With at least one more meeting left before the bipartisan ethics committee decides whether or not to call a formal hearing into Senator John Morse's 331-day per diem extravaganza, we wanted to bring our readers up to date on this story.
The bipartisan Senate ethics committee, consisting of three Democrats and two Republicans, has now met twice to discuss the issue and receive John Morse's excuse, err, response to the ethics complaint.
Currently a request has been made by the committee to Morse for more documentation to support his per diem requests. Morse has claimed: “I haven't asked for one penny that wasn’t earned and authorized by law.”
Evidence supporting that statement has still yet to fully materialize.
The panel has until April 15 to make their decision on whether or not to proceed with the complaint.
As it stands, Morse has not substantively defended his position, and instead is trying to slither away from the investigation using slippery logic and unsubstantiated statements.
Morse may succeed is convincing his fellow Democrats to let him off the hook due to legal loopholes, but in the court of public opinion Morse's response makes him look guilty as hell. On more than one occasion Morses's response directly contradicts previous statements and actions taken by Morse.
In fact, his response is so full of Clinton-esque legalese shenanigans that we wonder if Morse did hire counsel to respond. That would be interesting unto itself, as last time Morse had ethics problems he told Lynn Bartels that the charges were “so flimsy he didn't even bother to hire an attorney.”
After the jump we go through a couple of the more logically slippery aspects of Morse's response. If you are interested in reading it in full click here.
Before we delve into Morse's legal shim shammery, we need to keep in mind Morse's own statement to the ethics committee on how to judge the complaint:
I ask the committee to keep in mind as I proceed through this exercise that these allegations if they were true — and they are not — would not constitute a violation of any law or rule of the Senate.
Don't forget — even if he's guilty, he's not guilty.
1. I support transparency, but in this case I should get special treatment because I'm a really busy and important person.
Start with his initial sentiment:
We are all aware of the high standards necessarily imposed on those of us in public service. It requires our conduct be above reproach and subject to scrutiny. To hold accountable those in public life is vital to the healthy functioning of our democratic process. All of us should accept and support the process. I certainly do.
Then why did Morse threaten to take Ms. Cegielski's home for filing the complaint? We believe the exact words were: “If I was a private citizen, I would own these peoples’ homes.”
Right after saying high standards should be held against him, he immediately pivots and argues that, actually, Senate rules say that it should be harder to prove the complaint against him than it would a private citizen, so as to not to bother him:
The Committee is required to find probable cause of a violation of statute, Senate rule, or regulation…[the use of probable cause] within the Senate Rule 43 (b) suggests a legislative intent to set the threshold bar high to prevent legislators from needless distraction of frivolous complaints.
So a citizen questioning why you played fast and loose with their tax dollars is a “needless distraction”?
2. The definition of per diem is what I say it is now, not what I said it was when I was trying to get the El Paso District Attorney (DA) convicted of a felony (in an election year).
In the complaint, Morse claims per diem is really like extra pay for working really hard:
Because the work of leadership adds significantly to these legislative responsibilities, the General Assembly provides additional compensation (often called 'per diem') to reflect the increased workload of these individuals.
But when he was demanding an investigation and felony charges against the El Paso DA, he wrote to the Chief of Police, using a different definition for per diem:
[The DA] converted public funds, those used to reimburse county employees and elected officials for bone fide government travel, into his private use. (Peak emphasis)
Per diem is very clearly not considered additional compensation for additional work, otherwise it would be considered taxable income. The IRS defines per diem as “an allowance paid to employees for lodging, meals and incidental expenses incurred when traveling.”
If, in fact, Morse does see per diem as compensation for additional work, then might he have committed tax fraud by not including his per diem payments as taxable income?
Since per diem is meant specifically to defray the personal expenses associated with business travel, then he needs to prove he had to travel away from his home to conduct that business. Sitting at home in El Paso making phone calls or responding to emails does not qualify for per-diem.
Morse has submitted no documents so far proving his need to physically travel away from his home for all the days he took per diem.
3. I didn't take per diem every day, just almost every day.
Morse tries to make taking so much cash sound honorable. It's vaguely reminiscent of Newt Gingrich saying he cheated on his wife because he loved his country so much.
I collected per diem on 206 days, well below the total available amount; however, 206 days clearly represents my commitment to my duties as a senator in a leadership position.
This comes across as indirectly insulting every other legislative leader who hasn't abused per diem as people insufficiently committed to their jobs. Morse cares more, which is why he took all that money.
4. I had 31 committee meetings outside the session, which makes taking per diem for over 200 out-of-session days justifiable because they were a lot of work.
The document that Morse signs to pocket his per diem states:
I certify that pursuant to section 2-2-307(3)(a)(III), C.R.S., I attended to matters pertaining to the general assembly, whether such matters were at the capitol or elsewhere, on the above dates and am therefore requesting $99 per diem for each day indicated.
Because the word “attended” is used in reference to per diem then it only applies to physical attendance. If Morse went to a meeting in Parker, he could take per diem. But if he was at home, playing golf or attending a fundraiser and happened to make some phone calls, per diem would not apply.
The problem there is that Morse only shows proof of attendance at 31 non-session meetings, when he took over 200 days of non-session per diem.
To solve this inconsistency, Morse claims a nice little loophole for himself, but somehow forgets to cite the legal justification for that claim:
Unlike legislators who are not in leadership, statute provides legislative leaders with compensation to prepare, attend and follow-up committee meetings out of session.
To finish off this terrible argument he then makes sure to insult every other legislative leader again:
The complaint attempts to draw conclusions by comparing the additional compensation taken by me as the Senate Majority Leader with other members in executive positions in the legislature. A far more appropriate measure is workload associated with the additional compensation.
That really takes the cake. Morse actually claims that his excessive per diem payments are merely a reflection that is he is the hardest working legislative leader EVER. Or at least since Joe Stengel.
5. I don't really need to prove anything to you, since I signed a statement saying I deserve the money.
Morse claims simply filling out a form saying he did work is all he's legally required to do to prove he did work:
I request leadership per diem by submitting the form provided by Legislative Council. All legal requirements are met by submitting that request, and all requests were properly submitted.
You can see a copy of Morse's non-session 2009 per diem forms here.
So the panel requests proof of work and Morse basically flips them the bird and says the only proof he has to show is that he signed a statement saying his request was valid.
So in the end, Morse's argument is basically: Yea, I took a lot of per diem. At least I didn't take it every day. But I deserve all that money because I work really, really hard. Plus I have my own definition of per diem that lets me pay myself extra for how much work I think I do. Oh, and I don't have to prove that I did extra work. I just have to sign a piece of paper saying I did.