Email by Marilyn Marks to Election Commissioners concerning 2nd meeting: Aspen Election Commission

[April 18 2010 email from Marilyn Marks to two volunteer Aspen Election Commissioners regarding 2nd meeting of 2010 Aspen Election Commission. More comments on the meeting are found here: http://aspenelectionreview.blogspot.com/2010/04/second-meeting-of-aspen-2010-election.html]

Bob and Ward,

I had the opportunity to listen to an audio recording of the most recent meeting.

I am pleased that so many topics were candidly discussed. Thank you for doing that.

I look forward to participating in future meetings.

It sounded as if I am requested to make a list of my concerns about the May 2009 election and submit those to the EC, although I have not heard this other than by listening to the tape. I will certainly do this. I am assuming that your request is for me to have that submitted by May 8^th?

I did hear a few topics where I feel that there is some confusion or lack of clarity of the history:

1.    I believe that Elizabeth clarified this, but my litigation has nothing at all to do with IRV, although that seems to be a common misunderstanding. My litigation is ONLY focused on ensuring that public records of ballot images are accessible by the public. That needs to be true throughout the state of Colorado whether we are dealing with  IRV TrueBallot created images or images created in traditional elections with the Hart BallotNow system.

2.    Millard’s complaint is a most serious complaint (far more serious than any of mine!), and  needs to be candidly discussed and the implications fully understood. I was concerned to hear that it was initially passed off as “IRV related,” and toward the end of the meeting, as not important unless IRV is used again.  Millard’s complaint has to do with a constitutional issue cloud that will hang over the City for at least 3 more years. The problem is not solved by “shuffling next time.”  While that is crucial, what is the remedy, or at least the acknowledgement of the problem that the community needs to be aware of? In my view, that is a philosophical matter that merits a full and candid discussion, not to be shied away from because it is uncomfortable. 

Colorado Bar Association Answers Aspen City Attorney on Conflict of Interest

Aspen Daily News coverage of the Colorado Bar Association Ethics Committee reply to a request from Aspen to advise about conflict of interest for a city employed attorney advising the Aspen Election Commission is here:
http://www.aspendailynews.com/section/home/138642

Note  that although not covered in the above article, the letter does not advise that there is no conflict of interest.  It also says that the Ethics Committee was not informed that the City and Election Commission are directly adverse to one another.  This might be a misrepresentation of what could occur Aspen were the Election Commission to take any action viewed as adverse by the City Council.

The letter does say that if the Election Commission is a "client" of the city attorney then the Election Commission's consent is required if there is a significant risk of conflict of interest.   I think this important finding ought to have been reported in the above article.  The Ethics Committee declined to advise on whether or not the EC is a "client" of the city attorney as this is a matter of law, and apparently would have to be determined in court.  If the EC is a client, they are allowed to decline to be served by the City Attorney. If not, then they presumably have the right to have access to counsel. As I read it,  either way, the City would not be able to force the EC to be represented by the City Attorney.
[above is opinion by Harvie Branscomb]




The actual letter from the Colorado Bar Association Ethics Committee regarding conflict of interest of a city attorney in advising both the City Council and the Election Commission is below the break.