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Court Weighs in On Home Rule Provisions of Amendment 41

By Sam Light, General Counsel

For our home rule members that have adopted their own ethics rules, there has been an ongoing question of whether the state Independent Ethics Commission (IEC) has jurisdiction to hear complaints of violations of Amendment 41 against their elected and appointed officials and employees.  On January 3, a Denver District Court ruled the IEC does not have this jurisdiction.  While its decision is subject to appeal and therefore may not be final, the Court held the IEC lacks jurisdiction in home rule municipalities that have addressed the matters covered by Amendment 41.

As background, in 2006 Colorado voters passed Amendment 41, a citizen initiative which added article XXIX to the Colorado Constitution establishing a “gift ban” and other ethics rules applicable to local government officials and employees.  It also established the IEC to hear complaints, issue findings, and assess penalties in connection with ethics issues “arising under [Amendment 41] and under any other standards of conduct….”

With regard to local governments, Section 7 of Amendment 41 states any county or municipality may adopt ordinances or charter provisions with respect to ethics matters that are more stringent than Amendment 41, and that “the requirements of this article shall not apply to home rule counties or home rule municipalities that have adopted charters, ordinances, or resolutions that address the matters covered by this article.”

The recent Denver District Court case stems from two complaints the IEC received against the Mayor of Glendale, which has its own ethics rules, including a Code of Ethics adopted after the passage of Amendment 41.  After an investigation that lasted approximately three years, the IEC concluded it had jurisdiction over the Mayor despite the home rule language in Section 7, prompting the court challenge.  Like many court rulings, this decision focused on the meaning of plain words whose meanings may not be as clear as they seem—namely, what does it mean to address the matters covered by Amendment 41.

In ruling in favor of Glendale’s Mayor, the District Court concluded Section 7 of Amendment 41 creates a carve-out for a home rule municipality “so long as it adopts rules that deal with ethical standards of conduct.”  While the Court agreed with the IEC that “address” does not mean “to ignore” or “to partially undertake,” it rejected the IEC’s arguments that “address” is synonymous with “meaningfully address” and that the carve out is dependent on the stringency of the local code of ethics.  Rather, the Court rejected such subjective tests for jurisdiction as unworkable and found Glendale in any event had addressed ethical standards of conduct in its own ordinances, including provisions for complaints and enforcement.

While there may be more to come on the issue of IEC jurisdiction, this recent opinion supports the right of home rule municipalities to adopt their own standards of ethical conduct and enforce them at the local level.  If your home rule city or town is thinking of adopting or amending local ethics rules, we encourage you embrace this right and opportunity to enact rules that are clear and workable for your community, that foster buy-in and trust in government, and that confirm your municipality’s commitment to ethical best practices.

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