Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Month: September 2016

  • Bribery (Don’t Do It!)

    by Bob Lackner

    Arguably, the worst offense a public official can be accused of is the crime of bribery — essentially offering, giving, receiving, or soliciting something of value for the purpose of influencing an official in the discharge of his or her public duties. The crime violates a basic notion inherent in a healthy democracy: That a public servant’s sole motivation is the promotion of the public interest — not the securing of private gain. Although it is fortunate that, in Colorado, accusations of bribery against public officials are rare, every public official should have a basic understanding of the nature of the crime to avoid even coming close to what would constitute criminal behavior.

    The crime of bribery made its first appearance in Colorado law in the original state constitution, which went into effect on August 1, 1876. Section 40 of article V of the state constitution, the article that governs the Legislative Department, is entitled “Bribery and influence in general assembly”, and it states in relevant part:

    If any member of the general assembly shall give his vote or influence for or against any measure or proposition pending in such general assembly, or offer, promise, or assent so to do, upon condition that any other member will give or will promise or assent to give his vote or influence in favor of or against any other measure or proposition pending or proposed to be introduced in such general assembly, or in consideration that any other member hath given his vote or influence for or against any other measure or proposition in such general assembly, he shall be deemed guilty of bribery; and any member of the general assembly, or person elected thereto, who shall be guilty of either of such offenses shall be expelled, and shall not be thereafter eligible to the same general assembly; and, on conviction therefor in the civil courts, shall be liable to such further penalty as may be prescribed by law.

    Thus, as applied to a member of the General Assembly, this constitutional prohibition applies to the specific crime of “vote-trading,” whereby a legislator agrees to vote a certain way on the condition that another legislator votes in a particular way. (This practice is more informally referred to as “log-rolling.”) The inclusion of a prohibition on this practice in the section governing the legislative department reflects the deep distaste the framers of our state constitution had for the practice.

    This is especially true given that section 40 does not forbid (or even address) what we now think of as bribery; that is, offering, giving, receiving, or soliciting something of value for the purpose of influencing an official in the discharge of his or her public duties. This more conventional form of bribery is addressed and prohibited in section 6 of article XII of the state constitution, which applies to civil officers and members of the General Assembly. In relevant part, this section prohibits those individuals from soliciting or receiving, directly or indirectly, anything of value for their votes, official influence, or actions. Like the aforementioned log-rolling provision, this provision has been part of the state constitution since its adoption in August of 1876.

    Bribery is also among the many crimes addressed and prohibited in our state’s Criminal Code. Under section 18-8-302 (1)(b), C.R.S., which concerns “Bribery and Corrupt Influences,” a public servant (which includes a member of the General Assembly) commits bribery if he or she solicits or accepts any financial benefit upon any agreement or understanding that his or her vote, opinion, or other action as a public servant will be influenced. A person who offers or agrees to extend a benefit to a public servant with the intent to influence the public servant’s action in his or her official capacity commits the crime as well. (See section 18-8-302 (1) (a), C.R.S.)

    Bribery is a class 3 felony, which means that a person convicted of the crime faces a prison sentence of four to 12 years. (See section 18-1.3-401 (1) (a) (V) (A), C.R.S.)

    Other criminal offenses in the Colorado Criminal Code relating to bribery include:

    • Compensation for official past behavior (when a public servant accepts any benefit as compensation for taking official action in favor of another);
    • Trading in public office (accepting a benefit in exchange for appointing someone to public office);
    • Directing a bidder or contractor to deal with a particular person in connection with obtaining goods or services in bidding on a contract; and
    • Failing to disclose a conflict of interest when the public servant owns a substantial interest in a private entity participating in the transaction.

    In McDonnell v. United States, 579 U.S. ___ (2016), the United States Supreme Court stated that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns…”. (For an in-depth discussion of the case, see this recent Legisource post) Ethical and conscientious legislators know the appropriate actions to take on behalf of their constituents and others with interests in public policy. They are also aware of those actions that may subject the legislators to criminal prosecution for engaging in bribery or related offenses that harm the public trust at the heart of representative government.

  • Colorado General Assembly’s New Website is Live!

    by Darren Thornberry and Ashley Zimmerman

    Readers likely remember Y2K and all the digital drama as “the year 2000” arrived. Who recalls staying up late that New Year’s Eve to see if you still had electricity? The Internet Age was dawning, which was exciting and challenging for state governments trying to harness the rapidly changing technology for the benefit of their citizens. It was then, about 16 years ago, that the Colorado General Assembly website blinked to life, and it has been a touchstone of invaluable information for Coloradans ever since.

    Not unlike the Colorado capitol building, the website has recently been under construction (behind the scenes) and now debuts as the definitive online hub for the Colorado General Assembly, chock full of user-friendly features. There’s a new web address – leg.colorado.gov. Bookmark it now – and start your tour here.

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    Our new homepage, showing an example of one of the available drop-down menus.

    The new website is replete with tools to help make your interaction with the state legislature more enjoyable and more informative. Let’s look at the highlights!

    Find My Legislator: On the homepage, click on “Find My Legislator”, which will take you to a map of the state. Here, you can enter your address or zip code and find and contact your representative or senator.

    findmylegislator

    Book a Tour: Online booking of a capitol tour is made easy with an icon on the homepage that leads to a quick and simple form. Just fill out the form and click send!

    book-a-tour

    Find a Bill: See all bills or browse by subject. There are two ways to access this information from the homepage. The easiest way is to click on the large “Find A Bill” icon right in the middle of the page. Or, you can hover the cursor over “Bills” in the top toolbar, which shows a drop down menu to access legislation. You can also find the most accessed bills on this page. This is one of the most requested new features on the website, and we think you’ll find it very helpful!

    mostaccessedbills

    Ballot Blue Book: The blue books with information concerning the ballot initiatives for the past five years, including the text of the measures, are available as .pdf documents. The blue book provides voters with the text, title, and a fair and impartial analysis of each initiated or referred constitutional amendment, law, or question on the ballot.

    bluebook

    In addition to these four front-and-center features, the General Assembly’s new website has reorganized a vast cache of information and presented it as a menu at the top of the home page with drop-down submenus as applicable. It’s never been easier to see the state budget, sign up for remote testimony at a committee hearing, browse state law, contact an agency in the legislative branch, or watch or listen to the legislative session live as it happens.

    A few of these features on the new website include:

    Committees: On the top toolbar of the homepage, hover over “Committees” to show a submenu for “Committees”, where you can find information and lists of the existing House and Senate committees, and “Remote Testimony”, where you can sign-up to remotely testify on a bill. On each committee’s page, you will find a list of the committee members, their meeting schedule, and, for meetings that have already occurred, a list of the hearing items, any actions taken, and links to related documents including the committee summary that shows how the members voted on motions.

    The House of Representatives and Senate: To find information on either the House of Representatives or the Senate and to locate their daily calendars during the legislative session, on the homepage hover over “Agencies” in the top toolbar, then click on either “House of Representatives” or “Senate”. This will bring you to the individual page for that house, where you can find general information about the house, the rules of the house, and the daily calendar and links to listen to live audio when that house is in session.

    Publications: The new website contains a number of useful and informational resources, from state reports to the annual digest of bills. To find these resources, hover over “Publications” and then click on either “Find A Publication”, if you have one in mind, or “All Publications” to see them all.

    We encourage you to use the legislative agency pages for the House of Representatives, Senate, Legislative Council Staff, Office of Legislative Legal Services (OLLS), Joint Budget Committee Staff, and Office of the State Auditor. Each is a wonderful resource for getting to know that specific agency’s function, rules, publications, schedule, and more. On the OLLS page, of course, there’s a direct link to LegiSource – the very blog you’re reading now!

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    Stay connected to the General Assembly via the new website. Your feedback on it is welcome!

  • Why submit bill requests now?

    by Patti Dahlberg

    Although the Colorado General Assembly is only in session from January to May each year, General Assembly members know that being a bill-clipartlegislator requires year-round attention to legislative responsibilities. The first bill request deadline is still almost three months away (Thursday, December 1), but there are significant benefits to starting the bill drafting process as early as possible during the interim. (See Ask OLLS posting “The start of the legislative session is over 4 months away. Why should I bother to get my bill requests in now?”)

    Submitting bill requests early allows legislators, legislative staff, and stakeholders more time to research, consider, develop, and draft bills. And there are other benefits for legislators who can invest a little more time on bill drafting earlier in the fall.

    Time Management:
    There’s no way around it – bill request deadlines require legislators and staff to complete the bulk of the bill drafting before the convening date of the next session. A legislator can wait until the deadline to submit his or her bill requests and spend the four to five weeks immediately before session – including the holidays – in heavy drafting mode or try to shift a portion of the pre-session drafting demands to earlier in the interim and:

    • Reduce the time demands of drafting in December and January, allowing more time to prepare for session, meet with constituents and stakeholders, and tie up other personal matters before the session starts.
    • Save big on time and enjoy bill request flexibility by having a solid draft of a bill completed by November. (There is no need to finalize a bill until closer to the desired introduction date.)
    • Have the luxury of focusing on one or two bill requests at a time. Once a bill draft is close to being finished, the request can be set aside and the legislator and drafter can start work on another bill. This way, a legislator isn’t just trading a busy December for a busy September or October, but instead leveling the time demands of bill drafting over four to five months.
    • Allow legislative staff more time to assist in developing and drafting the legislation. Staff is more readily available to attend meetings, consult on drafting language, and, if needed, provide in-depth research before December.

    A lot can change between now and January and it may seem that drafting in September and October could be a waste of time. After all, a legislator may need to significantly change, update, or even withdraw a bill draft before introduction. But that’s okay, because it’s usually easier and faster to revise or rewrite an existing bill draft than to create it from scratch at the last minute. Even if a legislator finds that he or she must withdraw a bill request, he or she doesn’t lose the benefits of early drafting efforts.

    Decision-making:

    • Early interim bill drafting allows a legislator and the bill’s stakeholders more time to make informed decisions about the bill’s content. Early interim drafting may require legislators to set some internal production deadlines to keep the bill draft moving along, especially when working with larger groups of stakeholders and constituents.
    • With a bill draft in hand, even if it’s only an initial draft, a legislator is better equipped to know whether to introduce the bill, who to approach for second house sponsorship, and where the bill fits best in his or her bill introduction order.
    • Often it is impossible to determine if a bill request is identical or substantially similar to another legislator’s bill request until draft language is available. By having drafts completed earlier in the interim, staff can more easily identify duplicate bills and the legislator can decide whether to proceed or replace the request sooner. (See Ask OLLS posting “What happens if I make the same bill request as another legislator?”)
    • If a legislator has his or her bill drafted in the fall, he or she may authorize a fiscal analyst to provide an early estimate of how much the bill may cost. Knowing how expensive a bill may be before it’s introduced enables the legislator to consider changes before the bill is introduced and becomes public.
    • The ability to review drafts of bills before the December 1 deadline is one of the best reasons to use more of the interim to develop and draft bills. If a legislator must decide whether to withdraw and replace one or more bill requests, then it’s best to make that decision before the first bill request deadline when the rules allow greater flexibility in making and replacing bills.

    Bill Requests 2

  • VA Governor’s Bribery Conviction Turns on a Definition of Official Action

    by Bob Lackner

    During his four-year term in office, the former Governor of Virginia tried to assist a constituent who had bestowed extensive loans and gifts on the official, his wife, and their family. At what point does such assistance qualify as an “official act” necessary to sustain a conviction for violating federal law prohibiting bribery? This was the issue before the United States Supreme Court in the case of McDonnell v. United States, 579 U.S. ___ (2016).

    Background/Issues
    In November 2009, Robert McDonnell was elected Governor of Virginia. While in office, McDonnell and his wife Maureen and other family members received $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams. Williams was chief executive officer of Star Scientific, a Virginia-based company that had developed and marketed a nutritional supplement named Anatabloc that was made from a compound found in tobacco. Star Scientific hoped to obtain federal approval of Anatabloc as an anti-inflammatory drug. An important step in that approval was initiating independent research studies on Anatabloc’s health benefits. Williams sought McDonnell’s assistance in obtaining these studies from Virginia’s public universities.

    The gifts and loans that Williams gave to the Governor and his family included $20,000 worth of designer clothing for Mrs. McDonnell, personal loans totaling $70,000, a $15,000 gift towards their daughter’s wedding, a Rolex watch for the Governor, and a $10,000 wedding gift to one of their daughters.

    In 2014, the federal government indicted Robert and Maureen McDonnell (by then out-of-office) on various bribery charges. To convict the McDonnells of bribery, the government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts from Williams. After a trial, the jury convicted McDonnell of accepting bribes from Williams. Mrs. McDonnell was also convicted of most of the similar criminal charges against her.

    Governor McDonnell appealed his conviction to the United States Fourth Circuit Court of Appeals. He challenged the definition of “official action” in the jury instructions used at his trial on the ground that it deemed “virtually all of a public servant’s activities ‘official’, no matter how minor or innocuous.” The Fourth Circuit affirmed the conviction. McDonnell appealed to the United States Supreme Court.

    The Supreme Court’s Analysis
    The issue before the Supreme Court was the proper interpretation of the term “official act” as used in the federal bribery statute, 18 USC §201. That statute makes it a federal crime for “a public official…directly or indirectly, corruptly” to demand, accept, or agree to accept “anything of value” in return for being “influenced in the performance of any official act.” An “official act” is defined as

    any decision, or action on any question, matter, cause, suit, proceeding or controversy, which at any time may be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit. [Sec. 201 (a) (3).]

     

    The government argued that the term “official act” encompasses nearly any activity by a public official. The term specifically includes, therefore, arranging meetings, hosting events, and merely contacting other government officials concerning any subject, including a broad public policy issue such as Virginia economic development. The Governor had undertaken these acts on behalf of Williams.

    By contrast, the thrust of Governor McDonnell’s appeal was that the statutory context compels a more circumscribed reading of the statutory text, limiting “official acts” to those acts that “direct[] a particular resolution of a specific government decision” or that pressure another official to do so. Taking into account the statutory text, its precedents, and constitutional concerns raised by Governor McDonnell, the Supreme Court unanimously rejected the government’s reading of the federal bribery statute and, in an opinion authored by Chief Justice Roberts, adopted a more restricted interpretation of “official act.”

    The Court held that an “official act” is a decision or action on a “question, matter, cause, suit, proceeding, or controversy.” The “question or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question or controversy” or agree to do so. That decision or action may include using his or her official position to exert pressure on another official to perform an “official act,” or to advise another official knowing or intending that the advice will form the basis for an “official act” by another official. Setting up a meeting, calling another public official, or organizing an event (or agreeing to do so)—without more—does not fit the definition of “official act.”

    In addition, the Supreme Court expressed concern that the government’s expansive interpretation of “official act” would raise significant constitutional concerns. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on those constituents’ concerns. The Court found that the Government’s position would likely pose a chilling effect on the interactions of public officials with the people they serve and thus damage the ability of public officials to effectively perform their duties. The Court expressed a related concern that, under the government’s interpretation, the term “official act” is not defined with “sufficient definitiveness that ordinary people can understand what conduct is prohibited” or in a manner that does not encourage arbitrary and discriminatory enforcement.

    The Supreme Court agreed with McDonnell’s contention that his convictions must be vacated because the jury was improperly instructed on the meaning of “official act” as used in the governing statute. Because the jury was not correctly instructed on the meaning of this term, it may have convicted McDonnell for conduct that is actually lawful. These errors were not harmless. The Court noted that a more limited interpretation of the term “official act” would leave ample room for prosecuting corruption while comporting with the statutory text and its precedents in this area.
    Governor McDonnell’s conviction spurred some reforms to Virginia’s ethics laws in the next legislative session. Among the changes was the creation of a $100 annual limit on gifts lawmakers can accept from lobbyists, their clients, or others seeking to do business with the state.

    As with the Governor of Virginia, a Colorado public official could engage in conduct that results in a bribery conviction under federal law, and the McDonnell case would apply. Also, in Colorado the statutory standards of conduct forbid a member of the General Assembly from accepting a gift primarily given to reward the legislator for official action he or she has taken. See section 24-18-104 (1)(b)(II), C.R.S. The Colorado courts could apply the McDonnell case to augment the meaning of the key term “official action” as used in Colorado’s statutory standards of conduct in weighing the appropriateness by a legislator of accepting gifts.

  • Colorado LegiSource: Happily Blogging Since September 1, 2011!

    Five years ago today, Colorado LegiSource made its debut as the only known blog written by nonpartisan legislative staff for their legislators and the public. In the years since, we have posted at least one article almost weekly (okay – there have been a few weeks during the legislative sessions that we just couldn’t pull an article together). At this point we have about 172 subscribers and 819 twitter followers. For the last year, we averaged 1,937 views a month and for our entire five-year lifetime, we’ve racked up a total of 78,774 views. We may not have made eBiz’s top 15 most popular blogs list, but we’ve done okay!AwardOLLS

    We have also achieved some recognition along the way. In August 2015, the Colorado LegiSource received an NCSL Notable Documents Award. The Legislative Research Librarians staff section presents these awards annually to recognize excellence in documents that explore topics of interest to legislators and staff and present substantive material in an outstanding format. Also in 2015, the LegiSource article on “Educator Effectiveness and Senate Bill 10-191” was cited in an article on employment law issues published in the October edition of the Colorado Lawyer, a Colorado Bar Association publication.

    That first day we were anxious to get started. We posted three articles: “The Director’s Welcome,” by Dan Cartin; “The Legislature’s Role in the Review of Administrative Rules,” by Chuck Brackney; and “Bill Requests – Making and keeping the five allowed by rule,” by Patti Dahlberg.

    Our top five most viewed articles present an interesting mix.

    The most popular article in the last five years – with 14,893 views – is “Does Colorado Have a ‘Stand Your Ground’ Law?” In this article, Richard Sweetman explained that Colorado does not actually have a “stand your ground law” but it does have a “make my day law.” The difference? Both allow a person to use deadly force to protect himself or herself in certain situations, but Colorado’s law is generally limited to protecting against home invasions and does not include some of the presumptions that are common in “stand your ground” laws. You should read the article.

    The top five list also includes:

    “When Can a Local Government Override State Law? Home Rule Cities in Colorado,” also by Richard Sweetman, in second place with 7,283 views;

    “A New Look for the Colorado Revised Statutes On-Line,” by Revisor of Statutes Jennifer Gilroy, in third place with 1,676 views;

    “What is the difference between the session laws and the statutes?“, posted in “Ask OLLS”, in fourth place with 1,331 views; and

    “Powers, Duties, and Functions of Executive Branch Agencies (Type 1, type 2, and type 3 transfers),” by Rebecca Hausmann, rounding out the top five with 1,243 views.

    In the first article we published, Dan Cartin, director of the OLLS, described the LegiSource’s purposes as both informational and educational, applying the experience and expertise of the OLLS staff to help legislators and the public understand the issues in many areas, including:

    To this list, we’ve added fun and informative articles about the history of Colorado’s state government and of the state capitol.

    birthday cakeWe hope we’ve lived up to our purpose in the last five years; we hope that our readers have gained as much knowledge, understanding, and enjoyment in the reading as we have in the writing.

    Happy Birthday, Colorado LegiSource – here’s to the next five years!