by Jennifer Gilroy
Article XXIX of the Colorado Constitution (commonly referred to as “Amendment 41”) establishes two “gift bans”: One that prohibits a member of the General Assembly from asking for or accepting gifts worth more than $65 from any one source in a given year and one that prohibits members of the General Assembly from accepting any money, forbearance, or forgiveness of indebtedness, unless, in either case, the member provides lawful consideration of equal or greater value in return. In today’s article, we’re going to talk about the ban on accepting gifts, specifically as it applies to gifts of travel expenses.
There are eight exceptions that apply to both gift bans. One of those exceptions allows a legislator to accept the payment of reasonable expenses by a state or local government or by a nonprofit entity that receives less than five percent of its funding from for-profit entities to attend a convention, fact-finding mission or trip, or other meeting. To qualify for the exception, the recipient must be scheduled to speak, make a presentation, participate on a panel, or represent the state or local government. Legislators can seek an advisory opinion on a particular ethics question from the Independent Ethics Commission (IEC), created as an essential component of Amendment 41.
On occasion, the IEC has released position statements interpreting the Amendment 41 gift bans. For example, it has interpreted Amendment 41 as permitting a covered individual to accept travel expenses from organizations whose mission it is to bring policymakers together at conferences for networking and exchanging ideas, referred to as government exchange organizations (GEO), if the government entity that employs the covered individual pays membership dues to the GEO that are invoiced expressly to cover travel and other expenses to attend its events. See, IEC PS 10-01.
The IEC has also stated that, even if the criteria for the exceptions are not met, a covered individual may still accept the payment of travel expenses if the gift is a benefit to the government institution that employs the covered individual rather than to the individual. The IEC provided the following factors for the covered individual to consider when determining whether the gift is a gift to the government institution or to the covered individual, although no single factor is determinative and the entire context of the proposed travel must be evaluated before acceptance:
- Whether the offer is to a designee of an agency or government entity, rather than to a specific individual;
- Whether the offer is to the covered individual by virtue of the individual’s specific position or area of responsibility or expertise (ex officio);
- Whether the offer is for an event that is related to the covered individual’s public duties;
- Whether the offer poses an existing or potential conflict of interest or appearance of impropriety; and
- Whether the offer is for a trip for educational or government business purposes and not primarily a networking opportunity.
See, IEC PS 12-01.
Want to test what you’ve learned about accepting a gift of travel expenses? Here are some hypothetical situations for your consideration:
Situation #1. You have been asked by a representative of the National Association of State Legislatures (NASL) to participate on a one-hour panel discussion at their three-day fall forum in Washington D.C. The NASL representative explains to you that NASL will pay for your airfare, hotel accommodations, and the cost of the registration to attend and participate in the conference. You learn that NASL is a nonprofit government exchange organization; however, you also learn that it receives substantially more than 5% of its annual funding from for-profit entities, despite the fact that states, including Colorado, pay substantial annual membership dues to NASL.
May you accept payment of the airfare, hotel accommodations, and registration from NASL to attend the NASL Fall Forum in Washington D.C.?
- Even though NASL is a nonprofit entity, you may not accept the gift of airfare, hotel accommodations, and registration since NASL receives more than five percent of its funding from for-profit sources.
- YES, so long as you disclose the value of what you receive in your quarterly gifts and honoraria report that you are required to file with the Secretary of State’s office.
- YES, because payment of your airfare, hotel accommodations, and registration is essentially payment of an honoraria for your participation on the panel discussion.
- YES, because NASL is a government exchange organization to which the state pays annual dues that are expressly invoiced to cover travel and expenses related to attendance at NASL events, consistent with the IEC’s PS 10-01.
The correct answer is d. While NASL does not meet the five percent criterion established in the exception to the gift ban, it is a government exchange organization as described by the IEC to which the state of Colorado pays membership dues each year. Because the dues are invoiced expressly to cover travel and other expenses to attend NASL events, you may accept the payment of airfare, hotel accommodations, and registration by NASL to attend its conference. You may also be permitted to stay throughout the conference if you will also be participating in other educational events and representing state government while you are there. See, IEC AO 13-11 and IEC AO 13-12.
Situation#2. You are the chair of the House Rural Affairs and Agriculture Committee. The Speaker also appointed you to serve on the Joint Wildfire Interim Committee, which you also chair. You have sponsored five bills over the past two legislative sessions addressing various wildfire issues, and you consider yourself very knowledgeable on the topic of wildfires. A representative of the western division of the Council of State Legislatures (CSL), a nonprofit organization of legislators, has invited you to attend the three-day Western States Wildfire Conference they are hosting in Salt Lake City, Utah next month. Because of your expertise, experience, and knowledge related to wildfire issues and your position as the chair of the Joint Wildfire Interim Committee, CSL has asked you to moderate one of the sessions on environmental ethics related to the use of slurry to fight wildfires. CSL has offered to pay for your airfare and hotel accommodations as well as a round of golf at the prestigious Eaglewood Golf Course (you are an avid golfer). You are very interested in attending this conference in hopes that you will learn more from experts in the field of wildfires and other legislators from states facing wildfire issues similar to Colorado. You have recently learned that CSL receives more than five percent of its funding from for-profit sources, and you are not sure if that will prevent you from being able to attend this educational program.
May you attend the CSL wildfire conference?
- Because CSL is a nonprofit entity and because you will be participating in the program by moderating one of the sessions, you may accept the gift of airfare and hotel accommodations.
- Because there is a golf outing associated with the conference, you may not accept the invitation.
- Even though CSL is a nonprofit organization that receives more than five percent of its funding from for-profit sources, due to your expertise in the area of wildfires, and your position as chair of the House Rural Affairs and Agriculture, Committee and the Joint Wildfire Interim Committee, and because there is no conflict of interest or appearance of impropriety, your attendance at this educational conference would actually benefit the General Assembly rather than just you as an individual.
- The CSL may be a nonprofit entity, but because it receives more than five percent of its funding from for-profit sources, you may not accept the payment of the conference expenses.
The correct answer is c. PS 12-01 from the IEC provides that if the offer would actually benefit the government institution (here, the General Assembly) rather than just you as an individual, then you may be able to accept the payment of expenses to attend an educational conference. In this case, because you were invited to attend and participate in the conference due to your position as chair of the House Rural Affairs and Committee and the Joint Wildfire Interim Committee, because this is an area of expertise for you, and because it is an educational conference and not just an opportunity to network, it would be appropriate for you to accept the payment of expenses associated with attending this conference under the IEC’s PS 12-01, so long as there is neither an existing or potential conflict of interest nor an appearance of impropriety. You should not accept the golf outing, unless you pay for it separately yourself.
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 Section 3(2) of Article XXIX originally established the gift ban cap at $50, but the Independent Ethics Commission has since adjusted that amount pursuant to section 3(6) of Article XXIX, most recently in 2019.