Eighteenth Judicial District Attorney John Kellner, the Colorado GOP’s lone candidate for attorney general, faces an ethics complaint for his decision not to charge a former Douglas County undersheriff and campaign donor with misconduct despite a finding of probable cause by investigators.

“Based on a thorough review of the investigative findings in this case, we have probable cause to believe Holly Nicholson-Kluth committed the crime of Official Misconduct in the First Degree and Official Misconduct in the Second Degree,” reads the JeffCo Sheriff case report. “These acts were all found to have been committed in 2019 during Nicholson-Kluth’s tenure with the Douglas County Sheriff’s Office, specifically while she was serving in the capacity of Undersheriff.”

This misconduct in question involves Kluth’s directing an employee to delete sensitive records from her personnel file prior to running for Douglas County sheriff.

Kellner’s decision not to file charges was first reported by 9News last month. The ethics complaint filed with the state’s Independent Ethics Committee (IEC) by progressive advocacy group ProgressNow Colorado notes that former Undersheriff Holly Kluth, made two donations totaling $350 to Kellner’s DA campaign in 2020. Colorado law caps the maximum contribution to a non-statewide campaign at $400, the lowest amount in the nation. 

“I submitted a letter this morning to the Colorado Supreme Court requesting an investigation of District Attorney John Kellner, for violating the rules of professional conduct as well as for prosecutorial misconduct for his failure to disclose his conflicts of interest when he refused to prosecute his high-profile campaign donor,” stated Sara Loflin, Executive Director of ProgressNow Colorado.

Loflin’s complaint raises the previously unreported issue of campaign donations from Kluth, whose intention to run for Douglas County sheriff was already public at the time of the investigation, to Kellner, who was already running to replace his term-limited boss, George Brauchler, as DA for the Eighteen District. 

Kellner’s office gave two reasons for dealing to charge Kluth: First it noted that the statute of limitations had already expired, given that the alleged crimes took place in April 2019 and that circumstances needed to invoke the “discovery” exception to the time limit don’t exist. Secondly, it assessed the evidence to be “insufficient to support a reasonable likelihood of success at trial.”

In addition to raising the issue of campaign contributions, Loflin’s complaint also disputes the legal reasoning behind Kellner’s decision not to prosecute Kluth. District Attorneys generally have broad discretion over charging decisions. That said, an ethics complaint addresses the possibility of elected officials’ “breaching the public trust for private gain,” which can involve different factors than those comprising a prosecutorial decision, such as a conflict of interest or the appearance of impropriety.

The Colorado IEC will review the complaint and determine whether it is frivolous, which has a specific definition for this purpose. According to the IEC’s website, “in the context of Article XXIX [of the Colorado Constitution] and the IEC’s rules, the term “frivolous” does not have the same meaning that it has in normal everyday usage (lacking in seriousness or marked by unbecoming levity). As such, when the IEC uses the term “frivolous,” it does not mean that a complaint is trivial, of low importance, or filed in bad faith.”

El Paso County Republican Strategy Forum Voter’s Guide, 4/6/22

In the meantime, Kellner must make his case to his fellow Republicans to nominate him as their choice for Attorney General at tomorrow’s GOP state assembly in Colorado Springs. As the only declared candidate, this is presumably a foregone conclusion; Kellner’s only opposition would have to come from a floor nomination during the assembly itself.

While such a scenario is unlikely, there is at least one prominent group of El Paso County Republicans who don’t support Kellner: the El Paso County Republican Strategy Forum (RSF), which includes two of the county party’s leaders, Vickie Tonkins and Sheryl Glasgow.

The RSF states that, “while the El Paso County Republican Party Chair and Secretary are members of The Strategy Forum, consistent with Party rules, they did not participate in any way with the recommendations.” Reached for comment, Glasgow confirmed she is not involved with the list.

Two days ago, the group updated its Voter’s Guide, which previously did not include a candidate recommendation for attorney general. The new document recommends opposing John Kellner, noting, “the major (but not the only) reason for opposing a candidate – they are too closely aligned with the Elites of Colorado’s Republican Establishment.”

The Colorado Times Recorder reached out to both Kellner and Kluth for comment but neither responded. This article will be updated with any responses received.