Whoa – Not So Fast with Subpoena Power for CU Panel

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

valued universities.

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

subpoenaed.

* 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

oath.

* 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

criminal behavior.”

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.