Yesterday, in Part One, we noted that Colorado’s Independent Ethics Commission (IEC) has ruled that two ethics complaints filed by Pagosa activist Matt Roane — one concerning former County Commissioner Alvin Schaaf and one concerning current Commissioner Warren Brown — are “non-frivolous”. The IEC has directed the two commissioners to file a response within 30 days.
You can download the IEC letter concerning Commissioner Brown, here.
In his filed complaints, Mr. Roane questioned whether former Commissioner Alvin Schaaf and current Commissioner Warren Brown acted unethically, and possibly illegally, in requesting mileage reimbursements for driving their private vehicles to and from work.
During an interview, last year, with Pagosa Springs SUN reporter Josh Pike, Commissioner Brown noted his dedication to ethics, and stated that the mileage reimbursements are not outside the norm for commissioners in the state. From Mr. Pike’s October 27, 2022 article, quoting Commissioner Brown:
“It may be something that is a little outside the norm here, but I have to tell you, since I’ve been in office, I’ve done a lot of things that have been outside of the norm because that’s what needs to be done because we’ve been getting exactly what we’ve always been getting, and it just hasn’t worked. And, so, more effort, more time, more mileage.”
We shared a portion of the IEC complaint filed by Mr. Roane in Part One. Here is a more complete statement of his concerns, as submitted to the IEC, and dated March 28, 2023:
My Analysis of the Facts
On October 27, 2022, the Pagosa Springs Sun newspaper (‘the Sun’) reported that Archuleta County Commissioner Alvin Schaaf had recently begun receiving payments from the County for mileage traveled in his personal car… The payments were the result of a new county program which had begun only two months earlier.
The Sun’s article noted, “Mileage sheets for Archuleta County Commissioner Alvin Schaaf and Commissioner [redacted] include distances to the commissioners’ homes from their offices ….” The Sun then attached a picture of a completed mileage tally sheet for Commissioner Schaaf which indeed noted the mileage between his home and his official office (24 miles). The mileage sheet also evidenced mileage totals for daily distances traveled on September 26, 27, 29, and October 3, and 4, 2022, equaling twice the Commissioner’s one-way commute, or 48 miles. The Sun paraphrased Archuleta County Manager Derek Woodman as saying, “the mileage that can be reimbursed includes travel to and from [the commissioners’] homes ….”
As a part of its reporting, the Sun submitted an open records request to Archuleta County seeking all check requests for Commissioner Schaaf’s travel beginning September 1, 2022, through December 31, 2022… That request produced 3 mileage tally sheets for Commissioner Schaaf and three associated payment checks. The three mileage tally sheets included 14 days where Commissioner Schaaf’s total recorded mileage equaled twice the distance of his one-way commute between his home and office, or 48 miles total…
As a result of the Sun’s article and associated records, I concluded the seemingly obvious – Archuleta County paid Commissioner Schaaf for miles he drove in his personal car commuting back and forth between his home and his county office. I believe the mileage tally sheets that show daily totals equaling 48 miles, or twice Commissioner Schaaf’’s one-way commute, reveal the practice without much doubt.
My Analysis of the Law
Colorado law clearly identifies the circumstances under which a county commissioner may receive reimbursement for miles traveled in his or her personal car. C.R.S. § 30-2-103 states, “County commissioners shall be allowed their actual and necessary maintenance expenses, together with such mileage as shall be determined by resolution of the board of county commissioners of the county… within the limits provided under section 30-11-107(1)(t), for each mile actually traveled whether within or without the state when engaged in business on behalf of the county….” (Emphasis added.) I interpret this statute by giving its words their plain and ordinary meaning. Accordingly, I believe a county must pay its commissioners for driving miles incurred while he or she is engaged in business on behalf of the county, but only when the miles are incurred when engaged in business on behalf of the county.
If the IEC ultimately agrees with my interpretation of C.R.S. § 30-2-103, the facts revealed in the Sun’s article beg the question – Was Commissioner Schaaf engaged in business on behalf of Archuleta County when he commuted directly between his home and his official office at the beginning and end of each workday? If commuting qualifies as official business under the statute, then I concede payments for the drives would be lawful. If commuting does not qualify as official business, then payments for the drives would not be lawful.
Personally, I do not equate commuting directly between one’s home and one’s regular office with conducting official business on behalf of a county. Unfortunately, my legal research does not reveal any published appellate opinions that support or contradict my impression. There simply appears to be no reported opinions in Colorado that decipher what the General Assembly intended when it originally adopted the phrase “when engaged in business on behalf of the county.”
Consequently, I must leave the question for the IEC to answer in hopes it has better research resources than me.
Despite my inability to definitively answer the legal question posed above, I believe I can add one note of relevance. If the IEC ultimately decides that a county commissioner’s daily commute does not constitute official business activity, I believe Commissioner Schaaf’s payments for daily commutes are unlawful… Archuleta County is not a home-rule county. As such, the County’s authority to pay its commissioners is governed exclusively by state statute. The County cannot pass any local resolution that exceeds its statutory authority in any given subject matter. This means the County has no authority to adopt any local resolution that proposes to pay its commissioners for mileage incurred while engaged in any activity other than official county business as C.R.S. § 30-2-103 dictates.
In the Sun article, the County Manager suggested that Archuleta County’s Personnel Policy and Procedures Handbook authorized the payments to Commissioner Schaaf for his commuting miles. If the IEC determines that commuting does not constitute official county business, then any provision in the Personnel Policy that purports to pay commissioners for driving miles incurred other than when they are conducting county business is inconsequential. The provision would be unenforceable as violative of the clear limitation set forth in C.R.S. § 30-2-103.
My Ethical Concerns
If the IEC ultimately agrees that Commissioner Schaaf’s acceptance of payments for miles incurred commuting to his office was unlawful under C.R.S. § 30-2-103, I recognize that decision does not the conclude the IEC’s job. The Commission’s ultimate task is to decide whether such unlawfulness constitutes an ethical violation of a state statute or the state’s constitution.
To that end, I pose the following concern. If Commissioner Schaaf accepted mileage payments in violation of C.R.S. § 30-2-103, would such unlawful action violate Colorado’s Constitution, Article XXIX, Section 3(1)? As the IEC knows far better than I, that section prohibits any local governmental official from accepting or receiving money from any other person without giving such other person lawful consideration in return. A county commissioner qualifies as a “local government official”. (IEC Advisory Opinion 12-05). And the government qualifies as “a person”. (IEC Position Statement 9-04). So, the Section would seem to apply. See also Colo. Const. Art. XXIX, Section 3(3)(h) – compensation paid to a recipient that is not in the normal course of employment is not excluded from consideration as an illegal gift.
Section 3 might not be the only statutory or constitutional prohibition that Commissioner Schaaf’s mileage payments violate, but it is the one I am aware of, and the one I would initially like to know if Commissioner Schaaf violated. If the Commissioner’s acceptance of the payments potentially violated other provisions of the state’s statutes or constitution, I look forward to the IEC’s investigation into those other areas and welcome any conclusions resulting therefrom. See also Colo. Const. Art. XXIX, Section 1 (personal financial gain through public office other than compensation provided by law).
I hereby acknowledge that the facts presented herein are true to the best of my knowledge, and I will cooperate in the process regarding this complaint and will appear at any proceeding of the Independent Ethics Commission if the complaint is scheduled for a hearing.
Bill Hudson began sharing his opinions in the Pagosa Daily Post in 2004 and can’t seem to break the habit. He claims that, in Pagosa Springs, opinions are like pickup trucks: everybody has one.