Analysis of the City Charter shows that Skorman’s home-made campaign contribution forms violate municipal election law
By Seth Richardson
The brouhaha over whether candidates for Mayor of Colorado Springs are required to provide the employer and occupation of donors on their campaign finance reports appears to be a cynical dirty-politics attempt to gain political advantage by exploiting an ambiguity in the law by mayoral candidate Richard Skorman that may come back to bite him in the behind.
The fault for the ambigity Skorman and Colorado Ethics Watch are trying to exploit must be laid at the feet of City Clerk Catherine Young, who once again has proven that she’s incompetent to hold her office.
But as for any legal or criminal culpability on the part of candidates for Mayor in Colorado Springs who used the mandated official form provided by Young, which do not provide space for the information Colorado Ethics Watch and the Skorman campaign insist is mandatory, it’s a dead issue.
The reasons are pretty simple, beginning with Colorado’s state constitutional Home Rule provisions, which clearly state that where there is a conflict between state law and home rule city ordinances, the home rule ordinances trump the state law, unless the General Assembly has specifically “occupied the field” by regulating the specific issue.
Despite what Colorado Ethics Watch maintains, the Colorado Fair Campaign Practices Act’s provisions regarding the listing of the occupation and employer of donors do not automatically apply to local political races in home rule cities like Colorado Springs, or so says Deputy City Attorney Wynetta Massey. She wrote in a May 13, 2011 e-mail, “…where inconsistencies occur between the FCPA and the City Code, the City Code will prevail… Since the campaign finance reports do not specifically state that employer and occupation must be reported, it is optional for reporting purposes.”
She’s absolutely correct in her legal analysis, and while CEW executive director Luis Toro is quoted in the Gazette as saying, “Wow, I disagree with that,” and said that “other cities in Colorado regularly require disclosure of donors’ employers and occupations,” that is not a requirement for all home rule cities, who can make their own rules as they see fit. Section 5.2.201 of the City Charter says, “In the case of any inconsistency, this chapter, “Elections”, of the City Code provisions shall prevail.”
Toro goes on to falsely claim, “If you accept that argument, then the clerk could change the election requirements at whim.” This is legal nonsense. The rules for local elections in home rule jurisdictions are set by the Colorado Springs City Council which delegated supervision of elections to the City Clerk. Section 1.2.506 of the City Charter says, “The Clerk shall conduct all City elections and do or cause to be done all things required by the City Charter and related ordinances… The Clerk is the designated election official for purposes of Colorado statutes.”
This doesn’t make the City Clerk an independent ruling body, but it does vest substantial administrative authority in the City Clerk to determine what information is required by the city in the election process. If CEW or Skorman have a dispute, it’s with the City Clerk, not the other candidates, who merely followed her directions to the letter.
And there’s another law that absolves everyone except Skorman from legal liability for following the directives of the City Clerk in this instance. Colorado Revised Statutes 18-1-504 says that a person cannot be held criminally liable for obeying “an official written interpretation of the statute or law relating to the offense, made or issued by a public servant, agency, or body legally charged or empowered with the responsibility of administering, enforcing, or interpreting a statute, ordinance, regulation, order, or law.”
Catherine Young is exactly the sort of public servant anticipated by this law, and candidates in the mayoral race were told explicitly by her that they were to use the city-provided form and no other form. Section 5.2.202 (A) of the City Charter states, “All reports required by the Fair Campaign Practices Act shall be filed with the City Clerk upon forms supplied by the City Clerk.”
And guess who knowingly and deliberately did not file the required reports on the mandatory form supplied by the city? Candidate Richard Skorman.
Skorman cannot claim that he was obeying the dictates of a city official tasked with conducting the election as the other candidates can. Instead he knowingly refused to abide by her instructions, and what’s more, he never openly questioned her interpretation of the campaign laws or asked for a clarification of the conflict between the city election code and the CFCPA prior to filing illegal self-created forms that explicitly violate the city’s election code.
Clearly he knew of the ambiguity between the state law and the city code, and tried to exploit the ambiguity to his political advantage, seemingly with the full cooperation of both Colorado Ethics Watch. But there’s some potential bad news on the horizon for Skorman, if someone wishes to press the issue.
Section 5.2.204 (A) of the City Charter goes on to say, “Any person who knowingly violates any provision of section 5.2.202 of this part… shall be guilty of a violation of the ordinances of the City, punishable as a misdemeanor, and shall upon conviction be punished by a fine not exceeding five hundred dollars ($500.00) for each offense. Any candidate shall, in addition, forfeit the right to assume the nomination or to take the oath for the office to which the candidate may have been elected…” (emphasis added)
By knowingly filing illegal home-made campaign finance reporting forms, Skorman has violated municipal law and may be prosecuted for a misdemeanor and, most importantly, has forfeited the right to take the office of Mayor, even if he wins the election.
Oops. Looks like his attempt to get everyone else in hot water backfired on him, perhaps fatally for his candidacy for Mayor. That’s what you get when you play dirty politics and do it poorly.
© 2011 Altnews