Sohocki v. Colorado Air Quality Control Commission

No. 98CA1861 (Colo. Ct. App. December 9, 1999)

ELR Digest

The court holds that the failure of two state air quality commissioners to disclose potential conflicts of interest did not invalidate a commission rule that amended the opacity and sulfur dioxide regulations for coal-fired utility boilers. The court first holds that the district court applied an incorrect legal standard. The district court based its findings on federal case law concerning the disqualification of an agency official arising from a conflict of interest. Here, the parties challenging the rule were contending only that the two commissioners should have disclosed their interests. The court next holds that the first commissioner was required to disclose her employment negotiations with an agency that had a role in the rulemaking proceedings because the commissioner's potential job opportunity presented an apparent or potential conflict of interest. The court, however, also holds that the second commissioner was not required to disclose his employment with a brewery or the brewery's relationship with an adjacent energy company involved in the rulemaking proceeding because, based on his previous disclosure, the other members of the commission were aware of his interest and could assess his comments and position in light of the interest.

The court then holds that the rule was valid despite the first commissioner's nondisclosure. The parties challenging the rule failed to show that the magnitude of the first commissioner's interest and her participation in the rulemaking proceedings were so significant that they created an intolerable appearance of impropriety. Last, the court holds that the challengers waived their right to challenge the commission's failure to provide a four-day comment period on the proposed final regulation. A party may not raise a procedural objection to an agency rulemaking proceeding for the first time on appeal.

The full text of this opinion is available from ELR (7 pp., ELR Order No. L-144).

Counsel for Plaintiff
Stephen I. Singer
Haddon, Morgan & Foreman
150 E. 10th Ave., Denver CO 80203
(303) 831-7364

Counsel for Defendant
Barbara McDonnell, Chief Deputy Attorney General
Attorney General's Office
Department of Law
1525 Sherman St., Denver CO 80203
(303) 866-3052

[30 ELR 20228]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]