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Day 17

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Gessler's Law

Getting What You Paid for in Colorado

by CHRISTOPHER BRAUCHLI

Idle hands do the devil’s work

— Anonymous

The fault lies with us and not Scott Gessler. If we’d left him alone he’d not have focused on mischief.  And if the pay were better, a brighter lawyer would have sought the office.

Scott Gessler is Colorado’s Secretary of state.  Before being elected he worked for a law firm that had the reputation of being one of the most active  election law firms in Colorado.  That is why he ran. He knew that if elected, the citizens would be getting a bargain since he would require no on the job training. He had the expertise to serve as Secretary of state since the Secretary of state is involved with many of matters he dealt with as a practicing lawyer.  There were two things he had not considered when he decided to seek the office.  The first was the salary paid to the Secretary of state.

Scott wanted to be Secretary of state so badly that he forgot to ask anyone how much it paid and when elected was distressed to discover that it paid the paltry sum of $68,500.  He had been a successful lawyer and had no idea that by serving as Secretary of state he would be taking a pay cut of more than half of what he received when practicing law.  Even though he was probably a good lawyer (although his actions as secretary of state draw that into question) some people would think if he were a REALLY good lawyer he’d have tried to find out how much he’d get paid before he decided to run for office. When he found out how much it paid he said:  “I don’t think anyone goes into governmental service to get rich. . .. The reason I ran is my experience in the election-law world.”

Although Scott didn’t intend to become rich he also didn’t want to live in poverty.  Being a creative sort, he figured out how to increase his compensation while serving as secretary of state-he would convert both the Secretary of state’s job and his law practice into two part time jobs.   He said he would practice law for 20 hours a month. When he announced that,  people more sensitive than he,  commented on the other thing he had failed to consider before deciding to run: conflicts of interest.

Many people observed that since the law firm for which he intended to work part time had many  clients dealing with election law issues, he would have a conflict of interest working for that firm while serving as secretary of state.  Hoping to blunt that criticism and being creative, Mr. Gessler said that whenever he took a case he would ask the Colorado Attorney General’s Office whether he had a conflict of interest.  Good lawyers can normally figure that out themselves but since the Attorney General, like the secretary of state, is not terribly busy, he would almost certainly have welcomed the opportunity to help Scott Gessler, a fellow public employee. After countless unfavorable comments about Scott treating each job as part time he abandoned plans to work part time as a lawyer.

All of the foregoing is by way of explaining why the citizens are themselves to blame for Mr. Gessler’s recent foray into the world of criminal and constitutional law in which he appears to be singularly unschooled.  Had people let him continue to practice law part time he would not have had the time to venture into those arenas.

Under Colorado law everyone who registers to vote must swear or affirm that he or she is, among other things, a citizen of the United States.  Mr. Gessler has decided to create two classes of registered voters.  One class comprises citizens he does not think lied when they registered and he ignores them.  The second class includes those he thinks may have lied and even committed perjury.  He has sent a letter to the second class of citizens and told them that if they committed perjury they should immediately confess and fill out a long form he sent them. (Not everyone who falsely claimed to be a citizen commits perjury since some people may have lacked the necessary intent to misrepresent their status.) If the recipients of the letter did not lie when registering to vote, he nonetheless instructs them to fill out the form, thus imposing a burden on them not imposed on other registered voters that may or may not pass constitutional muster. What he doesn’t tell the recipients is that if they admit they lied when registering, they may have admitted to committing a criminal offense that could result in a fine of up to $5000 or imprisonment in the county jail for up to 18 months.

Commenting on the low salary he receives Mr. Gessler told a reporter that Colorado is losing a lot of potential talent by paying such low salaries. He’s right. His election is proof of that.  If the office paid more, Colorado would probably have a much brighter secretary of state.  Scott Gesssler is proof that  you get what you pay for.

Christopher Brauchli is an attorney living in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu