Keim v. Douglas Cnty. Sch. Dist., Court of Appeals No. 14CA0268

Docket NºCourt of Appeals No. 14CA0268
Citation399 P.3d 722
Case DateMay 07, 2015
CourtCourt of Appeals of Colorado

399 P.3d 722

Julie KEIM, Complainant–Appellee,
v.
DOUGLAS COUNTY SCHOOL DISTRICT, Respondent–Appellant.

Court of Appeals No. 14CA0268

Colorado Court of Appeals, Div. I.

Announced May 7, 2015


Fairfield and Woods, P.C., Craig D. Joyce, Lee Katherine Goldstein, Denver, Colorado, for Complainant–Appellee

Brownstein Hyatt Farber Schreck, LLP, Jason R. Dunn, Denver, Colorado, for Respondent–Appellant

Luis Toro, Margaret Perl, Denver, Colorado, for Amicus Curiae Colorado Ethics Watch

Lewis Roca Rothgerber, LLP, Eric V. Hall, Brent R. Owen, for Amici Curiae Colorado Counties Incorporated and the City of Arvada

Opinion by JUDGE GABRIEL

¶ 1 In this campaign finance dispute, respondent, Douglas County School District (the District), appeals the final agency decision of an administrative law judge (ALJ). The ALJ found that the District violated Colorado's Fair Campaign Practices Act (FCPA), § 1–45–117(1)(a)(I), C.R.S.2014, when it contracted for and disseminated a report by Dr. Frederick M. Hess and Max Eden of the American Enterprise Institute

399 P.3d 724

(the Hess Report). We conclude that the Hess Report was not given, directly or indirectly, to any candidate for the purpose of promoting that candidate's election. Accordingly, we further conclude that the dissemination of the Hess Report did not constitute a "contribution" under, and the District therefore did not violate, the FCPA in this case. We thus reverse the ALJ's order.

I. Background

¶ 2 The District is a political subdivision of the state and is therefore subject to the FCPA. See Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 2013 COA 20, ¶ 37, 356 P.3d 833 (cert. granted Mar. 17, 2014); § 1–45–117(1)(a)(I).

¶ 3 According to petitioner, Julie Keim, beginning with the school board election of 2009, the District began implementing what has been referred to as a "reform" agenda, and after the 2011 school board election, all seven members of the Douglas County School Board (the Board) supported this agenda, as did the District's then newly appointed superintendent, Dr. Elizabeth Celania–Fagen. Keim was a candidate for one of four open positions on the Board in the November 2013 election.

¶ 4 On February 6, 2013, the District signed an Independent Contractor Agreement with the American Enterprise Institute (AEI). This agreement (the AEI Agreement) provided that AEI would "research, create, and publicize" a white paper that ultimately became the Hess Report. At the time the AEI Agreement was signed, no one had declared that he or she would be a candidate for any of the Board seats that would be open in the 2013 election. Moreover, the AEI Agreement provided that it would terminate on December 31, 2013, unless the required services were completed or the Agreement was terminated by either party, thereby suggesting that the white paper was not required to be completed until almost two months after the 2013 election.

¶ 5 The AEI Agreement's "Scope of Services" stated that the white paper would:

a. Describe Douglas County, the school system, and Superintendent Fagen's background and expertise.

b. Describe some of the problems that Douglas County's efforts are meant to address.

c. Describe what Douglas County is doing in terms of curriculum, instruction, programs, systems in place, etc.

d. Explain how this is new and different; describe some of the advantages of the model.

e. Delineate some of the challenges Douglas County faces based on this model.

f. Explain lessons learned from the model.

¶ 6 The District agreed to pay AEI $30,000, inclusive of expenses, to complete its work under the AEI Agreement. Ultimately, the District paid $15,000 of this sum, with the remainder being paid by the Douglas County School District Foundation. The amount paid by the District was funded by a grant that the District had received from the Daniels Fund.

¶ 7 Hess and his research assistant, Eden, undertook the tasks required by the AEI Agreement, and the record reflects that their work was not intended to be a wholly independent review and evaluation of the District. Rather, Hess and Eden worked with the District to provide a report that the District would ultimately review and approve.

¶ 8 Toward that end, in advance of a trip to Colorado to collect information, Eden wrote to the District's Community Relations Officer:

Ideally we would love for you all to help us help you. We can touch base on this as the date draws closer, but we would prefer not to go out there with a blank slate. Rather, we would prefer it if you would tell us what you want us to focus on, what is most worthy of attention, what you'd like to see written about and what your general angle on it (and the paper) is. This is just something to flag to Dr. Fagen so she can mull it over a bit. Perhaps all of the interviews are already lined up with a certain focus in mind, but if not we encourage you to tailor our time out there to directed interviews with folks that you want to
399 P.3d 725
make a particular point of in us meeting and writing about them.

¶ 9 Likewise, AEI provided a draft version of the report to the District on July 31, 2013, and a significant number of changes were made thereafter, with at least some of these changes being requested by representatives of the District.

¶ 10 In the weeks just prior to the release of the completed Hess Report, Eden asked the District's Community Relations Officer to obtain a quote from Superintendent Fagen about how important the then-upcoming school board election was. This quote was to accompany the release of the Hess Report, although the quote was to be included in an op-ed to be placed by Hess in an online periodical, not in the Hess Report itself. Superintendent Fagen did not ultimately provide such a quote, but the president of the Board did. His quote read, "The teachers' union would like to return to the days of big payouts for union officers, ... ending choice for students, and rewarding bad performance. This election presents a clear choice between union interests versus what is best for our students."

¶ 11 The District received the final version of the Hess Report in September 2013. For present purposes, several portions of the Report are pertinent:

• The introduction to the Hess Report indicated that it would provide (1) "a look at the ambitious reform effort" in Douglas County, which county the Hess Report described as a "Republican bastion"; (2) "a case study examining cage-busting leaders seeking to reimagine schools and school systems"; and (3) "a chance to see a vision of unconventional, bold leadership in practice." The introduction further noted, however, that the Hess Report was not intended as an evaluation or endorsement of the Douglas County effort.

• The Hess Report described the reform agenda as (1) "perhaps the nation's boldest attempt at suburban school reform"; (2) "unusually ambitious"; (3) "remarkable in the annals of contemporary school reform"; (4) "radically different"; and (5) "remarkable and illuminating."

• A section of the Hess Report entitled, "Electing a Reform Board," described the history of the then-existing Board and the appointment of Superintendent Fagen.

• The Hess Report contained brief biographical profiles of the existing Board members.

• The Hess Report observed that Douglas County was "a compelling illustration of how a unified board majority can fuel rapid, ambitious reform" and noted that the Board's "cohesion" and "focus" were striking.

• The Hess Report referenced the upcoming school board election and noted the rumors that the American Federation of Teachers might spend substantial sums to defeat the incumbents who were running for re-election.

¶ 12 On September 18, 2013, the District included an Internet link to the Hess Report in its weekly e-newsletter, which reached approximately 85,000 Douglas County residents. Referring to the Hess Report, the newsletter stated, "Hess and Eden point out that districts undergoing significant school reform transform from poor to passable, Douglas County's distinctive aim to going [sic] from good to great. The paper focuses on Douglas County reforms including choice and pay for performance."

¶ 13 Shortly after the District disseminated the Hess Report, Keim filed the current action, ultimately alleging, as pertinent here, that (1) the District had used public resources "to support a slate of candidates running for school board in violation of the FCPA"; and (2) District resources were used in the "research, compilation, preparation and dissemination" of the Hess Report, and the Hess Report was "political in nature, supportive of the platform advocated by the Reform Slate [of Board candidates], and being used to influence the outcome of the election."

¶ 14 In its answer to Keim's amended complaint, the District admitted that District resources were used to fund the Hess Report

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but denied that the Hess Report was political in nature.

¶ 15 The matter ultimately proceeded to a two-day trial before the ALJ. The ALJ subsequently issued a final agency decision finding that (1) the Hess Report "overall painted a positive picture of the reform agenda" and "touted the benefits of having a unified board to advance the reform...

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2 practice notes
  • Keim v. Douglas Cnty. Sch. Dist., Supreme Court Case No. 15SC502
    • United States
    • Colorado Supreme Court of Colorado
    • July 3, 2017
    ...14 The District appealed, and the court of appeals reversed in a divided opinion. Keim v. Douglas Cty. Sch. Dist. , 2015 COA 61, ¶ 1, 399 P.3d 722, 723. The panel majority focused on the meaning of the phrase "given, directly or indirectly, to a candidate" in the constitutional de......
  • Lopez v. Griswold, Civil Action 22-cv-00247-JLK
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 10, 2022
    ...receive or make use of the thing of value provided (4) in order to promote the candidate's election.” Keim v. Douglas Cnty. Sch. Dist., 399 P.3d 722, 729 (Colo.App. 2015). Plaintiffs have not shown how travel expenses can be “put into the possession of or provided to a candidate, ” and ther......
2 cases
  • Keim v. Douglas Cnty. Sch. Dist., Supreme Court Case No. 15SC502
    • United States
    • Colorado Supreme Court of Colorado
    • July 3, 2017
    ...14 The District appealed, and the court of appeals reversed in a divided opinion. Keim v. Douglas Cty. Sch. Dist. , 2015 COA 61, ¶ 1, 399 P.3d 722, 723. The panel majority focused on the meaning of the phrase "given, directly or indirectly, to a candidate" in the constitutional definition o......
  • Lopez v. Griswold, Civil Action 22-cv-00247-JLK
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 10, 2022
    ...receive or make use of the thing of value provided (4) in order to promote the candidate's election.” Keim v. Douglas Cnty. Sch. Dist., 399 P.3d 722, 729 (Colo.App. 2015). Plaintiffs have not shown how travel expenses can be “put into the possession of or provided to a candidate, ” and ther......

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