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DRAFT Position Statement _ (Frivolous Determinations) if Introduction ‘The Colorado Constitution authorizes the Independent Ethics Commission (“Commission”) to give advice and guidance on ethics issues arising under Article XXIX of the Colorado Constitution and any other standards of conduct and reporting requirements as provided by law. In its discretion, the Commission may issue position statements, which are generally applicable written statements providing {guidance to public officers, members of the General Assembly, local government employees and members of the public. ‘The Commission has previously attempted to articulate the basis upon which a complaint may be determined to be frivolous or not. This Position Statement is intended to provide additional clarity to the public about that standard. I, Discussion Article XXIX contemplates that the commission shall consider whether a complaint is frivolous. In other contexts, for example in a judicial context, the determination that a complaint is frivolous is a rare occurrence and usually connotes bad faith and is the basis upon which sanctions are imposed on the party making the frivolous filing. In the judicial context at the initial stage of a lawsuit, the court may dismiss a case if on its face it fails to allege facts sufficient to warrant relief. Dismissal is not the same thing as a determination of frivolousness. A complaint may be dismissed, but not be frivolous. However, the judicial determination is made accepting all the facts alleged as true and dismissal does not occur unless the court is satisfied that there is no set of facts framed by the complaint that would entitle the plaintiff to relief. Similarly, a complaint may be determined to have been frivolous at a later stage of the proceedings if it is determined that the complaining party lacked sufficient factual basis, at the time of the filing, to have brought the complaint in the first place. In that setting, the complaint, the motions and the determination are all available to the public. In the context of Article XXIX, the concept of frivolity has a different meaning. Article XXIX is drafted to balance multiple competing interests. As such it specifies that a complaint must be kept confidential by the Commission until a determination has been made that the complaint is not frivolous. The confidentiality provision, though often mooted by the parties themselves who seek publicity for their allegations, serves a dual purpose of protecting the complainant from retaliation and the respondent from widespread dissemination of baseless allegations that can impact reputations, ‘elections and the like, Under this process, a frivolous determination that comes only after @ public hearing can be scant consolation for the affected parties. Article XXIX permits the Commission to exercise its constitutionally mandated duty to determine which complaints warrant further proceedings and which do not, Thus, the decision to declare a complaint frivolous and not to pursue it has been held to be non-reviewable, much like the decision of a prosecutor not to prosecute. Colo. Ethics Watch v. Indep. Ethics Comm'n, 2016 CO 21. The Commission must balance these interests against the interest of the public in understanding what the Commission does and why. These competing interests are not ‘easy to balance. But, they are the result of the way in which this citizen initiative was drafted. 1of2 DRAFT ‘Accordingly, when reviewing a complaint to determine whether itis frivolous, the Commission employs different process than a court might in order to balance the different interests that it is required to serve under its unique constitutional authority; Complaints that are determined to be wholly outside the Commission's jurisdiction are deemed frivolous, 2. Complaints that do not raise ethical issues under Article XXIX, for example complaints about the merits of a zoning decision by a local governing body, are dismissed as frivolous. 3. Like a court deciding a motion to dismiss, complaints that fail to allege facts that would support relief are deemed frivolous. 4, Unlike a court, the Commission has the authority to conduct preliminary additional fact gathering to clarify the allegations in a complaint. Unlike a court, the Commission is tasked with maintaining the confidentiality of complaints until a non-frivolous determination has been made. 5. When the Commission determines in open session, following discussion in executive session, that the probability of a successful outcome for a complaint is remote based on the facts alleged, and any additional facts gathered, and that a full hearing would not further assist the Commission, the Commission may dismiss the complaint as frivolous. [A frivolous determination does not and should not be construed as expressing an opinion about the 00d faith of the complainant nor is it necessarily a determination that the facts alleged on their face do not state a claim. Rather, the determination of frivolousness represents the considered decision of the Commission in its discretion that the complaint should not proceed under one or more of the standards set forth above. 2of2

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