KFKA's Oliver, Face the State's Jones failed to disclose Independence Institute's role in mill levy lawsuit

Summary: Discussing a lawsuit challenging the constitutionality of the state's mill levy freeze enacted in May 2007, 1310 KFKA host and Independence Institute Director of Operations Amy Oliver and conservative activist Brad Jones of the "news" website Face the State did not mention that the think tank created and promoted the lawsuit. Additionally, the pair noted Colorado State Board of Education discussions about the suit without disclosing the think tank's radio ad calling on the panel to "make their stance public" on the mill levy freeze.

On the April 14 broadcast of 1310 KFKA's The Amy Oliver Show, Face the State founder and conservative activist Brad Jones and Amy Oliver of the Independence Institute discussed a lawsuit challenging the constitutionality of the mill levy freeze enacted by Gov. Bill Ritter (D) in May 2007 but failed to disclose that the "free-market" think tank initiated and coordinated the lawsuit, as Colorado Media Matters has noted. Furthermore, Oliver and Jones commented on the disagreement among members of the Colorado State Board of Education over the panel's official stance on the lawsuit, but similarly failed to mention that the Independence Institute has run a radio ad calling for the board to be "[t]ransparent" regarding what the ad termed Ritter's "property tax hike."

During the interview, Oliver, who is the Independence Institute's director of operations, referenced an item in the section of Face the State called "The Buzz." After noting that members of the state board of education are "the ones who are named in the lawsuit that says that this property tax freeze ... is unconstitutional," she added that the board "was gonna vote on whether or not they even wanted to be a part of it." Jones replied, "That's right; there's a coalition of taxpayers and county commissioners from Mesa County, the county commissioners signed on to the lawsuit challenging the constitutionality of the mill levy increase." Jones later stated, "It's going to probably take up to about a hundred thousand dollars of legal work for the [Colorado] Department of Education to defend" against the lawsuit. He also added, "So you have, you know, essentially a hundred thousand dollars, probably it will be in the end, of taxpayer money being committed to be spent in a private setting."

However, Oliver and Jones -- who worked as a research associate at the Independence Institute under policy analyst Jessica Peck Corry's direction -- did not mention that it was Independence Institute President Jon Caldara who on December 13, 2007, filed the lawsuit against the state that, according to the Rocky Mountain News, "asks a Denver District Court to strike down the new law, arguing it amounts to a tax policy change and should have gone to the voters as required by the Taxpayer's Bill of Rights [TABOR]."

Further, in discussing the state board of education's official stance on the lawsuit, Oliver and Jones failed to disclose that the Independence Institute recently released a radio ad calling on the board to "make their stance public" on the mill levy freeze "with a recorded vote." According to the Independence Institute's website:

The Independence Institute is leading a coalition of elected officials and citizens in a lawsuit against the State of Colorado for an unconstitutional property tax increase included in the 2007 school finance law. Without necessary voter approval, many thousands of Colorado homeowners and business owners are estimated to pay an additional $3.8 billion over the next 10 years.

We filed the lawsuit because we want to see the taxpayer protections in the state constitution honored. We want voters to decide for themselves.

One of the defendants in the lawsuit is the Colorado Department of Education (CDE). The State Board, which governs CDE, has retained attorneys to defend them against the taxpayer lawsuit. But, as reported at The Denver Post and Face The State, the Board has yet to hold a public vote on whether to continue its defense or to agree with taxpayers' claims.

We're not asking the State Board to vote for or against the lawsuit. The people of Colorado deserve to have their elected officials make their stance public with a recorded vote. To promote open government, the Independence Institute has sponsored the following radio ad:

"Shouldn't our elected officials have recorded votes on key issues and NOT backroom deals? Well, get this. Our elected Colorado board of education refuses to publicly vote on the Governor's property tax hike. Under Chairwoman Pam Suckla, they've hired lawyers to support the hike, but they did so without a public vote even though some members called for one. I'm going to call them at 303-866-6817, and tell them to work in the sunshine and vote first." [emphasis in original]

From the April 14 broadcast of 1310 KFKA's The Amy Oliver Show:

OLIVER: Hey, Brad, I want to touch base on one thing, though, that you have under "The Buzz." One of the things we talked about last week, and I want to give everybody an update, is what happened with the state board of education and this whole -- you know, we're gonna vote on this tax increase that is actually labeled by some a freeze. Governor Ritter and his Democratic allies over at the state legislator call it a property tax freeze, but the state board of education was going to vote on it. Because they're the ones who are named in the lawsuit that says that this property tax freeze, and I say that in quotation marks, is unconstitutional. State board of education was gonna vote on whether or not they even wanted to be a part of it.

JONES: That's right; there's a coalition of taxpayers and county commissioners from Mesa County, the county commissioners signed on to the lawsuit challenging the constitutionality of the mill levy increase, because that's the practical effect of what many are calling a freeze, is that when mill levy rates would actually go down they're going to be stuck at their current level. So you're absolutely right about that. The CDE, the Department of Education, is named on the lawsuit. The majority on the state board of education is nominally Republican, although it's been very difficult to get the Republican chair of that board to just allow for a public vote. This harkens back to the same issues that we deal with, for instance, on judicial confirmations at the federal level. We can -- you know, it's OK if folks in our position, Amy, lose that vote on the board of education. But at least we want to have that vote about whether or not the board of ed wants to go forward with defending this lawsuit or if they're going to do what's called stipulating to the facts. If they're going to agree with the claims that have been levied against the state. And Bob Schaffer from the 4th Congressional District, the vice chairman, wants a vote; Peggy Littleton from Colorado Springs wants a vote. There are other Republican members of the board of education that agree with their position, but you need either a unanimous consent of the board, or you need the chairwoman, Pam Suckla, to put that item on the agenda, and so far she refuses to do so. We think that that's just bad public policy. We need to know what the board of education's position is on essentially what amounts to a $3.8 billion question.

OLIVER: So no vote, period.

JONES: No vote, we had a reporter there on Thursday. Like I said, Bob Schaffer made the motion to have a vote; Peggy Littleton is seconding that. And unfortunately, nobody else on the board of education has the spine to stand up and have a vote on this issue. It's very disconcerting --

OLIVER: So where's the lawsuit going now? So the state board of education, we don't know where they stand right now, though, are, they're the defendants in this case.

JONES: Correct, and really what this boils down to, Amy, is that they have committed now $30,000. It's going to probably take up to about a hundred thousand dollars of legal work for the Department of Education to defend this, and the only votes that have been taken have been in executive session, on hiring a Denver law firm, Sherman and Howard, to represent the Department of Education. So you have, you know, essentially a hundred thousand dollars, probably it will be in the end, of taxpayer money being committed to be spent in a private setting. You also have Governor Bill Ritter, who backs the tax increase; he has petitioned on to become a respondent in this case, and he has earmarked $150,000 of his office's money in next year's budget to pay for the defense of that case. So, really, the department of ed doesn't have to be in a position to defend this, because the governor has already made it very clear that he's willing to do it on his own. And it'll go to a hearing; I think a Denver District Court is going to hear it in early May.

OLIVER: Well, we'll keep posted on that and we'll check Face the State for any updates.

—C.K.