How Can We Boot The Sheriff?

The Problem of The Shirtless Sheriff

El Paso County, Colorado is home to the city of Colorado Springs.  It is one of the largest counties in the state with about half a million residents.  Like most Colorado counties, it has an elected Board of Commissioners and a separately elected Sheriff, Terry Maketa.

The daily paper in Colorado Springs, the Gazette, the Denver Post, and the Board of Commissioners for El Paso County, by a vote of 5-0, have urged the Sheriff to resign.

They have done so based upon evidence that he promoted three subordinates with whom he had sexual relationships to top positions in his office based upon those relationships (including a shirtless photo of Maketa to one of these employees attached to a suggestive text message) and has also had lax financial controls while in office, something which has sparked a civil employment lawsuit, or at least an substantial formal investigation (I'm not entirely clear on that point).

Yet, he refuses to resign.

It is quite problematic for Maketa, who acknowledges bad conduct in a videotaped statement, just not bad conduct sufficient to remove him from office or to cause him to resign, to continue to serve as the chief official in change of law enforcement in rural El Paso County, enforcer of El Paso County court orders, and chief operating officer of the county jail when he appears to be engaged in a pattern of misconduct in his office that may give rise to ongoing civil liability.

Overwhelmingly, elected officials in these situations do step down voluntarily.  But, forcing an elected official from office is not easy.

Options:  How can we boot the Sheriff?

It isn't clear that there is any viable way to remove Sheriff Maketa from office or suspend him involuntarily under Colorado law.

1.  As a general rule, neither the Board of Commissioners for El Paso County does not have a generalized authority to remove a Sheriff from office.

2.  The part-time Colorado General Assembly (which was no longer in session when this scandal came to the fore in any case) does not appear to have impeachment power over a county sheriff.  Impeachment is limited to the Governor and other state and judicial officers.  Colorado Constitution, Article XIII, Section 2.  A Sheriff may be a county rather than a state officer in this context.  Section 3 of that article provides that "All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office in such manner as may be provided by law.", which doesn't really clarify the issue of whether county elected officials are impeachable.  Also notably, the article related to Counties in the Colorado Constitution comes only after the Article related to Impeachment.

3.  The citizens could recall Maketa from office by Petition.  Colorado Constitution, Article XXI, Section 1 (which refers to "every elective public officer", a broader phase than "state . . . officers" for legislative impeachment).  But, his term expires in January 2015 and he is term limited.  So, that cumbersome process could trim just a little of the remaining six months of Maketa's term.

4.  Colorado has professional ethics bodies that can intervene in cases of bad judges or bad attorneys in public offices.  But, it isn't clear that there is a comparable body with authority to strip Maketa from his authority to serve as Sheriff in this case.  The P.O.S.T. board certifies individuals as qualified to be law enforcement officers in the state, and POST certification and training of some type is required for a Sheriff.  CRS 30-10-501.6.  But, it appears that POST Certification cannot be revoked for any reason other than the passage of time once earned.  The POST board seems to have authority over the equivalent of the bar exam and continuing education, without having the broader authority of the attorney regulation counsel or similar professional regulatory authorities in cases of misconduct once someone is certified.

5.  Maketa's political party (the GOP) can urge him to resign (and presumably has done so covertly, whether or not it has done so publicly).  This might even allow that party to fill the position in a vacancy election (this happens in the state legislature, but I don't know if this rule applies to county office).   But, his political party can't force him out either.

6.  Conceivably, a judge in a civil action now pending could enter injunctive relief ordering him to step down, but this would be extraordinary and almost unheard remedy of in a sexual harassment in employment case.

7.  Conceivably, the Attorney General (Mr. Suthers) or District Attorney for the 4th Judicial District including El Paso County (Dan May) (or even the United States Justice Department) could press criminal charges that make it effectively impossible for him to continue to perform his duties, and some of the official misconduct crimes are quite broad.  But, a mere prosecution for a crime, in and of itself, is not a legal ground to remove a Sheriff from office, and even a conviction of a misdemeanor is not a legal ground to remove a Sheriff from office.

Perhaps, however, the automatic restraining order that takes effect in Colorado in criminal cases could have the effect of preventing Sheriff Maketa, in practice, from carrying out many of his ordinary duties as Sheriff, without actually removing him from office.

8. It is conceivable that he could be removed by his bonding company, if it revoked his bond, as a Sheriff is required to be bonded.  The bond requirement is so low, however, under CRS 30-10-501 (not more than $20,000 with three sureties) that he might simply be able to post a cash bond in lieu of insurance or a surety bond.  So while this might work in principle, it might not work in practice.

9. It might be possible for the Board of Commissioners of El Paso County to broker a financial settlement that preserves Sheriff Maketa's economic interests in exchange for his resignation.  But, he'd have to agree and the authority of the Board to even enter into such an agreement is far from clear, particularly in light of ethics rules in Colorado that prohibit compensation of public officials for official action.

10.  So far as I know, the Independent Ethics Board which has jurisdiction over all public officials in Colorado who receive improper financial benefits from their official posts, has the jurisdiction to fine officials, but not to remove them from office.  See Colorado Constitution, Article XXIX, Section 6.

11. Colorado Constitution, Article XXIX, Section 7 of the Article allows the Board of Commissioners of a County to adopt more stringent ethics standards on personal financial benefit than the state, but this doesn't clearly extend to an ethics standard with removal from office as a penalty, although this isn't clearly ruled out either.  There are also ex post facto issues that apply in this case if the ethics standards were adopted now.

12.  If Maketa were to resign, the undersheriff (Paula Presley), if any (or county coroner if no other official is designated as undersheriff) to fulfill the Sheriff's duties until a successor can be appointed.  CRS 30-10-505.  But, this is a problem too because the Undersheriff is purportedly part of the problem:

The allegations come from a complaint submitted to county commissioners by three of Maketa’s commanders: Rodney Gehrett, Mitchel Lincoln and Robert King. It names three women alleged to have had sexual relationships with Maketa: Undersheriff Paula Presley; the head of training for dispatchers, Tiffany Huntz; and comptroller Dorene Cardarelle, who largely controls the department’s budget.

Maketa purportedly asked Presley to run as his successor, but she declined to do so.

Analysis

Many statutes related to the office provide for civil liability of a sheriff in Colorado for various acts, or even fines, but none for a Sheriff's removal for any reason other than failure to obtain POST training (which Maketa presumably had done).

He could, however, also be removed for a conviction for a felony (even if being appealed), or a determination that he is incapacitated in a civil action brought in district court by the Board of Commissioners. CRS 30-10-105 ( incapacity is defined to mean "he is unable to routinely and fully carry out the responsibilities of his office by virtue of mental or physical illness or disability and he has been so unable for a continuous period of not less than six months immediately preceding the finding of incapacity").

Indeed, the fact that a mere indictment for a felony or conviction for a misdemeanor does not suffice to remove the Sheriff from office (even though "high misdemeanors are grounds for the impeachment of federal officers and employees by Congress), and that the statute contemplates that a Sheriff could have legal liability and/or civil fines for misconduct tends to disfavor a reading of the statute to allow misconduct giving rise to mere civil liability or even misdemeanor criminal charges of any kind, or felony charges prior to conviction, as a grounds for removal of an elected Sheriff from office in Colorado.

A Case For Reform?

If none of these avenues affords a means of removing a recalcitrant elected Sheriff from office in Colorado, perhaps we should change our laws to make it possible to do so, at least on a provisional temporary suspension with pay pending adjudication basis, for example, based upon the unanimous vote of the County Commissioners, or a super-majority of all elected county officials.

Also, consider that this case involves a large urban county where the overwhelming majority of the actual work of the Sheriff's department is carried out by civil servants who are part of a large bureaucracy with substantial employment protections from improper discipline by their superiors (and many of those employees are probably also unionized as well).  So, a failed top leadership team doesn't necessary make it impossible for the remainder of the department's employees to carry on in good order with some presumption of regularity.

But, in a small rural sheriff's department, the distraction and interruption of public service created by a scandal like this one could have far more catastrophic implications on a day to day basis for street level law enforcement activities.  So, this case may be viewed as a lucky warning shot that provides Colorado with an opportunity to fix a serious flaw in its laws for removing Sheriff's accused of improprieties before the harm grows more tangible, that is conveniently, as noted below, free of partisan rancor.

Footnote on Partisanship

This case is particularly interesting as a clean example of a case where partisan advantage is not a material factor.  The Attorney General, the District Attorney, the Sheriff, the County Commissioners and almost all other important players in this drama are Republican elected officials in a county which is a Republican stronghold in the state politically.