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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.
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‘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.
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