City officials were terribly mistaken when they believed they had made a terrible mistake.
In mid-February, a historic Colorado Springs election was flung into chaos when City Clerk Kathryn Young said that corporate donations to candidates' campaigns were illegal. It was news to just about everyone, including City Councilors, and it generated a media circus, legal arguments and a lot of political bickering.
But Tuesday, City Council declared that the whole thing had been a mistake. Turns out, corporate contributions are OK after all. Five Councilors (Sean Paige, Jan Martin and Tom Gallagher recused themselves, since they're currently running for office) asked City Attorney Pat Kelly to draft a resolution explaining as much, and Council will give initial approval to that resolution March 8. In the meantime, Councilors stated for the record that candidates can keep on taking contributions — with no limit — from businesses.
Council initially considered amending an ordinance to clarify its view, but decided that was unnecessary.
"I don't think we ever took the action to directly prohibit corporate contributions," Mayor Lionel Rivera explained.
So therefore, he went on to say, no change to the law is warranted.
All of which begs the question: What the hell?
Running with it
In case you missed it, earlier this month the Gazette asked Young whether corporate contributions were legal. Young's opinion: They weren't.
That contradicted long-standing practice; some sitting Councilors had accepted corporate contributions themselves, believing they were legal. Meanwhile, mayoral candidate Brian Bahr, seizing the opportunity, filed a complaint with the Secretary of State's office against fellow candidates Steve Bach and Richard Skorman, both of whom listed corporate contributors on campaign filings.
Skorman was quick to correct what ultimately proved to be his non-issues, but Bach initially balked and instead hired his own legal team.
In the midst of this scene, Young held a press conference to defend herself, saying that it was each candidate's responsibility to know the law, and that she had no authority to enforce campaign finance laws beyond forwarding complaints to the Secretary of State's office. The speech was viewed by some as a cop-out, especially since at least two candidates reported hearing Young say that corporate contributions were OK in a class she held to educate new candidates.
Asked last week if he thought it was Young's responsibility to know campaign finance laws and to inform new candidates of them, Councilor Scott Hente said "Yes."
"Clearly I do, because obviously I asked her that question when I first ran," he said. "To me, that's why you have those candidate forums, so you can explain those laws and those rules."
Within days, the Gazette ran an editorial suggesting that the city can Young.
Just as all the finger-pointing was really getting rolling, some lawyers began suggesting that the clerk was just plain wrong, and that corporate contributions were legal. Oops.
So why did Young (and City Attorney Kelly) believe that corporate contributions were illegal, anyway?
For starters, state law says that a home-rule city, like Colorado Springs, can make its own campaign finance laws, and once those laws are in place, they trump state laws. Problem is, Colorado Springs doesn't have any laws that address campaign finance.
Second, in 2004, the city adopted the state's Fair Campaign Practices Act, as amended. That law doesn't address campaign finance beyond reporting requirements. But it does reference Article 28 of the Colorado Constitution, which — you guessed it — outlaws corporate contributions.
However, legal experts like Luis Toro, an attorney and the director of the nonprofit Colorado Ethics Watch, were saying even earlier this week that the Springs doesn't need to abide by any state ban on corporate contributions.
For one thing, Article 28 was specifically designed to apply to candidates for state office. Besides, Toro says, the simple absence of city campaign finance laws doesn't automatically cause a city to defer to state law. A home-rule city would only defer to state law if it expressly chose to do so in its laws, or if the city made absolutely no laws pertaining to elections or campaign finance. That's because a city's choice not to enact a law could be purposeful.
"Like I said, it's possible ... to say, 'We're only going to require disclosure [of campaign contributions],'" Toro says. "'Take as much as you want. There is no limit.'"
On Feb. 17, Bach's lawyers returned an opinion that lined up more or less with Toro's. Bach's lawyers also noted that precedence in the Springs is to allow corporate contributions, and that in 2003, then-Colorado Attorney General Ken Salazar had issued a finding on this very matter that clearly stated that the state's ban on corporate contributions didn't extend to municipal elections.
So, just in case it's still not clear, here's the law as Council sees it: Anyone, any business, any organization, can give as much as it wants to any candidate, so long as that candidate reports the contribution.
In other words, have at it. It's a free-for-all.
This isn't the way all Colorado home-rule cities have chosen to deal with the situation. Some cities have very stringent campaign laws. Denver, for instance, has its own election and campaign finance laws, and doesn't defer to the state on any election issue. Alton Dillard, spokesman for the Denver County Clerk and Recorder's Office, says Denver's clerk can enforce its campaign finance laws through notices and fees.
However, Kelly says that with a Council resolution in place, the Springs' new campaign finance system — or, actually, it's old campaign finance system — should work just fine.
So, is Council going to fire the city clerk?
Following all the unrest over campaign finance laws and a Gazette editorial calling for the ouster of City Clerk Kathryn Young (pictured), many have been asking if the Council will soon be handing out pink slips.
Don't count on it.
While many Councilors say this little misunderstanding will be addressed in Young's performance review, there seems to be no stomach for firing her. Or for firing City Attorney Pat Kelly, who stood by Young, for that matter.
For one thing, we're in the middle of an election. For another, both Young and Kelly are about to have a new boss when the next mayor takes office — and any firing could be up to him. And last but not least, both Kelly and Young are eligible to retire under the city's pension plan. It's no secret that Young, at least, plans to retire fairly soon. And no one would be surprised if Kelly joined her.
On Tuesday, by the way, Council seemed ready to forgive and forget. Dozens of people came out to support Young. One gave a long speech to Council advocating for her continued employment. In response, Vice Mayor Larry Small also gave a long speech praising Young, and other Council members chimed in.
"I had a conversation with Miss Young and told her to keep on doing her job," Mayor Lionel Rivera said. "She's doing it well."
— J. Adrian Stanley
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