by Jennifer Gilroy

By this point in your career as a legislator, you know that, under Amendment 41, you may not accept a scholarship or reimbursement for travel, hotel accommodations, and registration expenses to attend a conference, even one directly related to your public duties as a member of the General Assembly, unless:
●    You pay for it; or
●    The state or a local government pays for it; or
●    A nonprofit entity that receives less than five percent of its funding from for-profit entities pays for it (yes, you need to ask to be sure).

The purpose of this constitutional amendment is to restrict gifts to public employees and government officials that might inappropriately influence them in carrying out their official duties, with the ultimate goal of preserving the public’s confidence in government. However, one of the results of the amendment has been to effectively preclude public employees and officials, including members of the General Assembly, from attending conferences and other educational opportunities that may actually benefit them in carrying out their official responsibilities.

There was a brief window of time four or five years ago, when public employees and officials relied on an opinion from the Independent Ethics Commission (IEC) that permitted them to accept gifts of travel to attend conferences, even if they did not meet one of the criteria listed above, so long as the travel was for a legitimate state purpose and met certain other criteria, including assurances against inappropriate influence. (See Position Statement 08-02) Those gifts were viewed as gifts to the state rather than to an individual who is subject to the gift bans of Amendment 41. Many legislators relied on this IEC opinion to attend conferences that were useful to their public duties.

However, the IEC pushed back from the “gift to state” position after a couple of years, finding that it created an overly broad exception to the Amendment 41 gift ban that was not “firmly rooted” in the language of the constitution. As a result, over the past three years members have had to forego many opportunities to attend out-of-state educational programs that could have greatly assisted them in their official capacities.

Just recently, the IEC expressly overturned the “gift to state” exception in a new position statement that it issued in December of last year. (See Position Statement 12-01) However, by doing so, the IEC did not officially mark the end of all travel scholarships for public officials and employees. To the contrary, the new position statement provides a new perspective on a covered individual’s opportunity to attend educational conferences. This new interpretation on accepting reimbursement of travel expenses is based largely on whether the gift is being provided to a covered individual, because only gifts to covered individuals (public officers, members of the General Assembly, and state and local government employees) are prohibited. The IEC observed that reimbursement of travel expenses to covered individuals is prohibited unless the reimbursement does not inure to the benefit of the covered individual but rather to the governmental entity, department, agency, or institution that employs the covered individual.

In deciding whether a covered individual may accept travel expenses because the gift is an institutional benefit rather than a benefit to the covered individual, the IEC offers a list of five factors to consider:

1. Is the offer being made to a specific individual or to a designee of an agency or governmental entity or even to the institution itself, such as to the department head, legislative leadership, or a local government official?

2. Is the offer being made “ex officio” to an individual by virtue of his or her specific position or area of responsibility or expertise, such as the chairman of the committee or the ranking member of the committee?

3. Is the event related to the public duties or legitimate functions and expertise of the covered individual?

4. Is there an existing or potential conflict of interest or appearance of impropriety?

5. Is the purpose of the trip or conference educational or for the purpose of conducting governmental business and not primarily a networking or social opportunity for either the covered individual or the donor?

None of these factors on its own is determinative, and the IEC directs that an individual should evaluate the entire context of the proposed travel reimbursement before accepting. And, even if you do accept the scholarship or reimbursement, keep in mind there may still be portions of the conference that may violate Amendment 41. The IEC warns that free golf trips or free tickets to the theater or a sporting event should be independently evaluated. It is permissible for covered individuals attending a conference or program to attend meals with guest speakers if the meal is part of the program and not primarily for entertainment purposes. The IEC observes that golf trips, sightseeing, cruises, and other recreational activities are never considered part of a conference, and, while these opportunities may be benefits of the conference, the covered individual should either not attend those events or should pay his or her own way.

If you have questions about interpreting this recent position statement from the IEC and determining whether you may accept a particular travel opportunity, please contact the Office of Legislative Legal Services.