State v. Gutierrez

Majority - Vargas, Judge

Yes, a government official who knowingly and willfully violates the ethical principles outlined in Subsections 10-16-3(A)-(C) of the GCA can commit a criminal offense, but only Subsection 10-16-3(A) is sufficiently clear to withstand a vagueness challenge and form the basis for criminal charges. The court found that Section 10-16-17's plain language dictates that 'any person who knowingly and willfully violates any of the provisions of [the GCA] is guilty of a misdemeanor,' unless otherwise specified. This broad language applies to Subsections 10-16-3(A)-(C). The heading of Section 10-16-3, referring to 'Ethical principles,' does not create an ambiguity that would limit this plain meaning, as statutory headings cannot override the clear text. The specific felony penalty provided in Subsection 10-16-3(D) serves as an exception to Section 10-16-17's general misdemeanor provision, rather than excluding Subsections (A)-(C) entirely from criminal liability. The court affirmed this interpretation through legislative history, noting that both Sections 10-16-3 and -17 were enacted simultaneously, and Section 10-16-17 has remained unamended despite subsequent changes to other GCA sections. The court rejected arguments for applying the rule of lenity, as no 'insurmountable ambiguity' persisted regarding the legislative intent to criminalize knowing and willful violations of these subsections, nor did it find that applying criminal penalties would lead to an absurd result. Regarding the vagueness challenges, the court determined that Subsection 10-16-3(A) is not unconstitutionally vague. This subsection mandates that a public official 'shall use the powers and resources of public office only to advance the public interest and not to obtain personal benefits or pursue private interests.' By relying on ordinary dictionary definitions for 'public interest,' 'personal benefits,' and 'private interests,' and considering the 2011 legislative amendment that removed qualifying language, the court concluded that Subsection (A) clearly prohibits public officials from exploiting their office for private gain and requires them to act solely for the benefit of the people. The scienter requirement of Section 10-16-17 further mitigates any potential vagueness, ensuring adequate notice of proscribed conduct. The court also held that its construction of Subsection (A) was not a 'novel construction' offending due process, as it relied on ordinary meaning and context, rather than altering precedent or unexpectedly expanding the statute's scope. In contrast, the court found Subsection 10-16-3(B) to be unconstitutionally vague. This subsection requires officials to 'conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.' The court deemed this language aspirational rather than prohibitive, lacking specific definitions or clarifications of required or forbidden conduct. Phrases like 'justifies the confidence,' 'maintaining the integrity,' and 'discharging ethically' were found to be too abstract to provide persons of ordinary intelligence a fair opportunity to determine what conduct is prohibited, or to offer sufficient guidance for law enforcement, thus encouraging subjective and arbitrary application. Finally, the court concluded that Subsection 10-16-3(C) is also unconstitutionally vague. This subsection states that 'Full disclosure of real or potential conflicts of interest shall be a guiding principle for determining appropriate conduct. At all times, reasonable efforts shall be made to avoid undue influence and abuse of office in public service.' The primary defect identified was the lack of clear guidance as to whom its requirements apply. Unlike the surrounding subsections, Subsection (C) omits any mention of specific actors (e.g., 'legislator or public officer or employee' or 'person'). This absence of an identifiable class of persons means individuals cannot know if the rule applies to them, and law enforcement lacks minimum guidance for consistent application, rendering the provision void for vagueness.