Imagine that you were accused of a crime and on the day of your trial, you notice that every officer of the court is wearing the same uniform, from the cop that arrested you, to the prosecutor, to the judge.
If you’re like any other sane person, you’d have some concerns about the fairness of the proceeding. But as crazy as it sounds, this is basically the model for Colorado’s administrative hearing process.
At least as it stands now, in the justice system, you have someone investigate your crime, someone else from a different department decide whether to go to court, and someone from an entirely different (and independent) branch of government to act as referee and fact-finder. Maybe the system we have isn’t perfect, but at least there are built-in checks and balances.
Rulemaking arm of government
Unfortunately, however, if you break one of the copious rules or regulations of Colorado’s many regulatory agencies, you will face a department where employees do it all: not only do they make the rules, an agency employee investigates the infraction and acts as prosecutor, and the cherry on top is that the department either has an employee act as arbiter or they hire the contract employee who does! And as we’ll see, some of the folks they hire to be hearing officers are anything but neutral and non-partisan.
Colorado has lots of rulemaking agencies and they stay busy. Just between January and April of this year alone there were 15 proposed rulemakings. If you happen to mess up and break one of Colorado’s multitudinous rules, what kind of due process can you expect?
With so many state agencies making and enforcing rules, I don’t have space to cover them all, but I did look at the heavy hitters: the Secretary of State (SOS), the Public Utilities Commission (PUC), the Energy and Carbon Management Commission (ECMC), the Department of Revenue (DOR), and the Colorado Department of Labor and Employment (CDLE).
With a few exceptions for things such as workers comp cases, each and every one of these departments has their own internal investigators, as well as hearing officers that are employees of the division.
Interestingly, when I asked about the hearing officers being employees of a particular division, I got responses ranging from a matter of fact “correct” (the ECMC and PUC), to a paragraph length rationale extolling the importance of fairness, transparency, due process, being heard, presenting your case, etc. before saying yes, the DOR’s firearms hearing officers are employees of that agency.
Hiring partisans
When I looked into the secretary of state’s process, things (as you might expect from an office run by Jena Griswold) took a decidedly partisan and political turn. A CORA request for contracts for hearings officers hired by that office shows that from 2024 and continuing on until 2026, the SOS’s office hired Macon Cowles. Technically they hired his law firm, but the contracts all stipulated that the firm would not “…engage any employee, other than Macon Cowles, as a hearing officer without prior written consent of the Colorado Department of State”.
Who is Macon Cowles? His LinkedIn profile shows that, besides being another hired gun hearings officer for the City and County of Denver, he runs a law firm in Boulder and was a Boulder City Councilor. He’s also been a stalwart progressive advocate, writing multiple pieces in the Boulder Daily Camera.
I’m not so naive as to think that judges and hearing officers don’t have a perspective. They’re humans like the rest of us. The difference here is that Jena Griswold hired someone with no compunctions about wearing his ideological viewpoint on his sleeve. Since this gentleman oversees cases ranging from (quoting the statement of work from his most recent contract) “Help America Vote Act cases” to “campaign finance matters”–cases necessarily touching on political ideology–I can only imagine what a conservative individual sitting before Mr. Cowles would think.
A whole lot of power
One of the defining features of our regular justice system is the right to an appeal. If you don’t like the decision at your first stop in court, you can make the case to have that first decision reviewed, possibly re-reviewed.
With administrative hearings, it’s not that simple. Depending on the agency, you could end up restarting the entire hearing in district court, or you could, as the PUC requires, see the case continue up from a hearing officer to the full PUC before you get the pleasure of starting back at square one in district court. Incidentally, you get to fund your defense in both efforts. Who doesn’t like paying for the same thing twice over?
If rulemaking bodies in our state have way too much unaccountable legislative power, their ability to hold their own hearings with their own hearing officers is a manifestation of how they hold too much judicial power as well. This regulatory arm of the state controls a whole lot of your life, has tremendous power, and doesn’t necessarily have the same checks and balances built into the rest of government.
During COVID I remember being continually surprised at how quickly and easily some Colorado politicians laid down their authority to regulatory agency heads and their teams of bureaucrats. After looking in on how Colorado’s regulatory apparatus holds their hearings and settles its controversies, I am just as surprised, and disappointed, today.
Cory Gaines teaches college physics and is a regular contributor to Complete Colorado. He lives in Sterling on Colorado’s Eastern Plains. He also writes at the Colorado Accountability Project substack
