Sometimes an idea might sound good at first but, upon closer
examination, has troubling aspects to it.
I have often found this to be the case at the legislature. From
just reading the title of a bill, looking at a headline or
listening to a sound bite, a proposal might seem reasonable.
However, when you take time to study the details, you come to a
much different conclusion.
Such may be the case regarding the governor’s suggestion that
the legislature grant subpoena power to the special panel looking
into allegations that the University of Colorado Athletic
Department used sex and drugs to attract new recruits.
Everyone agrees that we need to get to the bottom of this. If
the charges are true, certainly we need to reform the system and
ensure that students who attend CU are in a safe environment. On
the other hand, if the charges are untrue, we need to bring out the
facts in order to restore the reputation of one of Colorado’s most
Either way, we need answers. However, while granting subpoena
power to the committee looking into the allegations would, at first
glace, seem reasonable, this is truly a case where we need to look
beyond the headlines and sound bites.
According to the General Assembly’s attorneys, the legislature
clearly has the authority to grant subpoena power, even to an
outside entity such as the panel investigating possible
improprieties by the athletic department. Importantly, though, no
one can remember this ever having been done before, not even in the
case of the Columbine High School massacre. Thus, no one knows what
pitfalls and unintended consequences might lie ahead.
Consider these questions:
* Exactly why does the CU panel need subpoena power? The
committee just started meeting, so it is premature to know who is
refusing to appear that might be compelled to do so if
* Would the CU panel also be given power to put witnesses under
oath? This is a separate issue from granting subpoena powers. To
date, no one has requested the authority to put witnesses under
* Even if both powers were granted together, what is to prevent
a witness from remaining silent and exercising his or her Fifth
Amendment right not to incriminate themselves?
* To get around this, would criminal immunity be offered to
someone in exchange for testifying before the panel? If not, why
would witnesses tell the CU panel something that could be used
against them in civil or criminal proceedings? If so, would this
potentially jeopardize ongoing civil investigations or that by the
attorney general, who has been appointed as special prosecutor in
the CU scandal.
* If a subpoenaed witness refuses to testify, how would
enforcement be handled? Normally, this would be left up to the
courts, but that could be an expensive and time-consuming exercise,
especially given that the Board of Regents have directed that the
CU panel issue its report by April 30.
* Would the legislature want to put limits on subpoena power,
such as not compelling testimony from a victim of an alleged
assault or harassment?
* In order to protect the identity and privacy of victims,
should the state’s open meetings laws also be amended to permit
certain testimony behind closed doors?
* Since the CU panel was appointed by the CU Regents, and not by
the General Assembly, what means would the legislature have to keep
the inquiry on track?
* With only eight weeks left in the current legislative session,
should the General Assembly divert its attention away from other
important issues, such as the $484 million structural deficit over
the next three years, in order to focus on the CU scandal?
As House Speaker Lola Spradley has said, “The last thing we want
to do is act hastily and have unintended consequences occur that
could actually hamper the investigation or prosecution of actual
It is evident to me that the path to granting subpoena power to
the CU panel is filled with legal and political land mines. I
strongly believe that the General Assembly should move with caution
and err on the side of not granting such a proposal.
State Rep. Lynn Hefley chairs the House Judicial Committee and
is also a member of the Education Committee and the Legal Services
Committee. She represents House District 20 in El Paso County.