Former governor John Hickenlooper’s hearing before the Independent Ethics Commission can proceed as scheduled on Thursday.
A district court judge late Wednesday declined Hickenlooper’s request to delay the hearing. The state’s Independent Ethics Commission issued a subpoena earlier this week to compel Hickenlooper’s testimony at the teleconference on Thursday. Hickenlooper’s team went to court to try to quash the subpoena and delay the hearing, arguing the virtual technology is untested and would be unfair to him.
Judge Christopher Baumann rebuffed Hickenlooper’s team on multiple fronts, writing that “for better or worse, remote legal proceedings are the norm right now and the IEC has made an informed decision to proceed by videoconference in order to avoid any additional delays in Plaintiff’s case.”
Baumann declined to issue a temporary restraining order or injunction to delay Thursday’s hearing. But Hickenlooper's U.S. Senate campaign has not said whether he would obey the ethic's commission's subpoena and testify on Thursday.
"Governor Hickenlooper has said for months he wants to testify, but even the Republicans behind this politically motivated complaint agreed an unreliable and glitchy virtual hearing would not protect his due process rights. The IEC asked for dates in August, which Governor Hickenlooper provided. We are reviewing this decision and our next steps," wrote spokesperson Melissa Miller.
The hearing is about allegations that Hickenlooper illegally accepted gifts in the form of air travel. Hickenlooper’s lawyers argued the gifts were allowed under exemptions for official state business and special personal occasions.
The IEC can issue punitive fines if Hickenlooper is found to have violated the state's limits on gifts to public officials, but its powers in this case are also symbolic. A finding that Hickenlooper violated ethics rules would hang over his campaign in the U.S. Senate race to unseat Republican Sen. Cory Gardner. The commission will deliberate on the matter on Thursday or Friday after the hearing.
Hickenlooper had previously agreed to appear at an in-person hearing in March, but that was scuttled by the coronavirus outbreak.
The IEC rescheduled the hearing for a virtual format on June 4. Hickenlooper’s lawyers argued the change would infringe on his rights. A filing cited “serious and, frankly, embarrassing” interruptions in a trial run.
When it comes to a fact-finding hearing like the one Hickenlooper faces, “the interruption in communication brought about by frozen screens, audio static, fading internet signals, and audio video mismatches can be the difference between justice being served and it being thwarted,” his lawyers wrote.
Judge Baumann wrote that he too had experienced “growing pains” in remote evidentiary hearings, but he wrote that they “generally subside and the parties adjust quickly to the rhythms of a remote hearing.” Baumann also knocked Hickenlooper for not requesting a court intervention “until the day before the hearing.”
Hickenlooper’s team had suggested an in-person hearing in August, which was the earliest that the IEC suggested it could take place. That would be months after the June 30 primary in which voters will choose between him and former House Speaker Andrew Romanoff for the Democratic Senate nomination.
In interviews and court filings, Hickenlooper’s team said that the ethics commission is being manipulated by Republican interests, and they seemed to fault the IEC for delays in scheduling an earlier date.
“It’s unfortunate the IEC is now being used as a tool of the right-wing hit job organization,” said Marc Elias, an attorney funded by the Democratic Senatorial Campaign Committee and working for Hickenlooper.
The complainant is a recently formed group known as the Public Trust Institute. In an earlier filing, PTI agreed that a virtual hearing was inappropriate.
“PTI agrees that the Commission should not hold a remote web-based hearing without the consent of the Respondent,” the complainants wrote. But the group’s leader, former Republican politician Frank McNulty, said later that if the ethics commission was OK with it, so was he.
Curiously, this is the third time that Judge Baumann has been involved in the U.S. Senate Primary. Baumann previously ruled that two more Democratic Senate candidates should be allowed onto the primary ballot. Those decisions were overturned by the Colorado Supreme Court.
This article was updated with more detail about the proposed August date.
