The candidacy of Gary Flakes has prompted City Clerk Sarah Johnson to research whether ex-felons can serve on the City Council.

“We need to do a lot of research,” Johnson said Wednesday. “I’ve been working with the City Attorney’s Office on that very question, and we are currently researching the answers.”

The issue came up in Colorado Springs before when the Rev. Promise Lee was considering a council bid in late 2000, early 2001.

Lee was convicted of second-degree murder in the 1974 killing of a Fort Carson soldier. Lee was 15 at the time of the crime.

When the council passed an ordinance prohibiting ex-felons from serving on council or even running, the ACLU of Colorado stepped in.

“Eleven years ago, the ACLU of Colorado was prepared to sue on behalf of the Rev. Promise Lee, who was the target of an ordinance passed to prevent ex-felons from running for or serving on the city council,” Mark Silverstein, legal director for the ACLU of Colorado, said in an email Thursday.

At the time, Silverstein sent a letter to former City Attorney Patricia Kelley asking for a repeal of the ordinance.

“The council repealed the ordinance,” Silverstein said.

Johnson, who is relatively new to Colorado Springs, said the city is looking “through all the files to see if the question has come up” and how the city responded.

“Of course, there’s a lot of case law out there on this particular issue,” she said. “Now, I don’t know necessarily in the city. I can’t answer that question. But nationally, it is an issue.”

Silverstein said the law hasn’t changed.

“The law is the same as it was when I wrote the letter in 2001,” he said. “Mr. Flakes has a right to be a candidate, and the voters have a right to consider whether to vote for him.”

Here is the full, unedited text of the ACLU’s 2001 letter:

January 3, 2001

Patricia Kelly

City Attorney

City of Colorado Springs

30 S. Nevada Ave Suite 101

Colorado Springs, Colorado 80901

Dear Ms. Kelly:

I am writing to you about a recently-enacted ordinance, Ordinance 00-175, which purports to make citizens ineligible to serve on the Colorado Springs City Council if they have been convicted of a felony at any time in the past.

The newly-enacted ordinance adds the following section to the Colorado Springs Election Code:

5.1.105: ELECTORS ELIGIBLE TO HOLD MUNICIPAL OFFICE

Every registered elector 25 years of age or older on the date of election who has been a resident of Colorado Springs for one year immediately preceding election, is a citizen of the United States, maintains a residence within the District for election as a District councilmember and within the City for election as Mayor or at-large councilmember, and has not been convicted of a felony in any jurisdiction may be a candidate and hold office.

As this section is written, it forbids individuals from holding municipal office if they have ever been convicted of a felony, even if the sentence has already been served and even if the convicted person’s right to vote has been restored.

I write on behalf of the Reverend Promise Lee, who intends to run for a seat on the Colorado Springs city council in the upcoming election this April.   Rev. Lee was convicted of a felony in the early 1970s, for a crime that occurred when he was fifteen years old.   Since his release from prison, Rev. Lee has become a community leader and an outspoken advocate on matters of public concern.  The newly-enacted ordinance, however, would prevent Rev. Lee from serving on the city council if he were elected.

I am writing to ask that the City of Colorado Springs take immediate steps to repeal the newly- enacted ordinance.

The Colorado Supreme Court has characterized the right to run for public office as a fundamental right.    Cowan v. City of Aspen, 181 Colo. 343, 349, 509 P.2d 1269, 1272 (1973).   “This right may not be infringed upon by invidious discriminatory disqualifications.”  Id.   When the government takes away from the voters the ability to decide who shall be qualified for public office, the government’s reasons must be “real, clear and compelling.”  Id., 509 P.2d at 1273.

I have reviewed the documents that the city council considered last November when it enacted the ordinance that purports to bar Rev. Lee’s candidacy.  In those documents, I do not find any reason for barring ex-offenders from office, let alone a reason that is sufficiently compelling to override Rev. Lee’s fundamental right to participate fully in the democratic political process.

Unlike other states, Colorado does not permanently disenfranchise ex-offenders from voting, nor does it prohibit ex-offenders from holding public office.   The Colorado Constitution makes it clear that convicted felons are barred from voting only during the time that they are confined in prison as a result of their conviction.  Upon release from prison, ex-offenders are restored to their full rights of citizenship.   Nor are ex-offenders barred from holding public office in Colorado, unless they have been convicted of one of the five specific crimes listed in Article XII, Section 4 of the state constitution.  See Colo. Const. Art. XII, Sec. 4 (listing embezzlement of public funds; bribery, perjury, and subornation of bribery or perjury).

Indeed, it is the “strong public policy” of the State of Colorado “to aid ex-offenders in their rehabilitation to society and to insure that they are not discriminated against solely because they, at one time, were convicted of crimes.”  Watson v. Cronin, 384 F. Supp. 652 (D. Colo. 1974) (interpreting C.R.S. § 24-5-101).

It appears that the newly-enacted ordinance was drafted and passed with full knowledge that Rev. Lee was interested in running for a seat on the city council and with full knowledge that the new ordinance would bar his candidacy.   Indeed, an article published in the Colorado Springs Gazette on November 10, 2000, states that the Colorado Springs City Attorney believed that Rev. Lee’s past felony conviction might prevent his candidacy.  The article was published before the newly-enacted ordinance was even presented to the city council.

The newly-enacted ordinance violates the charter of the City of Colorado Springs, which clearly sets out the qualifications for city council and the mayor’s office:

Qualifications.  No person shall be eligible to the office of Mayor or Councilmember unless he or she is a citizen of the United States, at least twenty-five (25) years of age, and shall have been for one (1) year immediately preceding such election a resident of the City of Colorado Springs.  (1909; 1987).

City of Colorado Springs Charter, Section 2-20.  It is clear that the charter sets out only three criteria for eligibility: citizenship, age, and residency.     Rev. Lee is a United States citizen; he is over twenty-five years old; and he has been a resident of Colorado Springs for more than one year.  Under the charter, Rev. Lee is eligible to be elected and to serve as a member of the city council.

On behalf of Rev. Lee, I ask that the Colorado Springs City Council take immediate steps — at its next scheduled meeting on January 9, 2001– to effect the repeal of the newly-enacted Section 5.1.105 of the city’s election code.

Sincerely,

Mark Silverstein,

Legal Director, ACLU of Colorado