What if you could serve on the board that was in charge of filling a job opening that you applied for? What if you could vote for yourself?
A similar situation seems to present itself on a fairly regular basis in local politics, most recently in the case of the resignation of Rep. Claire Levy, a Democratic state legislator who represents Boulder County and the rest of House District 13.
Levy, whose tenure was scheduled to conclude at the end of 2014 due to term limits, recently announced that she would be stepping down before then, on Oct. 31, to take a job as executive director of the Colorado Center on Law and Policy.
Prior to her announcement, two Democrats had emerged to vie for Levy’s seat in the primary election next summer: Tad Kline, who has served as Levy’s campaign manager and legislative aide, and Boulder City Council member KC Becker.
Now, both Kline and Becker have applied to the HD 13 vacancy committee to be considered for the appointment.
Kline sits on the 35-member committee and says he has no plans to abstain from voting on whether he or Becker should fill the vacancy.
The appointment carries extra weight because in heavily Democratic HD 13, whoever gets named to succeed Levy will likely have the edge against any challenger in the primary next summer, being the incumbent with experience, and considering the reluctance among party insiders to challenge one of their own unless there is good reason.
And come the 2014 election, Republicans and third parties have a slim chance of overcoming the Democratic majority in this district. So a group of 35, assuming they all show up to the October meeting naming Levy’s replacement, could well be deciding who replaces Boulder County’s House representative for the next nine years, assuming re-election and barring any Democratic challengers or major performance flaws.
When asked whether, as a member of the vacancy committee, he would vote on his own appointment, Kline said, “Well, I think so, yeah. I mean, this is pretty standard.”
If nothing else, some say, the situation provides a glimpse into the inner workings of Boulder County’s Democratic elite, and the perpetuation of a relatively small group’s power in the community.
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State statute leaves such matters up to the political parties, and neither Republicans nor Democrats have bylaws that prohibit applicants for vacancy appointments from serving on the committees that make those decisions.
But some Republican Party leaders say most of their candidates refrain from voting if they stand to gain.
Owen Loftus, communication director for the Colorado Republican Party, consulted with state party Chair Ryan Call and reported that there is nothing prohibiting someone on a vacancy committee from voting for themselves.
“Generally, what happens, though, is people will abstain from voting for themselves,” he says. “Traditionally, that’s what people will do.”
Boulder County Republican Party Chair George Leing told BW that while he didn’t want to come across as criticizing the local Democratic Party, since its bylaws and internal practices might differ from those of the Republicans, it’s usually the case that local Republican applicants refrain from voting on their own appointments.
“Generally, that’s just been kind of an assumption, that people would not be in a position of voting for themselves, because it sounds like a conflict of interest,” he says. “That’s what people would normally expect, but I don’t think it’s a firm rule. That’s more of a practice than a rule. … Even if it’s not a hard and fast rule, people might kind of raise an eyebrow. It’s like, ‘Geez, that’s a little weird, you know?’”
Leing suggests that an exception might be made if it were a close vote.
“It seems a little questionable, but when you look at it, you’re still bound by whatever the bylaws say, and if somebody’s afraid they might not be going to get enough votes, they might say, well, I’m not going to recuse myself.”
When contacted by BW, Becker said her only concern was that the committee on which Kline serves is so small, compared with the size of other local vacancy committees in the past, which have numbered in the hundreds.
“The difference between this and other recent vacancy committees that we’ve had in Boulder County is that this one is so much smaller, with a quorum of, I think, 18 people,” she says. “No one that put this committee together did anything wrong. My overall concern is that you end up with a very small group of people making the decision.”
Kline counters that Becker had an equal opportunity to serve on the vacancy committee. In March, he says, those who showed up to the district’s meeting agreed that all in attendance would serve on the group.
“You know, KC was originally supposed to be at that committee meeting,” he told BW. “She didn’t come. And no one knows why, but she didn’t show, or she’d be on the committee too. It’s very common for two or more candidates to be on the committee.”
Becker says her decision to not join was intentional.
“I chose not to, because I knew I was running,” she told BW. “That’s not a strategy I chose to pursue.”
Audy Leggere-Hickey, chair of the vacancy committee, says the playing field was level.
“Both candidates actually had the opportunity to be on the vacancy committee,” she says. “It’s completely impartial.”
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Luis Toro, executive director of Colorado Ethics Watch, says his group doesn’t necessarily police whether the political parties follow their own policies, and he adds that if Kline had a financial interest in the outcome of the vote, it might be a larger matter of concern.
“What we look for is private gain, and you don’t gain anything from dealing with the legislature,” he says with a laugh.
Toro does acknowledge, however, that in this case, size matters.
“A bigger committee is better, because you have more chance of different voices being heard,” he says. “People do criticize these party committees, on both sides, for being ‘insidery,’ but that’s built into the system.”
Toro adds that the length of the term being filled plays a role as well, noting that in this case voters will quickly have a say in the performance of the person who is appointed, whether at the primary or general election.
“It’s only one legislative session, and then they have to face the voters,” he says.
Kline may have the inside track anyway, since Levy has endorsed him, and her opinion will likely carry weight with the members of the vacancy committee. (She has a seat on the group as well.)
Levy acknowledges that some members have told her they will vote the way that she does.
“From who I know on the committee, I think a lot of them have indicated that they would follow my lead, and the fact that I’ve endorsed Tad would be influential in their decision,” she told BW.
When asked how many members expressed that view, Levy replied, “Honestly, like three, but I’m just assuming that’s kind of typical.”
She and other Democratic leaders defended Kline’s stance, saying it’s common for candidates to serve on the very vacancy committees that are in charge of appointing them.
“Why would that be a conflict?” Levy asks. “I vote on my own bills all the time. I don’t think it is at all. You know, it’s a political process, and of course he supports himself. And of course, people who are on vacancy committees are politically active people.”
She says a half-dozen members of the Colorado House were appointed instead of elected, and “I’d be surprised if at least one weren’t on their vacancy committee. How could you articulate the source of the conflict? The assumption would be, somehow, that you go into a vacancy committee impartial, like a judge, neutral, and most people don’t.”
She and others point out that current Boulder County commissioners Deb Gardner and Cindy Domenico sat on the vacancy committees that chose them to fulfill the terms of Ben Pearlman and Tom Mayer, respectively.
When contacted by BW, Gardner confirms that she served on the vacancy committee that appointed her, by virtue of her status as a state legislator, and that she voted for herself. She says she’s not aware of similar situations, and declines to comment further.
“I am so staying out of that,” Gardner says. “It’s a minefield waiting to happen, so I don’t want to go there.”
Most seem to agree with Toro that the degree to which there is a conflict of interest depends largely on the number of people on the vacancy committee. After all, they point out, President Barack Obama was allowed to vote for himself.
Gardner says the vacancy committee she sat on during her own appointment had more than 300 members.
Dan Gould, chair of the Boulder County Democratic Party, acknowledges that it would be different if there were only five or six people on the committee, as was the case with one Republican appointment for the legislature a couple of years ago.
“Typically our vacancy committees are very large,” he says. “We like to have as many people involved as possible.”
Leing agrees that the bigger the committee, the less power one vote has.
“Your vote gets diluted if it’s in a large group,” he says.
When asked if it would make a difference if there were only three people on the vacancy committee and the applicant had the swing vote to break a tie, Levy says, “That would be a very happy situation for the person, whoever had the deciding vote.”
But she disagrees that the size of the committee determines the degree to which there is an ethical dilemma.
“There’s either a conflict or there isn’t a conflict,” Levy says, “and whether there’s a conflict doesn’t depend on the number of people voting.”
She also says her decision to bow out early had nothing to do with helping her former campaign manager and legislative aide land her position.
“There’s no way I’d give up being chair of the Joint Budget Committee and serving out my last term,” Levy says. “No, it’s really just because of the [new] job.”
Leggere-Hickey, the vacancy committee chair, says the group has not yet decided on a meeting date to make the appointment, but it needs to be done in a 20-day window before Levy’s last day at the end of October, and the earlier the better, because if the meeting doesn’t attract a quorum, the group should reserve enough time to try again. If the vacancy committee doesn’t appoint someone before Levy’s last day, Gov. John Hickenlooper can make the call.
“If this vacancy committee doesn’t appoint someone, then the governor gets to pick whoever he wants,” Kline says. “So instead of 35 people who have worked in the district for years and years and know the district, John Hickenlooper — one person — gets to do whatever he wants.”