General Assembly specifically repeals these powers—and statute.

    It is also worth noting that as an independently elected official, the AG does not report to the Governor. The AG represents the state, a position that was reinforced by the Colorado Supreme Court recently when Governor Hickenlooper tried to block Attorney General Cynthia Coffman from suing the federal government over the Clean Power Plan. The court declined to issue an opinion on the matter, stating that there were alternative remedies available. Although the AG’s office may represent the Governor in some capacities and may issue legal opinions to the Governor, litigation control rests with the AG, and the Governor may not direct the AG to cease litigation. In certain circumstances, the Governor or other state agencies can employ outside legal counsel should the AG be unable to provide the legal services needed. In practice, the two offices may confer on major issues, but there is no obligation to cooperate.

    The Department of Law, in which the AG’s office is housed, is organized into eight main sections:

    1. Business and Licensing: This section represents the Department of Regulatory Agencies and many of its divisions, the Department of Agriculture, the State Personnel Board, the Independent Ethics Commission, the Mined Land Reclamation Board, the State Claims Board, and the Office of the Child Protection Ombudsman.
    2. Revenue and Utilities: This section represents the Department of Revenue, the Trial Staff of the Public Utilities Commission, the Property Tax Administrator and Property Tax Division, and statewide clients regarding bankruptcy matters.
    3. State Services: This section represents half of the executive branch state agencies in Colorado (including the Department of Labor, Department of Education, Department of Higher Education, and the Colorado Department of Health Care Policy and Financing), as well as Colorado’s five elected public officials: the Governor, Lt. Governor, Attorney General, Secretary of State, and Treasurer.
    4. Consumer Protection: This section represents Colorado consumers by prosecuting fraud; enforcing consumer protection and antitrust laws; implementing the Tobacco Master Settlement Agreement; enforcing state laws on consumer lending, predatory lending, debt collection, rent-to-own, debt management, and credit repair; and advocating for residential, small business, and agricultural public utility ratepayers through the Office of Consumer Counsel.
    5. Criminal Justice: This section provides assistance to district attorneys in certain types of cases and prosecutes multi-jurisdictional cases involving human trafficking, major drug trafficking organizations, and white-collar and environmental crimes. This section also prosecutes crimes in which the AG has original jurisdiction: securities, insurance, and election fraud.
    6. Criminal Appeals: This section is responsible for all Colorado criminal prosecutions at the appellate level.
    7. Natural Resources and Environment: This section represents the Colorado Department of Natural Resources and the Colorado Department of Public Health and Environment and advocates on behalf of the Colorado Resources Trustees and the Colorado Energy Office.
    8. Civil Litigation and Employment: This section defends all state agencies and employees that are sued in state or federal court for personal injuries, property damage, employment discrimination, or constitutional violations. This section also serves as general counsel to a host of agencies, including the Colorado Department of Transportation, Department of Corrections, State Board of Parole, POST Board, and Civil Rights Division.

    The AG’s Office also houses the Office of Community Engagement, an office dedicated to informing the public about the work of the AG’s Office and engaging citizens in dialogue about solutions to social issues within the purview of the office. This office also houses the Safe2Tell program, which provides an avenue for a student, parent, school staff, or concerned community member to anonymously make a report if he or she believes there may be a safety threat.

    The Department of Law, which employs about 270 attorneys, is the largest law firm in the state of Colorado, but its size matches its charge. It is responsible for representing almost every arm of state government and defending all of the state’s laws. This massive task is led by an independently elected attorney general whose duty is to the state, its laws, and its citizens. Though the AG’s office does not legally represent the General Assembly, the AG’s responsibility as the state’s chief law enforcement officer establishes an important relationship between the two government entities.

  • Tips for an Effective Legislator

    by Gwynne Middleton

    By the time legislators reach the hallowed halls of the State Capitol, they have mastered many important leadership skills that will serve them well in working with constituents, staff, and other elected officials to improve the lives of Coloradans through their policy decisions. Still, in the midst of a fast-paced legislative session, it’s easier than you’d think for what seems like a minor misstep to undermine a legislator’s ability to achieve his or her legislative goals. Below are 15 important tips shared from the National Conference of State Legislatures to help our senators and representatives legislate like champs.

    1. Honor the Institution

    To succeed in its goal to serve its citizens, government requires trust between citizens and their representatives. Appeal to the best interests of the electorate, represent your constituents’ needs, focus on your values and what you want to do while in office, and direct your energy toward fulfilling those promises. You ran for office to make a positive difference in Colorado. Don’t lose sight of the vision you have for making that difference.

    2. Take the High Road

    In matters of public trust, appearances matter. Government thrives on ethical transparency. Perfectly legal actions can still look fishy to the public. Since public officials are held to higher standards than average citizens, avoiding situations that carry the appearance of impropriety will encourage public confidence in your legislative work. For the sake of the General Assembly and your career in public service, understand Colorado’s ethics codes and adhere to them.

    3. Master the Rules

    It’s no easy feat to become an expert on intricate legislative process rules, but the more adept you are at knowing the rules, the better you’ll be able to participate in the process, helping yourself and your constituents be heard. The most effective way to learn your legislative chamber’s rules is through application. Don’t be afraid to keep your rules book nearby so that you can call upon them when you’re unclear about a particular legislative process.

    4. Know Where to Find Help

    From fellow legislators and legislative staff to the folks in the governor’s office and the executive branch agencies, your political community is your best resource for gathering nuanced information about an issue. Setting aside just 20 to 30 minutes before a committee meeting to review bills on the agenda with legislative staff will help you bring your A-game to committee discussions.

    5. Manage Your Time

    Stay organized, prioritize what’s most important to accomplish, meet deadlines, and only commit to what you consider important. It’s easy to overcommit in an environment where numerous stakeholders are jockeying for your attention. If you tend to be a “yes” person, be careful and protective of your time. It’s limited, and if you’re overcommitted, you won’t be able to do your best work as you juggle the overwhelming schedule. Instead of giving attention to that which you care most deeply about, you’ll spread yourself thin and wind up disappointed.

    Managing your time is also about punctuality. If you’re flying by the seat of your pants because of multiple commitments, your punctuality may suffer, creating an unprofessional appearance. People won’t take you seriously if they feel that you aren’t on top of your game, and in some cases, being late to meetings will cause your colleagues and constituents to believe you don’t respect their time.

    6. Develop a Specialty

    Your time as a legislator is limited. Develop a legislative agenda that’s not only rooted in your personal background, previous experiences, and policy expertise but tightly focused on your district’s needs. By cultivating a policy focus during your tenure, you can become the member others seek out for expertise. The kicker? You’ll practice valuable negotiation skills and gain the reputation of being a serious, committed lawmaker whom people will clamor to support.

    7. Vote your Conscience

    It’s not always an easy choice to vote your conscience, especially on controversial issues when your belief conflicts with constituents who voted for you to represent them or if a campaign contributor tries to sway your vote. After gathering information from all sides, vote as you see fit, but be prepared to explain your votes to constituents. By communicating with your constituents about the reason behind your position, you create an environment of transparency, and transparency has been proven to increase trust. Even if they don’t agree with your decision, they’ll be in a better position to respect you for the decision you made.

    8. Don’t Burn Bridges

    Be open to compromise, even with those who may not be natural allies. Create a broad set of associates, even beyond your chamber. Maintain a professional demeanor and keep emotions in check. Even if a colleague doesn’t like you, you’ll earn respect for being level-headed.

    9. Keep Your Word

    You’re only as effective as your reputation. Your colleagues rely on your credibility. Make only promises you can keep. While the best way to keep your word is to not commit until you have all the facts, if you learn information that would change your vote, be transparent about why you need to change your vote to prevent hard feelings.

    10. Be Careful What You Agree to

    To keep your word, it’s important to avoid casually agreeing to cosponsor bills that you aren’t invested in. Sometimes you may have to vote against a bill that you’ve agreed to sign on to sponsor. Before agreeing to be sponsor, give yourself 24 hours to make sure you understand the bill. Just because you like a person and usually trust that person’s views doesn’t mean you’ll always agree. If the sponsor of the bill cares deeply about your support of their bill, they will wait a day for your decision.

    11. Don’t Hog the Mike

    Even if you’re an expert on every bill that’s up for debate, be selective about which bills you discuss before the chamber. If you’re always in the well speaking on every bill, you risk diminishing your power as a speaker. Quality should always win out over quantity in public speaking. By being judicious about your mic time, when you do speak, your colleagues will be more likely to listen when you step into the limelight.

    12. Stay in Touch with Your Constituents

    Always remember the people who elected you. Hire the aides who are best able to help you maintain strong contact with your constituents.

    13. Be a Problem Solver

    Rather than getting caught up in the drama that often accompanies controversial issues, use your skills and your office to help your community focus on solutions. Work with state agencies and local governments to find a solution that will benefit the most people in your community.

    14. Work with the Media

    Reporters care deeply about their responsibility to keep their viewers informed with factually accurate news. Reach out regularly to reporters to share your position on issues, but be sure to focus on the policy process and the issues rather than only on partisan differences and conflict. Make your information easy to understand and use, and, when the media does a good job of reporting fairly, remember to acknowledge that good work.

    15. Self-care and Presence

    The weighty responsibilities and accolades that accompany holding public office can be unhealthy substitutes for intimacy, fellowship, and taking care of yourself and the people you care about. The attention of others is no substitute for an interior life. Maintaining an interior life will help you feel more at ease during the times in life when professional commitments can pull you in many directions.

  • Missouri Tires – Colorado Schools

    by Brita Darling

    Will the decision in a dispute concerning rubber playground surfaces in Missouri affect where students go to school in Douglas County, Colorado?

    The United States Supreme Court will hear oral arguments in Trinity Lutheran Church of Columbia Inc., v. Pauley, No. 15-577, on April 19, 2017. While the Supreme Court has declined to hear many religion cases in the recent past, it agreed to hear this case before Justice Scalia’s death.

    Like many churches, Trinity Lutheran runs a preschool on church grounds and, like any good preschool, it has a playground. After school hours and on weekends, children from the surrounding community use the playground. In 2012, Trinity Lutheran learned about the State of Missouri Playground Scrap Tire Surface Material Grant Program—we’ll just call it the grant program—which provides grants to certain nonprofit organizations to purchase rubber pour-in-place playground surfaces made from recycled tires. The purpose of the grant program is to make playgrounds safer, while at the same time reducing the amount of used tires in landfills and illegal dump sites in Missouri. A fee on new tires funds the program.

    Hoping to replace its playground’s pea gravel surface, Trinity Lutheran submitted a grant application to the Missouri Department of Natural Resources (DNR) and was identified as a strong candidate for a grant based upon neutral grant program criteria. However, instead of receiving a grant, Trinity Lutheran received a letter from the DNR informing it that the department was unable to provide direct financial assistance to churches pursuant to Article I, Section 7 of the Missouri Constitution. Missouri’s Constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion… .” If this language prohibiting direct or indirect aid to churches sounds familiar, it should. Colorado’s Constitution includes nearly identical language.[1]  Both Missouri’s and Colorado’s constitutional provisions are referred to as “Blaine Amendments,” after U.S. Representative James Blaine, who proposed a failed amendment to the U.S. Constitution in 1875 that included similar language. Most states that entered the Union after 1850 have Blaine Amendment provisions in their state constitutions. Many historians believe that the purpose of the Blaine Amendments was to prohibit funding to sectarian schools, reflecting the anti-Catholic sentiment of the times. These provisions are also referred to as “super-Establishment Clause” provisions because courts have interpreted them to permit stronger prohibitions on government aid to churches than are required by the federal Establishment Clause in the First Amendment to the U.S. Constitution, which prohibits Congress from making a law concerning the establishment of a religion.

    Some people argue, however, that application of the Blaine Amendments in some cases actually violates another clause of the First Amendment of the U.S. Constitution—the Free Exercise clause—which prohibits any laws prohibiting the free exercise of religion.

    Trinity Lutheran sued in the U.S. District Court in Missouri, claiming that the DNR’s decision to deny a program grant to the church preschool violated the Free Exercise, Free Speech, Equal Protection, and Establishment Clauses of the First and Fourteenth Amendments to the U. S. Constitution, as well as violating Article I, Section 7 of the Missouri Constitution.  Trinity Lutheran’s lawsuit does not seek a ruling that Missouri’s Blaine Amendment is unconstitutional on its face, but only as applied to the church to prohibit its participation in the grant program.

    The district court dismissed Trinity Lutheran’s complaint in its entirety, reasoning that the grant program involved a direct payment to a sectarian institution that raised “antiestablishment” concerns. The Eighth Circuit Court of Appeals agreed with the district court, furthering a split among the federal and state courts that have dealt with similar cases, with the First and Fifth Circuits and the Colorado Supreme Court on one side and the Seventh and Tenth Circuits on the other. The split involves whether state establishment clause provisions, like Blaine Amendments, can justify the exclusion of religious groups from generally available government programs.

    The resolution of the split among the courts seems to hinge upon the correct interpretation of the United States Supreme Court’s decision in Locke v. Davey, 540 U.S. 712 (2004). In Locke, the Supreme Court held that the State of Washington could deny an otherwise neutral scholarship to a student who was pursuing a devotional theology degree. Critical to the Supreme Court’s holding was that the scholarship would be used to fund the devotional training of clergy, an area where the state’s antiestablishment concerns are historically high. The Supreme Court held that denying funding for theology degrees fell within the “play in the joints” between what the Establishment Clause allows and what the Free Exercise Clause requires.

    So, how much “play in the joints” is there?  The question the Supreme Court has agreed to resolve in Trinity Lutheran is “whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.” Unlike the facts in Locke, where the state refused to pay to train clergy, in this case, no one can argue that providing safe playground surfaces promotes any religious purpose whatsoever. Further, Missouri’s intention to improve child safety and reduce waste tires in landfills is fully realized by awarding a grant to Trinity Lutheran in addition to nonreligious preschools. Trinity Lutheran argues that while Locke involved the historical establishment clause concern of the state funding the training of clergy, Locke does not permit the categorical exclusion of religious groups from generally available secular benefits, like the safer playground surfaces at issue here, or other secular services, such as fire or police protection.

    So what does this Missouri playground case have to do with where children attend school in Douglas County, Colorado? We’ll see. In 2015, the Colorado Supreme Court decided Taxpayers for Public Education v. Douglas County School District, 2015 CO 50. As explained in a previous LegiSource article, the court held that the Douglas County School District’s Choice Scholarship Program could not award scholarships directly to students who then enroll in private religious schools. The Douglas County School District has filed for writ of certiorari to the United States Supreme Court[2] and, although briefing on the writ concluded at the beginning of this year, the Supreme Court has not yet decided whether to hear the case. Colorado’s Blaine Amendment and the correct interpretation of Locke are pivotal issues in the Colorado case, however, and commentators believe that the Supreme Court could use Trinity Lutheran as its vehicle to announce a decision that will have a conclusive effect on the Colorado case, as well. To that end, Douglas County, the State of Colorado, and many others interested in the Douglas County decision, have filed amicus briefs to ensure that its arguments are before the Supreme Court during its deliberations in Trinity Lutheran.

    The Trinity Lutheran case is scheduled for oral argument before the Supreme Court on April 19. Court watchers are waiting to see if Supreme Court nominee, Neil Gorsuch, is confirmed in time for the April sitting. If not, this case could end on a 4-4 tie vote, which would leave standing the decision of the Eighth Circuit Court of Appeals.


    [1] Article IX, Section 7. Aid to private schools, churches, sectarian purpose, forbidden.  Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose. [Emphases added]

    [2] Douglas Cnty. School Dist. v. Taxpayers for Public Education, No. 15-777 (Cert. filed Oct. 28, 2015).

  • Happy Birthday, Colorado Independent Ethics Commission!

    by Jennifer Gilroy

    Ten years ago voters in Colorado approved a citizen-initiated measure—Ethics in Government—aimed at enhancing the public’s confidence and preserving the public’s trust in government officials and employees by imposing gift bans on state and local government officials and employees, limiting gift-giving by professional lobbyists, and restricting certain public officials’ post-public-service employment.  Effective December 31, 2006, the measure became Article XXIX of the Colorado Constitution, but among those folks who are subject to its ambitious restrictions, it is simply referred to as “Amendment 41,” the number it bore on the 2006 ballot. We hear and read a lot about Amendment 41’s gift bans, but far less about another essential component of Amendment 41: the “independent ethics commission,” also established by the measure and now celebrating its 10th birthday.

    Intended to be completely independent of all three branches of government, the independent ethics commission, or IEC, is composed of 5 volunteer members, one each appointed by the Colorado Senate, the Colorado House of Representatives, the Colorado Governor, and the Chief Justice of the Colorado Supreme Court.  These 4 commissioners appoint the final member of the commission, who must be a local government official or employee. The constitution contemplates that the commissioners serve staggered 4-year terms. But over the IEC’s short history, at least one commissioner served a shorter duration—departing after just 6 months of service—and another served more than 4 years until her successor was selected and appointed.  Not surprisingly, finding a qualified individual willing to serve for free on a commission that meets at least monthly and that undertakes the thankless work of investigating complaints against public officials and government employees can be challenging for the appointing authorities.  To further complicate matters, but more importantly to preserve bipartisanship, Amendment 41 directs that not more than two commissioners may be affiliated with the same political party.  This June the terms of both the state Senate’s appointee and the Governor’s appointee will expire, and the composition of the commission will change once again.

    The IEC is charged with hearing complaints against public officers and other state and local government officials and employees who are alleged to have violated the terms of Amendment 41 or some other standard of conduct or reporting requirement established in law.  Discerning which of those standards and reporting requirements the commission has jurisdiction to enforce, however, is not a simple task, as the commission has already learned.  The Colorado Supreme Court has agreed to hear the case of Gessler vs. Grossman, et al, 15SC462, (see p. 8) to address this very issue.

    As part of the complaint process, the IEC must issue findings and assess penalties (Amendment 41 authorizes fines that are double the amount of any benefits realized as a result of wrongdoing) if the commission determines that the public official or employee has breached the public trust for private gain.  However, individuals whose conduct is under the IEC’s scrutiny may find that the public nature of the process is more punitive than the threat of any penalty.  The IEC’s proceedings are subject to the Colorado Sunshine (open meetings) Law and the Colorado Open Records Act.  Also, public interest groups typically attend the IEC’s meetings and tweet highlights of the commission’s discussions.  And the IEC is currently working to begin live audio broadcasting of its proceedings in real time.

    But the IEC has an equally, if not more, important role as an advisor, consultant, and instructor on ethics-related matters.  The constitutional amendment directs the IEC to provide advice to individuals who are subject to Amendment 41 and are facing ethics dilemmas arising under the amendment or another standard of conduct or reporting requirement.  Over the years, the IEC has issued dozens (approximately 124 to date) of topic-specific opinions to help guide the behavior and conduct of public officials and employees.  Included in these opinions are many position statements that the IEC has periodically issued in an effort to alleviate uncertainty and provide its interpretation of the sometimes confusing and often ambiguous language of Amendment 41.

    Anyone who is interested in requesting an advisory opinion from the IEC must realize that timing is critical.  Submissions must comply with the IEC’s internal procedural rules, which require that requests be in writing and delivered to the IEC at least 10 days before its next meeting.  In most circumstances, the IEC will issue its opinion within 30 to 60 days after receiving the request.

    The IEC also conducts helpful public outreach.  It has published an Ethics Handbook and the executive director of the IEC—the commission’s only paid staff—has historically conducted training for government agencies and offices.

    Happy Birthday, IEC!