Keim’s Response to the Court of Appeals Opinion issued on May 7, 2015
I would encourage all citizens to read the court’s opinion in its entirety for very important facts about DCSD and its inappropriate behavior during the 2013 school board election.
Most importantly, I would like to thank and praise the amazing attorneys and public advocates who responded to the district’s appeal when I had exhausted my personal resources and local donor funds during the original hearings – Craig Joyce and Lee Katherine Goldstein of Fairfield and Woods, P.C.; Luis Toro and Margaret Perl of Colorado Ethics Watch; and Martha Tierney of Common Cause. It is the tireless efforts of people like this who generously donate their time and expertise that allow a common citizen to continue to pursue justice against all odds.
This decision is certainly not a glowing endorsement of the district’s behavior and actions, and in fact upholds the majority of facts determined by the original judge to support the finding of a violation of the FCPA and Colorado Constitution. Rather, it is written in a way that demonstrates DCSD leadership behaved inappropriately and got away with their questionable behavior on a newly-defined, extremely narrow definition of a single phrase, indirect contribution, contained in the Colorado Constitution. It will be interesting to see whether this unprecedented definition provided by two of the three judges on the panel will be upheld in the future.
In fact, we should all be concerned if this split vote by the justices of the Court of Appeals becomes the precedence for using our public funds to manipulate the public and influence the results of future elections. None of us will be safe from our own taxpayer dollars being used to misinform and mislead the public to support an ideology, whether beneficial or not. School districts, local governmental agencies, counties, colleges, universities, and state agencies will be able to use public funds to unduly influence the voting public.
The Colorado Fair Campaign Practices Act (FCPA) is clear—public funds may not be used to influence an election. Strict enforcement is essential for a healthy democracy. The legislative declaration of the FCPA, voted into law by Colorado’s citizens, speaks to the importance of the strong enforcement of campaign laws in order to alleviate the disproportionate level of influence over the political process by wealthy contributors and special interest groups. These core beliefs are some of the main reasons I filed this complaint while in the midst of my campaign for the Douglas County Board of Education in 2013, several weeks prior to the election.
As this decision stands, the narrow definition of an indirect contribution contained in this majority opinion would appear to provide a playbook to those looking to skirt the intent of the FCPA.
This ruling will lead to taxpayer resources being squandered by public entities seeking to perpetuate political agendas, instead of being used for their intended purposes, and for that I am deeply saddened.
The public has the right to unbiased information about issues that impact their communities. Students deserve to have resources spent to benefit their learning, not to influence elections. It is clear that this was an unusual and difficult case for the Colorado Court of Appeals.
- It contained a dissenting opinion, which occurs in less than 5% of the written opinions issued by the Court of Appeals.
- All three judges included admonitions of the District for its lack of respect and civility in the filings and proceedings. This is extremely unusual.
- All three judges found that the district used taxpayer resources to pay for and disseminate the biased reports and that the costs of all or a portion of the biased reports were funneled through the Douglas County Educational Foundation.
The significant point of contention is whether the district provided the Hess report as an indirect contribution to the incumbents and other candidates who clearly supported a particular agenda. I continue to contend that the Reform slate of candidates received a contribution when the district disseminated a biased report paid for with public dollars to 85,000 constituents just prior to the 2013 election. This report was also delivered to the doorsteps of countless voters who could be easily misled by the so-called reforms with an endorsement from several politicians, with the intention of using political affiliations to persuade voters in a non-partisan local school board election.
In fact, I have evidence that was presented, but not entered into the official record during the original hearing that at least one candidate published this report on her campaign page prior to the election. This evidence was not admissible because it would have required a long subpoena and deposition process of the board member/candidate that an individual citizen, such as myself, simply cannot afford, especially when faced with the district having unfettered access to our taxpayer dollars to hire expensive attorneys to defend their reprehensible behavior and attempt to intimidate citizens from bringing forth the truth.
I continue to wholeheartedly agree with Judge Taubman’s dissenting opinion,
“The majority concedes that the Hess Report could be considered to have provided an incidental benefit to a pro-reform candidate, but nevertheless concludes that interpreting such incidental benefit to constitute a contribution stretches the meaning of the definition of contribution too far. The contribution here was significant, and the benefit conveyed by the District to the reform candidates was not merely incidental.”
As a civil society, we can only hope that our courts and politicians reverse the trend of letting money, ideology and influence be more persuasive to our elected officials than the needs and support of their local constituents.
As it stands, federal campaign laws have been interpreted to allow those who contribute the most money to campaigns to have direct influence in politicians’ voting and decision making. In fact recent interpretations have upheld that politicians are allowed to be more influenced by their campaign donors than the very constituents whom they have been elected to serve. This is not about one political party over another. This is about a movement to take away an equal voice afforded to each of us by the Constitution of the United States. It is time to demand that we all have rights and that public servants exist to serve the public in its entirety. We must all pay attention before it is too late – although recent events in our nation may suggest that the opportunity to be heard has passed.
The original ruling found that the Hess and Bennett papers were intended to influence the outcome of the 2013 DCSD school board election and the Hess paper became the backbone of the campaign. The facts were clear:
- the Denver Post cites and promotes the Hess report in its endorsements and in the front page cover story of the DougCo school board race on Oct. 22
- political organizations distributed this paid advertisement to voters across Douglas County.
- DCSD used its email list of 85,000 to promote the biased reports on multiple occasions
- the South Metro Denver Chamber of Commerce hosted a business event to promote one of the biased reports.
The Oct. 2nd email from Fagen was dedicated to explaining to the public why the Bennett and Hess papers were commissioned by the District because the public saw those papers are political. They were not “news” as described in the District’s press release. They were described as “third-party validations”. They clearly were not—they were biased and were released during an election to influence the results of that election.
Both the complaint and the amended complaint were filed prior to the 2013 election which I had every expectation of winning. The complaint was filed simply asking the district to cease its illegal acts and did not ask for a fine or reimbursement of attorney’s fees.
The government should work diligently to ensure taxpayer dollars are used for their intended purpose and not to perpetuate a particular agenda. The District has violated the public’s trust as well as the Colorado Constitution.