FAILURES

of 2011

Top Ethical

Introduction
2011 in politics and government saw controversies, law suits and news scandals in every area of the state. While many saw the light of day, many more passed under the radar unless a person, an organization or an enterprising reporter spent hours uncovering, researching and following through on the broad implications of government corruption and lack of transparency. In its annual effort to round up the year in ethics in Colorado, Ethics Watch honed in on the larger controversies that, in our minds, qualify as the Top Ethical Failures of 2011. Some were big news while others barely garnered a headline, but the consequences of each of these scandals are far-reaching and precedent-setting. The most egregious of ethical failures took place in Adams County, in the Secretary of States Office, and in Colorado Springs, where multiple examples were identified to support our findings, demonstrating a consistent lack of regard for ethics rules, laws and values. The other two ethical failures by former Jefferson County Commissioner Kevin McCasky and by an organization now called WAIT Training demonstrate just what kind of corruption and undue influence take place in government every day. Only by paying attention to the actions of our government agencies and officials, identifying ethical lapses, and shining a light on them to the broader public will we be assured to have what Colorado voters have demanded transparent and accountable public leaders.

Adams County Meltdown

Adams County was the unquestioned epicenter of ethics problems in Colorado during 2011, with multiple scandals rocking county government and leading voters to demand reform. Quality Paving Scandal Alice Nichol (D) was elected in 2004 to serve on the Adams County Board of Commissioners. During 2011, evidence emerged that Nichol enjoyed a too-cozy relationship with Quality Paving, a campaign contributor to Ms. Nichol and a contract company for Adams County, and may have used her official position to benefit family members. According to news reports, in 2005 Quality Paving resurfaced the driveway at the Nichols home and offered the work for no charge.1 Ron Nichol, Ms. Nichols husband, reportedly hired the company without getting a bid from either Quality Paving or any other company or agreeing to a price for the work, only months after the President of Quality Paving had voted to hire Ms. Nichols son-in-law for a county position.2 The relationship between Ms. Nichol and Quality Paving did not end there. A former vice president of Quality Paving claimed to have paid Ms. Nichol $10,000 in cash.3 The Nichols denied that allegation.4 Ms. Nichols time on the Adams County Board of Commissioners has also been plagued with accusations of nepotism. Weeks after Ms. Nichol took office the county fleet position was given to Ms. Nichols son-in-law, despite him not having the required qualifications for the position.5 The hiring was confirmed by a 2 to 1 vote of a county panel, the two votes coming from Nichol family friend Lee Asay, public works director, and Jerry Rhea, President of Quality Paving, the contractor Mr. Asay placed on the panel.6 Ms. Nichol also compensated family members for work performed on her campaigns. Renee Stark, Ms. Nichols daughter, benefitted the most when compensated a total of $15,338 from campaign contributions.7 The Quality Paving scandal has resulted in several criminal indictments, and proceedings are ongoing.8

David Olinger and Kevin Vaughan, Adams County Commissioner could be giving friends, relatives unfair advantage, The Denver Post, January 30, 2011. 2 David Olinger and Kevin Vaughan, Quality Paving VP paid $10,000 to Adams County Official, lawyer claims, The Denver Post, August 20, 2011. 3 Id. 4 Id. 5 Olinger and Vaughan,Adams County Commissioner could be giving friends, relatives unfair advantage, supra note 1. 6 Id. 7 Id. 8 Tom Burke, Arthur Kane, and John Ferrugia, Adams County Workers, Contractors Charged with Theft, Embezzlement, TheDenverChannel.com, July 27, 2010.
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Preferential Treatment in the Assessors Office Gil Reyes (D) was elected Adams County Assessor in 2002 and reelected in 2006 and 2010. Mr. Reyes reportedly accepted gifts from a company that owned warehouse property in Adams County before subsequently decreasing the value of those properties, saving the company hundreds of thousands on property taxes. In April 2011, Mr. Reyes accepted gifts from a senior executive for Majestic Realty, a company that owns industrial warehouse property in Adams County and was Mr. Reyes leading campaign contributor.9 Majestic Realty then received $23 million in property-valuation reductions, saving the company over $800,000 in property taxes in 2010.10 Mr. Reyes was charged with misdemeanor failure to report a gift and pleaded guilty to the misdemeanor charge.11 The court imposed a fine of $300 for the violation.12 However, the Independent Ethics Commission (IEC) declined to investigate the allegations against Mr. Reyes because the conduct occurred outside the twelve-month statute of limitations for IEC complaints.13 On August 16, 2011, the Colorado Division of Property Taxation released a report outlining their investigation into Mr. Reyes property assessments for campaign contributors.14 The report compared the property valuation of all campaign contributors to Mr. Reyes, from when he declared as a candidate for the 2006 election until the final report on the 2010 general election, to the property valuation of comparable properties owned by individuals that did not contribute to either of Mr. Reyess 2006 or 2010 campaigns.15 The Colorado Department of Property Taxations report revealed more evidence of unethical behavior on the part of Mr. Reyes. According to the report, 49.5% of property valuation appeals that Mr. Reyes personally handled were for properties of campaign contributors, only one of which had their appeal denied.16 Records also showed twenty petitions, abating a total of $848,694 in taxes, were related to campaign contributors of Mr. Reyes.17 The

David Olinger, Adams County Assessor Gil Reyes charged with not disclosing gifts, The Denver Post, June 23, 2011. 10 Monte Whaley, Adams County Assessor Gil Reyes fined over gift, The Denver Post, August 3, 2011. 11 Id. 12 Id. 13 State Ethics Commission Passes on Investigation of Adams Assessor, The Denver Post, September 9, 2011. 14 Final Report and Recommendations Resulting from Investigation of Adams County Taxpayer Complaints, Division of Property Taxation, August 16, 2011 (Exhibit 1).
15 16

Id. at p. 3. Final Report and Recommendations Resulting from Investigation of Adams County Taxpayer Complaints, supra note 9 at p. 5 (Exhibit 1). 17 Id.
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report also found that the values of commercial properties owned by campaign contributors did not change from 2005 to 2009.18 The report concluded that commercial property owned by campaign contributors was incorrectly valued compared to non-contributor owned properties.19 Although the report found Mr. Reyes failed to follow property-tax laws, it did not examine whether a criminal investigation was needed.20 In response to the Department of Property Taxation report, a state board unanimously voted to reappraise every warehouse in AdamsCounty, an unprecedented decision.21 State officials were unable to recall any other case where an entire class of properties had to be reappraised throughout an entire county.22 Mr. Reyes favoritism toward campaign contributors leaves serious doubts that he can operate his office for the good of the public. The unprecedented need for the county to reappraise every warehouse property is damning evidence that Mr. Reyes is unable to impartially perform the job that he was elected to do. For this reason, Ethics Watch and the Denver Post editorial board both called on Mr. Reyes to resign.23 Abuse of Power in the Sheriffs Office Sheriff Doug Darr (D-Adams County) was elected to the Office of Sheriff in 2002. A federal jury found that Sheriff Darr violated the free speech of Adams County Deputy Mark Nicastle, retaliating against Nicastle because Nicastle challenged Darrs 2010 re-election campaign. On April 9, 2010 Deputy Mark Nicastle filed a federal lawsuit against Sheriff Darr claiming that his Constitutional rights had been violated and that he had been demoted and retaliated against, all in an effort to block his bid for sheriff. 24 The case went to trial this spring, and on May 12, 2011 a federal jury found Sheriff Darr guilty of retaliation, in violation of Deputy Nicastle.s First Amendment rights25 The jury found that Darr created internal investigations as well as a demotion to prevent Deputy Nicastle from running against him for the position of sheriff. 26 The jury awarded Deputy Nicastle $730,000 in back pay and damages. 27

Id. at p. 43-50. Id. at p. 19. 20 David Olinger, All Adams County warehouses to be reappraised, The Denver Post, August 17, 2011. 21 Id. 22 Id. 23 Editorial: Adams Assessor Must Step Aside, The Denver Post, August, 18, 2011. 24 Complaint, Nicastle v. Darr, U.S. District Court, District of Colorado, No. 10-cv-00816-REBKMT, April 12, 2010 (Exhibit 2). 25 Verdict Form, Nicastle v. Darr, US District Court, District of Colorado, No. 10-cv-00816REB-KMT, May 12, 2011 (Exhibit 3). 26 Monte Whaley, Jury says Adams County Sheriff Doug Darr violated rival Mark Nicastles rights, The Denver Post, May 14, 2011.
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The Adams County Sheriffs office ran into more trouble in 2011 when it was exposed that several jobs were given to family members of the department. CBS4 revealed that the Sheriffs office was providing lucrative summer jobs that were funded through taxes exclusively to the sons and daughters of department staff members.28 Reaction From The Public Unsurprisingly, Adams County residents have been appalled by the ongoing scandals in their county. A Ciruli and Associates poll sponsored by the Adams County Commissioners found that 80% of Adams County voters favored establishing an internal audit process with an independent auditor, and supported establishing an ethics code prohibiting officials from doing personal business with county contractors by a similar margin.29 Hopefully, reforms will be put in place to make sure Adams County never has another year like 2011.

Final Order and Order for Judgement Nicastle v. Darr US District Court, District of Colorado 10-cv-00816-REB-KMT, October 4, 2011 (Exhibit 4). 28 Brian Maass, CBS4 Finds Adams Co. Sheriff Jobs Only Go To Staffs Children, CBSDenver.com, October 12, 2011 29 Floyd Ciruli, Adams County Voters Very Concerned About Corruption in County Government Favor Reforms, Ciruli Associates Poll, August 30, 2011, http://www.co.adams.co.us/DocumentView.aspx?DID=614, accessed on December 2, 2011.
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Scott Gessler in the Tank

Secretary of State Scott Gessler was a lightning rod for controversy in Colorado this year, with unsupported allegations of voter fraud,30 and a failed lawsuit to block the Denver Clerk and Recorder from mailing ballots to registered voters who missed the 2010 election,31 earning him a national reputation32 for voter suppression. His clearest ethical failure, however, was his handling of a campaign finance fine reduction request from the Larimer County Republican Party (LCRP). Under Colorado law, the Secretary of States office imposes $50 per day fines for late campaign finance filings.33 The person or group penalized has the right to ask the Secretary for a waiver or reduction of the fine, so long as the request is filed no later than thirty days after the date on which notification of the imposition of the penalty was mailed to such person's last known address.34 On December 31, 2010, shortly before Gessler took office, the Secretary of States Campaign Finance Support Team sent a Notice of Delinquent Campaign Finance Disclosure and Imposition of Penalty (End of Year 2010) to the LCRP at its registered agent address of record.35 The Notice advised the LCRP that it had failed to file six campaign finance reports when due during 2010 and that penalties totaled $29,800 as of that date. More than thirty days elapsed with no response from the LCRP. On February 28, 2011, LCRP Chairman Larry Carrillo abruptly resigned after other party leaders confronted him about the missed filings and accumulating penalties.36 New leadership quickly filed reports, which were admittedly incomplete, on March 4 in order to stop the accumulation of automatic late fines.37 On March 9, the LCRP filed a waiver request for all penalties imposed to date.38

Charles Ashby, No evidence yet in Gessler claim of illegal voters, Grand Junction Sentinel, June 17, 2011. 31 Judge denies injunction in Gesslers ballot suit, Aurora Sentinel, October 8, 2011. 32 Ryan Grenoble, Scott Gessler, Colorado Secretary Of State, Draws Federal Ire Over Questionable Ballot Practices, The Huffington Post Denver, September 29, 2011. 33 Colo. Const. art. XXVII, 10(2)(a). 34 Colo. Const. art. XXVIII, 10(2)(b). 35 Notice of Delinquent Campaign Finance Disclosure and Imposition of Penalty, Larimer County Republican Party, December 31, 2010 (Exhibit 5). 36 Robert Moore, Ex Larimer GOP chair admits he knew party wasnt filing campaign finance reports. Coloradoan, March 8, 2011. 37 Letter from Ryan R. Call, Hale|Westfall, to The Honorable Scott Gessler, March 9, 2011 (Exhibit 6). 38 Id.
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The waiver request was not acted upon for several months. In the meantime, Secretary Gessler proposed39, and then enacted40, a rule to govern determinations of waiver requests, and former LCRP Chair Carrillo was charged with felony theft for allegedly using LCRP funds for payment of personal expenses.41 On August 19, Election Director Judd Choate issued the waiver decision on behalf of the Secretary of State.42 The LCRPs fines were reduced from $47,000 to $15,707.61.43 No mention was made of the fact that the LCRP failed to request a waiver of the first $29,800 of fines within thirty days of the December 31 notice.44 Moreover, the decision acknowledged that Carillo likely acted willfully in his failure to file, yet refused to impute that willful misconduct to the LCRP, which was ruled to have merely been negligent.45 Nevertheless, Gessler stood behind the decision, telling the Fort Collins Coloradoan that public awareness of large fines discourages civic participation in our political process.46 As lenient as the fine decision was, however, the worst was yet to come. Shortly after the fines were reduced, the LCRP announced that Gessler would appear at a lighthearted fundraiser, offering to sit on a dunk tank and take shots from LCRP supporters as a way to raise funds to pay off the fine.47 In the words of Colorado State University political scientist John Straayer reported in the Fort Collins Coloradoan, One would think the secretary would instead go to great lengths to keep his distance so as to avoid any appearance of partisanship with respect to the fine reduction.48 The Coloradoan editorialized that Gessler's poor judgment mocks the importance of campaign finance reporting, and he is disrespecting the secretary of state's office by his fartoo-close association between reducing the fine and then participating in a Republican Party fundraiser to pay off the fine.49 Gessler and the LCRP responded to the criticism not by canceling the fundraiser, but by moving it indoors, losing the dunk tank in the process but making the event off-limits to media.50 Probably the most disturbing aspect of the fundraiser, however, was not its lack of transparency,

39

Notice of Proposed Rulemaking, Office of the Secretary of State, Rules Concerning Campaign and Political Finance, 8 CCR 1505-6, March 11, 2011 (Exhibit 7). 40 Notice of Adoption, Office of the Secretary of State, Rules Concerning Campaign and Political Finance, 8 CCR 1505-6, May 2, 2011 (Exhibit 8). 41 Weld County District Attorneys Office, Press Release, July 5, 2011 (Exhibit 9). 42 Colorado Secretary of State, Waiver Decision (August 19, 2011) (Exhibit 10). 43 Id. 44 Id. 45 Id. 46 Robert Moore, Larimer GOP fine reduced by $33,000, Coloradoan, August 20, 2011. 47 Tim Hoover, Colorado secretary of state will help GOP pay off fine levied by his office, The Denver Post, September 10, 2011. 48 Robert Moore, Gessler to help raise cash to pay off GOP fine, Coloradoan, September 10, 2011. 49 Opinion, Gessler should cancel dunk-tank appearance, Coloradoan, September 14, 2011. 50 Robert Moore, Larimer County GOP makes fundraiser private. Fort CollinsColoradoan, September 15, 2011.
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but its display of partisan favoritism from the states chief election official. A DenverPost reporter asked Gessler if he would help raise money to pay down fines levied against Democrats or liberal groups?51 Gessler responded It would have to be an organization Im philosophically aligned with.52 Gesslers failure to recognize the importance of avoiding partisan favoritism in the management of elections earned him a spot in 2011s Ethics Roundup.

51

Tim Hoover, Gessler wont be dunked, but hell still raise funds to help GOP with fine, Denver Post, September 16, 2011. 52 Id.

Colorado Springs Sues to Avoid Enforcing Its Own Laws

Colorado Springs first municipal election under its new strong mayor system revealed a city incapable of enforcing, or sometimes even understanding, its own election laws. The city clerks office issued erratic advice. The city clerk told candidates they were prohibited from accepting corporate contributions53, when city ordinances are actually silent on the question.54 It also reportedly told outside groups supporting candidates that they need not file electioneering communication reports,55 even though the city expressly adopted state disclosure requirements on that point.56 While all of this might be chalked up simply to ineptitude, Colorado Springs government actively fought against transparency when it went to court to avoid handling Ethics Watchs request that the City investigate and prosecute Douglas Bruce and the Reform Team Political Committee for violating the citys own campaign finance laws. Douglas Bruce and four like-minded Colorado Springs residents ran for five City Council positions, labeling themselves the Reform Team.57 None of the team members, however, registered a candidate committee to disclose their contributions or expenditures.58 Instead, Douglas Bruce filed a certificate of registration with the city clerk, establishing the Reform Team Political Committee as a political committee (PAC) with himself as the registered agent. The Reform Team PAC quickly raised tens of thousands of dollars.59 The Fair Campaign Practices Act, incorporated into the Colorado Springs Municipal Code, defines a candidate committee as a committee operating under the authority of a candidate.60 By definition, PACs operate independently from candidates.61 By operating the Reform Team PAC while running as a candidate for City Council, Bruce ignored these legal requirements and should have been held responsible for his actions. While Colorado Springs has incorporated state campaign finance laws in most respects, the city adopted its own enforcement procedure. Violations of the campaign finance ordinance are treated as misdemeanor violations to be prosecuted by the city attorney.62 Invoking this ordinance, Ethics Watch sent a letter to then-Mayor Lionel Rivera and then-Vice Mayor Larry

Daniel Chacn, Big bucks in mayoral race raise corporate donation issues, The Gazette (Colorado Springs), Feb. 9, 2011. 54 See Colo. Spgs. Mun. Code 5.2.201 204. 55 R. Scott Rappold, Ethics group says Americans for Prosperity should reveal financial backers, The Gazette (Colorado Springs), May 13, 2011. 56 Colo. Spgs. Mun. Code 5.2.201, incorporating C.R.S. 1-45-108(1)(a)(III). 57 John Hazelhurst, Bruce and Co. up the ante, Colorado Springs Independent, Feb. 23, 2011. 58 J. Adrian Stanley, Doug Bruce: Groupthinking, Colorado Springs Independent, March 10, 2011. 59 Hazelhurst, Bruce and Co. up the ante, supra note 57. 60 Colo. Spgs. Mun. Code 5.2.201, incorporating C.R.S. 1-45-103(3); see also Colo. Const. art. XXVIII, 2(3). 61 Colo. Spgs. Mun. Code 5.2.201, incorporating C.R.S. 1-45-103(14); see also Colo. Const. art. XXVIII, 2(12)(b). 62 Colo. Spgs. Mun. Code 5.2.204.
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Small, asking them to direct the City Attorney to investigate and prosecute Bruce and the Reform Team PAC for violating the citys campaign finance ordinance.63 It was at this point that a routine municipal campaign finance matter took a turn for the bizarre. Rather than processing the investigation request through its own established procedures, the city filed the request as a complaint with the Colorado Secretary of State. Complaints for violations of state campaign finance laws are filed with the Secretary of States office, which refers the complaint to the Office of Administrative Courts for resolution by an administrative law judge.64 The Deputy Secretary of State referred the request for investigation to the Office of Administrative Courts as a complaint, but only after confirming via telephone call with the City Clerk that the City of Colorado Springs intends to be the complainant in this case.65 Less than a week after the citys complaint was filed, Judge Robert Spencer entered an order dismissing the complaint for lack of jurisdiction on his own motion. Among other things, Judge Spencer noted that under the Colorado Constitution, home rule cities such as Colorado Springs have authority to supersede state law with respect to the conduct of municipal elections and that the states Campaign Finance Amendment does not claim to override a citys home rule powers.66 Judge Spencers opinion was also consistent with a 2003 formal opinion of the Attorney General67, a state statute68 and a Secretary of State campaign finance rule.69 Judge Spencer returned the case to the City for investigation and prosecution as provided by 5.1.111 of the Colorado Springs Municipal Code.70 Despite the quick rebuke from the administrative law judge, the city failed to investigate and prosecute the apparent violation of the law requiring PACs to operate independently from candidates. While the City did require Bruce and the other candidates to register candidate committees71, no action was taken regarding the key allegation that a candidate was illegally operating a PAC except to file an appeal of Judge Spencers order.72 Months later, even after a

Letter from Luis Toro, Director, Colorado Ethics Watch to Lionel Rivera, Mayor of Colorado Springs, and Larry Small, Vice-Mayor of Colorado Springs, March 10, 2011 (Exhibit 11). 64 Letter from Lionel Rivera, Mayor of Colorado Springs, to Judd Choate, Director of Elections, Colorado Department of State, March 14, 2011 (Exhibit 12). 65 Letter from Deputy Secretary of State William Hobbs to Matthew Azer, Director, Office of Administrative Courts, March 14, 2011 (Exhibit 13). 66 Order of Dismissal, Case No. OS 2011-0010, Office of Administrative Courts, March 18, 2011 (Exhibit 14) at p. 3, citing Colo. Const. art. XX, 6 and art. XXVIII, 8. 67 Formal Opinion of Ken Salazar, Attorney General, No. 03-1 at 1 (Jan. 13. 2003). 68 C.R.S. 1-45-116. 69 Campaign and Political Finance Rule 7.1, 8 CCR 1505-6. 70 Order of Dismissal, supra note 66, at p. 5. 71 Letter from Patricia Kelly, Colorado Springs City Attorney, to Douglas Bruce, March 25, 2011 (Exhibit 15). 72 City of Colorado Springs, Notice of Appeal, April 28, 2011 (Exhibit 16).
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new mayor and city council are in place, the appeal is still pending before the Colorado Court of Appeals with no action taken against Bruce. The extreme measures taken by the City of Colorado Springs to avoid enforcing its own campaign finance laws were one of 2011s biggest ethical lapses.

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Golden Parachute
Jefferson County Commissioner Kevin McCasky resigned early in 2011 to become the chief executive officer of the Jefferson Economic Council (JEC), a non-profit economic development group, a position that paid substantially more than a county commissioners salary.73 McCasky earned a spot in this years Ethics Roundup because after submitting his resume for the JEC position, he voted to approve a $400,000 grant from Jefferson County to the JEC. JECs previous chief executive officer announced his resignation in September 2010, and the JEC announced it planned to complete its search for a new CEO by the end of the year.74 On November 1, the advertisement for the position was posted75, and the next day, McCasky submitted his resume for the position.76 At the same time, the Jefferson County Commissioners were considering 2011 budget requests from non-profit organizations, including the JEC. In 2010, the JEC had received a grant of $380,000 from the county.77 On November 4, the County Commissioners met to discuss a number of budget items, including a $20,000 increase to the JEC grant.78 Records of the meeting show that Commissioner Kathy Hartman proposed to increase the draft budget request for the JEC to $400,000, and the other two commissioners, including McCasky, concurred.79 Hartman later told the Independent Ethics Commission that the purpose of the increase was to raise the executive directors salary, although JEC representatives deny this.80 On December 7, McCasky formally voted for a budget resolution authorizing the payment of dues and assessments to various organizations.81 The $400,000 line item for a Yearly Contribution to the JEC was by far the largest of the 31 line items in the resolution; the next largest item was a $174,390 assessment for an animal shelter.82

Emile Hallez Williams, McCasky stepping down as county commissioner, Columbine Courier, January 19, 2011. 74 Ann Schrader, Preston Gibson resigns as president of Jefferson Economic Council, The Denver Post, September 10, 2010. 75 E-mail from Bonnie Garaway to Charles@jci-inc.net, August 15, 2011 (Exhibit 17). 76 E-mail from Charles Webb to Jane Feldman, September 14, 2011 (Exhibit 18). 77 Williams, McCasky stepping down as county commissioner, supra note 73. 78 Jefferson County Board of County Commissioners 2011 Budget Discussion Agenda, November 4, 2010 (Exhibit 19). 79 Memo from Tina Caputo, Jefferson County Director of Budget & Management Analysis to the Board of County Commissioners and Ralph Schell, County Administrator, November 4, 2010 (Exhibit 20). 80 Colorado Independent Ethics Commission Staff, Investigation of Complaint 11-03 (Exhibit 21). 81 Board of County Commissioners of the County of Jefferson, State of Colorado Resolution No. CC10-382 (Exhibit 22). 82 Id.
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Colorados Ethics Code provides that a local government official or employee shall not . . . [p]erform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent.83 The Ethics Code defines financial interest as including [a]n employment or a prospective employment for which negotiations have begun.84 In addition, the Amendment 41 gift ban extends to promises or negotiations of future employment.85 In a non-binding position statement interpreting this provision, the IEC has warned government employees that individuals who are in a position to take direct official action, either currently or in the reasonably foreseeable future should not be placed in situations where their judgment might be perceived to be influenced one way or another.86 McCaskys attorneys have argued to the Independent Ethics Commission (IEC) that negotiations for employment had not begun when he voted on the JECs budget. The IEC has scheduled a hearing on a complaint against McCasky filed by Ethics Watch for February 2012.

83 84

C.R.S. 24-18-109(2)(b). C.R.S. 24-18-102(4). 85 Colo. Const. art. XXVIII, 3(2). 86 Colorado Independent Ethics Commission Position Statement 09-03 (Sept. 21, 2009).
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WAIT Not Worth It

An August Westword story by Andy Kopsa raised serious questions about how an abstinence-only sex education group was able to work with members of the State Board of Education to circumvent state laws against such programs, and later receive federal dollars through the state despite scoring the lowest of all applicants on Colorados grant evaluation rubric. Even though then Gov. Ritter declined the $3.2 million in abstinence-only funding, the State Board of Education (SBOE) found a way to go around the governor and apply for the funding. 87Armed with an opinion from the Attorney Generals office, the State Board of Education was able to qualify as an applicant for federal abstinence-only dollars in spite of the Governors opposition.88 The Center for Relationship Education, now known as WAIT (Why Am I Tempted) Training, was heavily involved in this process. Its president, Joneen Mackenzie, was directly in contact with federal officials about how the SBOE could demonstrate its ability to apply for the federal grant in spite of Governor Ritters decision.89WAIT Training was the only grant applicant that was also involved in the state's process of requesting federal abstinence-only funds.90 It ended up being awarded funding despite scoring the lowest of all Colorado applicants on the state's grant evaluation rubric.91 In order to comply with state requirements regarding inclusiveness of gay and lesbian students, WAIT Training claimed that its curriculum was "vetted" by the American Psychiatric Association's Gay and Lesbian Issues Team.92 The Center for Relationship Education Title V Application even goes so far as to imply that it is concerned with the well-being and education of GLBTQ students.93 Yet WAIT Trainings directors email footer contained a quote from Maggie Gallagher, director of the anti-gay rights National Organization for Marriage.94 Even more troubling, the American Psychiatric Association denied vetting or approving WAIT Trainings curriculum. In fact, the association considers abstinence-only education inappropriate for GLBTQ students unless paired with full support for same-sex marriage. All of this suggests that WAIT Training misled the State of Colorado about its GLBTQ inclusiveness in order to obtain the grant. Colorado law allows state contracts to be rescinded for misrepresentation, although

87

Andy Kopsa, Abstinence-only funding was refused, but that didnt stop a state school-board member, The Denver Westword, August 11,2011 88 E-mail from Tony Dyl to Mary Frances Nevans and Bob Schaffer, September 23, 2010 (Exhibit 23). 89 E-mails among Tanya Price, Peggy Littleton, Dwight Jones, Joneen Mackenzie and LeBretia White, September 1, 2010 (Exhibit 24). 90 Kopsa, ,Abstinence-only funding was refused, but that didnt stop a state school-board member, supra note 87. 91 Id. 92 The Center for Relationship Education Title V Application (Exhibit 25), Page 4. 93 Id. 94 See (Exhibit 24), supra note 89.
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such contracts can also be affirmed at the agencys discretion.95Regardless of the technicalities that could come into play if the WAIT contract were challenged, Colorado statutes about contracting establish an ethical standard that one should not make misrepresentations when submitting grant applications to the state.96 The ethical standard should apply even more strongly when, as here, the well-being of young people is at stake. The cozy relationship between WAIT Training and the agency that awarded it federal dollars appears to have led to more than one ethical failure and was one of the top ethics scandals to emerge in 2011.

95 96

C.R.S. 24-109-106; 24-109-403. Id.

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