Second Response to Mr. Morales at the Denver DAs office. Mr. Morales, I appreciate your reviewing the information I sent regarding Senator Steve King. I am disappointed to learn of your responses of no intent to prosecute and the language used in which no further action will be taken. I respectfully disagree with your opinions and offer the following responses as to why: Regarding the Conflict of Interest and Breach of Fiduciary Duty it is my belief you may want to revisit. Senator King would of had an easy defense if he just simply disclosed the conflict and appearance of a conflict of interest. However he has never disclosed this information and in fact he never disclosed to CMU that he held a position with Mesa County Sheriffs Office. In revisiting the violation of C.R.S. 18-8-308 the statute is written that states OR OTHER PECUNIARY INTEREST. If the statute stated AND then I would agree with your analysis. However I have researched some very recent case law regarding Conflict of Interest and have provided a very strong 2013 Colorado Supreme Court analysis here in Ruiz v Hope for Children, Inc. cobar.org/opinions/opinion.cfm?opinionid=8975&courtid=1 IV. The Conflict of Interest Defense ¶13 Ruiz asserts that Hope for Children could not rely on the “conflict of interest” defense because there is no record evidence that Ruiz was “profiting at the expense of [Hope for Children] by dating Rodriguez.” We do not agree that the conflict of interest defense in the Lawful Activities Statute is limited to financial conflicts of interest. ¶14 Nothing in the plain language of section 24-34-402.5(1)(b) limits actual or apparent conflicts of interest for which an employee may be terminated to financial conflicts of interest. Had the legislature intended to limit the defense to financial conflicts, it would have done so. In re Marriage of Hartley, 886 P.2d 665, 673 (Colo. 1994) (if the legislature intended statute to include a certain provision, it would have included it in the statute); Adams v. Corr. Corp., 187 P.3d 1190, 1193 (Colo. App. 2008) (“[I]t is presumed that the General Assembly meant what it clearly said.”). Indeed, a review of Colorado statutes reveals that where the legislature intended to limit the meaning of an actual or apparent conflict of interest to those situations involving financial gain, it did so. See, e.g., § 18-8-308 (2), C.R.S. 2012 (limiting “potential conflicting interest” to situations in which a public servant, among other things, owns or controls a substantial interest in any nongovernmental entity participating in a pecuniary transaction with which the public servant is connected); § 24-35-209(1)(a), C.R.S. 2012 (specifying that it is a conflict of interest for a member of the state lottery division to have “any personal pecuniary interest in any lottery or in the sale of any lottery tickets”). Because the legislature chose not to limit conflicts of interest in the Lawful Activities Statute to financial conflicts, we will not judicially engraft such a limit. See People v. Jaramillo, 183 P.3d 665, 671 (Colo. App. 2008) (courts must respect the General Assembly’s choice of language, and cannot add words to or subtract them from a statute); see also Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo. 1994) (“We will not judicially legislate by reading a statute to accomplish something the plain language does not suggest, warrant or mandate.”). ¶15 Nor are we persuaded by Ruiz’s reliance on Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997). Marsh involved the firing of a Delta Air Lines baggage handler after he wrote a letter to the Denver Post criticizing his employer. 952 F. Supp. at 1460. The Marsh court noted that Delta was not justified in terminating the employee under the conflict of interest defense in the Lawful Activities Statute. Id. at 1464.1In so concluding, that court found, with little analysis, that the employee “was not disregarding his duties in favor of personal gain by writing the Post,” and that, therefore, “under the generally understood meaning of the term, [the employee] did not have any conflict of interest when writing to the Post.” Id. To the extent Marsh can be read for the proposition that the conflict of interest defense is limited to financial conflicts of interest, we do not agree that such an interpretation is consistent with the plain language of the statute. Further, we are not bound by a federal district court’s interpretation of Colorado law. See People v. Barber, 799 P.2d 936, 940 (Colo. 1990); see also Watson, 207 P.3d at 865 (“No Colorado appellate opinion has approved the Marshcourt’s analysis.”). ¶16 Similarly, we do not read Marsh as establishing the alternative requirement, suggested by Ruiz, that Hope for Children needed to prove that dating Rodriguez actually interfered with Ruiz’s ability to perform a job-related duty. Again, the plain language of section 24- 34-402.5(1)(b) does not contain any requirement that a conflict of interest actually interfere with an employee’s ability to perform her job. To the contrary, the conflict of interest defense expressly contemplates that an employer may restrict an employee’s lawful, off-the-job activities not only where an actual conflict of interest exists, but also where there is an appearance of such a conflict. § 24-34-402.5(1)(b). Were we to adopt Ruiz’s construction, and read the statute to require an employer to establish that a conflict actually interferes with an employee’s job, it would render the phrase “the appearance of such a conflict of interest” meaningless. This we will not do. See Well Augmentation Subdistrict, 221 P.3d at 420 (court will not construe a statute in a manner that renders statutory language meaningless). ¶17 Finally, to the extent that Ruiz argues that Hope for Children was required to consider a less drastic alternative to termination, the plain language of the statute does not require the employer to do so. We will not impose requirements where the legislature did not. Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (“We do not add words to [a] statute or subtract words from it.”). ¶18 Accordingly, we conclude that the trial court did not err in declining to adopt Ruiz’s narrow interpretation of the conflict of interest defense. V. Sufficiency of the Evidence to Establish a Conflict of Interest or the Appearance of a Conflict of Interest ¶19 Having rejected Ruiz’s invitation to limit the conflict of interest defense to financial or actual conflicts, we next consider whether the evidence supports the trial court’s order in favor of Hope for Children. We conclude that there was sufficient evidence to support the trial court’s conclusion that Ruiz’s romantic relationship with a client, or former client, of Hope for Children created, at a minimum, the appearance of a conflict of interest. Thus, we decline to disturb the trial court’s determination that Hope for Children did not wrongfully terminate Ruiz. A. Standard of Review ¶20 When the sufficiency of the evidence is challenged on appeal, we must determine whether the evidence, viewed as a whole and in the light most favorable to the prevailing party, is sufficient to support the verdict. Parr v. Triple L & J Corp., 107 P.3d 1104, 1106 (Colo. App. 2004). In conducting our review, we draw every reasonable inference from the evidence in favor of the prevailing party. Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1201 (Colo. App. 2009). B. Analysis ¶21 The Lawful Activities Statute does not define “conflict of interest” or the “appearance” of such a conflict. And given that the existence of a conflict, or the appearance of a conflict, is almost entirely dependent on context, determinations grounded on this legal basis must turn on the facts and circumstances of a particular case. This determination, then, is both context and industry specific. See City of Manassa v. Ruff, 235 P.3d 1051, 1055 (Colo. 2010) (term “conflict of interest” reflects various policy determinations, depending on the context in which it operates); Schupper v. People, 157 P.3d 516, 520 (Colo. 2007) (whether a relationship creates the appearance of a conflict of interest is a factual question that must be made on a case-by-case basis). The existence of a conflict, or the appearance of a conflict, is uniquely within the province of the fact finder. Benuishis v. Indus. Claim Appeals Office, 195 P.3d 1142, 1144 (Colo. App. 2008) (“Whether a conflict of interest exists is a question of fact.”); see also People v. Cnty. Court, 854 P.2d 1341 (Colo. App. 1992) (whether an appearance of impropriety exists is committed to the trial court’s discretion, and turns on the circumstances of each particular case). ¶22 The trial court concluded that the fact that Ruiz “may be required to testify in court regarding whether or not a client or former client . . . completed treatment” raised, at a minimum, the appearance of a conflict of interest with Ruiz’s job responsibilities. The court also concluded that the romantic relationship between Ruiz and Rodriguez created the appearance of a conflict of interest to third-party organizations from which Hope for Children received its funding, client referrals, and contracts. Specifically, the court found that the dating relationship had the potential to damage “the image and reputation of [Hope for Children]” by causing third parties to lose confidence in the reliability and professionalism of the organization, and that, in turn, could “endanger the grants that fund” Hope for Children. ¶23 Viewed as a whole and in the light most favorable to Hope for Children, the evidence is sufficient to support the trial court’s conclusions that Ruiz’s relationship with Rodriguez created an appearance of a conflict of interest with her job responsibilities. See Webster’s Third New International Dictionary 103 (2002) (“appearance” means the “outward show or image presented by a person or thing”); cf. People v. Schupper, 124 P.3d 856, 858 (Colo. App. 2005) (in judicial disqualification context, test for “appearance” of partiality is whether a reasonable person, knowing all the relevant facts, would harbor doubts about a judge’s impartiality), aff’d, 157 P.3d 516. In particular, the evidence established the following: •One of Ruiz’s job responsibilities at Hope for Children was testifying concerning the completion of court-ordered treatment by clients or former clients; •Rodriguez was court-ordered to attend a fatherhood class and did so through Hope for Children; •Ruiz and Rodriguez met while he was receiving services at Hope for Children, and Ruiz was expressly asked to assist Rodriguez in enrolling in a parenting skills class; •Because Rodriguez was court-ordered to attend a fatherhood class, if an issue arose regarding his compliance with the order, Ruiz, as the only Family Advocate, would have been required to verify (and potentially testify about) his participation and completion of the program; •Although Ruiz testified that she viewed Rodriguez as a former client of Hope for Children when she began dating him, Kammeier testified that Hope for Children does not “close” its files and has worked with some families intermittently for up to eight years, and that clients might “be gone for a few months and then they’re back”; •Similarly, the Executive Director of the Tenth Judicial District’s Court Appointed Special Advocates (CASA) testified that, in the social services field, many people express the view that “once a client, always a client”; •Kammeier further testified that 85 to 87% of Hope for Children’s budget comes from a federal grant to the Colorado Department of Human Services (CDHS). And she testified that, because Hope for Children receives many of its client referrals as a result of contracts with CDHS and Community Corrections, a policy permitting employees to date clients would negatively impact Hope for Children’s relationship and reputation with those organizations, resulting in a loss of clients and funding; •The former director of Social Services for Pueblo County, and a board member of Hope for Children, testified that a dating relationship between a social services organization employee and client or former client creates a conflict of interest in the form of an appearance of impropriety, “where the credibility of the agency to provide proper services” is negatively impacted; •And the executive director of CASA testified that a social services organization’s funding might be subject to revocation if it allowed its employees to date clients. ¶24 Given this testimony and the nature of the social services field, we conclude that the evidence was sufficient to support the trial court’s conclusion that the restriction on the dating relationship between Ruiz and Rodriguez was necessary to avoid, at a minimum, the appearance of a conflict of interest with Ruiz’s responsibilities to her employer. See Restatement (Second) of Agency § 380 cmt. a (1958) (“The nature of the business and the position of the agent determine . . . what conduct can be expected from [the agent].”). ¶25 Because we conclude that the court did not err in determining that Hope for Children met its burden under section 24-34- 402.5(1)(b), we need not address the remaining statutory defenses relied upon by the trial court. Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (“[W]e may affirm the trial court’s ruling based on any grounds that are supported by the record.”).2 As you read through the Case Law you notice the smell test once again is being used the appearance of a conflict or what a Reasonable Person would conclude. Well I am a Reasonable Person and I conclude that Senator King was given opportunities at CMU and MCSO for the sole purpose of rewarding his efforts in the Colorado Legislative position that benefitted all parties mentioned and not the citizens of the District he represented. Thus Senator King violated and abused the Public Trust C.R.S. 24-18-103 appointed to him by the People! Senator King either was 100% the owner of his private company either by his personal name or under American National Protective Services named as its President & CEO. I also located a conflict of interest manual from a state university and can visit it here. As you can see there are options that can be taken so that Senator Kings appearance of a conflict of interest could easily be avoided if he simply disclosed the contracts at CMU and vice versa CMU disclosing the fact they hired a sitting State Senator. In Senator Kings case neither party disclosed the relationship as required by law! facultycouncil.colostate.edu/files/manual/sectiond.htm#D.7.7.3 Here is CMUs Employee & Contracted personnel manual regarding Outside Employment: coloradomesa.edu/hr/documents/CMU-PPEH-AllSections.pdf 3. Rules for Outside Employment. Professional Employees who engage in outside employment must abide by the following rules. Failure to do so may result in discipline or termination. Outside employment shall: a. Not interfere with the efficient performance of the employees job; b. Not actually or apparently conflict with the interests of the University or the State of Colorado. Apparently conflict means that the employment would reasonably give rise to criticism or suspicion of conflicting interests or duties; c. Not conflict with the Code of Ethics for Public Employees, CRS 24-18-101 et. seq., as amended from time to time, and other statutes and regulations governing the conduct of public employees. d. Be in addition to, rather than part of, the normal time and effort expected of members of Faculty and Exempt employees in that Professional Personnel position. e. Not involve use of University resources, facilities, or property without prior written approval by the President regarding the specific exceptions requested to this rule. I have attached the the 2010, 2011, & 2012 disclosures that were simply marked Annual Update-No Change. I also disagree with your viewpoint that the disclosure of the Conflict of Interest 2013 contract at CMU is invalid due to statute of limitations. Following that logic Senator King would have to have known January 10, 2013 that he would have a July 2013 contract with CMU. That is why under C.R.S. 24-6-202 (3) gives Senator King 30 days to disclose the July 2013-December 31, 2013 CMU contract. Again C.R.S. 18-8-308 only allows a 72-hour window after the other pecuniary transaction began in July 2013. I provided several legislative votes during Senator Kings entire contracted positions with MCSO and CMU in which those parties benefitted and Senator King benefitted. Once again using the Appearance smell test provided in Ruiz v Hope for Children, Inc. and the fact once again no disclosures ever given by Senator King or CMU, the appearance and conclusion a reasonable person would find themselves at is that this was a favorable position given to a Colorado Legislator for favorable votes. Even if these votes came before or after Senator King still held a position over both the MCSO and CMU by holding valuable positions in the Legislative Audit and Judiciary committees. If Senator King disclosed his relationships under Colorado Constitution and Senate Rule 41 he would recused his votes for all stated parties he was associated with under private contract. Here is the role and function of the Legislative Audit Committee: 8. What is the Legislative Audit Committee and its role in the audit process? The Legislative Audit Committee plays a vital role in the overall audit process, including having the statutory authority to conduct public hearings on OSA reports and subpoena witnesses and records. The Legislative Audit Committee must vote to release an audit before it becomes publicly available. The Committee is not, however, involved in the day-to-day conduct of audits or in the development of audit conclusions or findings. The Legislative Audit Committee is a legislative oversight committee made up of four senators and four representatives. The Legislative Audit Committee is uniquely positioned to ensure accountability of state agencies’ activities and of the efficient and effective expenditure of public funds. As set forth in the Colorado Constitution and state statutes, the State Auditor ensures accountability by conducting audits that provide an independent, objective assessment of government operations, report on the use of taxpayer monies, and recommend improvements. The Legislative Audit Committee ensures accountability by reviewing the audit reports prepared by the State Auditor, releasing the reports to the public, questioning the audited agency in a public forum about the report findings and recommendations, and discussing the actions the agency plans to take to improve its operations. In addition to releasing audit reports and questioning audited agencies, the Committee examines and nominates a qualified candidate for State Auditor; approves the OSA’s budget; communicates significant audit report findings and recommendations to the General Assembly, the Governor, and other officials when necessary; and votes whether to approve audit requests submitted by members of the General Assembly or the Governor. To ensure agencies cooperate with the audit process, the Legislative Audit Committee also has the power to subpoena witnesses and records and take testimony under oath. Here is his role and function on the Senate Judiciary Committee: The Senate Judiciary Committee considers matters concerning civil and criminal proceedings, courts, judges, civil liberties, Colorados constitution and statutes, the states correctional system and prison facilities, homeland security, and juvenile justice. In addition, the committee has legislative oversight responsibility for the Department of Corrections, the Department of Public Safety, the Department of Law, and the Judicial Branch. Mr. Morales your letter didnt stipulate if a crime was or was not committed, it only stated that you played judge and jury and I find no where in C.R.S. 20 that allows you this opportunity. Under C.R.S. 20 and Rule 3.8 Special Responsibilities of a Prosecutor, you do have the ability to bring said charges before a Grand Jury and let them decide if charges should be or not be filed. The requirement is Probable Cause and not as a Judge and Jury. I understand there may be more important cases you deem more appropriate to pursue but in the opinion of myself and the citizens of Mesa County Colorado that have openly stated they want an investigation into the CMU and Senator King relationship. You must act on the information provided and if necessary investigate it further through subpoena and in direct contact with CMU administration. Otherwise what your office is implying is that it is absolutely valid to break laws and use positions of authority in elected office for personal gain and that once elected to a position of Power you can behave as a Lobbyist and get paid by other private or public organizations without disclosing these incomes. I would argue emphatically C.R.S. 24-18-103 and the entire Code of Ethics enacted by the Colorado Legislative body denies this behavior by a public elected official. Senate Rule 41 also gives further clarification: 41. ETHICS (a) Definitions. As used in this rule, unless the context otherwise requires: (1) Close economic associate or close economic association means the Senators employer, client, employee, or partner or associate in business or professional activities; enterprises of which a Senator is a director or officer; corporations in which a Senator owns more than ten percent of the outstanding capital stock; an enterprise which is his significant unsecured creditor or of which he is a significant creditor; or a trust of which he is a beneficiary. It does not mean a bank or savings and loan association in which his interest is in the form of an account; nor an officership, directorship, or employment in a political, religious, charitable, or educational entity which returns compensation to him of less than one thousand dollars per year. (1973, SR 2, SJ, p. 47) (2) Close relative means the spouse of the Senator and the following natural, adoptive, and adopted members of the Senators family and the family of his spouse: mother, father, children, brothers, and sisters. (1973, SR 2, SJ, p. 47) (3) Enterprise means corporation, partnership, proprietorship, association, or other legal entity (other than an estate or trust) engaged in business for profit. (1973, SR 2, SJ, p. 47) (4) Lobbyist means any person defined as such in the Joint Rules of the Senate and House of Representatives. (1973, SR 2, SJ, p. 47; 1988, SR 10, SJ, p. 1348) (5) Person and another means an individual, partnership, association, corporation, or other legal entity. (1973, SR 2, SJ, p. 47) (6) State agency means every department, commission, board, division, office, council, or other agency created as part of the state government pursuant to law and supported by state moneys. (1973, SR 2, SJ, p. 47) (b) Conflicts of interest personal or private interests versus public interest definition. (1) Subject to article V, section 43, of the state constitution, a Senator has the right to vote upon all questions before the Senate and to participate in the business of the Senate and its committees, and, in so doing, he is presumed to act in good faith and in the public interest. When a Senators personal interest conflicts with the public interest and tends to affect his independence of judgment, his legislative activities are subject to limitations. Where any such conflict exists, it disqualifies him from voting upon any question and from attempting to influence any legislation to which it relates. (1973, SR 2, SJ, p. 47) (2) A question arises as to whether a personal or private interest tends to affect a Senators independence of judgment if the Senator: (1973, SR 2, SJ, p. 47) (A) Has or acquires a substantial economic interest by reason of his personal situation, distinct from that held generally by members of his occupation, profession, or business, in a measure proposed or pending before the General Assembly; or has a close relative or close economic associate with such an interest. (1973, SR 2, SJ, p. 47) (B) Has or acquires a financial interest in an enterprise, direct or indirect, which enterprise or interest would be affected by proposed legislation differently from like enterprises.(1973, SR 2, SJ, p. 47) (C) Has or acquires a close economic association with, or is a close relative of, a person who has a financial interest in an enterprise, direct or indirect, which enterprise or interest would be affected by proposed legislation differently from like enterprises. (1973, SR 2, SJ, p. 47) (D) Has or acquires a close economic association with, or is a close relative of, a person who is a lobbyist or who employs or has employed a lobbyist to propose legislation or to influence proposed legislation on which the Senator has or may be expected to vote. (1973, SR 2, SJ, p. 47) (E) Accepts a gift, loan, service, or economic opportunity of significant value from a person who would be affected by or who has an interest in an enterprise which would be affected by proposed legislation. This provision shall likewise apply where such gift, loan, service, or opportunity is accepted by a close relative of the Senator. It shall not normally apply in the following cases: A commercially reasonable loan made in the ordinary course of business by an institution authorized by the laws of this state to engage in the business of making loans; an occasional nonpecuniary gift, insignificant in value; a nonpecuniary award publicly presented by a nonprofit organization in recognition of public service; or payment of or reimbursement for actual and necessary expenditures for travel and subsistence for a Senators personal attendance at a convention or other meeting at which he is scheduled to participate and for which attendance no reimbursement is made by the state of Colorado. (1973, SR 2, SJ, p. 47) (c) Undue influence definition. (1) A Senator, by reason of his office, is or may be in a position to bring undue influence on other legislators, public officials, or private persons. To use this potential for economic or private gain is an abuse of office and a matter of concern to the Senate, whether or not the act is also punishable under the criminal laws. (1973, SR 2, SJ, p. 47) (2) The following limitations shall apply to legislative conduct and violations are declared to constitute undue influence: (1973, SR 2, SJ, p. 47) (A) A Senator shall not use his public position, intentionally or otherwise, to obtain or attempt to obtain any confidential information or special advantage for himself, a close relative, or a close economic associate. (1973, SR 2, SJ, p. 47) (B) A Senator shall not sell goods or services to a state agency in a transaction not governed by the laws relating to public purchasing by competitive bidding, or intercede for or represent another in so doing; nor shall he in any way be interested in any contract to furnish supplies, printing, repairs, or furnishings to the General Assembly or any other state agency, contrary to section 29 of article V of the state constitution. (1973, SR 2, SJ, p. 47) (C) A Senator shall not solicit, receive, offer, or give any bribe, contrary to the state constitution and the provisions of sections 18-8-302 to 18-8-308, 18-8-401, 18-8-402, 18-8-404, 18-8-405, and 18-8-407, C.R.S. 1973; nor shall he accept or give any compensation, gratuity, or reimbursement for voting upon any question or for attempting to influence legislation. (1973, SR 2, SJ, p. 47) (D) A Senator shall not give or offer to give his vote in consideration of the vote of another member, contrary to the provisions of section 40 of article V of the state constitution.(1973, SR 2, SJ, p. 47) (E) A Senator shall not attempt to influence any public official by deceit or threat, contrary to section 7 of article XII of the state constitution and section 18-8-306, C.R.S. 1973.(1973, SR 2, SJ, p. 47) (d) When Senator permitted to vote. Nothing in this rule shall be construed as prohibiting a Senator from voting for a bill or other measure whose passage would adversely affect his personal or private interest or from voting against a bill or other measure whose defeat would adversely affect his personal or private interest; and nothing in this rule shall be construed to prevent a Senator from voting on the report of the committee of the whole, unless such vote is conducted solely on the bill or measure in which he has a personal or private interest. (1973, SR 2, SJ, p. 47) (e) Applicability of rule. The provisions of this rule shall not apply as the basis for the recall of any measure by either house nor otherwise constitute the basis to contest the validity of any legislative action on any bill or other measure on which a vote was cast by any member of the Senate in violation of this rule. (1973, SR 2, SJ, p. 47) (f) Legislators not to request donations to charitable organizations. A legislator shall not request a lobbyist or an employee of the General Assembly to make donations to any type of charitable organization. (1973, SR 2, SJ, p. 47; 1988, SR 10, SJ, p. 1348) You also state that the statute of limitations no longer allows charging of the disclosures however I would ask you kindly revisit as there is error in the dates you are suggesting specifically the 2013 and 2014 disclosures where Senator King never disclosed the CMU contracts with either the 30 days to amend or the 72-hour rule. My intent here if no charges are going to be filed by your office is to petition under C.R.S. 16-5-209 and ask for a Judges ruling on why no charges are coming forth regarding Senator Steve King. Thanks for your time and attention,
Posted on: Sun, 19 Oct 2014 13:39:10 +0000
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