Jerry Kopel

May 4, 2006

by Jerry Kopel

Congratulations to the five Coloradans approved as appointees to the Colorado Gaming Commission. Usually appointments are at staggered times, and this is the first time since the original appointments back in 1991 that all five members went before the state senate for approval.
Commissioners Natalie Meyer of Denver and Robert Millman of Colorado Springs were recently fired by Gov. Bill Owens. This was done under a Gaming Commission statute never used before. CRS 12-57.1-301 (1) (d) provides "Any member of the commission may be removed by the governor at any time."  Gov. Bill Owens didn't have to give a reason but indicated he was concerned about disputes between the commissioners and his Revenue Department director.
Two other commissioners resigned in protest, so all four were replaced and Republican Sheriff James Alderden of Fort Collins was reappointed. This leaves the commission with three Republicans and two Democrats. One Democrat's term is up July 1, 2006 and Owens can appoint a Democrat or independent or a member of a minority party. The statutes only require that there be no more than three appointments from one political party and no more than one person appointed from a congressional district.
Since there are only five commissioners, neither the Second nor Seventh Congressional Districts are presently represented on the board.
In Colorado, a statute passed by the legislature is presumed to be lawful until a court decides it is not, so Owens could properly do what he did.  In a column, I challenged the "right" of any governor to fire a limited gaming commissioner without proof of violation by that person of Article 4, Section 6 of the state constitution requiring evidence as to incompetence, neglect of duty, or malfeasance.
An aide to the governor defended the legality of the "removal at will" citing an 1893 case of Trimble v. the People where a Populist governor removed the police commissioner of Denver.
I think the Trimble decision was proper based on the facts involved. The office of police commissioner was established by the Denver Charter, section 45 with the governor being given the power by the legislature to remove "at any time for cause".
The charter was House Bill 258 of the 1893 General Assembly and the Trimble court wrote "The legislature had the power to provide for the CREATION (my emphasis) of a police commissioner for the city of Denver, it had the power to provide the manner in which such office should be filled and there can be no doubt that it had the power to provide for removals."
The Gaming Commission language in the state constitution provides in Article 18, Section 9 (2) "The ...regulation...SHALL (my emphasis) be under an appointed limited gaming commission. I believe that differs from the lack of direct constitutional establishment of the police commissioner in the Trimble  case.
The legislature had no choice but to appoint a gaming casino commission instead of a gaming czar. The constitution required it.
The state lottery, by contrast under Article 18, Section 7 provides "The general assembly MAY (emphasis added) establish a state supervised lottery." CRS 24-35-207 (5) states "Any member of the commission may be removed by the governor at any time and for any reason." That is a valid statutory provision for the LOTTERY (my emphasis) under the constitution. The legislature could have given us a lottery czar. It chose not to.
The gaming commission, as a recent newspaper article pointed out, was "significantly more
autonomous than any other commission than the state." It could establish the taxes to be paid by casinos and is "not conditioned on any appropriation by the general assembly." It can tax and set it own expenses.
Much of the statutory lottery language that was carried over to the casino gaming statute. In my opinion  as a participant in the casino bill's progress through the legislature, the general  assembly made the commission's authority as weak as constitutionally possible.
By contrast, the Great Outdoors initiated constitutional language in Article 27, Section 6 (1) made it clear removal of those board members by the governor was for incompetence, neglect of duty, or malfeasance under Article 4, Section 6 of the constitution. And the Great Outdoors board makes its own budget, not subject to the state Joint Budget Committee.
Where I differ from the governor's aide on the removal power is that difference between creation of a board by statute, and creation of a board by an initiated constitutional authority.
Once the governor pushed the nuclear button on the gaming commission, it will be used again. Tenured terms now mean nothing. Republicans presently control the commission. A new Republican governor could, if he so chose, sweep the plate clean and appoint new members. A Democratic governor could turn the board into one with a Democrat majority by February of 2007.
Another important issue is the casino industry concerns. They want a stable board and are powerful enough to make their concerns heard. Should the new board, including my old friend and fellow legislator Bill Hybl of  Colorado Springs unpack? Or will today's commissioners be tomorrow's has-beens?
The entire matter can be resolved by amending the statute to read "Any member of the commission may be removed by the governor for incompetence, neglect of duty, or malfeasance." And it would be worthwhile to add two more members to the board so that there is one member from each congressional district.
(Jerry Kopel served 22 years in the Colorado House.)

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