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No ‘poena’ in subpoena

Thu, Jun 25, 2009

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Last Friday, the Colorado Springs Independent Ethics Commission asked Central Bancorp CEO Ron Johnson to provide a list of all individuals whom he believes possess relevant information about the conflict of interest allegations that Johnson has made concerning Mayor Lionel Rivera.

In a reply dated June 19, consisting of 15 rambling pages of often-turgid prose, Johnson’s attorney, Lindsay Fischer, lists Rivera, LandCo CEO Ray Marshall, recused Ethics Commission member Jan Doran, Councilman Jerry Heimlicher, Vice Mayor Larry Small, Ward Berlin (an investor in a Marshall-controlled LLC), Jack Mason (as Mason Properties, an investor in a Marshall-related LLC), the board members of the Downtown Development Authority, “media persons” (including yours truly), the manager of the “local UBS office,” Jim Scherr (former head of the USOC), “Ms. (Stephanie) Streeter, the current head of the USOC,” Marshall attorney John Cook, and “any other person who does not come to mind at this time.”

Fischer notes that both Mason and Berlin are under “gag orders” arising from their agreement to confidential settlements of lawsuits involving Marshall, LandCo and certain LLCs. Because of these agreements, neither man could legally disclose any of the “relevant” information that Fischer believes they possess, absent a subpoena by the Ethics Commission.

The word “subpoena” has a certain awful gravity about it. Translated from the latin, the word means “under penalty.” One assumes that, if an entity has the power of subpoena, any failure to comply carries unpleasant consequences — like being jailed for contempt of court, or fined or hauled willy-nilly to the courthouse and forced to testify.

That might be true of a grand jury subpoena, or one from a court of appropriate jurisdiction.

But even a cursory reading of the ordinance establishing the Independent Ethics Commission reveals it to be a panel with neither bark nor bite.

The commission has “jurisdictional authority” only over members of City Council, city employees and appointees to various city boards and commissions. It can, in theory, require that persons belonging to any of those classes appear before the commission.

It can ask anyone else to appear, and can even issue subpoenas.

But here’s some “free legal advice”: If you don’t want to show up, don’t bother, subpoena or not.

That’s because there’s no “poena” in the subpoena. The ordinance prescribes no penalty for failure to appear. All the commission can do to scofflaws is to say “tut-tut, dear fellows — how terribly unsporting of you to decline our kind invitation!” The commission is a cat without claws, a pit bull without teeth, a rattlesnake without fangs.

It’s as if council passed an ordinance empowering the city to set speed limits, but neglected to include any penalties for speeding.

In that happy state, some of us would speed, some would slow down and some would obey the limits anyhow.

But in the event that the commission, in all of its august majesty, issues subpoenas, some recipients might be ready, even eager, to comply — while and others will politely (or impolitely) decline.

We’ll see — or, since the commission has decided to close its proceedings, maybe we won’t.

Our very own Star Chamber — albeit one which is utterly powerless.

And by the way, don’t interpret my ramblings as legal advice. Don’t want to get subpoenaed for impersonating a lawyer …

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1 Comments For This Post

  1. Dick Burns Says:

    Is it any wonder that the City’s so-called Ethics Commission is so handicapped that it can’t effectively operate? It was designed to be toothless, just like our City Council!