With the way some political opponents latched onto the story Friday, you would have thought Scott Gessler had just orchestrated Bernie Maddoffs escape from federal prison. Just two weeks after being sworn in as Colorados Secretary of State, he has come under fire after he voluntarily, publicly and ethically disclosed his plan to take on a second job, one that would include part-time contract legal work with his old firm.
The reason for his announcement: hes got bills to pay. I know. Shocking. You mean we actually elected an attorney to statewide office who isnt independently wealthy? Yes. How refreshing.
For full disclosure, I know Scott well and consider him one of the brightest minds Ive ever met. Weve spent years as neighbors and in 2008, when a statewide campaign I was running became the target of frivolous legal claims, he represented us at a reduced hourly rate. After getting all claims dismissed, he then allowed us extra time, free of any penalties or interest, to pay the bills wed rung up after money got tight close to the election.
While Colorado Common Cause has, at times over the years, been a positive voice for election transparency, it is now attacking Gessler. As The Denver Post reports, Common Causes Elena Nuñez sees Scotts plan as ripe for potential conflicts of interest. To the extent he is working for his old firm and his old firm is dealing with the Secretary of States office, it creates a real conflict, Nuñez said. In some cases it may just be the appearance of conflict.
But Nuñezs analysis fails to consider several critical points. First, when it comes to any legal work he handles, Scott will not take on any matter coming before the Secretary of State. Instead, he will handle transactional matters far away from the election-related issues his public office oversees.
Second, Nuñez neglects a well-tried system of rules, checks and balances that protects against alleged or realized conflicts. Under the Colorado Bar Association peer-monitoring system (not unlike the system monitoring behavior of public officials and legislators), the CBA has issued multiple rules governing the obligations of working attorneys who also serve in elected office. They do not prohibit, in any way, the type of arrangement Scott seeks, and in fact, provide a framework for attorneys to follow to ensure that ethical breaches are avoided.
Common Cause should take comfort in knowing that unlike most attorneys, Scott now faces additional scrutiny. In todays world of adversarial litigation, opportunistic lawyers eager to gain ground against Scotts clients can now more easily take swipes regarding perceived, imagined conflicts.
If Scotts second job presents a problem, then we better also start talking with the multitude of lawyers and teachers who now serve under the Capitols golden dome as our state lawmakers. In what has become an annual tradition each legislative session, former or current members of the states teachers unions introduce bills designed to directly benefit union causes, who by the way, respond by pumping millions of dollars into legislator campaign coffers each year.
Terrence Carroll, the recently term-limited Speaker of the Colorado House, maintained his legal practice while in office, and is now a heavy hitter at a major 17th Street law firm. He was joined by nearly 20 of the General Assemblys 100 lawmakers, who also maintained part-time or full-time law practices while serving last session or in the current one.
While every elected official has a duty to recuse him or herself for legitimate conflicts of interest pertaining to specific legislation, attacks like Common Causes will serve only to further discourage ordinary people from running for public office.
Maybe Scott should have charged clients higher hourly rates or exorbitant interest rates on late payments. Maybe he should have cut staff during the recession to ensure hed have more money in his pocket at the end of the day. And he wouldnt have to take on a second job now, if hed just cut his pro bono and public interest client load when he discovered it wasnt financially lucrative. He could have married wealthy. If hed just done all of the above, hed have a nice reserve of cash to live off of while serving our state today.
But he didnt. And we should be glad he didnt. As a fellow Republican, I actively supported Scotts Secretary of State campaign, hosted a fundraiser and donated money. I did so, in large part, because Scott is different. While hes an astute election law attorney, hes the furthest thing from being another political hack.
Just one example: while he passionately disagrees with my support for medical marijuana rights, the constitution comes first in his book, and he has never hesitated to lend an ear over the years as Ive bombarded him with questions about possible violations against pro-marijuana petition rights efforts. He has helped me protect the voice of other so-called liberal causes in the political process, and he has been there as a voice for grassroots muckraking journalists investigating the bad behavior of politicians of either major party. Lest we also forget that this is the man who got the Green Partys Ralph Nader on the ballot as a presidential candidate just a few years ago.
While some may balk at the suggestion that Scotts $68,500 salary should be ample to cover his obligations as the sole breadwinner for himself, his wife, their young daughter, and his mother, this attack also misses the point. If we nix Gessler for his chosen profession, then we should also take a closer look at teachers and others leading our state as elected officials.
If every aspiring candidate took Nunezs advise, wed see our states highest posts filled by the retired or independently wealthy. Certainly, this cant be what we want. And while lawyers certainly arent the most popular creatures in society, we should encourage those who have a proven record of knowledge and experience with election law and public policy to take their shot at the ballot.
For now, Scott remains committed to his plan to work about 20 hours a month, over weekends and at nights, for Hackstaff Law Group, previously known as Hackstaff Gessler. As he told the Post, [The added income] will be well less than half of what I earn as secretary of state. This isnt a huge income source for me, but its something I need.
Believe it or not, elected officials have mortgages. Lawyers, too. And Ive yet to hear a single decent reason why Scott Gessler shouldnt be permitted to take on a second job to help pay his.
Jessica P. Corry (www.JessicaCorry.com) is a Denver attorney and political strategist. She serves as special counsel to Hoban Feola, LLC, and as a policy analyst with the Independence Institute. She is also a Robert Novak Fellow at the Phillips Foundation, an award under which she is completing her book.
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