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Gessler v. Grossman

Court of Appeals of Colorado, First Division

May 7, 2015

Scott Gessler, individually and in his official capacity as Colorado Secretary of State, Plaintiff-Appellant,
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.

City and County of Denver District Court No. 13CV30421 Honorable Herbert L. Stern, III, Judge

Cynthia H. Coffman, Attorney General, Michael Francisco, Assistant Solicitor General, Kathryn A. Starnella, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant

Cynthia H. Coffman, Attorney General, Lisa Brenner Freimann, First Assistant Attorney General, Russell B. Klein, First Assistant Attorney General, Joel W. Kiesey, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees

Luis Toro, Margaret Perl, Denver, Colorado, for Amicus Curiae Colorado Ethics Watch.



¶ 1 Plaintiff, former Colorado Secretary of State Scott Gessler, appeals the district court's judgment affirming the Colorado Independent Ethics Commission's (IEC's) determination that he breached the public trust by using public funds for personal and political purposes. We conclude that the IEC (1) had jurisdiction over this matter; (2) did not make an arbitrary or capricious decision; and (3) did not violate Gessler's due process rights with respect to the notice of the charges against him. Accordingly, we affirm.

I. Background

¶ 2 At all times pertinent here, Gessler was Colorado's Secretary of State. In August 2012, he traveled to Florida to attend and present at the "National Election Law Seminar, " a two-day program sponsored by the Republican National Lawyers Association (RNLA), and then to attend the Republican National Convention (RNC), which was being held in a different Florida city. The RNLA seminar ended during the day on August 25, 2012, and Gessler stayed an additional night at an increased hotel rate and at the state of Colorado's expense. The next day, he traveled to the RNC.

¶ 3 As pertinent here, Gessler used his statutorily provided discretionary fund, see § 24-9-105, C.R.S. 2014 (the discretionary fund statute), to pay the $1278.90 in documented travel and meal expenses that he incurred to attend the RNLA seminar. In addition, he requested the reimbursement of "any remaining discretionary funds" in his discretionary account. He did not, however, initially provide any documentation supporting this request. Notwithstanding the absence of documentation, he ultimately received $117.99 as a result of his request.

¶ 4 Amicus curiae, Colorado Ethics Watch, subsequently filed a complaint against Gessler with the IEC. In this complaint, Colorado Ethics Watch alleged that Gessler had made false statements on travel expense reimbursement requests submitted to the state and had misappropriated state funds for personal or political uses. The IEC determined that the complaint was not frivolous and, after investigation, conducted an evidentiary hearing at which Gessler appeared through counsel and testified.

¶ 5 The IEC ultimately found, among other things, that (1) Gessler spent $1278.90 of his discretionary account primarily for partisan, and therefore personal, purposes, in violation of the discretionary fund statute's requirement that the fund be used in pursuance of official business; (2) Gessler's acceptance of reimbursement of the balance of his discretionary account without any documentation or detail of expenses incurred violated the discretionary fund statute because the payment was personal in nature and not in pursuance of official business; and (3) by committing each of the foregoing violations, Gessler had also breached the public trust for private gain, in violation of the public trust statute, § 24-18-103, C.R.S. 2014.

¶ 6 Gessler sought judicial review of the IEC's findings, asserting that (1) the IEC's enabling provision was unconstitutionally vague and overbroad; (2) the IEC's jurisdiction is limited to investigating improper gifts to public officers and, thus, the IEC exceeded its jurisdiction here; (3) the IEC's findings of fact were arbitrary or capricious; and (4) the IEC violated Gessler's due process rights by, among other things, providing insufficient notice of the charges against him. The district court ultimately rejected these contentions, either expressly or implicitly, in a detailed and thorough written opinion.

¶ 7 Gessler now appeals.

II. Jurisdiction

¶ 8 Gessler first contends that the district court erred in concluding that the IEC had jurisdiction over this case because (1) article XXIX, section 5 of the Colorado Constitution (section 5) applies only to gifts, influence peddling, and standards of conduct and reporting requirements that expressly delegate enforcement to the IEC; (2) neither the discretionary fund statute nor the public trust statute falls within the ambit of section 5; and (3) the IEC has construed its jurisdiction so broadly as to render section 5 vague and overbroad. We are not persuaded by these arguments.

A. Standard of Review and Rules of Construction

¶ 9 On appeal from a district court's review of a final agency action, we apply the same standard of review as the district court, namely, the standard set forth in section 24-4-106(7), C.R.S. 2014. See Idowu v. Nesbitt, 2014 COA 97, ¶ 21, 338 P.3d 1078, 1082.

¶ 10 Section 24-4-106(7) provides, in pertinent part:

If the court finds no error, it shall affirm the agency action. If it finds that the agency action is arbitrary or capricious, a denial of statutory right, contrary to constitutional right, power, privilege, or immunity, in excess of statutory jurisdiction, authority, purposes, or limitations, not in accord with the procedures or procedural limitations of this article or as otherwise required by law, an abuse or clearly unwarranted exercise of discretion, based upon findings of fact that are clearly erroneous on the whole record, unsupported by substantial evidence when the record is considered as a whole, or otherwise contrary to law, then the court shall hold unlawful and set aside the agency action and . . . afford such other relief as may be appropriate. In making the foregoing determinations, the court shall review the whole record or such portions thereof as may be cited by any party.

¶ 11 In applying this standard, we presume the validity and regularity of administrative proceedings and resolve all reasonable doubts as to the correctness of administrative rulings in favor of the agency. Idowu, ¶ 21, 338 P.3d at 1082.

¶ 12 In addition, a reviewing court must give deference to the reasonable interpretations of the administrative agency that is authorized to administer and enforce the statute at issue. See Coffman v. Colo. Common Cause, 102 P.3d 999, 1005 (Colo. 2004). However,

Constitutional interpretation and statutory interpretation present questions of law that we review de novo. As part of our de novo review, "we may consider and defer to an agency's interpretation of its own enabling statute and [of] regulations the agency has promulgated." Such deference, however, is not warranted where . . . the agency's interpretation is contrary to constitutional and statutory law.

Gessler v. Colo. Common Cause, 2014 CO 44, ¶ 7, 327 P.3d 232, 235 (quoting Bd. of Cnty. Comm'rs v. Colo. Pub. Utils. Comm'n, 157 P.3d 1083, 1088 (Colo. 2007); other citations omitted); see also City of Arlington v. FCC, 133 S.Ct. 1863, 1871 (2013) (noting that the deferential standard of review normally afforded agency determinations applies equally to an agency's construction of a jurisdictional provision of a statute that the agency administers).

¶ 13 With respect to constitutional construction,

our obligation is to give effect to the intent of the electorate that adopted it. In giving effect to that intent, we look to the words used, reading them in context and according them their plain and ordinary meaning. Where ambiguities exist, we interpret the ...

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