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| Coffman v. Colorado Common Cause, |
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KOURLIS, Justice. Mike Coffman, Treasurer of the State of Colorado, challenges the court of appeals' decision in Colorado Common Cause v. Coffman, 85 P.3d 551 (Colo.App.2003), in which the court upheld an Administrative Law Judge's (the “ALJ”) determination that during the November 2000 election, Treasurer Coffman violated the Fair Campaign Practices Act (the “FCPA”), section 1-45-101 et seq., C.R.S. (2004), by the issuance of three press releases. The FCPA broadly prohibits public agencies and employees from using public monies to support or oppose election measures, except as otherwise exempted. A state-wide ballot initiative concerning school funding was proposed for the November 2000 election. Prior to the election, Treasurer Coffman issued three press releases opposing the amendment and advocating its defeat. Following the election, Colorado Common Cause (“Common Cause”) filed its complaint with the Secretary of State, alleging that Treasurer Coffman had violated the FCPA. The Secretary of State assigned the case to an Administrative Law Judge. The Treasurer supported his actions by reference to his constitutional and statutory duties as treasurer of the state to protect the State's economic health and solvency. Alternatively, he argued that his activities were covered by exemptions within the FCPA. The ALJ found a violation of the FCPA and on appeal, the court of appeals agreed, opining that the Treasurer had no independent authority to *1001 issue the releases free from the FCPA constraints, and that the FCPA does not permit unlimited expenditure of public funds for the purpose of expressing an unbalanced position on a ballot measure. We granted certiorari to determine whether Treasurer Coffman's pre-election press releases were authorized by the state constitution and statutes governing the office of treasurer, or were otherwise permitted by the FCPA. We now hold that even though the Treasurer is an elected official charged with responsibility for the state coffers and implicitly imbued with leadership responsibilities in that regard, nothing in the constitution or statutes permits him to avoid the constraints of the FCPA with respect to the expenditure of state funds to advocate either for or against a ballot measure pending before the electorate. Concluding that the FCPA is applicable, we further conclude that none of its exemptions immunize the press releases from the limitations of the Act. The ALJ's findings of fact were supported by competent evidence in the record, and we thus hold that the three press releases issued by Treasurer Coffman exceeded the FCPA's fifty-dollar limitation. Accordingly, since we determine that Treasurer Coffman was bound by the FCPA and that the issuance of the releases made use of resources in excess of the fifty-dollar exemption, we affirm the court of appeals. I. FACTS A. BACKGROUND On November 7, 2000, Colorado voters approved Amendment 23, a state-wide ballot initiative concerning monies appropriated for public school funding. Following the election, Common Cause and its executive director, Pete Maysmith, filed a complaint against Treasurer Coffman alleging the illegality of three pre-election press releases issued by the state treasurer in opposition to the amendment. Common Cause is a citizen's advocacy group headquartered in Denver, Colorado; Maysmith is a Colorado resident as well (collectively “Common Cause”). Mike Coffman was elected state treasurer in 1998, and remains in that capacity. Amendment 23 proposed an amendment to the Colorado Constitution creating the “State Education Fund.” The measure provided, among other things, that one third of one percent of income tax be set aside each fiscal year for the State Education Fund. The fund was to be administered by the State Treasurer and exempted from fiscal year spending limitations.FN1 The Amendment passed in the November, 2000 general election. FN1. Limitations on fiscal year spending are found in Colo. Const. art. X, § 20. Prior to the election, Treasurer Coffman issued three press releases opposing the amendment.FN2 The first press release was dated September 7, 2000 and titled “Coffman: Amendment 23 a ‘Fiscal Train Wreck.’ ” The release warned of the dire consequences of voter approval. Treasurer Coffman based his opposition to the amendment on several grounds, including his concern that: FN2. Two additional activities by the Treasurer are referenced in the record but do not form part of the issues in this case. These are: a September 7 press conference held by Treasurer Coffman in which he opposed the Amendment; and a fourth press release or “Treasur-E-Note” titled “Coffman Warns Legislators on Amendment 23,” dated December 6, and faxed to members of the media. If Colorado voters approve Amendment 23 this November the new State Education Fund it creates will ensure a fiscal “train wreck” for the state when the economy inevitably cools down .... This terribly confusing and complex initiative ... promises nothing in return for a huge increase in spending. I don't think the authors of this initiative fully considered the effects of their amendment when they wrote it. Although this first press release did not specifically urge voters to defeat the amendment, it did conclude with the treasurer's admonishment that proponents should “tell the taxpayers of Colorado what other important programs the legislature must cut to support the hundreds of millions in new spending that it mandates.” *1002 The Treasurer's second and third press releases were likewise critical of the amendment, but unlike the first, these specifically advised voters to defeat Amendment 23. The second titled, “Amendment 23 Technically Flawed,” was dated October 17, 2000 and warned that passage of the amendment would “force Colorado to slash about $350 million of highway funding and new capital construction projects.” Treasurer Coffman attributed such dramatic cuts in “critical expenditures” to “a technical error made by the amendment's drafters,” resulting from the timing of the effective date of the amendment. He declared that “[t]he carelessly written amendment is so deeply flawed that I urge Colorado's voters to turn it down.” The third release, dated October 25, 2000 and titled, “Amendment 23 Deceptive,” suggested that proponents had used “incomplete and misleading statements” to support the proposal. The Treasurer remarked that “what they say it will do is not exactly what it will do.” Treasurer Coffman analogized Amendment 23 to a drunken sailor's intemperate spending spree: I spent a year out at sea, in the Marine Corps. I remember port visits on paydays with drunken sailors and Marines on spending sprees. Now that I look back on it, they acted like cub scouts at a church picnic compared to many legislators when they have TABOR exempt tax dollars available to spend ... when an economic downturn occurs the State Education Fund, like a sailor's wallet on the morning after, probably will not have the money the proponents claim to have set aside to meet the inflation plus one percent obligation. Treasurer Coffman concluded by urging voters to “turn down Amendment 23.” All three releases were printed on Department of Treasury letterhead and designated “News Release.” Each listed Steven Roalstad, a member of the department staff, as the contact person. B. PROCEDURAL HISTORY 1. Administrative Proceeding On February 12, 2001, Common Cause filed its complaint with the Secretary of State,FN3 alleging that Treasurer Coffman and the treasurer's office used public resources to formulate and distribute the three press releases to members of the public and the media, to wit: faxing the releases to various media outlets (and possibly individuals) from the treasurer's office; using state equipment and telephone lines; posting the releases on the official State of Colorado website for the State Treasurer's office; posting the press release dated September 7, on the website with a link to a Denver Post editorial critical of the amendment; and distributing email communications, denominated “Treasur-E-Notes,” which opposed the passage of the amendment. FN3. § 1-45-111(2)(a), 1 C.R.S. (2001) (repealed by Colo. Const. art. XXVIII, § 9, 2003 Colo. Sess. Laws, 3597). The Secretary of State assigned the case to an ALJ to conduct a hearing. FN4 The ALJ scheduled a hearing for June 5 and 6, 2001. On March 21, the parties filed a case management order in which they set forth a number of stipulated facts. The parties stipulated that the press releases had been faxed to members of the media and posted on the department's website and in addition: (1) copies of the first release had been distributed by the treasurer to members of the media at a press conference he conducted; (2) at least one press release was faxed outside of Colorado; (3) in accordance with Treasurer Mike Coffman's request, Deputy Treasurer Ben Stein researched Amendment 23 and its financial impact; (4) in accordance with Treasurer Mike Coffman's request, Deputy Treasurer Ben Stein and Executive Assistant Steve Roalstad assisted in the drafting of each press release and each Treasur-E-Note.FN5 FN4. Pursuant to section 1-45-111, supra note 3. FN5. The press releases and “Treasur-E-Notes” are for the most part the same documents. The Treasur-E-Notes are the press releases formatted for emailing. For purposes of convenience, we use the term “press release” throughout this opinion. *1003 (1) Whether Treasurer Mike Coffman was authorized-constitutionally, statutorily or by the common law-to use state resources, in part through the use of e-mails, faxes, web postings and press releases, to express an opinion regarding Amendment 23, and, therefore whether the Treasurer and his staff were allowed to generate and disseminate the statements at issue, such that there was no violation of Section 117 of the Colorado Fair Campaign Practices Act .... (2) If Treasurer Mike Coffman was not so authorized, did his actions constitute a violation of Section 117 of the Fair Campaign Practices Act, or were his actions nevertheless exempt ... ? Both sides agreed that if the Administrative Law Judge answered the first question in the negative, the matter would proceed to a hearing on the second issue. On April 19, 2001, the parties filed cross-motions for summary judgment. Common Cause moved for summary judgment on the first issue only, and the ALJ limited the Treasurer's motion to that issue as well. On May 7, 2001, the ALJ issued an order granting in part and denying in part Common Cause's motion for summary judgment and denying Treasurer Coffman's motion. The ALJ noted the absence of any genuine issues of material fact and concluded as a matter of law that “the Treasurer has not shown an independent basis to issue the press releases in question.” FN6 Accordingly, the ALJ left unresolved the question of whether the Treasurer's activities were exempt from the FCPA's prohibitions against contribution of public resources towards campaign activity. FN6. Although the ALJ granted Common Cause's motion in part and denied it in part, the language of the order indicates that the motion was actually granted in its entirety because Common Cause requested summary judgment on the first issue only. On June 5, 2001, the ALJ conducted a hearing on the matter of whether the press releases met the FCPA's “fifty dollar exception,” or its “resolution or position of advocacy exception.” The ALJ heard testimony from Treasurer Coffman, Deputy Treasurer Ben Stein, and Executive Assistant Steven Roalstad, and expressly incorporated their testimony in the final order. Although the thrust of the hearing concerned the question of whether the Treasurer's press releases were protected by the FCPA's exemptions, evidence emerged, through Treasurer Coffman's own statements, that the Legislative Council of the Colorado General Assembly had published and distributed an analysis of the 2000 ballot proposals (“Blue Book”) to the public. The Treasurer acknowledged that the Blue Book included both arguments for and against Amendment 23. He stated, however, that the Blue Book analysis was riddled with inaccuracies; he consequently considered it his duty, as state treasurer, to inform the public of the true ramifications of Amendment 23. In a lengthy order designating Findings of Facts and Conclusions of Law, the ALJ determined that Treasurer Coffman's activities were not protected by either of the relevant FCPA exemptions. Hence, the ALJ turned to whether public funds expended by Treasurer Coffman to generate and distribute the three press releases exceeded the FCPA's fifty-dollar cap. In that regard, the ALJ took into account evidence that Stein and Roalstad had prepared all three releases during regular working hours under the Treasurer's direction, and that Roalstad posted the releases on the department's website and formatted them for emailing during working hours as well. The ALJ concluded that public funds totaling over three hundred dollars were expended in Stein's and Roalstad's salaries and to cover copying and faxing expenses. The ALJ rejected Treasurer Coffman's contention that Common Cause had the burden of demonstrating what portion of the amount should have been regarded as exempt from calculation as internal communication by the department. In the ALJ's view, the releases were not internal government memoranda, but were used to communicate the Treasurer's views against the amendment to the public. Although the ALJ acknowledged that “any time a state agency prepares a press release there will be an ancillary effect of informing and educating some agency personnel,” he concluded that such “effect does not permit expenditure of *1004 public money to oppose state-wide ballot issues.” The ALJ concluded that to hold otherwise would permit government officials to “end-run” the FCPA. Thus, the ALJ concluded that staff time was properly included for the purpose of calculating the fifty-dollar cap. The ALJ determined, also, that Treasurer Coffman's activities were not protected by the FCPA's “resolution or advocacy exception,” because the challenged press releases were published by the Treasurer. The ALJ reasoned that the statute does not provide for the publication of “positions of advocacy.” In addition, the ALJ concluded that the three press releases did not constitute “resolutions.” Finding the plain meaning of “resolution” to be limited to decisions “by an official body or public assembly,” the ALJ concluded that “mere statements by the Treasurer are not ‘resolutions.’ ” The ALJ lastly found that the Treasurer was “responsible” for expenditure of funds in excess of fifty dollars and accordingly, the ALJ granted Common Cause's prayer for relief and imposed a civil penalty. 2. Court of Appeals Opinion On September 10, 2001, Treasurer Coffman appealed from the decision of the ALJ to the court of appeals.FN7 That court upheld the ALJ's pronouncements in Colorado Common Cause v. Coffman, 85 P.3d 551 (Colo.App.2003). The court of appeals addressed the FCPA in its entirety, including sections not contested by the Treasurer. It opined that the statute did not permit a state official or employee with policy-making responsibilities to expend more than fifty dollars in expressing opinions on campaign and ballot issues. Id. at 555. Addressing the FCPA's “factual summary” exception, the court of appeals concluded that even if Amendment 23 could be considered an “issue of official concern” the statute required that the Treasurer render a balanced portrayal of Amendment 23. Id. It observed that “the Treasurer's press releases are not such a balanced factual summary but, instead, constitute a ‘conclusion of opinion ... against’ the ballot proposal.” Id. Since the Treasurer had not contested the ALJ's factual finding that his expenditures exceeded the fifty-dollar limit, and since it concluded that the press releases remained subject to the FCPA's limits, the court upheld the ALJ's order. Id. FN7. Pursuant to section 1-45-111, supra note 4. The court also held that although the FCPA offers an exemption for opinions on ballot measures by elected officials, the statute did not permit the expenditure of public funds for the expression of such personal opinion. It noted, again, that the Treasurer had not suggested that his activities were protected by the “elected official” exception. Id. Turning to the statutory exemptions advanced by Treasurer Coffman in support of his campaign activities, the court of appeals dismissed the Treasurer's contention that the three press releases were insulated from the FCPA's prohibitions by the “resolution or positions of advocacy exemption.” Id. at 555-56. The court concluded that the press releases were not “resolutions” because “a resolution generally requires action by a voting body.” Id. at 555. Likewise, the court of appeals rejected Treasurer Coffman's assertion that his press releases constituted a “position of advocacy” under the FCPA. Id. In the court's view, while the exemption clarifies that a department may take a position of advocacy on a ballot measure, it does not permit unlimited expenditure of public funds in taking such position of advocacy. Id. The court reasoned that to interpret the statute as permitting such unlimited expenditure of public funds would render the FCPA's overall prohibitions meaningless.FN8 Id. at 556. FN8. The court of appeals also dismissed the Treasurer's contention that the ALJ had no authority to impose civil penalties for violation of the FCPA. That issue is not before this court. We granted certiorari to determine whether Treasurer Coffman's official duties as state treasurer, as defined by the state constitution and various statutes, permit unlimited expenditure of public funds in advocating defeat of a ballot initiative proposed for voter consideration. If not, we are asked to determine whether the pre-election press releases issued by the treasurer comply with, or are *1005 otherwise exempt from the FCPA. We now hold that neither the constitution nor statutes governing the official duties of state treasurer permit unlimited expenditure of public funds in advocating for or against a ballot measure. Accordingly, the Treasurer's authority to generate and distribute press releases advocating the defeat of any ballot measure must be found within the ambit of the FCPA. We hold that the three press releases at issue violated the FCPA and are not protected by any applicable exemption.
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