Morse ethics probe nears deadline

The Colorado Statesman

It looks as if the next meeting of a committee looking into the investigation on an ethics complaint filed against Senate Majority Leader John Morse, D-Colorado Springs, will wait until Tuesday.

That’s because the budget deal struck Tuesday by House and Senate leadership made for a very busy Thursday for the Senate Appropriations Committee. The committee, chaired by Sen. Pat Steadman, D-Denver, spent the day reviewing the 2011 Long Appropriations Bill, 19 other bills in the budget-balancing package and the School Finance Act.

Steadman and Sen. Bob Bacon, D-Fort Collins, both sit on the five-member ethics panel as well as on the appropriations committee, and the Senate is scheduled to hold second reading debate on the budget, frequently a daylong event, on Friday.

The committee is scheduled to meet again at 7:30 a.m. Tuesday. But time is rapidly running out on the committee’s work; the official deadline for action is April 17, but because that falls on a Sunday the committee imposed its own deadline for action for April 15. The committee also is awaiting a response to a request they sent the complainant seeking evidence that might bolster her allegations.

The ethics committee held its second meeting on March 31, a status meeting to review the complaint filed by the Colorado Government Accountability Project (CoGAP), a response filed by Morse and other materials requested by the committee.

The CoGAP complaint, filed last month, alleged “misuse of taxpayer dollars and possible criminal violations” by Morse in receiving 229 days of per diem for legislative work off-session in 2009. The complaint was later amended to 211 days; Morse claims the actual number is 206.

But exactly what laws Morse may have violated aren’t spelled out in the CoGAP complaint, a problem cited by Morse in his response as well as the Legislative Legal Services team. On top of that, the law itself isn’t clear about burden of proof or even probable cause; neither terms are defined in the rules or statutes governing legislative per diem.

Jennifer Gilroy of Legislative Legal Services told the committee that in order to give the committee something to go on, they looked at the legal standards available in criminal law. In that instance, Gilroy said, “the burden of proof is on the prosecution.” If the committee were to follow that standard, all they have to go on is the CoGAP complaint.

The committee could look at how other states review ethics complaints, or even what Congress does, as a way to determine how to come up with some standards for review, suggested Sen. Shawn Mitchell, R-Broomfield. The legal team had taken that look, Gilroy said, and Colorado wasn’t all that different from how other states operate.

What complicates matters is that the committee is not allowed to take oral testimony from either side, according to the legal team.

The statute governing per diem allows for the legislative leaders to bill per diem, at $99 per day, for necessary meetings or functions, or to attend to matters pertaining to the General Assembly, whether those matters are at the Capitol or elsewhere. The statute does not define “matters pertaining to the General Assembly,” nor does it require any substantiation of activities in order to request per diem, according to Sharon Eubanks of Legislative Legal Services. The Legislature could establish those guidelines, but has never done so, she said.

As a result, activities covered under per diem become a matter of a “judgment call,” Eubanks explained. Legislative leaders can request per diem through a letter or through a form developed in 2006 for that purpose, but use of the form is voluntary. The form, however, does provide a place for the person filing the per diem to certify that the request is in compliance with the statutes.

Normally, the complaint would frame the allegations and whether they are substantiated by probable cause, according to Sen. Morgan Carroll,
D-Aurora. Gilroy said the complaint, while citing that Morse’s calendar raises “ethical” concerns and questions, doesn’t ever say what laws or rules may have been violated, a requirement under Senate rules for an ethics violation to be filed.

That’s a problem for the committee. Carroll said it makes her unsure about what to do about the complaint, since they don’t have any violation of law or rule to go by. Senate rule 43, which governs ethics complaints, states that anyone filing a complaint must specify “the statutes, rules, constitutional provisions, or other ethical principles alleged to have been violated.” The CoGAP complaint cites the statute on per diem but never says that Morse violated it, Gilroy noted, the complaint says only that the number of per diem days requested raised ethical concerns, without saying what those concerns were.

Gilroy pointed out that in other states, failure to cite an actual rule or law being violated would cause the complaint to be automatically dismissed. The lack of specificity in the CoGAP complaint leaves the committee in the position of trying to figure out what the exact ethical violation is, she said.

Steadman said he was frustrated by what the committee has been empanelled to do. He noted that the complaint should have been “screened out earlier in the process,” a job that normally falls to the Senate Majority Leader, or that the complainant should have been asked to be more specific about her allegations. Steadman questioned whether the complaint wasn’t filtered out or that more questions weren’t asked about the complaint because of “sensitivity” about its subject, the Senate Majority Leader. “This [complaint] wouldn’t survive a summary judgment in court,” Steadman said.

While he agreed with Steadman’s concerns, the lack of specificity didn’t seem to trouble Mitchell, who said a “layperson,” the drafter of a complaint, ought not be held to a higher legal standard. A reasonable person could infer that an ethics violation might have occurred if Morse had been paid for per diem on days that he had not done legislative work, Mitchell said.

Mitchell also noted that in signing the form for the per diem requests, Morse probably established an appropriate claim for the per diem. “The only thing the committee could go on” is whether there was information that would “tend to cast doubt” on the claim of doing work pertaining to the General Assembly, he said. That could entail looking at competing demands on Morse’s time, such as vacations or other work activities, but Carroll noted that Morse has already been asked for that information.

As to the complainant, the committee should ask if she has any written evidence that Morse didn’t do legislative work on the days he claimed per diem, Carroll said.

Eubanks pointed out that since the mid-1990s, no ethics committee has ever ruled that a complaint met the level of probable cause that would move it to the next stage, a full investigation.