by Jennifer Gilroy

Did you know that town hall and community meetings can be fraught with ethical dilemmas? If you’re a member of the General Assembly, you already know that one effective and efficient way to personally stay in touch with your constituents is to meet with them in a public and group setting. But you likely also know that it’s hard to find a low-cost or no-cost venue in your district that is large enough for that kind of gathering. So when a constituent or community business owner offers to provide a room—maybe even a room that otherwise rents out for a fee—it might be tempting to accept. If you’ve considered that option, did you also stop to consider whether it would be ethical under the constitutional gift ban known as “Amendment 41“? And what if that person or business owner also offers to provide your attendees with food or beverages? Is that permissible under Amendment 41? Maybe you think, well, I just won’t eat anything, and then it won’t be a problem.

Recently, the Independent Ethics Commission  (Commission) weighed in on what is—and more importantly, what is not—permissible under the gift ban when it comes to these types of meetings, issuing both an advisory opinion and a ruling on an ethics complaint against a legislator. These opinions appear to conflict with each other. The ruling on the ethics complaint is being appealed, and hopefully the reviewing court will provide further guidance. In the interim, this article attempts to navigate the distinctions between the two opinions to provide a few critical takeaways to know before hosting, or accepting an invitation to participate in, a public meeting with constituents.

Town Hall Meetings vs Community Meetings. First, before accepting an invitation to a public meeting or hosting a meeting, think about what type of event it is and who is actually hosting it. In early 2017, a member of the General Assembly formally asked the Commission two questions: 1) Whether he could attend a community meeting organized as a public forum on a topic of interest to his constituents (public rail transportation), at which he was to serve as both the moderator and a panel participant along with other representatives from local government and the RTD; and 2) whether, in other situations, he could accept the provision of a room from a constituent to host his regular legislative town hall meetings. In reaching its conclusions on the questions, the Commission distinguished between the two types of meetings.

In the first instance, one of the legislator’s constituents had offered to provide a room at a local brew pub—one that normally rented for more than $59 per hour—for a community meeting on public rail transportation. The constituent also planned to provide appetizers for attendees. While the legislator was the moderator, not a host, of the community meeting and was to participate in the question-and-answer session, the Commission highlighted the fact that there were other government officials as panelists and noted that the meeting would have proceeded whether the legislator could attend or not. In other words, the Commission distinguished this type of public forum event from a legislator’s personal town hall meeting at which the legislator serves as host, in his legislative capacity, to discuss legislative matters of interest with constituents—sort of as the star of the show in that case. The Commission determined that, in the community meeting situation, the meeting space was a “gift to the public,” not to the legislator (or any other civic leader in attendance, for that matter). The Commission gave a green light to the legislator’s “admission” to the meeting, and even his enjoyment of the appetizers, based on an exception to the constitutional gift ban that permits admission to and the cost of food and beverages consumed at a meeting at which the individual is to speak as part of a scheduled program.

On the other hand, the Commission viewed the town hall meeting format differently. In response to the legislator’s second question, the Commission said that the provision of a venue to the legislator for one of his town hall meetings is a gift to him and, if the value of the gift (i.e., the cost of the room) is more than the allowed exempted amount (currently $59), then the legislator could not accept it unless it met one of the eight exceptions to the gift ban. Examples of exceptions include situations where the room was provided in the form of a campaign contribution or by the state or a local government or by a nonprofit organization that receives less than 5% of its funding from for-profit entities. In addition, the Commission cautioned the legislator to avoid even the “appearance of impropriety,” which the Commission observed can weaken public confidence in government and create a perception of dishonesty, even where government officials are technically in compliance with the law.

Who is “hosting” the meeting? Compare the Commission’s responses to those two questions with its more recent finding in an ethics complaint against a different member of the legislature. The Commission found that the legislator had violated the constitutional gift ban when she moderated and participated in a question-and-answer session at a community meeting at which a panel of local government officials discussed a topic of interest to the legislator’s constituents, in this case oil and gas development. Sound familiar? The Commission focused on the fact that, unlike the community meeting that was the subject of the earlier advisory opinion, the invitation to this meeting did not disclose who was sponsoring the event, in other words, who would be paying for the room, appetizers, and drinks that were available at the meeting. The dissenting opinion observed, correctly, that Amendment 41 is silent about disclosure, and, “the disclosure or failure to disclose the identity of the person paying for the event does not convert the event into a gift.”  Nevertheless, the Commission relied heavily on the fact of nondisclosure.

The Commission also emphasized that, unlike the community meeting that was the subject of the earlier advisory opinion, the invitation to this meeting described the legislator as the “host” of the event, which the Commission took to mean that she was a necessary party to the event. The Commission also found that the legislator’s aide worked closely with the sponsor company’s representative to plan and market the event, invite speakers, and create a list of invitees, using the legislator’s e-mail address for communications and signing emails she authored as the legislator’s aide. As a result, the Commission attributed constructive, if not actual, knowledge of the planning and execution, and therefore the hosting, of the meeting to the legislator even though her actual involvement was minimal.

While in the earlier opinion the Commission stated that the venue was a “gift to the public” and the legislator could enjoy the food provided at the meeting, in this case the Commission stated that the legislator benefited from the event not only by receiving food and drinks, free of charge, to provide to her constituents, but also by receiving a forum, free of charge, at which she was able to address her constituents regarding oil and gas drilling in their community. The Commission emphasized that the nondisclosure of the entity paying for the costs of the event reinforced their belief that the legislator was the recipient of a gift: She received a forum to address the public without deterring the public’s attendance by disclosing the presence and sponsorship of the event. “[She] was able to hold an event for her constituents and get her message out to her constituents, all without paying for the costs of the event she hosted.” However, as the dissenting opinion observed, “It is hard to imagine a better or more appropriate form of political participation….Amendment XXIX was not intended to prohibit elected officials from having a point of view or communicating it.”

The Commission’s opinion essentially states that Amendment 41 prohibits outsourcing the costs of legislator-sponsored events to private donors; the dissent responds that, at most, this was an industry-sponsored event that leveraged the legislator’s name and position to attract people to an event where she could attempt to persuade them to their point of view.

Takeaways. As noted, the legislator has appealed the Commission’s ruling on the ethics complaint against her, but until there is a ruling from the court, the following are a few lessons for legislators to take away from these two opinions as they stand today:

1. If you plan to hold a town hall meeting in your legislative capacity to discuss matters of interest to your constituents and other legislative matters—a meeting that only you could hold and one that would not proceed without your presence—then you will be viewed as the “host” of the meeting and should not accept a “gift” of a meeting space or food or beverages for your attendees unless the value of that “gift” is less than $59 or unless the gift meets one of the eight specific exceptions to the constitutional gift ban. Otherwise, the total value of the [donated] meeting space, food, and beverages enjoyed by your constituents will likely be viewed as prohibited gifts to you.
2. If, on the other hand, you are invited to be a speaker, moderator, or other participant at a public forum or community meeting being sponsored and paid for by a third party, be sure the invitation and promotional material clearly identify who is sponsoring (paying for) the event.
3. In those situations where you are speaking at or otherwise participating in a public forum or community meeting, a third party is sponsoring the event, and that fact is clearly disclosed, you may accept admission to, and the food and beverages provided at, that event under an exception to the constitutional gift ban.
4. Do not allow the use of your name as the “host” of an event merely as a means to attract attendance at the event, unless you are the actual sponsor of the event and paying the costs of the event. It will likely be viewed as your event and the costs for it, even if borne by a private party for others’ enjoyment, will likely be viewed as a prohibited gift to you.
5. Be aware of possible conflicts of interests—or even the appearance of impropriety. Do not accept any gifts of a room, food, or beverages for one of your meetings from a lobbyist or from an individual or entity that has an interest in pending legislation.
6. Supervise the activities of your aides closely. You may be found to have constructive, if not actual, knowledge of what they are planning and doing on your behalf and they may not have read the tips here.

Public meetings of the types described here are a valuable way to practice the democratic process. With a clearer sense of how to approach these events, you are better equipped to avoid any ethical pitfalls while still participating in effective dialogues with your constituency.