Ex-state senator defends Neville in ethics committee hearing

The Colorado Statesman

A legislative ethics committee on Wednesday began its investigation into a complaint brought by Rep. Cheri Gerou, R-Evergreen, against Rocky Mountain Gun Owners lobbyist Joe Neville for allegedly threatening political retribution during a conversation about gun control legislation.

The Committee to Investigate a Complaint under Joint Rule 36 — convened by the Executive Committee of the Legislative Council, which includes bipartisan legislative leaders from both chambers — made no findings, but heard a defense from Neville’s attorney, former Sen. Shawn Mitchell, R-Broomfield.

The committee — including Reps. Dan Pabon, D-Denver, and Sens. Irene Aguilar, D-Denver, and Mark Scheffel, R-Parker — will meet again on March 27, when it is expected to hear witness testimony. Witnesses are likely to include Gerou, House Minority Leader Mark Waller, R-Colorado Springs, National Rifle Association lobbyist Dan Carey, Neville and John Wallin, the chief sergeant-at-arms who may have overheard the controversial conversation.

It began on Feb. 15, during a marathon debate on the House floor over four gun control proposals. Reports suggest that Gerou approached Neville, and asked him to cease telling her constituents that she planned to support the Democratic-sponsored gun bills. She ultimately voted “no” on all four proposals.

Gerou has acknowledged that the conversation turned heated, and that she told Neville to “[expletive] off.” A report by Denver Post political reporter Lynn Bartels stated that Gerou said Neville replied, “You just earned yourself another round of mailers in your district.”

Gerou asked the sergeants to remove Neville from the Capitol. A sergeant and state patrol escorted him out.

Gerou believes Neville violated “Rule 36,” which states that lobbyists can’t influence legislators “by means of deceit or threat… or political reprisal.”

The last time the legislature convened a committee under Rule 36 was in 2009 when the committee ruled that lobbyist Erik Groves should be admonished for getting involved in a leadership race.

This isn’t the first time Gerou has tussled with a Neville. Her support of same-sex civil unions legislation last year in committee prompted Neville’s father, former Sen. Tim Neville, R-Littleton, to issue Robocalls criticizing her for her support of the bill.

The measure died on the House floor after Republican leadership blocked a vote, even though it had the support to pass. Under Democratic leadership this year, the bill came to a vote on the floor, and Gerou supported it. The governor signed the legislation on Thursday.

Rocky Mountain Gun Owners has become entangled in the civil unions debate. Executive Director Dudley Brown has been accused of stepping into the fray last year by supporting campaign mailings showing two men kissing, which targeted primary races of Republicans who had supported the civil unions bill.

The gay couple featured in the mailers has filed a federal lawsuit against Virginia-based Public Advocate of the United States — the firm that sent the mailers — for using their copyrighted engagement photo.

Joe Neville was not present Wednesday during the first ethics committee hearing, but Mitchell made comments on his behalf. Mitchell served in the House from 1999-2004, and then in the Senate from 2005-2013. He acknowledged that during that time, he worked closely with Rocky Mountain Gun Owners.

“It’s a little bit of a cozy situation, but I’m acting as a lawyer and protecting my client’s constitutional rights, and trying to hold the legislature accountable,” Mitchell told The Colorado Statesman following the hearing.

He was going to submit a statement prepared by Neville, but at the last minute decided not to make it a matter of public record. He would not disclose the statement to The Statesman.

“Mr. Neville has prepared a personal statement, and I have prepared what amounts to an argumentative brief, which I have decided to withhold at this point because it inserts details and quotes and specifics into the record, which… don’t reflect some of this institution’s proudest moments,” Mitchell told the committee.

His first argument goes to constitutionally protected free speech, suggesting that even a lobbyist cannot be restricted from stating political speech.

“They don’t apologize, in fact, they proudly defend their constitutional right, as long as they are observing good order and public peace, in order to speak to lawmakers about any issue they want, and to raise any issue of possible consequence they choose, and that is core political speech,” Mitchell testified on behalf of RMGO and Neville.

Mitchell pointed out that Gerou approached his client, and that she had already planned on voting “no” on the gun bills, so it wouldn’t make sense that Neville would try to influence her vote. He suggested that Gerou might be guilty of two crimes, including harassment and disorderly conduct.

“[Neville] recognizes that this is a charged environment, emotions can run high, but he believes that the Capitol and the political and legislative process will function more healthfully if adults and professionals can get past temporary tensions and continue to work with each other,” said Mitchell. “This proceeding represents a step in the wrong direction.”

Gerou declined comment based on the ongoing investigation.

Mitchell also questioned the constitutionality of the proceeding itself, opining that Rule 36 is unconstitutional.
“Joint Rule 36, as drafted, is fatally flawed and overbroad,” he said.

Aguilar pointed out that the purpose of the committee is simply to find fact: “We’re not in a position to reverse, or change that,” she told Mitchell. “Our job is only to gather fact and not to make any assessment.”

Pabon, who is an attorney, agreed that it makes sense to continue the proceeding, stating, “We’re in a quasi-judicial role, and so the question is, ‘What is ultimately our protocol and procedures having this quasi-judicial nature of this inquiry?’ That said, I think with respect to our inquiry, I think we have to presume… that what the legislative branch embarks upon is constitutional.”

Still, Scheffel raised his own concerns, asking, “Before we can even embark on our role of fact finder, the basis for us doing that is flawed because the provision we’re acting under is essentially unconstitutional?”

Jennifer Gilroy, with the Office of Legislative Legal Services, said she would need to research the question, but she was inclined to believe that there would not be an exception.

“I don’t think there’s going to be an exception that’s going to apply for this situation,” she opined.

Peter@coloradostatesman.com