by Jennifer Gilroy

You have been invited to a breakfast meeting at Panera’s at which a speaker will address the topic of student assessments, a topic of great interest to your constituents and one that you are interested in learning more about since you are aware of at least six bills introduced on the subject. As luck would have it, your calendar is actually open that morning.

Good learning topic:   √  Check

Free time slot:   √  Check

Amendment 41 compliant:   √  Che…well…you stop to evaluate the invitation.

While you have not been asked to speak at this event so you’re not on the agenda, you believe you may still accept the invitation to the breakfast because you’ve been to Panera’s before and you’re pretty certain that you can keep your check under $53 so that you won’t be violating the constitution’s gift ban…Check! You tell your aide to RSVP and add it to your calendar.

Not so fast! Sure you can enjoy a nice breakfast and learn something useful all for under $53, but did you consider who is paying for your coffee and pastry at Panera’s? Yes, that’s another little wrinkle in Amendment 41 (Article XXIX of the Colorado Constitution) that can trip you up if you don’t ask the right questions. Most legislators and legislative staff know that they are subject to two gift bans under Amendment 41: One that prevents them from taking money from others, with certain expressed exceptions; and another that prevents them from accepting gifts or things of value exceeding a cumulative annual total of $53, with a few important exceptions. But if the “gift” (here a meal) has a value less than $53, what’s the problem? It’s not even necessary to look at the exceptions. Right? I mean, it’s just a cup of coffee after all.

Wrong. The problem in this case comes down to who’s paying for your breakfast. It may not have said so on the invitation, but if you asked, you would know that Glen McHandshake, lobbyist, is paying for the attendees’ meals. Why is that a problem? Because Amendment 41 actually establishes a third gift ban: Professional lobbyists cannot give (or arrange to give) a legislator or legislative staff (among other public officers and government employees) any gift or thing of value of any kind or nature…or amount! In fact, the constitution even says that a professional lobbyist cannot knowingly pay for any meal, beverage, or other item to be consumed, regardless of whether it’s offered in the course of the lobbyist’s business or in connection with a personal or social event. Not even a cup of coffee!

You probably noticed that this is a gift ban on the professional lobbyist, not on you as a member of the General Assembly. However, because professional lobbyists cannot give anything to a legislator or a legislative employee, it is recommended that you not accept anything from a professional lobbyist. That may seem like a very restrictive approach, but consider the posture of both Amendment 41 and the statutory Code of Ethics. The very first section of Amendment 41 reminds you that public officers, and legislators specifically, hold the respect and confidence of the people of the state of Colorado. This section further states that public officers should avoid conduct that is in violation of their public trust or that creates even a “justifiable impression” among members of the public that this trust is being violated.

In other words, even appearances can affect the public’s trust and confidence in the General Assembly and its members. The likely reason that the voters of Colorado decided that professional lobbyists should not give anything to legislators and other public officers and government employees was to avoid even the appearance that the lobbyist was buying favors or official action in exchange for the gift.

The statutory code of ethics also addresses this concept. It states right up front that the public trust is based on the confidence the electorate places in the integrity of the public officers and legislators it elects to office and in those who are otherwise employed as government employees. We all know that actions speak louder than words. Accepting a meal, or even a cup of coffee, from a professional lobbyist who is seeking your vote or other official action on a matter pending before the General Assembly may give the appearance to the public that the lobbyist is “buying,” or at least potentially attempting to influence, your vote or action. You can avoid that appearance altogether by attending the event and simply paying your own way.

The take-away message is this:  While an invitation may look good in all respects, you need to take that extra step to ensure that you are in full compliance with the law. Always ask who is paying for the gift. But even if Mr. McHandshake is picking up the tab, it doesn’t mean you have to miss the event. Tell them you will attend, but you will pay for your own cup of coffee.