Keim v. Douglas County School District, 399 P.3d 722

Douglas County School District contracted with the American Enterprise Institute (AEI) in Feb. 2013 to research and produce a white paper (the Hess Report); the District paid $15,000 (half the $30,000 fee), funded by a Daniels Fund grant.
AEI drafted the report in coordination with District staff; AEI sought District input on focus, interviews, and revisions; District requested and made substantive changes to drafts.
The Hess Report praised Douglas County’s reform agenda, profiled board members, referenced the upcoming 2013 school board election, and described the benefits of a unified reform board.
On Sept. 18, 2013 the District emailed a link to the Hess Report in an e-newsletter to ~85,000 recipients; shortly thereafter plaintiff Julie Keim (a candidate opposing the reform slate) filed an FCPA complaint.
An ALJ found the District used public funds to influence the election by commissioning and disseminating the report and concluded the expenditure was a prohibited “contribution.” The District appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the District’s commissioning and dissemination of the Hess Report constituted a prohibited "contribution" under the FCPA/Art. XXVIII	Keim: District used public funds to produce and distribute a politically favorable report intended to support the reform slate, therefore it gave something of value to candidates to promote their election	District: Report was informational, not a contribution; mass distribution to the public is not "given to a candidate," and no payment was made to a candidate or committee	Reversed ALJ: Court held the Hess Report was not given, directly or indirectly, to any candidate for the purpose of promoting that candidate’s election and thus was not a contribution under the FCPA

Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 356 P.3d 833 (Colo. App. 2013) (confirms political subdivisions are subject to the FCPA)
Colo. Ethics Watch v. City & Cnty. of Broomfield, 203 P.3d 623 (Colo. App. 2009) (deference to agency statutory interpretations but not binding on appellate courts)
Buckley v. Valeo, 424 U.S. 1 (U.S. 1976) (discusses direct and indirect contributions and earmarked gifts through intermediaries)
Colo. Educ. Ass’n v. Rutt, 184 P.3d 65 (Colo. 2008) (recognizes that coordinated activity by third parties can indirectly benefit a campaign; communication/cooperation is evidentiary)
Emrich v. Joyce’s Submarine Sandwiches, Inc., 751 P.2d 651 (Colo. App. 1987) (parties are bound by admissions in pleadings)
Huber v. Colo. Mining Ass’n, 264 P.3d 884 (Colo. 2011) (courts avoid statutory constructions that lead to absurd or unreasonable results)