First Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 15-0080.01 Bob Lackner x4350 SENATE BILL 15-088 SENATE SPONSORSHIP Steadman, HOUSE SPONSORSHIP (None), Senate Committees House Committees State, Veterans, & Military Affairs A BILL FOR AN ACT Concerning the independent ethics commission. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) Sections 1 and 3 of the bill permit the independent ethics commission (commission) created in article XXIX of the state constitution to employ or retain independent legal counsel for the purpose of providing the commission representation on legal matters. Section 3 of the bill also provides procedures for the promulgation of administrative rules by the commission. Section 4 of the bill adds definitions to the statutory code of ethics pertaining to article XXIX in connection with the changes made to the succeeding sections of the bill. Section 5 of the bill amends the statutory code of ethics to specify the role of the commission and the general penalty imposed under article XXIX for a breach of public trust. Sections 6 through 10 and 12 and 13 of the bill provide clarification, in the context of various existing statutory provisions imposing rules of conduct or public official disclosure obligations, that, in connection with a proceeding before the commission alleging a violation of a particular individual, the commission must find that the actor has breached his or her fiduciary duty and the public trust under the particular standard of proof the commission has determined is appropriate. These provisions are to be distinguished from provisions clarifying the standard of proof in connection with a proceeding for a violation of the particular section brought by a district attorney. Section 11 of the bill clarifies that an advisory opinion issued by the board of ethics for the general assembly is not binding upon the commission in any proceeding brought before the commission and does not constitute a defense to any complaint before the commission. Section 14 of the bill repeals existing statutory provisions pertaining to the acceptance of travel reimbursement from joint governmental agencies as well as the provisions creating the board of ethics for the executive branch. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 24-31-101, amend (1) (a); and add (7) as follows: 24-31-101. Powers and duties of attorney general. (1) (a) The attorney general of the state shall be the legal counsel and advisor of each department, division, board, bureau, and agency of the state government other than the legislative branch He and the independent ethics commission created in section 5 (1) of article XXIX of the state constitution insofar as the commission retains or employs its own legal counsel in accordance with section 24-18.5-102 (1). The attorney general shall attend in person at the seat of government during the session of the general assembly and term of the supreme court and shall appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor, and he the attorney general shall prosecute and defend for the state all causes in the appellate courts in which the state is a party or interested. (7) In accordance with section 24-18.5-102, independent legal counsel may provide legal representation to the independent ethics commission created in section 5 (1) of article XXIX of the state constitution. SECTION 2. In Colorado Revised Statutes, 24-18.5-101, amend (5) (a); and add (1) (c) as follows: 24-18.5-101. Independent ethics commission - establishment - membership - subpoena power - definitions. (1) As used in this article, unless the context otherwise requires: (c) "Covered individual" means a public officer, member of the general assembly, local government official, or government employee as those terms are defined in section 2 (1), (3), and (6) of article XXIX. (5) (a) Subject to the provisions of paragraph (c) of this subsection (5), in connection with a complaint alleging a violation of section 3 (1) or (2) of article XXIX, the commission shall dismiss as frivolous any complaint filed under article XXIX that fails to allege that a public officer, member of the general assembly, local government official, or government employee has accepted or received any gift or other thing of value for private gain or personal financial gain. SECTION 3. In Colorado Revised Statutes, add 24-18.5-102 as follows: 24-18.5-102. Commission - independent legal counsel - powers - retention - rule-making - legislative declaration. (1) (a) The general assembly finds, determines, and declares that: (I) In 2006, the voters of the state approved article XXIX of the state constitution, the centerpiece of which is an independent ethics commission; (II) The independent ethics commission was created to be independent of the other branches of government as it undertakes its duties of interpreting and implementing article XXIX and other standards of conduct and reporting requirements as provided by law; (III) Since its creation in 2006 through enactment of Senate Bill 15-___, legal representation of the independent ethics commission has been provided by the attorney general's office; (IV) Having legal representation of the commission provided by a public officer and government employees in the executive branch who are subject to the commission's jurisdiction is contrary to the core independence of the commission and creates opportunities for appearances of impropriety if not outright conflicts of interest. (b) By enacting Senate Bill 15-___, the general assembly intends, among other things, to empower the independent ethics commission to retain or employ its own legal counsel and, thereby, better fulfill the core constitutional independence sought by the people of the state in enacting article XXIX. (2) The commission may employ or retain independent legal counsel for the purpose of providing the commission representation on legal matters including, but not limited to, providing legal advice to the commission upon request by any of its members or staff in connection with public business of the commission, representing the commission in court, before other public bodies, or otherwise in connection with any action or proceeding in which the commission has an interest or to which the commission is a party. (3) (a) When the commission contemplates making rules, it shall make a public announcement of the same at such time and in such manner as the commission determines. (b) The commission shall provide notice of proposed rule-making, which must be published in the Colorado register. The notice must state: (I) The time, place, and public manner of proposed rule-making proceedings, which must take place no fewer than twenty-one days after the publication; (II) The legal authority under which the rule is proposed; and (III) Either the terms or the substance of the proposed rule or a description of the subjects and issues involved. (c) At the time and place stated in the notice, the commission shall hold a public hearing, at which it shall afford interested persons an opportunity to submit written data, views, or arguments and to present the same orally unless the commission deems it unnecessary. The commission shall consider all such submissions. The commission shall make any proposed rule or revised proposed rule it is to consider at the public hearing, together with the specific legal authority under which the rule is proposed, and purpose available to any person who requests such information at least five days before the hearing. The commission must base any rules it promulgates on the record, which shall consist of proposed rules, evidence, exhibits, and other matters presented to or considered by the commission, matters officially noticed, rulings on exceptions, any findings of fact and conclusions of law proposed by any party, and any written comments or briefs submitted to the commission. Except as otherwise provided in part 2 of article 72 of this title, all information used by the commission in the development of a rule is a public document in accordance with said part 2 and must be open for public inspection. (d) The commission shall review all proposed rules. The commission may only adopt a rule if: (I) The record of the rule-making proceeding demonstrates the need for the rule; (II) The proper legal authority exists for the rule; (III) To the extent practicable, the rule is clearly and simply stated so that its meaning will be understood by any party required to comply with the rule; (IV) The rule does not conflict with other provisions of law; and (V) The commission explains any duplication or overlapping of rules. (e) Within one hundred eighty-two days after the last public hearing on a proposed rule, the commission shall adopt the rule pursuant to the rule-making proceeding or terminate the proceeding by publication of a notice to that effect in the Colorado register. A rule of the commission becomes effective twenty-one days after publication of the rule as finally adopted or on such later date as is stated in the rule. Once a rule becomes effective, the rule-making process is deemed to have become final agency action for judicial review purposes. (f) The commission may adopt a temporary or emergency rule without compliance with paragraph (c) of this subsection (3) and with less than twenty-one days' notice as prescribed in paragraph (b) of this subsection (3) if the commission finds on the record that compliance with such requirements would be contrary to the public interest. The commission shall publish its findings and a statement of the reasons for the action with the rule. A temporary or emergency rule becomes effective on adoption or on such later date as is stated in the rule, must be published promptly, and is effective for not more than one hundred nineteen days after its adoption or for such shorter period as may be specified in the rule by the commission, unless the rule is made permanent upon compliance with paragraphs (a) to (e) of this subsection (3). (g) Notwithstanding any other provision of this section, nothing in this subsection (3) requires the submission of any proposed rule by the commission to the committee on legal services of the general assembly or legislative staff for their review or approval. SECTION 4. In Colorado Revised Statutes, 24-18-102, amend (1); and add (1.3), (1.5), and (2.5) as follows: 24-18-102. Definitions. As used in this part 1, unless the context otherwise requires: (1) "Business" means any corporation, limited liability company, partnership, sole proprietorship, trust or foundation, or other individual or organization carrying on a business, whether or not operated for profit "Article XXIX" means article XXIX of the state constitution. (1.3) "Business" means any corporation, limited liability company, partnership, sole proprietorship, trust or foundation, or other individual or organization carrying on a business, whether or not operated for profit. (1.5) "Commission" means the independent ethics commission created in section 5 (1) of article XXIX. (2.5) "Covered individual" means a public officer, member of the general assembly, local government official, or government employee as those terms are defined in section 2 (1), (3), and (6) of article XXIX. SECTION 5. In Colorado Revised Statutes, 24-18-103, add (3) as follows: 24-18-103. Public trust - breach of fiduciary duty. (3) Pursuant to section 5 (1) of article XXIX, the commission is empowered to hear complaints, issue findings, assess penalties, and issue advisory opinions on ethics issues arising under article XXIX and under any other standards of conduct and reporting requirements as provided by law. Pursuant to section 6 of article XXIX, any covered individual who breaches the public trust for private gain and any person or entity inducing such breach is liable to the state or local jurisdiction for double the amount of the financial equivalent of any benefits obtained by the misconduct. Additional penalties that may be imposed by the commission include censure or reprimand by the commission. SECTION 6. In Colorado Revised Statutes, 24-18-104, amend (1) introductory portion as follows: 24-18-104. Rules of conduct for all public officers, members of the general assembly, local government officials, and employees. (1) In connection with a proceeding brought by a district attorney alleging a violation of this section, proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his or her fiduciary duty and the public trust. In connection with a proceeding before the commission alleging a violation of this section on the part of an actor who is subject to the jurisdiction of the commission, the commission must find that the actor has breached his or her fiduciary duty and the public trust under the particular standard of proof the commission has determined is appropriate. A public officer, a member of the general assembly, a local government official, or an employee shall not: SECTION 7. In Colorado Revised Statutes, 24-18-106, amend (1) as follows: 24-18-106. Rules of conduct for members of the general assembly. (1) In connection with a proceeding brought by a district attorney alleging a violation of this section, proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the member of the general assembly committing the act has breached his or her fiduciary duty and the public trust. In connection with a proceeding before the commission alleging a violation of this section, the commission must find that the member of the general assembly has breached his or her fiduciary duty and the public trust under the particular standard of proof the commission has determined is appropriate. A member of the general assembly shall not accept a fee, a contingent fee, or any other compensation, except his or her official compensation provided by statute, for promoting or opposing the passage of legislation. SECTION 8. In Colorado Revised Statutes, 24-18-108, amend (1) as follows: 24-18-108. Rules of conduct for public officers and state employees. (1) In connection with a proceeding brought by a district attorney alleging a violation of this section, proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his or her fiduciary duty and the public trust. In connection with a proceeding before the commission alleging a violation of this section, the commission must find that the actor has breached his or her fiduciary duty and the public trust under the particular standard of proof the commission has determined is appropriate. SECTION 9. In Colorado Revised Statutes, 24-18-108.5, amend (1) as follows: 24-18-108.5. Rules of conduct for members of boards and commissions. (1) In connection with a proceeding brought by a district attorney alleging a violation of this section, proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his or her fiduciary duty and the public trust. In connection with a proceeding before the commission alleging a violation of this section on the part of an actor who is subject to the jurisdiction of the commission, the commission must find that the actor has breached his or her fiduciary duty and the public trust under the particular standard of proof the commission has determined is appropriate. SECTION 10. In Colorado Revised Statutes, 24-18-109, amend (1) as follows: 24-18-109. Rules of conduct for local government officials and employees. (1) In connection with a proceeding brought by a district attorney alleging a violation of this section, proof beyond a reasonable doubt of commission of any act enumerated in this section is proof that the actor has breached his or her fiduciary duty and the public trust. In connection with a proceeding before the commission alleging a violation of this section on the part of an actor who is subject to the jurisdiction of the commission, the commission must find that the actor has breached his or her fiduciary duty and the public trust under the particular standard of proof the commission has determined is appropriate. SECTION 11. In Colorado Revised Statutes, 24-18-113, amend (2) as follows: 24-18-113. Board of ethics for the general assembly - created - duties. (2) The board of ethics for the general assembly shall, upon written request of a member of the general assembly, issue advisory opinions concerning issues relating to the requesting member's conduct and the provisions of this article. Any such advisory opinion issued by the board is not binding upon the commission in any proceeding brought before the commission and does not constitute a defense to any complaint before the commission. SECTION 12. In Colorado Revised Statutes, 24-6-202, amend (7) as follows: 24-6-202. Disclosure - contents - filing - false or incomplete filing - penalty. (7) In connection with a proceeding brought by a district attorney alleging a violation of this section, any person who willfully files a false or incomplete disclosure statement, amendment, or notice that no amendment is required, or who willfully files a false or incomplete copy of any federal income tax return or a false or incomplete certified statement of investments, or who willfully fails to make any filing required by this section, where the state meets its burden of establishing proof beyond a reasonable doubt of the commission of such acts, is guilty of a misdemeanor and, upon conviction thereof, shall must be punished by a fine of not less than one thousand dollars nor more than five thousand dollars. In connection with a proceeding before the independent ethics commission created in section 5 (1) of article XXIX of the state constitution alleging a violation of this section, if the commission finds that the person has committed a violation of this section under the particular standard of proof the commission has determined is appropriate, the person is subject to any penalty that may be imposed by the commission for such misconduct. SECTION 13. In Colorado Revised Statutes, 24-6-203, amend (7) as follows: 24-6-203. Reporting by incumbents and elected candidates - gifts, honoraria, and other benefits - prohibition on monetary gifts - penalty - definitions. (7) In connection with a proceeding brought by a district attorney alleging a violation of this section, any person who willfully files a false or incomplete report pursuant to this section, who willfully fails to file a report required by this section, who willfully fails to provide the statement of value required by subsection (5) of this section, or who violates any provision of subsection (3.5) of this section, in cases in which the state meets its burden of establishing proof beyond a reasonable doubt of the commission of such acts, is guilty of a misdemeanor and, upon conviction thereof, shall must be punished by a fine of not less than fifty dollars nor more than one thousand dollars. In connection with a proceeding before the independent ethics commission created in section 5 (1) of article XXIX of the state constitution alleging a violation of this section, if the commission finds that the person has committed a violation of this section under the particular standard of proof the commission has determined is appropriate, the person is subject to any penalty that may be imposed by the commission for such misconduct. SECTION 14. In Colorado Revised Statutes, repeal 2-3-311 (2) (d) and 24-18-112. SECTION 15. Effective date - applicability. This act takes effect July 1, 2015, and applies to offenses committed on or after said date. SECTION 16. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.