The ethics case against former Colorado Gov. John Hickenlooper is escalating ahead of a scheduled hearing on whether he violated the state’s constitutional gift ban by accepting flights on private jets and attending an exclusive conference in Italy.
Hickenlooper, a Democratic candidate for U.S. Senate, faces a subpoena to testify at a hearing Thursday before the Colorado Independent Ethics Commission on a complaint filed in 2018 by the Public Trust Institute, a conservative nonprofit. He disputes the claim that his travel violated the law, but he is now threatening to not show for the hearing.
In a lawsuit filed Tuesday, Hickenlooper objected to the video conference format put in place amid the pandemic and asked a Denver District Court judge to quash the subpoena and delay the hearing until August.
The case is the most high-profile ethics trial since voters approved the constitutional provision in 2006, and the issue is peaking just days before voters begin receiving ballots in the U.S. Senate race, where Hickenlooper faces Democratic rival Andrew Romanoff in the June 30 primary. The winner will face Republican U.S. Sen. Cory Gardner in the November election.
Here’s a rundown of what you need to know about the state’s gift ban, the complaint and what’s at stake in the hearing.
What is the Independent Ethics Commission?
Colorado voters created the ethics commission with the passage of Amendment 41 — backed with big money from now-Gov. Jared Polis. The five-member board is appointed by the governor, state House, state Senate and Colorado Supreme Court chief justice. The members then pick a representative from local government. Only two members of the commission can be affiliated with the same political party.
The Hickenlooper complaint is being handled by Elizabeth Espinosa Krupa, the commission’s chairwoman, an attorney and the former governor’s appointee. She is an unaffiliated voter.
How does the state’s gift ban work?
Amendment 41 created a gift ban for public officials in the state constitution. The language prohibits all monetary gifts, as well as any item of value from lobbyists.
What’s at issue in Hickenlooper’s case is an additional prohibition on public officials or their family members from accepting gifts, travel, entertainment and more when it’s over a certain monetary limit. The current cap is now $65 and it is adjusted every four years. At the time of the Hickenlooper complaints, the limit was $59.
There are exceptions. First, if the public official pays for the travel, it’s not considered a gift.
Then, the constitution includes exceptions for admission to conferences and related meals where the public official speaks as part of the scheduled program. It also excludes expenses paid by a nonprofit organization that receives less than 5% of its funding from for-profit entities.
In addition, travel to meetings that is part of the official’s job and benefit the state is not considered a gift, according to prior commission rulings. Likewise, any gifts given by personal friends “on a special occasion” are excluded from the gift limit, which the commission has interpreted to cover a broad range of situations.
What does the complaint allege and what is Hickenlooper’s defense?
The original complaint and a subsequent one added to the case allege that Hickenlooper violated the gift ban at least a dozen times in the prior year by accepting and not reporting air travel, hotels, transportation, meals and gifts above the limit.
Other travel prior to October 2017 highlighted in the complaint was dismissed because it fell outside the 12-month statute of limitations.
The conservative group behind the complaint based each allegation on public records from the governor’s office, published information about the events and media reports. In certain instances, the group alleged potential violations because the details about the travel were redacted from the public documents or no information was available about whether the gift would amount to a violation.
A preliminary investigation — and new information provided in legal filings — led to the dismissal of some allegations. But seven elements of the complaint — six of them flights on private jets — are still pending before the ethics commission.
Here’s what we know about each remaining issue from the complaint and Hickenlooper’s legal response.
Complaint: Hickenlooper rode on a corporate plane owned by Ken Tuchman’s company from New Jersey to Colorado in January 2018
What we know: Tuchman is the CEO of TTEC, a global technology company. He was in New York for a Bloomberg Philanthropy event that Hickenlooper also attended. Hickenlooper originally traveled to the city with his wife, Robin Hickenlooper, who underwent a medical procedure. Tuchman, who said he has no business with the state and considers Hickenlooper a friend, offered Hickenlooper a ride home from New York on his plane.
Hickenlooper’s response: Hickenlooper said he did not pay for the flight. His attorney argues the flight was provided by a friend, instead of the corporation, and doesn’t qualify as a gift.
Complaint: Hickenlooper flew on a corporate plane owned by MDC Holdings in March 2018 to attend and speak at the Navy commissioning of the USS Colorado submarine in Connecticut
What we know: MDC Holdings is a publicly traded corporation that owns Richmond American Homes as well as mortgage, insurance and title companies. The company’s chief executive officer is Larry Mizel, a long-time Hickenlooper friend and supporter who also served as a top fundraiser for President Donald Trump. Michael Touff, an MDC senior vice president, confirmed to the ethics commission that the company paid for Hickenlooper’s flight.
Hickenlooper’s response: Hickenlooper said he offered to pay but MDC declined to accept. He paid for his return flight. In legal filings, Hickenlooper’s attorney argued the flight doesn’t equate to a gift because of commission opinions that exempt travel that benefits the state. The filings also suggest the flight was a gift given by Mizel as a friend. But Touff at MDC later said Mizel did not personally pay for the flight.
Complaint: Hickenlooper flew on a company plane owned by restaurateur Kimbal Musk from Texas to Colorado in April 2018
What we know: Hickenlooper officiated Kimbal Musk’s wedding and flew home with his wife, who served on the Chipotle corporate board with Musk.
Hickenlooper’s response: Hickenlooper said he wrote Kimbal Musk a $1,000 check, which he determined was the equivalent of a first-class ticket to cover the cost. Musk never cashed the check. Musk and the former governor both said there was no preferential treatment for the businesses owned by Musk or his relatives.
Complaint: In June 2018, Hickenlooper attended the exclusive Bilderberg Meetings in Turin, Italy, and didn’t pay for the costs related to the conference
What we know: The conference costs were paid by Fiat Chrysler Automobiles, one of the world’s largest auto manufacturers and included logistics, security, catering, airport transfers and gifts bags.
Hickenlooper’s response: Hickenlooper said he personally paid for the flight to Turin and the hotel, the NH Torino Lingotto Congress. But the conference costs remain an issue. Hickenlooper argues there were no conference fees, so he didn’t have the opportunity to pay his share of the cost for logistics, security and transportation provided by FCA.
Complaint: Hickenlooper flew from Washington, D.C., to Jackson, Wyoming, in August 2018 on the private plane leased by the company of his chief of staff, Pat Meyers
What we know: Hickenlooper traveled to Wyoming to deliver a speech at a symposium hosted by the American Enterprise Institute, a conservative organization. The institute — which suggested that it received more than 5% of its funding from for-profit sources — covered Hickenlooper’s airfare and hotel expenses.
Hickenlooper’s response: Hickenlooper said he offered to pay Meyers or make a donation to a charity of his choice, but both overtures were declined. The former governor’s attorney argued Meyers is Hickenlooper’s friend, rather than the corporation, so it is exempt. Also, Hickenlooper attended the conference in his official capacity as governor, so his attorney said it doesn’t qualify as a gift to him.
Complaint: In October 2018, Hickenlooper flew on a private plane owned by his chief of staff’s company from Washington, D.C., to Colorado
What we know: Meyers said he flew to Washington for personal meetings in coordination with the then-governor’s visit on state business.
Hickenlooper’s response: He said the trip included personal and state business and the state would have paid for the return flight if he did not ride with Meyers home. Hickenlooper’s legal team argued the flight was a gift from a friend, rather than the corporation.
Complaint: Hickenlooper did not file the necessary disclosure reports after receiving gifts
What we know: The complaint alleges that each unreported gift is a separate violation and that all the travel noted elsewhere in the complaint, whether in benefit to him or the state, should have been disclosed.
Hickenlooper’s response: Hickenlooper’s attorney argues none of the travel qualified as a gift covered by Amendment 41 so none of it had to be reported to the state.
In each instance, the complaint disputes Hickenlooper’s defense claim that the travel was a gift to the state by arguing that the travel was offered to him as an individual, not as governor.
Moreover, the complaint makes the case that the private planes were owned by corporations, so the flights cannot be considered as gifts from friends.
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What do we know about the conservative group behind the complaint?
The Public Trust Institute, a nonprofit that is not required to disclose its donors, formed two days after the complaint was filed, according to state records. Its director is Frank McNulty, a former Republican state House speaker and GOP operative. The group’s legal counsel is Suzanne Staiert, a former deputy secretary of state and an attorney who is now running as a Republican for a state Senate seat in Centennial.
Just months before the complaint, America Rising PAC, a national Republican opposition research organization, filed a public records request for documents related to Hickenlooper’s travel. The group confirmed in July 2018 that it was digging up dirt on Hickenlooper amid his presidential bid. (Hickenlooper left the White House race in August 2019 and announced his candidacy for U.S. Senate.)
Based on this information, Hickenlooper’s team called it a “national coordinated Republican attack campaign.” But America Rising, which has a Colorado-based group by the same name, declined to comment Tuesday on the alleged connection to PTI.
Given how the state’s ethics system was implemented, it’s common that complaints come from political enemies.
Jane Feldman, the ethics commission’s former executive director, said Colorado is the only state in the country where the person who files the complaint must also prosecute the case. Elsewhere, the commission’s staff act does a preliminary investigation and gathers information, files formal complaints and presents the evidence to the panel. “I think it is very problematic because it tends to politicize it,” Feldman said.
This is also not the first complaint against Hickenlooper from a conservative group. In 2013, Compass Colorado questioned his involvement with an Aspen conference organized by the Democratic Governors Association, where Hickenlooper served as vice-chairman at the time. The ethics commission dismissed the complaint on a 4-1 vote.
Why did it take so long to resolve the complaint?
The initial complaints were filed in October and November 2018 and initially led to a flurry of legal filings as Hickenlooper’s attorney sought to get them dismissed. In January 2019, the commission ordered a preliminary investigation but it did not get completed until nine months later.
From there, a series of conflicts with commissioners’ schedules and meeting space prompted a hearing delay until March 24. The arrival of the coronavirus outbreak led and the resulting public health orders further delayed Thursday’s hearing.
However, the hearing may get stalled further because Hickenlooper is objecting to the video conference format, claiming it impedes his due process rights because he can’t confer with his attorney.
Hickenlooper’s campaign attorney Marc Elias — working on behalf of the national Democratic Senatorial Campaign Committee, which has endorsed his candidacy — filed motions in Denver District Court on Tuesday to quash the subpoena for him to appear and seek a delay in the hearing until the format questions are resolved.
What’s at stake in the verdict from the ethics commission?
The constitutional amendment that put the gift ban in place says a public official in violation may be liable to the state for double the amount of any benefits received and deemed illegal — if it amounts to a breach of public trust.
(Under state law, a district attorney could also take up the matter, in which case a violation of the gift ban is a misdemeanor crime punishable by a fine between $50 and $1,000. But that’s not at issue here.)
In Hickenlooper’s situation, the verdict from the ethics commission carries bigger political ramifications. If Hickenlooper is found in violation, it will loom over his U.S. Senate campaign.
So far, Romanoff and Gardner are highlighting the ethics questions to raise doubts in the campaign. In addition, outside Republican groups that don’t disclose their donors — such as Unite Colorado and Colorado Ethics Watch — are using the complaint to attack Hickenlooper in more than $700,000 worth of TV, digital and radio ads.