Albus Brooks defeats campaign finance complaint, in part because Denver rules allow government spending in elections

Denver Elections confirmed to Denverite that it would move to close the gap.

(Kevin J. Beaty/Denverite)

staff photo

Council President Albus Brooks did not violate campaign finance rules when he donated $500 of city money to a local school, according to an administrative law judge.

The nonprofit Strengthening Democracy Colorado had alleged that Brooks was spending public dollars to boost his brand, but he said that was never the intention.

The ruling came down, in part, to the fact that state election rules don’t apply in Denver, and Denver’s own rules don’t fully cover the topic. In response to the ruling, city election officials said they would move to change local rules.

Here’s the argument.

Brooks’ office sent a check to Whittier Elementary School to sponsor a fundraiser. The school recognized Brooks and other sponsors by flying banners with their names and logos.

An Albus Brooks banner at Whittier Elementary School. (Courtesy Jason Legg)

An Albus Brooks banner at Whittier Elementary School. (Courtesy Jason Legg)

Jason Legg, a founder of SDC, argued that this was basically using city money to promote Brooks’ name ahead of his re-election.

Denverite found that it’s actually fairly common practice for council members to promote their names with city money, but Legg took particular offense because Brooks’ banner didn’t include any reference to the city government or his office.

Brooks said that name recognition is never the point of the charitable donations he gives from his city budget, and he pointed out that the banner didn’t mention voting or other actions — a crucial question in these kinds of cases.

Now, with the complaint settled, Brooks acknowledged that Legg had a legitimate question.

“I think Jason Legg brought up some good points of where the lines have been blurred in campaigns with city officials, and I think we’ve addressed that,” he said.

His campaign has redesigned its marketing material to more clearly differentiate his re-election run from his office activities, and he’s working with others to clarify the rules, he said. Brooks also hopes future issues will be brought up in a less “adversarial” way.

The case highlighted a bigger question — or even a loophole — in city and state law.

Under state election rules, governments can’t make contributions to candidates.

But city rules generally don’t cover that topic, Legg said. So there was no rule against city expenditures in elections, even if that’s what happened. (The judge didn’t rule on whether this really amounted to election spending.)

Legg said this interpretation creates an “absurd” situation where there is potentially nothing to stop city governments from spending to influence elections.

“That’d not just leave a hole for cities to spend in local elections, but in state elections too,” he wrote in an email to Denverite.

The state  has made it clear that cities like Denver are in charge of their own elections rules.

In fact, a new rules proposal from the Secretary of State eliminates a rule that says cities have to obey state law about government contributions in campaigns.

The change is meant to “establish uniformity” in the enforcement of state laws, according to the secretary’s office.

And there definitely is some conflicting information. The judge in Brooks’ case said that a different section of the law already excludes cities like Denver from state election law.

The new rule proposal has been in the works for about 10 months and wasn’t connected to Brooks’ case, according to deputy secretary Suzanne Staiert. (Brooks’ attorneys cited the proposal, though, in their case.)

Another reason for the change, Staiert said, was that the state agency doesn’t want to pay the bills when cities face complaints under state law, which is what happens currently.

“We just don’t feel it’s the state agency’s job to pay for litigation on behalf of municipalities,” Staiert said.  Instead, it’s more appropriate for cities like Denver to hear complaints under their own rules, in their own venues, she argued.

So, what now?

This leaves open a question: Is there anything legally stopping Denver officials from spending government money on elections?

Right now, the city’s ordinance on elections doesn’t say anything about government contributions. Neither do its rules. City career service rules do forbid employees from using city resources in political campaigns, but that doesn’t apply to elected officials.

Jane Feldman, former director of the Colorado Independent Ethics Commission, said she would be surprised if there really wasn’t a local rule on this issue.

“Government funds are taxpayer funds. Those funds should be used basically to benefit the tax payers, and benefit the city and the state rather than an individual political party or an individual who’s running for office,” she said. She was referring to the general concepts, not Brooks’ specific case.

Denver Elections confirmed to Denverite that it would move to close the gap.

“Given the proposed repeal of Secretary of State Rule 14.4 and the Administrative Law Judge’s decision, we are in the process of codifying an ordinance in municipal law to clarify this campaign finance matter,” spokesperson Alton Dillard wrote in an email to Denverite. The change will require Denver City Council approval

“It will not be an instantaneous process, but it will be a seamless transition to incorporate the change into Denver’s campaign finance ordinances.”

Brooks said he would support the change.

“I think we’ve got to think of a better way to bring clarity to the system,” he said. “Our side has been looking at what we can do to clean up any kind of blurred lines.”

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