Can Colorado's Independent Ethics Commission share frivolous ethics complaints with the State Auditor for performance-audit purposes without breaking the constitutional confidentiality rule?

Plain-English summary

Colorado's Independent Ethics Commission (IEC) handles ethics complaints against public officers, legislators, local officials, and government employees. When the IEC dismisses a complaint as "frivolous," the constitution requires the IEC to keep that complaint confidential. Colo. Const. Art. XXIX, § 5(3)(b).

The Office of the State Auditor was preparing to evaluate whether to launch a performance audit of the IEC. To do that, the auditor needed access to the population of complaints, including the frivolous dismissals. The IEC asked: can we hand those over without breaking confidentiality?

AG John Suthers said yes. The State Auditor has constitutional and statutory authority to access government records, even confidential ones, and is bound by a parallel confidentiality rule preventing the auditor from re-disclosing those records. § 2-3-107(2)(b), C.R.S. By giving the records to the auditor, the IEC is "entrusting" them, not "releasing" them to the public. The constitutional duty to "maintain" complaints as "confidential" is preserved as long as the records continue to be held confidentially within government, even when they move from one custodian to another.

This is one of those cases where the answer hinges on the difference between "confidential" and "secret." The records can stay confidential while still being shared in narrow, controlled ways with another government office that is itself bound by confidentiality.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Colorado voters adopted Amendment 41 in 2006, creating the Independent Ethics Commission and adding Article XXIX to the state constitution. Section 5 sets up the IEC's complaint jurisdiction. If a written complaint comes in and the IEC determines it is frivolous, the IEC may dismiss it without a public hearing. § 5(3)(b). That same subsection requires: "Complaints dismissed as frivolous shall be maintained as confidential."

The Office of the State Auditor is a constitutionally created office, Colo. Const. Art. V, § 49(2), with broad post-audit and performance-audit duties under §§ 2-3-105(1)(a) and 2-7-204(5), C.R.S. Performance audits cover the integrity of performance measures, accuracy of reported results, and overall cost and effectiveness of audited programs.

Two parallel statutes structure the auditor's access:

• § 2-3-107(2)(a), C.R.S., gives the State Auditor broad access to records "in any department, institution, or agency," including "records or information required to be kept confidential or exempt from public disclosure."
• § 2-3-107(2)(b), C.R.S., bars the auditor from releasing, "in connection with an audit," any "information required to be kept confidential pursuant to any other law."

Together those provisions create a closed loop: the auditor can access confidential records, but cannot leak them. Confidentiality follows the records.

The novel question here was whether a constitutional confidentiality requirement (rather than a statutory one) blocks this access. The AG's answer: no. The statutory confidentiality regime in § 2-3-107(2)(b) covers "any other law," which the AG read to include constitutional provisions. So the auditor is bound to keep frivolous complaints confidential, and disclosure to the auditor preserves the constitutional command.

Common questions

Q: Why did the IEC ask this question instead of just handing over the records?
A: Constitutional confidentiality is taken seriously. If the IEC released frivolous complaints in violation of Art. XXIX, § 5(3)(b), it could face a court challenge or simply lose credibility with the people who file complaints. Getting an AG opinion before the disclosure happens insulates the IEC from that risk.

Q: What if a frivolous complaint contains private information about the target?
A: The State Auditor's parallel confidentiality duty under § 2-3-107(2)(b) prevents re-disclosure. The auditor can use the records for audit purposes (assessing whether the IEC is properly classifying complaints, for instance) without making them public.

Q: Does this opinion let the public see frivolous complaints?
A: No. The opinion is narrow: it permits IEC-to-auditor disclosure under controlled conditions. Public disclosure would still violate Art. XXIX, § 5(3)(b).

Q: Could the legislature pass a statute requiring the IEC to publish frivolous complaints?
A: Probably not. The confidentiality requirement is in the state constitution, which trumps a contrary statute. The legislature could try to define "frivolous" or "confidential" narrowly, but it cannot override the underlying constitutional command.

Q: What is the difference between "maintain confidential" and "secret"?
A: The opinion treats "maintain" as meaning "keep in an existing state" or "preserve" using dictionary definitions. So the records remain confidential as long as their confidential status is preserved. Sharing them with another official who is also bound to confidentiality preserves that status. Sharing them with a journalist would break it.

Citations and references

Constitutional and statutory:
- Colo. Const. Art. XXIX, § 5(3)(b), frivolous complaint confidentiality
- Colo. Const. Art. V, § 49(2), State Auditor authority
- § 2-3-107(2)(a), C.R.S., auditor's broad access to records
- § 2-3-107(2)(b), C.R.S., auditor's parallel confidentiality duty
- § 2-7-204(5), C.R.S.: performance audit authority

Cases:
- Colo. Ethics Watch v. Senate Majority Fund, LLC, 269 P.3d 1248 (Colo. 2012), interpreting voter-initiated amendments
- Tivolino Teller House v. Fagan, 926 P.2d 1208 (Colo. 1996), Bluebook as interpretive aid

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2020/03/no-15-01.pdf

Original opinion text

JOHN W. SUTHERS
Attorney General

CYNTHIA H. COFFMAN
Chief Deputy Attorney General

DANIEL D. DOMENICO
Solicitor General

STATE OF COLORADO
DEPARTMENT OF LAW
Office of the Attorney General

FORMAL OPINION OF JOHN W. SUTHERS, Attorney General
No. 15-01
January 8, 2015

This opinion, requested by the Independent Ethics Commission ("the IEC"), concerns whether the IEC may release to the Colorado Office of the State Auditor ("OSA") complaints the IEC has deemed "frivolous," which the IEC must maintain as confidential under the Colorado Constitution.

QUESTION PRESENTED AND SHORT ANSWER

Question: May the IEC release to the OSA, in connection with the OSA's performance-audit duties, complaints the IEC has deemed frivolous while maintaining the "confidentiality" of those complaints under Article XXIX, section 5(3)(b) of the Colorado Constitution?

Answer: Yes, in connection with the OSA's performance-audit duties, the IEC may release frivolous complaints to the OSA without violating the confidentiality requirement of Article XXIX, section 5(3)(b).

The OSA is evaluating whether to initiate a performance audit of the IEC. As part of its evaluation, the OSA has asked whether the IEC may disclose complaints that the IEC has found frivolous. Under the Colorado Constitution, these complaints must be maintained as confidential by the IEC. The IEC has requested this formal opinion to clarify its ability to disclose frivolous complaints in connection with the OSA's performance-audit duties.

BACKGROUND

I. The Independent Ethics Commission's Duties Regarding "Frivolous" Complaints

Section 5 of Article XXIX of the Colorado Constitution sets forth the IEC's jurisdiction over written complaints questioning whether a public officer, a member of the general assembly, a local government official, or a government employee has failed to comply with ethical requirements. Colo. Const. Art. XXIX, §§ 3(a) and 5(1). If the IEC determines that a written complaint is "frivolous," it may dismiss the complaint without conducting a public hearing. Colo. Const. Art. XXIX, § 5(3)(b). "Complaints dismissed as frivolous shall be maintained as confidential" by the IEC.

II. The Office of the State Auditor's Constitutional and Statutory Mandates

The OSA is a constitutionally created office with the duty to "conduct post audits of all financial transactions and accounts kept by or for all departments, offices, agencies, and institutions of the state government." Colo. Const. Art. V, § 49(2). The OSA's duties are further defined by statute. In addition to its post audit responsibilities, the state auditor must conduct performance audits of state entities. See sections 2-3-105(1)(a) and 2-7-204(5), C.R.S.

Specifically, under section 2-7-204(5), C.R.S., the OSA must conduct performance audits of one or more programs or services in at least two departments every year. In selecting which programs will be subject to performance audits, the OSA must consider risk, audit coverage, resources to conduct the audit, and the impact of the audited programs or services on a department's performance-based goals.

Aside from limited exceptions relating to confidential tax information, the OSA is given broad access to "accounts, reports, vouchers, or other records or information in any department, institution, or agency." § 2-3-107(2)(a), C.R.S. This includes "records or information required to be kept confidential or exempt from public disclosure upon subpoena, search warrant, discovery proceedings, or otherwise." Because of the OSA's broad access to government records and information, the OSA is prohibited from releasing, "in connection with an audit," any "information required to be kept confidential pursuant to any other law." Section 2-3-107(2)(b), C.R.S.

III. Article XXIX Does Not Require the IEC to Withhold Frivolous Complaints from the OSA.

Article XXIX does not explicitly define the scope of the confidentiality for frivolous ethics complaints. Further, Article XXIX neither specifically grants, nor specifically restricts, the OSA's access to frivolous ethics complaints. This is not unusual, given the OSA's broad legal right of access to confidential government records and information.

Here, however, the confidentiality of frivolous ethics complaints is granted not by statute, but by the Colorado Constitution. Thus, the question is whether a statute, specifically, the statute governing the OSA's access to confidential records and information, can authorize disclosure of materials the Colorado Constitution deems confidential. This appears to be an issue of first impression in Colorado, but it is a question that requires only an analysis of the plain meaning of the relevant statutes and constitutional provisions, all of which impose a duty of confidentiality.

ANALYSIS

The meaning of a constitutional provision is a question of law. Rocky Mountain Animal Def. v. Colo. Div. of Wildlife, 100 P.3d 508, 513 (Colo. App. 2004). When interpreting a constitutional amendment adopted by citizens' initiative, like Article XXIX, the objective is to give effect to the electorate's intent. Voter intent is determined by giving the amendment's words their ordinary and popular meaning.

The ordinary and popular meaning of § 5(3)(b) of Article XXIX is clear. The IEC may disclose frivolous complaints to the OSA without violating § 5(3)(b)'s command that the IEC "maintain[]" frivolous complaints as "confidential."

The American Heritage Dictionary defines "maintain" as "[t]o keep up or carry on," to "continue," to "keep in an existing state," and to "preserve or retain." It defines "confidential" as "[d]one or communicated in confidence," "secret," and "[e]ntrusted with the confidence of another."

In light of these definitions, the IEC would not breach the confidentiality provision of Article XXIX by disclosing frivolous complaints to the OSA. Under section 2-3-107(2)(b), C.R.S., the OSA is bound to comply with "any" law requiring confidentiality of government records, including Article XXIX, § 5(3)(b). By "entrusting" the OSA with frivolous ethics complaints, the IEC would be "preserving" their confidentiality. In other words, the IEC would be complying with its duty to maintain frivolous complaints as confidential.

Nothing in the enactment history of Article XXIX, as set forth in the Amendment 41 "Bluebook," contradicts this conclusion. Although the Colorado Legislative Council's interpretation of a proposed amendment is not binding, the Bluebook may provide "important insight into the electorate's understanding of the amendment when it was passed." Tivolino Teller House v. Fagan, 926 P.2d 1208, 1214 (Colo. 1996). Here, the Bluebook's silence on the scope of confidentiality to be granted to frivolous ethics complaints further emphasizes that a plain-language analysis is dispositive of the question answered in this Formal Opinion.

CONCLUSION

In connection with the OSA's performance-audit duties, the IEC may release frivolous complaints to the OSA without violating the confidentiality requirement of Article XXIX, § 5(3)(b).

Issued this 8th day of January, 2015.

/s/ John W. Suthers
JOHN W. SUTHERS
Attorney General