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Committee formed to investigate ethics complaint filed against state senator over judiciary comment

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Posted at 7:11 PM, Jun 10, 2021

DENVER — An ethics complaint has been filed against state Sen. Bob Gardner, R-Colorado Springs, over a comment he made on the record during a joint session of the Senate Judiciary Committee in 2019, and a committee is being formed to look into it.

The complaint was filed in April by Chris Forsyth, the executive director of the Judicial Integrity Project, who accused Gardner of violating Rule 41 of the Senate’s rules.

Rule 41 states that state lawmakers shall comply with the law and perform their duties in a way that promotes public confidence in the integrity and independence of the General Assembly. It goes on to say that a senator shall not use their power to place undue influence on others.

The 2019 hearing

During a committee hearing in 2019, lawmakers listened to a presentation about the performance of the judicial branch.

In it, Kent Wagner, the executive director of the Office of Judicial Performance Evaluations, spoke about the evaluations his team conducted on state and local judges, the changes made to that process and the effects those evaluations had on the 2018 election.

During that hearing, Wagner aired some concerns about the evaluations of senior judges. These are judges who have retired but who are asked by the chief justice of the Colorado Supreme Court to temporarily fill in to help keep the courts running. The senior judges can hear cases, perform case screenings, handle overscheduled dockets, etc.

Wagner told the committee that because the timing of when these judges will be working and what cases they will be hearing is unpredictable, coming up with an accurate evaluation was difficult, describing those judges as being similar to substitute teachers.

He also said the office couldn’t get good survey data from the judges or materials to perform effective evaluations, so he recommended that the court administrator take over the evaluation role.

Wagner asked for a change in statute to take senior judges out of the evaluation process but offered to support the court administrator however he could.

Questionable comment

As Wagner was making this recommendation, Gardner expressed concerns with the idea of eliminating senior judges from the office’s evaluation and didn’t agree with the idea of putting that burden on the court administrator.

Then, he told a story about an experience he had with the court administrator.

“I had, about five or six years ago, a colleague with whom I shared an office come to me and say I am appearing in front of the senior judge and the senior judge said this. And she showed me the transcript and she said, ‘And I don’t know what to do but I understand you’re in the legislature and so forth.’ Well, I was able to make a phone call to the state court administrator, but had my colleague not shared office space with a member of the House Judiciary Committee, she would have been faced with a recusal motion,” Gardner said.

He went on to say that he wanted the office to really consider how to make the evaluation of senior judges work, saying they need to be held accountable to the public.

Forsyth believes the story Gardner told raised a very different issue, one about an elected official’s influence over the judicial branch.

“What he implied was he got a different judge on the case for a colleague by simply calling the state court administrator,” Forsyth said. “No one should be able to make a phone call and get a different judge on a case. A system that allows that is not a system worth having.”

Forsyth insists this ethics complaint is not a political matter but a larger issue with the overall judicial system.

“To me it’s a pretty glaring admission. And yet, the fact that it hasn’t been brought to light until now shows that we have ethical problems in the legislature and the judiciary. They thought nothing of it,” Forsyth said, “It’s not a justice system where there’s justice for all, justice is for the well-connected or the wealthy.”

At the time, Forsyth posted about the comments on social media but did not attempt to file an ethics complaint. He says until there was more, he didn’t think it was appropriate.

What’s more

Earlier this year, the Denver Post published a series of investigative reports that revealed allegations of sexual harassment, sexism and payoffs to silence witnesses within the Colorado Supreme Court.

During the annual state of the judiciary address, the chief justice called for an independent investigation into the alleged misconduct and said he has asked the governor, the attorney general and legislative leaders to form a panel to draft a request proposal to define the scope of the investigation.

A request for proposals was put out for potential investigators. The process recently closed and now a commission will determine who will investigate the claims. Gardner is a member of the commission picking the investigator.

“So, he’s made the admission that he’s using the state court administrator to help a friend get a judge on the case and now he supposed to be investigating the judicial branch? It’s already raising eyebrows,” Forsyth said.

Beyond that, Gardner sponsored a bill this legislative session dealing with senior judges, changing the amount of time they can serve and the salary they will receive.

It adds an additional contract period of 10, 20 or 30 days per year that retired judges can work.

Forsyth believes this is another conflict of interest because he says the bill, which passed and was signed by the governor, effectively gives the chief justice more power.

“The bill is devious because it looks harmless. Let’s put a senior judge on a case because we need more judges. The problem is that senior judges are not accountable to the people. Senior judges do not go through judicial performance reviews, senior judges are not assigned at random,” he said.

He believed the combination of the bill, the investigation into the state’s judicial system and Gardner’s comments were enough to merit an ethics investigation. He filed the complaint in April. It calls for Gardner to be taken off the judiciary committee and possibly expelled from the Senate.

However, it wasn’t until Wednesday, one day after the legislative session ended, that a letter sent to the secretary of the state Senate by Senate President Leroy Garcia was obtained by Denver7.

In it, Garcia acknowledged that he had received the complaint and said it would have been dismissed if at least two of the three leaders of the Senate leaders concluded that the complaint was not meritorious or does not substantiate an ethical violation.

“However, this conclusion was not reached by a majority of the leaders of the Senate,” the letter continued.

As such, Garcia announced in the letter that he is forming a five-person ethics committee to investigate the complaint.

Garcia appointed senators Julie Gonzales, Pete Lee and Faith Winter to the commission. Minority Leader Sen. Chris Holbert, R-Douglas County, appointed senators Paul Lundeen and John Cooke.

It is now in the preliminary investigation stage.

“For me, I think this is the first time that we have received a complaint that is under the new complaint process that resulted out of the 2018 revisitation, revisiting how we handle complaints,” Holbert said.

How will it work?

According to Senate Rule 43, the member whom the complaint was filed against may request a hearing within seven days after receiving notice of the complaint, and the hearings must start within 14 days of the Senate president receiving that request.

However, if the member the complaint is filed against doesn’t request a hearing, no concrete timeline is laid out for when the investigation must begin.

At the hearing, the committee will be able to take testimony under oath and issue subpoenas. It can also retain legal counsel and hire investigators.

The member the complaint is against will have a chance to appear, be represented by counsel, present evidence and cross-examine witnesses.

After the hearing, the committee can decide whether to dismiss the complaint or recommend action be taken against the lawmaker. The action can range from a reprimand to censure, expulsion or a referral to authorities.

“I appreciate thus far how President Garcia has handled it. I think that when the committee is able to get advice regarding this that I believe they will be able to resolve this very quickly,” Holbert said.

Holbert was not, however, able to speak in detail about the complaint due to confidentiality.

Forsyth is disappointed that Garcia waited until after the session to address the complaint and says it put a dark cloud over House Bill 1136.

He’s not optimistic anything will come out of the complaint and believes it’s likely it will be dismissed since some of the people on the investigating committee are also on the judiciary committee and also co-sponsored that bill.

Forsyth sent a letter to Garcia Thursday asking for those members to be replaced since he believes they also have a conflict of interest.

For now, it’s up to the committee and the senate president to decide how to move forward with the investigation.