By Jerry Kopel
Governor Bill Owens on Jan. 20th fired Chairwoman of the five member Limited Gaming Commission Natalie Meyer and vice-chairman Robert Millman. They had been appointed by Owens to four year terms. Did the governor have authority to terminate the two members prior to the expiration of their terms? I think not.
The two commissioners created a "stink" about the intrusion into Gaming Commission affairs by Revenue Dept. Director Michael Cooke. I believe Owens based the firing on CRS 12-47.1-301 (d) which states: "Any member of the commission may be removed by the governor at any time." Sounds pretty clear, until you read the constitution.
First, the casino operations were put on the ballot by the citizens and passed as a constitutional amendment, Article 18, Section 9 (2).
"The administration and regulation of this section 9 shall be under an appointed limited gaming commission, referred to in this section as the commission; said commission to be created under such official...as the general assembly shall provide...Such official shall appoint the commission..." CRS-47.1-301 (1) gives the governor the right to make the appointments with the consent and approval of the senate.
What authority, constitutionally, does the governor have to fire his appointees?
Article 4, Section 6 of the state constitution states:
"The governor shall nominate and, by and with the consent of the senate, appoint all officers whose offices are established by the constitution (the commission offices were established by Article 18, Section 9 )...and may remove any such officer for incompetence, neglect of duty, or malfeasance in office."
Natalie Meyer, retired secretary of state is the last person you can call incompetent. It appears from the battle waged with Revenue Director Cooke, that Meyer was over-competent. I don't know anything about Robert Millman.
Natalie Meyer did not neglect her duty to follow the constitution on who controls funds used by the commission. Article 18, Section 9, subsection (5) gives authority over moneys spent for overhead, not to the legislature, and not to the director of the revenue department, but to the commission.
Natalie Meyer did not commit malfeasance in office usually defined as "the commission of some act which is positively unlawful, the unjust performance of some act which the party had no right or which he contracted not to do, wrongful conduct that affects, interrupts and interferes with the performance of official duties..."
Owens has replaced Meyer, Millman, and one other member with three new appointees, all of whom are highly competent. One has been a friend of mine for 30 years. But the Senate, which has the duty of consent and approval of any replacement should, in my opinion:
(1) ask the governor which part of Article 4, Section 6 was violated and
(2) ask the state auditor, which is an office under the legislature and not the governor, to investigate any waste of public funds or mismanagement of a state agency.
How did we get into this situation? The 1991 casino statute was SB 149, sponsored by Sen. Sally Hopper (R) and Rep. Ken Chlouber (R).
Under the original bill, the Gaming Commission and the Limited Gaming law was placed under the Secretary of State. The constitution does not forbid the Secretary of State from dismissing commission appointees without reason. The bill passed the Senate with the Secretary of State in charge. The bill read "Any member of the commission may be removed by the secretary of state at any time."
The House amended SB 149, putting the "governor" in place of "secretary of state" wherever the words appeared. When that happened, Article 4, Section 6 was triggered by the final version of SB 149.
The governor's actions contradict the right of an appointed commission official to be found to have been incompetent, neglectful of duty or having committed malfeasance before being removed from office.
The fired commissioners, in my opinion, have the right to sue to return to the board for the remainder of their terms.
(Jerry Kopel served 22 years in the Colorado House.)
Copyright 2015 Jerry Kopel & David Kopel