Reducing Conflicts Over Conflicts (of Interest)

by Bob Lackner

As with many legislatures, the Colorado General Assembly prides itself on being a “citizen legislature,” which means it is comprised of citizens who take leave from their normal jobs and other duties every January to come to the State Capitol for 120 days to legislate for the people of the state. Not only is it presumed that legislators will continue to serve as teachers, farmers, ranchers, realtors, attorneys, and the like while serving in office, but this ability to bring the perspective, skill sets, and knowledge derived from working in these other fields to the job of being a legislator is seen as advantageous to representative democracy and desirable in a person who wants to serve as a legislator.

However, the necessity of serving “competing masters” means a certain amount of tension between legislators’ private lives and public responsibilities is built into the DNA of our citizen legislature. The law does not require that a member of the Colorado General Assembly sell all assets, renounce all worldly employment, and commit to a monastic existence when serving in the legislature (although it may seem that way to many legislators).  But the law does expect and require that when a legislator’s independence and objectivity may be compromised, the legislator will put the public interest first.

The term “conflict of interest” generally means a legislator has a personal interest in some aspect of official action (most often a vote on a bill) sufficient to influence the objective exercise of his or her public responsibilities. Stated differently, the legislator’s personal interest pulls him or her in one direction while the public interest pulls the legislator in another direction. In this context, as codified in statute and legislative rule, “personal interest” generally refers to a financial interest in a bill or other measure. The legislator’s obligations as a public servant are supposed to trump any personal or financial interest he or she may have in a public matter.

How does a legislator know if he or she has a conflict of interest? The key to answering this question is to determine whether the situation at hand is likely to interfere or appear to interfere with the independent judgment the legislator is supposed to demonstrate as a public servant undertaking his or her official duties. One test is the so-called trust test. Specifically, would the public trust the legislator’s judgment if they knew the legislator was in this situation?

The Code of Ethics within the statutory standards of conduct—and specifically the ethical principles for members of the General Assembly—provide three criteria for a legislator to consider in determining whether he or she has a personal or private interest in a matter before the General Assembly:

  1. Whether the interest impedes the legislator’s independence of judgment;
  2. The effect of the legislator’s participation on public confidence in the integrity of the General Assembly; and
  3. Whether the legislator’s participation is likely to have a significant effect on the outcome of the vote.

The ethical principles also declare that a conflict of interest situation does not arise from legislation that affects the entire membership of a class. This exception is very important and regularly applied in assessing potential conflict of interest situations. This so-called “class exception” allows teachers to vote on education bills, attorneys to vote on tort reform bills, farmers and ranchers to vote on water bills, and so forth. There is no magic number to determine whether a class is present.

Members of the General Assembly are also subject to Joint Rule 42. Similar to the class exception, this rule requires the legislator to decide whether the passage of a bill will benefit the legislator personally in a way not shared by others in the legislator’s profession, occupation, industry, or region. If it will, then the legislator probably has a personal or private interest in the matter necessitating disclosure and abstention.

What if a legislator concludes that he or she does have a personal or private (i.e., financial) interest in legislation? Under the state constitution and the House and Senate rules (HR 21 (c) and SR 17 (c), respectively), the legislator must disclose the fact and abstain from voting on the bill. What should a legislator do if he or she has a conflict? A legislator who thinks he or she may be in a conflict of interest situation, or too close for comfort, should follow one or more of the following courses of action:

    1. Disclose the nature of the personal interest in the bill and abstain from voting. If there is a real conflict—i.e., a personal or private interest in the bill—under the law, the legislator is absolutely required to disclose the conflict and abstain from voting on the matter. But remember, constituents send legislators to the legislature to represent their interests and vote, especially on tough questions. Don’t allow abstention to become a way to evade tough votes.
    2. Talk the matter over with more experienced colleagues, especially in party legislative leadership. Sometimes it takes a third person’s perspective to really understand a difficult ethical situation.
    3. Be conscious of the appearance of impropriety. Although maintaining a proper appearance may not be strictly required, legislators need to be conscious of how their actions will affect their personal reputations and the reputation of the General Assembly.
    4. Seek the advice of legal counsel, whether from the OLLS or a privately retained attorney.
    5. Consider seeking an advisory opinion from the Board of Ethics of the General Assembly.
    6. Consider reducing involvement on a particular matter. Although a legislator may vote on a bill, there may be appearance concerns with being a prime sponsor of the bill or otherwise serving as the “public face” of the bill.
    7. Finally, be prepared to defend a decision. More often than not, the public will respect an ethical decision honestly and thoughtfully arrived at if the legislator can clearly and credibly explain the basis for the decision.*

The Office of Legislative Legal Services regularly consults with members of the General Assembly on how to avoid conflict of interest situations. If you are a legislator, we are happy to help you work through any conflict of interest situation in which you may be involved, especially before it becomes a problem. Please come see us!

*Item 7 in the list of recommended actions was originally published in the July/August 2004 State Legislatures Magazine in an article entitled “How to deal with Conflicts of Interest”, by Peggy Kerns.