Denver District Court judge slaps state ethics commission with injunction

The Ralph Carr Judicial Building, which houses the Colorado Independent Ethics Commission.

The state's Independent Ethics commission, on a tie 2-2 vote, dismissed a complaint against Delta County Administrator Robbie LeValley.

JoAnn Kalenak of Hotchkiss, who publishes the Delta County Citizens Report,  alleged LeValley violated the public trust by using her position to benefit her family's business, a beef ranch. 

LeValley charged several purchases from Homestead Meats in 2019, which she co-owns with several other partners, for county events on her county credit card. 

The complaint isn't as simple as whether LeValley purchased beef from her company for the county, which was acknowledged by LeValley's attorney, Ed Ramey. Witnesses said it's common knowledge in Delta County that LeValley is associated with LeValley Ranch and with Homestead Meats; several witnesses testified that LeValley, who is prominent in agriculture on the Western Slope, is the public face of Homestead and its biggest promoter. LeValley noted that her family is a one-sixth partner in the company. Among the other partners: former Delta County Commissioner Mark Roeber, who was on the board during the 2019 transactions.

The events in question, both tied to the county fair, required the beef being served to come from a Delta County ranch, and for that, Homestead was the only supplier.

During a July 20 hearing, LeValley testified she did not make the decision to choose Homestead for the beef approved by Commissioner Don Suppes, just that she paid for it and picked it up from the company. 

The ethics commission is normally a five-body member, but it is short one after several members either resigned or were replaced by new appointees. That's led to problems in the past as well, which resurfaced in the LeValley decision.

In their findings, the commission said that "a majority of commissioners did not find by a preponderance of the evidence that Ms. LeValley violated the statutory standards of conduct. Because the decision is split 2-2, the IEC finds no violation and assesses no fines."

Additionally, the commission found that LeValley’s conduct was more administrative than discretionary, and thus did not cross the line into an “official act” within the meaning of Amendment 41

LeValley told Colorado Politics the "IEC correctly determined that my role in the Delta County Fair Community Night in 2019 was administrative only and that I was not a decision maker in the entire event."

But a 2-2 tie vote isn't exactly a slam dunk, and Kalenak isn't done. 

In April, 2018, the ethics commission ruled 3-2 that state Sen. Vicki Marble, R-Fort Collins, had violated Amendment 41 when she accepted a catered town hall paid for by Extraction Oil & Gas. The town hall, held in Feb. 2017 at the CB & Potts in Broomfield, was about oil and gas issues. The commission ruled that the cost of the town hall, $1,121.18, was a gift to Marble since she was the host, moderator, a speaker and issued the invitations to the community to attend. Attendees were never told that Extraction was the event sponsor, and Marble was fined $2,242.36, double the cost of the event.

Between April 2018 and June 2018, when the commission rendered its final written opinion, it lost a member. The vote on the final decision was 2-2. 

Marble appealed the decision based on that vote, stating that "the final decision suffers from one of two fatal procedural errors: either it was joined in by less than a majority or alternatively, that the decision was joined by a former commissioner who had resigned prior to the adoption of the final decision."

A Denver District Court judge agreed, stating the IEC's final decision was its written opinion. "The Court found that the IEC abused its discretion by rendering a final decision without a majority" and reversed the commission decision in June 2019.

Last week, Kalenak asked the IEC to reconsider its decision on the LeValley case, citing the precedent set in the Marble decision. 

Kalenak pointed out the commission unanimously agreed that LeValley had discretion to decline to sign the purchase orders, that "the purchase of goods from Homestead directly and substantially affected Homestead to its economic benefit,” and that LeValley was a consultant, representative, or agent of Homestead.”

Kalenak also noted that Vice Chair Selina Baschiera and Commissioner Annie Kao wrote a dissent in which they said they “would find a violation of [Amendment 41] based on [their] conclusion that Ms. LeValley’s purchases on her county issued credit card and approval of the purchase orders as the 'Authorizing Officer' constituted 'official acts.'"

Citing the Marble case, the reconsideration noted the IEC "cannot render a final decision with less than a majority." In the Marble case, the IEC incorrectly relied on a tied vote to find an ethics violation. But since "the IEC failed to adopt the final decision by a majority, the decision was unlawfully issued."

The difference between a tie vote that determines an ethics violation or rejects a finding of a violation is immaterial, the filing said. "It is a clear abuse of discretion to render a final decision without a majority, regardless of which side of the split decision becomes the 'majority' decision."

The filing also said the commission erroneously applied the law as it applies to discretionary authority.

The commission is next scheduled to meet in September.