to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Fairfield and Woods, P.C., Craig D.
Joyce, Lee Katherine Goldstein Denver, Colorado
Attorneys for Respondent: Brownstein Hyatt Farber Schreck,
LLP, Jason R. Dunn, Joshua A. Weiss Denver, Colorado
Attorneys for Amicus Curiae Colorado Common
Cause: Ireland Stapleton Pryor & Pascoe, PC, Benjamin J.
Larson Denver, Colorado
Attorney for Amicus Curiae Colorado Ethics
Watch: Luis Toro Denver, Colorado
Attorneys for Amicus Curiae Colorado Secretary of State:
Cynthia H. Coffman, Attorney General, Frederick R. Yarger,
Solicitor General, Matthew D. Grove, Assistant Solicitor
General Denver, Colorado
In 2013, Douglas County School District (the
"District") used public funds to commission a white
paper (the "Hess Report") supportive of the
District's reform agenda. The Hess Report referenced an
upcoming school board election and briefly profiled existing
school board members, all of whom supported the reform
agenda. The District included a link to the Hess Report in an
email distributed to 85, 000 Douglas County residents several
weeks before the November 2013 school board election.
We are asked to decide whether the Hess Report was a
prohibited campaign "contribution" under section
1-45-117(1)(a)(I) of Colorado's Fair Campaign Practices
Act ("FCPA" or the "Act"), sections
1-45-101 to -118, C.R.S. (2016), and article XXVIII, section
2(5)(a)(IV) of the Colorado Constitution. The FCPA prohibits
state government entities and political subdivisions of the
state from making any "contribution" in
"campaigns involving the nomination, retention, or
election of any person to any public office." §
1-45-117(1)(a)(I), C.R.S. (2016). Under the state
constitution, a "contribution" includes, among
other things, "[a]nything of value given, directly or
indirectly, to a candidate for the purpose of promoting the
candidate's nomination, retention, recall, or
election." Colo. Const. art. XXVIII, § 2(5)(a)(IV).
Because the District did not give the Hess Report, directly
or indirectly, to any school board candidate when it
disseminated the email containing a link to the report to
Douglas County residents, we conclude the District did not
make a prohibited "contribution" in a campaign
under these Colorado campaign finance provisions.
Accordingly, we affirm the judgment of the court of appeals.
Facts and Procedural History
Petitioner Julie Keim was a candidate for one of four open
seats in the 2013 Douglas County school board election.
Douglas County School District is a political subdivision of
the State subject to the FCPA. See Bagby v. Sch. Dist.
No. 1, 528 P.2d 1299, 1302 (Colo. 1974). According to
Keim, after the 2009 school board election, the District
began implementing a conservative "reform agenda, "
which she characterized as "[school]
choice-focused" and supportive of charter schools. The
2011 election brought in three additional reform agenda board
members; thereafter, the entire board and the District's
superintendent unanimously supported the reform agenda.
In 2013, four school board seats were up for election. In
February of that year, the District contracted with the
American Enterprise Institute ("AEI") to prepare a
white paper about Douglas County's school system. This
white paper, authored by Dr. Frederick M. Hess and Max Eden
of AEI, ultimately became known as the Hess Report.
The agreement between the District and AEI stated that AEI
would "research, create, publish[, ] and publicize"
a twenty-five- to thirty-page white paper that would:
a. Describe Douglas County, the school system, and [the
superintendent's] background and experience.
b. Describe some of the problems that Douglas County's
efforts are meant to address.
c. Describe what Douglas County is doing in terms of
curriculum, instruction, programs, systems in place, etc.
d. Explain how this is new and different; describe some of
the advantages of the model.
e. Delineate some of the challenges Douglas County faces
based on this model.
f. Explain lessons learned from the model.
District agreed to pay AEI $30, 000 for the report, $15, 000
of which was ultimately paid by the District, and $15, 000 of
which was paid by the Douglas County School District
Foundation, a non-profit organization.
AEI's research assistant wrote to the District's
community relations officer in advance of a research visit to
Colorado, seeking guidance from the District regarding the
focus and direction of the report:
Ideally we would love for you all to help us help you. We can
touch base on this as the date draws closer, but we would
prefer not to go out there with a blank slate. Rather, we
would prefer it if you would tell us what you want us to
focus on, what is most worthy of attention, what you'd
like to see written about and what your general angle on it
(and the paper) is. This is just something to flag to [the
superintendent] so she can mull it over a bit. Perhaps all of
the interviews are already lined up with a certain focus in
mind, but if not we encourage you to tailor our time out
there to directed interviews with folks that you want to make
a particular point of in us meeting and writing about them.
The District thus worked with AEI as it conducted research,
and made changes to the draft report.
AEI finalized and published the twenty-two-page Hess Report
in September 2013. Relevant here, the Report described the
reform agenda as "perhaps the nation's boldest
attempt at suburban school reform"; "unusually
ambitious"; "remarkable in the annals of
contemporary school reform"; and "remarkable and
illuminating." The report contained brief profiles of
each of the existing board members. An approximately
three-page section called "Electing a Reform Board"
described the history of the existing board and noted that
Douglas County provided a "compelling illustration of
how a unified board majority can fuel rapid, ambitious
reform." At the end of that section, the report noted
rumored efforts to defeat the four incumbent board members up
Four board members will stand for reelection in November
2013. As they prepare, there are murmurs that the [American
Federation of Teachers] might spend substantial sums to
defeat them. Several Colorado Democrats have made similar
noises. The November results promise to say a great deal
about where matters stand in [Douglas County], and may shed