Editor’s Note: This article was originally written by Bob Lackner and published on April 27, 2017. This version has been updated where appropriate.

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.

The necessity of serving “competing masters,” however, 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 the legislator’s public responsibilities. Stated differently, the legislator’s personal interest pulls the legislator 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 in a public matter.

How does a legislator know if the legislator 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. 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 (24-18-101 to 113, C.R.S.) 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 a personal or private interest creates a conflict 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 has 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 the legislator has a conflict? A legislator who is concerned about a conflict of interest situation or about being 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. 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!

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*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.

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“A member who has a personal or private interest in any measure or bill proposed or pending before the general assembly, shall disclose the fact to the house of which he is a member, and shall not vote thereon.” Article V, section 43 of the Colorado Constitution, effective August 1, 1876.

Legislative ethics principles have been included in the state’s constitution and been an integral part of legislative proceedings from the earliest days of statehood. The legislature expanded on these ethical principles and codified the standard of conduct expected for all persons involved with government in House Bill 88-1209. The ethical principles specific to the General Assembly listed in the bill and now codified as section 24-18-107, C.R.S., provide guidance to legislators when determining whether a conflict of interest exists and instructions on disclosing such an interest according to the applicable chamber’s rules.  It also states that a failure to disclose does not constitute a breach of the public trust of legislative office.

According to Joint Rule 42, a legislator is considered to have a personal, private, or financial interest in a pending bill, measure, or question if the passage or failure of the legislation will result in the legislator deriving a direct financial or pecuniary benefit that is greater than any benefit derived by or shared by other persons in the legislator’s profession, occupation, industry, or region. Joint Rule 42, like section 24-18-107, C.R.S., provides that a legislator is not considered to have such an interest in legislation if the interest arises from legislation affecting the entire membership of a class to which the legislator belongs. House Rule 21(c), and Senate Rules 17(c) and 41 discuss voting, disclosing, and excusing oneself from a vote.

Seems easy enough. Here are some hypothetical situations for your consideration:

Situation #1. The General Assembly is considering a bill that would provide comprehensive state assistance to promote biotechnological research within the state as well as related commercial applications. The assistance includes tax benefits, the establishment of a special state fund, and a new grant program. You are a member of the General Assembly and your spouse is a well-known and well-recognized research scientist who heads a special institute for biotechnological research at one of our state’s leading research universities. The bill would direct state financial assistance to a variety of public and private entities, but significant resources would be particularly directed to the institute headed by your spouse. It is likely the benefits from the bill would increase the institute’s budget and your spouse’s national profile and income.

May you vote on the legislation?  

1. Since the legislation only benefits your spouse, there is no problem voting on the legislation.
2. With sluggish economic growth, the legislation is vital for creating jobs and members need to put aside their private qualms about ethics and enact good programs.
3. The legislation would appear to distribute benefits to many private and public entities across the state. You can vote on the legislation because all persons with an interest in the legislation amount to one big class of persons.
4. By virtue of your spouse’s position, you have a personal, private, or financial interest in the legislation necessitating your abstention from voting on the bill.

The correct answer is 4. Under Joint Rule 42, the relevant inquiry is whether you, as a member, will benefit from or be disadvantaged by the legislation more than any other member of your profession, occupation, industry, or region. Because of the special position your spouse holds and the extra benefits that the bill directs to the institute generally and to your spouse more specifically, there is a reasonable likelihood that your immediate household will benefit from the legislation more than others in your profession, occupation, industry, or region. This gives you a personal, private, or financial interest in the legislation necessitating your abstention from voting on the bill.

Situation #2. You are the owner of several apartment buildings and other rental properties in your community. A bill has been introduced that would lengthen the period of time available to a tenant to pay past-due rent.

May you vote on the legislation?

1. YES. But only if you vote “for” the bill. Since the bill favors tenants and you are a property owner, no one would think it improper for you to support the bill.
2. YES. Because the governing legal requirements specify that a conflict of interest situation does not arise from legislation affecting the entire membership of a class. Here, the relevant class is the entire group of rental property owners across the state. Because you are a member of this class, you do not have an improper conflict-of-interest situation and, accordingly, may vote on the legislation.
3. NO. Because landlords are so distrusted in the community, it would be better to abstain than to call public attention to your outside real estate interests.
4. NO. Existing law already affords tenants sufficient time within which to cure any default.

The correct answer is 2. Section 24-18-107 (3), C.R.S., and Joint Rule 42 explicitly state that a conflict-of-interest situation does not arise from legislation that affects the entire membership of a class. Under this same principle, teachers who are members of the General Assembly may vote on education bills and attorneys who are members of the General Assembly may vote on bills affecting tort liability and evidentiary matters. Here, the relevant class is the entire group of rental property owners across the state. Assuming you will not benefit from, or be disadvantaged by, the legislation any more than any other owner of these properties statewide, an improper conflict-of-interest situation is not present. You would be permitted to vote on the legislation.

 See also “Reducing Conflicts Over Conflicts (of Interest)”, posted April 27, 2017.

Click here for other LegiSource articles regarding ethics.

The General Assembly, as an institution, is prohibited from making any contributions to a campaign involving the nomination, retention, or election of a person to a public office and from expending public money or making contributions to urge voters to vote for or against a ballot measure. See section 1-45-117 (1), C.R.S. This prohibition applies to the staff and resources of the General Assembly. A legislator may expend up to $50 of public money “in the form of letters, telephone calls, or other activities incidental to expressing his or her opinion” on a ballot measure, referred measure, or measure to recall a public officer. The expenditure of public money in this context generally means the use of legislative staff; equipment such as phones, computers, and copiers; and materials such as paper, office supplies, and postage. A legislator, as an elected official, can express a personal opinion on and may expend personal funds, make contributions, or use personal time to urge electors to vote in favor of or against a ballot measure. Additionally, the employee policies for the Colorado House of Representatives and the Colorado Senate establish limitations and prohibitions on the use of legislative resources in election campaigns.

It is improper and unethical to use state equipment and state services such as offices, telephones, internet access accounts, copiers, fax machines, computers, postage, supplies, and staff time for campaign or personal purposes. The use of state equipment for these purposes holds potential civil and criminal liability. See Colo. Const. art. XXVIII, § 9 (2)(a), Colo. Const. art. XXVIII, § 10, and section 1-45-117 (4), C.R.S. A member of the General Assembly, however, is not prohibited from using state facilities or equipment to communicate or correspond with the member’s constituents, family members, or business associates. See section 24-18-106 (2), C.R.S. Furthermore, the official state seal, measuring two and one-half inches in diameter, may only be used by the Secretary of State in an official capacity. However, the Secretary of State has issued rules regarding the use of copies of the state seal by other state entities.

Seems easy enough. Here are some hypothetical situations for your consideration:

Situation #1.  It’s mid-session and you realize that several of the most controversial bills of the session will be coming before the body for consideration in the next few weeks. You are interested in holding a town hall meeting in your district to discuss these important issues with your constituents. Your home community will be celebrating its annual Chipmunk Days in two weeks, and your staff has encouraged you to take advantage of that time to hold a town hall meeting at which you could also do some campaign fundraising. Your legislative aides are ready to prepare automatic phone calls to your constituents regarding the upcoming town hall meeting in your district and, using your state-issued laptop, to reach out to possible campaign contributors regarding the event.

May you use legislative staff and state equipment during regular business hours at the state capitol to generate automated telephone calls to your constituents regarding a town hall meeting to discuss legislative issues and conduct some campaign fundraising?

1. YES, it is appropriate to use legislative staff and state resources, including phone service at the capitol and state-issued laptops, during regular business hours to arrange a town hall meeting since the meeting will, in addition to campaign fundraising, address important legislative business.
2. NO, the use of state resources, including legislative staff, phones, and computers, for campaign or political purposes is strictly prohibited.
3. YES, so long as the total expenditure on staff time, stationery, and legislative equipment usage does not exceed $50.
4. NO, because “robocalls” are not legal in Colorado.

The correct answer is 2. The use of legislative staff and state resources, including use of your capitol phone and state-issued laptop, during regular business hours to arrange a town hall meeting is permissible if the meeting and phone calls are exclusively related to legislative business. Because this meeting will also be used for campaign purposes, the statutory prohibitions on the use of state equipment or services for campaign or political purposes prevent you from using those resources for such a purpose. Furthermore, Senate and House policies prohibit legislative staff from engaging in election campaign activity relating to your election campaign.

Note: With respect to answer “3”, although section 1-45-117 (1)(a)(II), C.R.S., essentially permits a member or employee of the General Assembly to expend $50 or less of public money expressing his or her opinion, even such a de minimus use of public money to promote a public purpose may trigger a complaint. It is recommended that members and employees stay comfortably clear of the lines separating official duties from political activity in connection with town meetings and other legislative functions.

Situation #2. A very good friend of yours has decided to run for the office of Sheriff in your district. Although he has not asked you, he has hinted that he would really appreciate your support. You would like to send a letter of endorsement to your constituents who reside in that county using your official state legislative letterhead with the state seal on it, but you’re not sure if that might violate the prohibitions on the use of state resources or the use of the state seal.

May you use your official letterhead with the state seal to write a letter of endorsement for a candidate for the office of county Sheriff?

1. YES, you may use your official state letterhead with the state seal on it to endorse your friend for the office of Sheriff, so long as you include a statement in the letter that the endorsement represents your individual opinion and does not represent the opinion of the General Assembly or any other member of the General Assembly.
2. YES, you may use your official legislative letterhead with the state seal on it to endorse your friend for the office of Sheriff, so long as the state seal on your letterhead is merely a facsimile and is not exactly two and one-half inches in diameter (the size of the official state seal that may only be used by the Secretary of State in an official capacity).
3. NO, it would be inappropriate to use your official legislative letterhead with the state seal on it to endorse a candidate for office.
4. NO, because the cost of sending all those letters will undoubtedly exceed $50.

The correct answer is 3. While you may send a letter on your official legislative letterhead with the state seal on it if the contents of the letter are related to a legislative or state function, endorsing a friend for public office is not related to your legislative duties or a state function and therefore would not be appropriate.

Situation #3. As a member of the General Assembly you have been issued a state-owned iPad to assist you with your legislative duties. The features on it allow you to easily access the House, Senate, and committee calendars, follow the bills that specifically interest you, and access your emails. It is so useful that you have found yourself using the iPad almost exclusively and allowing your legislative aide to use your state-issued laptop. Because of its convenience, you have recently been using your iPad to send emails to your family on the western slope both during the day and in the evenings when you take your iPad to your apartment to do legislative work.

May you use the state-owned iPad issued to you as a member of the General Assembly to communicate with your family?

1. YES, you may use state resources such as your legislative iPad to communicate with members of your family for purposes not related to an election campaign.
2. NO, use of state-owned and issued computers and iPads is restricted to legislative business. All other personal or business communications must be made on your personally owned computer or cell phone outside of regular business hours.
3. YES, you may use your iPad to email your family members, but only if you are not in the state capitol or within the capitol complex.
4. YES, you may use your iPad to email your family members, but only if you disclose it on your quarterly gifts and honoraria disclosure statements that you are required to submit to the Secretary of State’s office.

The correct answer is 1. Section 24-18-106 (2), C.R.S., expressly permits you to communicate with your constituents, family members, or business associates using state equipment for purposes not related to an election campaign.

 

• For more information on the use of state resources, see LegiSource article “Beware of Misusing State Resources During the Campaign Season”, April, 28, 2016.
• Click here for additional LegiSource articles regarding ethics.

 

Part 2 of article 6 of title 24, C.R.S., otherwise known as the “Public Official Disclosure Law”, outlines requirements for the disclosure and reporting by public officials, including members of the General Assembly, of certain types of information. Section 24-6-202, C.R.S., largely concerns the disclosure of financial information, such as sources of income; businesses in which the legislator holds a financial interest; interests in property; the identification of all offices, directorships, and fiduciary relationships the legislator holds; and significant creditors of the legislator. Disclosure extends to the legislator’s immediate family. Financial disclosure must be made within 30 days after the legislator’s election or reelection, and each legislator must file an amended statement on or before January 10 of each calendar year.

The reporting of gifts, honoraria, and other benefits that an incumbent or a candidate elected to public office receives in connection with his or her public service is the subject of section 24-6-203, C.R.S. Section 24-6-203 (3), C.R.S., lists certain items that the legislator must report, and section 24-6-203 (4), C.R.S., lists other items that the legislator need not include in his or her report. Gift and honoraria must be reported quarterly. If a legislator does not receive any of the covered items, he or she need not file a report. Legislators must file reports under both statutory sections with the secretary of state’s office.

The subject of disclosure of reimbursement for travel expenses is addressed in section 24-6-203 (3)(f) and (4)(d), C.R.S.  Legislators must disclose reimbursements for travel if the reimbursement comes from a financial source other than public funds of a state or local government or from the funds of an association of public officials or public entities whose membership includes the member’s office or the General Assembly.

Seems easy enough. Here are some hypothetical situations for your consideration:

 Situation #1. You are a member of the General Assembly. Following a very stressful session of the General Assembly, you had to endure painful foot surgery, which you postponed during the session. Your doctor has instructed you to stay off your feet for 3 weeks to let your foot properly heal. A longtime friend who has known you since long before you commenced your political career has offered the use of her condominium in a mountain town for your extended use. The offer comes with the assistance of a housekeeper who will prepare your meals. The relationship you enjoy with the donor is strictly personal, and the donor has never expressed any interest in the public business that you address as a legislator.

Are you required to disclose the gift of the use of the condominium?

1. There is no need for disclosure because you cannot accept your friend’s offer. Now that you are elected to the General Assembly, you should never accept a gift from anyone at any time for any purpose.
2. Since you probably can’t accept the gift under Amendment 41, there is no gift to accept and, therefore, to disclose under the Public Official Disclosure Law (“PODL”).
3. Since the donor is a long-time friend, no one would think anything improper about receiving a gift from that person and therefore there is no need to disclose such gift.
4. A gift from a long-time friend of the use of a condominium to assist in one’s recovery from surgery is not given in connection with the member’s public service. Accordingly, the member is not required to disclose the gift.

The correct answer is 4. Section 24-6-203 (2), C.R.S., requires disclosure of gifts given in connection with the member’s public service. In this case, the donor was a long-time friend who gave you the use of the condominium while you were recovering from surgery. The relationship you enjoy with the donor is strictly personal, and the donor has never expressed any interest in the public business that you address as a legislator. For these reasons, it does not appear the gift was given in connection with public service, which means you have no obligation to disclose it under section 24-6-203 (2), C.R.S.

Situation #2. You are the chair of an interim legislative committee formed to study the conversion of outdated shopping malls to alternate uses. A private non-profit foundation promoting this type of development by the name of STOP (for “Start Transferring Open Parcels”) has put together a trip for legislators from across the nation to study successful conversion projects in a dozen different cities. STOP wants to reimburse you for your reasonable travel expenses involved in participating on the trip. STOP receives less than 5% of its revenue from for-profit entities.

Are you required under the Public Official Disclosure Law (“PODL”) to disclose the reimbursement you will receive for these travel-related expenditures?

1. As it doesn’t look like you would be able to accept reimbursement for the trip under Amendment 41, you shouldn’t go, making disclosure of this reimbursement a moot point.
2. Since the reimbursement is coming from the funds of a nonprofit entity that is not an entity whose membership includes your office or the General Assembly, you are required to disclose your acceptance of it.
3. This trip sounds like one of those “junkets” that is the source of much criticism. Accordingly, if you go, you should disclose it if only for the sake of preventing an appearance of impropriety.
4. The work STOP does is really important to your constituents. There are three old and decaying shopping malls in your district alone. You feel a strong need to join the trip to learn how to generate the process of conversion in Colorado. This is such a boring issue and the sights are so depressing — why would anyone think a member would be going on this trip if he or she didn’t feel the issue was so important?

The correct answer is 2. Under section 24-6-203 (3)(f) and (3)(d), C.R.S., reimbursement for travel must be disclosed if payment of the reimbursement comes from a financial source other than public funds of a state or local government or from the funds of an association of public officials or public entities whose membership includes your office or the General Assembly. In this case, because STOP, the nonprofit organization making payment to you for your travel expenses, does not meet these criteria, the reimbursement must be disclosed under the PODL.

For more LegiSource articles on public disclosure and reporting requirements, see:

• https://legisource.net/2014/01/30/government-transparency-colorados-open-records-and-open-meetings-laws/
• https://legisource.net/2015/04/09/april-15-is-tax-day-but-its-also-gift-reporting-day-are-you-ready/
• https://legisource.net/2013/01/17/where-to-turn-when-you-are-faced-with-an-ethics-dilemma/

Click here for other LegiSource articles regarding ethics.

by Jennifer Gilroy

As mentioned in previous articles, Article XXIX of the Colorado Constitution (commonly referred to as “Amendment 41”) generally prohibits legislators from:

1. Asking for or accepting gifts worth more than $65 from any one source in a given year; and
2. Accepting any amount of money, forbearance, or forgiveness of indebtedness.

However, the legislator can accept the gift if the legislator provides lawful consideration that is at least equal to the value of the gift, money, forbearance, or forgiveness of indebtedness. But even if the legislator does not provide lawful consideration for the gift, Amendment 41 offers several exceptions to these two gift bans. The legislator may accept a gift that is:

• A campaign contribution;
• Something trivial, of less value than $65;
• An unsolicited token or award of appreciation;
• Unsolicited information material, publications, or subscriptions related to the legislator’s official duties;
• Admission to and the cost of food or beverages at a reception or meeting at which the legislator is scheduled to speak as part of a program;
• Reasonable expenses paid by a nonprofit organization or other state or local government for attendance at a convention, fact-finding mission or trip, so long as the person is scheduled to deliver a speech, make a presentation, participate on a panel, or represent the state or local government, but the non-profit organization must receive less than five percent of its funding from for-profit organizations or entities;
• Given by an individual who is a relative or personal friend of the legislator on a special occasion; or
• Part of the legislator’s regular pay in the normal course of the legislator’s employment.

In addition to prohibiting legislators from accepting certain gifts and things of value, Amendment 41 also prohibits professional lobbyists from giving legislators any gift or thing of value of any kind or nature, regardless of the gift’s value. The only exceptions to this prohibition are for campaign contributions and gifts a professional lobbyist makes to members of the  lobbyist’s immediate family. Based on this gift ban, members of the General Assembly are well advised not to accept gifts in any amount and of any value from professional lobbyists. That’s right, not even a cup of coffee.

Want to test what you’ve learned about gifts you may and may not accept? Here are some hypothetical situations for your consideration:

Situation #1.  You are a brand new legislator from Larimer County and you are delighted to receive a letter from the President of Colorado State University offering you two tickets to the highly anticipated CU-CSU football game. You know that the tickets have a value of approximately $150 per ticket. You also know that they are having a difficult time selling enough tickets to fill the stadium for this game.

May you accept the complimentary football tickets?

1. YES, because the big game is going to be at Empower Field at Mile High and the school sponsors have not sold nearly enough tickets to fill the stadium. You would be providing a huge benefit to CSU and CU, and really the state of Colorado, by spending your valuable time at this nationally televised football game. In fact, you consider your contribution of time to be worth at least as much, if not more than, the value of the tickets you are receiving.
2. NO, because the value of the tickets exceeds $65 and none of the exceptions to the gift ban applies, accepting the tickets would violate the Amendment 41 gift ban.
3. YES, because the following statement is printed on the bottom of the letter, “Because these tickets are provided by the University, which is a public entity and is not considered a ‘person’ under Colorado Amendment 41, this courtesy is not governed by Amendment 41.”
4. YES, because one of the exceptions to the Amendment 41 gift ban allows a state government to pay the reasonable expenses for you to attend a convention, fact-finding mission or trip, or other meeting. A CU-CSU football game could be considered a “meeting” under this exception.

The correct answer is 2. Amendment 41 prohibits you from accepting a gift valued at more than $65. Because the value of these tickets would exceed $65, because CSU is a “person” from which you may not accept most gifts, and because none of the exceptions to the Amendment 41 gift ban applies to this situation, you should not accept the tickets.

 Situation #2. You’ve been invited to attend a legislative reception hosted by the Colorado Florists Association. This is a popular annual event and, although you first thought you were invited because of the farmers’ market bill you sponsored last session, you’ve since learned that every member was invited and many of your colleagues plan to attend. The invitation indicates that there will be hot hors d’oeuvres and two drink coupons for each attendee. The invitation also states that the total value to each attendee does not exceed $65. You have also learned that the reception is being paid for by the association’s contract lobbyist.

May you attend the Colorado Florists Association’s reception?

1. YES, because the value of the reception is less than $65 and you have not and will not accept any other gifts from this lobbyist for the rest of the year.
2. YES, because you do not intend to eat or drink anything at the event.
3. YES, because you have been asked to speak at the event about the farmers’ market bill you sponsored last session.
4. NO, the constitutional prohibition against gifts in any amount from a professional lobbyist is absolute and clear.

The correct answer is 4. Amendment 41 prohibits a professional lobbyist from giving a member of the General Assembly (among other public officials and employees) any gift or thing of value of any kind, regardless of value. In IEC PS 09-01 concerning gifts from lobbyists, the IEC recognized this gift ban as an absolute prohibition. This prohibition expressly includes food and beverages. The only exceptions to this prohibition are for political campaign contributions and gifts to members of the professional lobbyist’s immediate family. Because neither of those exceptions applies in this case, it is inadvisable for you to accept this gift.

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[1] 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:

1. Whether the offer is to a designee of an agency or government entity, rather than to a specific individual;
2. Whether the offer is to the covered individual by virtue of the individual’s specific position or area of responsibility or expertise (ex officio);
3. Whether the offer is for an event that is related to the covered individual’s public duties;
4. Whether the offer poses an existing or potential conflict of interest or appearance of impropriety; and
5. 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.?

1. 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.
2. 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.
3. YES, because payment of your airfare, hotel accommodations, and registration is essentially payment of an honoraria for your participation on the panel discussion.
4. 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?

1. 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.
2. Because there is a golf outing associated with the conference, you may not accept the invitation.
3. 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.
4. 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.

 

For more LegiSource articles on gift bans and the Independent Ethics Commission, see:

• https://legisource.net/2018/09/06/ethics-alert-read-this-before-your-next-town-hall-or-community-meeting/
• https://legisource.net/2017/03/02/happy-birthday-colorado-independent-ethics-commission/
• https://legisource.net/2015/02/19/not-even-a-cup-of-coffee-gift-bans-on-lobbyists-can-directly-affect-legislators/
• https://legisource.net/2013/03/21/a-new-interpretation-of-amendment-41-and-gifts-of-travel-maybe-you-can-attend-that-conference/
• https://legisource.net/2013/01/17/where-to-turn-when-you-are-faced-with-an-ethics-dilemma/

Click here for other LegiSource articles regarding ethics.

 

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[1] 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.

Editor’s note: This is the third in a series of articles based on the ethics issues included in the online ethics tutorial available through a link at the bottom of the General Assembly website. For earlier articles, see “Legislative Ethics – Post-legislative Employment” and “Legislative Ethics – Legislative Immunity”.

Bribery: §18-8-302, C.R.S.
A legislator commits the crime of bribery if he or she solicits, accepts, or agrees to accept a pecuniary benefit based on an agreement or understanding that the legislator’s vote, opinion, judgment, exercise of discretion, or other action as a legislator will be influenced by receiving the pecuniary benefit. A “pecuniary benefit” could be money, property, commercial interests, or anything else that primarily results in economic gain to the legislator. A person can be guilty of bribery even if he or she has been elected or appointed but has not yet been sworn in to office. The crime of bribery is a class 3 felony, punishable by a minimum of four years and a maximum of 12 years in prison, followed by a mandatory parole period of three years, or by a fine of at least $3,000 but not more than $750,000, or by both the fine and imprisonment.

Seems pretty straight forward. Get out your pencils—let’s take a quiz!

Hypothetical #1. It’s the first day of the session and you’re on your way to the House Chambers to be sworn in. Just before you leave your office, you get a call from one of your new constituents. This person is very concerned about his mother. She’s in the country illegally, and she has a serious health condition. If she has to return to her native country, she will not be able to receive the treatment she needs. You try to explain that immigration law is a federal issue, and, as a state legislator, there’s really nothing you can do. But your constituent is convinced that introducing a bill will send a message to Congress. Your constituent also mentions that he has driven past your house a couple of times and noticed that your driveway is in very bad condition. Your constituent actually has a driveway resurfacing company, and he would be happy to give you a free resurfacing, but he really needs your help. You tell him that you won’t introduce a bill, but you will introduce a memorial to Congress to express the General Assembly’s opinion that there should be an exception made in the immigration laws for persons in immediate need of significant medical treatment. Then you make an appointment for next Saturday for your constituent to start resurfacing your driveway.

Have you just committed the crime of bribery?

a. NO. As a state lawmaker, you can’t change federal immigration law.

b. NO. You haven’t been sworn in, so you weren’t a public servant when you agreed to introduce the memorial and accepted the free driveway resurfacing.

c. YES. You agreed to introduce the memorial to Congress to help your constituent, and you’re accepting his offer of a free driveway resurfacing.

d. NO. A memorial to Congress does not have the force and effect of law, so it is not included in the actions for which you can be bribed.

The correct answer is c. To convict a public servant of the crime of bribery, a district attorney must prove that the person was a public servant and that he or she agreed to accept a pecuniary benefit on the basis that one or more of the person’s actions as a public servant would be influenced. You had been elected, so you fit the definition of a “public servant” even though you were not yet sworn in. You initially explained that you could not help your constituent, but after hearing the offer of a free driveway resurfacing, you agreed to introduce legislation to address your constituent’s concern. And you accepted the offer of a free driveway resurfacing by making the appointment. It appears that a district attorney would have sufficient evidence to prove each of the elements of the crime of bribery.

Compensation for past official behavior: §18-8-303, C.R.S.
A legislator commits the crime of accepting compensation for past official behavior if the legislator solicits, accepts, or agrees to accept any pecuniary benefit as compensation for having given a decision, opinion, recommendation, or vote favorable to another person, while the legislator was a member of the General Assembly, or for having otherwise exercised discretion in favor of the other person, while the legislator was a member of the General Assembly, regardless of whether the legislator violated a duty in so doing. In essence, this statute prohibits payment of a bribe after the fact. A “pecuniary benefit” could be money, property, commercial interests, or anything else that primarily results in economic gain to the legislator. The crime of accepting compensation for past official behavior is a class 6 felony punishable by a minimum of one year and a maximum of 18 months in prison, followed by a mandatory parole period of one year, or by a fine of at least $1,000 but not more than $100,000, or by both the fine and imprisonment.

Let’s see how this one might play out.

Hypothetical #2. You have served in the Colorado State Senate for the last eight years. During that time, you have sponsored several pieces of legislation, but the one you’re most proud of is the bill to establish a state-funded community outreach program for youth involved in gangs. Since the bill passed six years ago, this program has been repeatedly recognized for successfully directing several young men and women away from gangs and into useful community service. Last week, you received a call from the president of the board of directors for the program. The executive director of the program has accepted a new position and is moving to Chicago. Because you were the bill sponsor, the board of directors is offering you the job. You don’t have any experience in operating this type of a program, but the pay is significantly more than you make as a legislator. You tell him you’ll think about it.

If you take this job, will you commit the crime of accepting compensation for past official behavior?

a. YES. Your vote for the bill created the program. As such, it was a vote that was favorable to the president and to the board of directors, and they are now offering to compensate you for it.

b. NO. Even though you will receive a pecuniary benefit – a job – as a result of legislation that you introduced and passed, voting for the bill did not directly benefit either the president or the board of directors; their offer of a job is not compensation for a vote in their favor.

c. NO. It’s a good program that benefits many people. You have the best understanding of the legislature’s intent in creating the program, so you are the best person to operate it.

d. YES. If you accept the job, you will receive compensation for having introduced and voted for the legislation.

The correct answer is b. Creating the program conferred a benefit on the community or on the public as a whole. It does not constitute a vote that is favorable to an individual or specific group of individuals. Because the vote for the bill was not a vote in favor of the individuals offering you the job, accepting the job would not constitute accepting compensation for past official behavior.

Misuse of official information: §18-8-402, C.R.S.
A legislator may be held criminally liable for misuse of official information if the legislator takes certain actions in contemplation of official actions to be taken by the legislator or the General Assembly or takes certain actions based on information that is not available to the public but is known by the legislator. Specifically, a legislator may commit misuse of official information if he or she knows that some official action will be taken or the legislator has some piece of nonpublic information, and the legislator acquires a pecuniary interest in property, a transaction, or an enterprise that may be affected by the action or the information, or if the legislator speculates on the basis of the action or the information. The legislator may also be guilty of misuse of official information if he or she wants to grant another person a special pecuniary benefit and does so by aiding, advising, or encouraging the other person to acquire a pecuniary interest or to speculate based on the action or the information. Misuse of official information is a class 6 felony punishable by a minimum of one year and a maximum of 18 months in prison, followed by a mandatory parole period of one year, or by a fine of at least $1,000 but not more than $100,000, or by both the fine and imprisonment.

This one is a bit confusing. Let’s take it for a test drive.

Hypothetical #3. You are sitting in the House Education Committee listening to testimony on a bill to allow CSU-Pueblo to open a new satellite campus in La Junta. Your ears perk up when the witnesses from CSU-Pueblo start describing exactly where the new campus will be located. It’s in the neighborhood you live in. You happen to know that the Lucky Licks Ice Cream Shop is located just across the street from where the new campus will be built and that Lucky Licks has been for sale for about two years. The committee passes the bill to the Committee of the Whole; you are the only committee member to vote against the bill. That evening, you make an offer on the Lucky Licks property, which is immediately accepted. You close on the property a month later. Two weeks after your closing, the General Assembly passes this very popular bill by a wide margin. You voted against the bill each time it came up for a vote in the House.

Have you committed the crime of misuse of official information?

a. NO. Authorization of the new campus and the location of the new campus was public information; anyone could have been smart enough to buy the ice cream shop.

b. NO. The campus won’t open for at least a year and there’s no guarantee that opening the campus will lead to higher profits at the ice cream shop.

c. YES. In contemplation of the legislature’s action to authorize the new campus, you bought a business that is likely to be more profitable because of that new campus.

d. NO. You never voted in favor of the bill, so you didn’t act in contemplation of any official action that you took.

The correct answer is c. In contemplation of the General Assembly’s action in authorizing CSU-Pueblo to open the new campus in La Junta, you acquired a pecuniary interest in property across the street from the new campus. This property – an ice cream shop – is likely to be affected by the General Assembly’s action in approving the bill because of the property’s location next to the new campus. Based on these facts, it appears that a district attorney could prove all of the elements of the crime of misuse of official information.

Want to learn more about legislative ethics? Take the Legislative Ethics Tutorial.

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.

Editor’s note: This is the second in a series of articles based on the ethics issues included in the online ethics tutorial available through a link at the bottom of the General Assembly website.

The “revolving door” provision of article XXIX, section 4 of the Colorado Constitution (commonly referred to as Amendment 41) prohibits statewide elected officeholders and members of the General Assembly from personally representing another person or entity for compensation before any other statewide elected officeholder or member of the General Assembly for a period of two years after leaving office. More clearly: Legislators cannot lobby for pay for two years after leaving the General Assembly. In addition, the statutory code of ethics prohibits a member of the General Assembly from lobbying, soliciting lobbying business or contracts, or otherwise establishing a lobbying business or practice before the expiration of the legislator’s term. (Section 24-18-106 (3), C.R.S.)

Seems easy enough. Here are some hypothetical situations for your consideration:

Situation #1. You are a legislator and an attorney. Your term as a legislator will end this year. You know that the statutory code of ethics prohibits you from lobbying, or even soliciting lobbying business, before the expiration of your term. However, you are considering accepting a position with a prestigious law firm in town with practice areas that include government and policy. There are attorneys at the firm who lobby on behalf of clients when certain policy issues come before the General Assembly. Your position with the firm, however, would not require you to lobby.

May you accept a position with the law firm?

1. Amendment 41 prohibits a legislator from personally representing another person or entity before another member of the General Assembly for two years after leaving office.
2. The gift ban established by Amendment 41 prohibits negotiations of future employment.
3. Since you will not personally represent another person or entity before the General Assembly and the work you will be doing will not require you to register as a professional lobbyist with the Secretary of State’s office, you may accept the position.
4. So long as you do not offer any gifts to state officials or members of the General Assembly as prohibited by Amendment 41.

The correct answer is c. Amendment 41 prohibits a former legislator from personally representing another person or entity for compensation before any other statewide elected officeholder or member of the General Assembly for two years following his or her departure from office. However, the Independent Ethics Commission (IEC) has interpreted the term “personally represent” to mean serving as a “professional lobbyist” and has concluded that a former member of the General Assembly may not accept employment that will also require his or her registration as a professional lobbyist under section 24-6-301, C.R.S. (See, IEC PS 09-02.) Because this position would not require you to register as a professional lobbyist, it is permissible to accept it.

Situation #2. You are a term-limited legislator and you have been offered a paid position as a director on the board of directors of a nonprofit organization that focuses on health care issues. Although you will be a member of the board, you believe that there is an expectation, because of your former role as a legislator, that you will lobby members on certain issues important to the organization and even appear and testify before committees of the General Assembly when health care bills of interest to the organization are being considered.

May you accept the position as a member of the board of directors?

1. YES, so long as you have not solicited any lobbying business or contracts or established a lobbying business or practice before your term actually expires.
2. YES, so long as you register in accordance with the rules of the Secretary of State.
3. YES, because the members of the General Assembly are your friends and you will not really be lobbying them so much as chatting informally with them about topics of interest to them.
4. NO, because Amendment 41 prohibits former members of the General Assembly from personally representing another person or entity for compensation before any other statewide elected officeholder or member of the General Assembly for two years after leaving office.

The correct answer is d. The IEC has interpreted this section of the constitution as restricting a member of the General Assembly from serving as a professional lobbyist for two years after leaving office. Stated another way, the former legislator must wait two years before accepting employment that would require his or her registration as a professional lobbyist under section 24-6-301, C.R.S., or other relevant laws or statutes because of his or her new position. See, IEC PS 09-02.

 

Want to learn more about legislative ethics? Take the Legislative Ethics Tutorial.

by Jason Gelender and Patti Dahlberg

Under article V, section 16 of the Colorado constitution, legislators cannot be “questioned” for any speech or debate in either house or in any committee. Referred to as “legislative immunity,” this privilege is designed to preserve the integrity of the legislative process and protect the legislative branch from intimidation. Courts have interpreted it broadly to grant legislators immunity from civil lawsuits and state criminal prosecution, but not federal criminal prosecution, and a privilege against being compelled to testify or produce documents in legal proceedings with respect to matters that fall within the “sphere of legitimate legislative activity.”

The “sphere of legitimate legislative activity” includes actions taken during official legislative proceedings conducted in accordance with constitutional procedural requirements and other activities that are integral to the legislative (i.e., lawmaking) function. It does not include actions taken outside of official legislative proceedings that are not integral to the legislative function, such as town hall meetings or publishing newsletters. Courts have considered these actions more political than legislative because they are undertaken to stay in touch with constituents and help legislators get reelected.

Seems easy enough. Here are some hypothetical situations for your consideration:

Situation #1.  During heated floor debate on a controversial bill that would repeal all state restrictions on private swimming pools near busy intersections, a legislator who opposes the bill claims that the bill sponsor is only carrying the bill because a Colorado-based swimming pool manufacturer bribed him.

Does legislative immunity protect the legislator who made the accusation of bribery from liability in a civil lawsuit for defamation filed by the bill sponsor?

1. NO, because the legislator accused the bill sponsor of bribery, a crime that is a felony, legislative immunity does not apply.
2. NO, because the purpose of legislative immunity is to protect the General Assembly from intimidation by the executive and judicial branches of government and private parties, it does not apply to a statement made or other action taken by a legislator against another legislator.
3. YES, because a legislator who takes bribes directly impacts the integrity of the legislative process, it is important to allow other legislators to “blow the whistle” without fear of legal repercussions if they think that another legislator is taking a bribe, even if the charge later proves to be false.
4. YES, because the legislator made the claim during an official legislative proceeding while acting as a lawmaker, legislative immunity protects the legislator from liability in a civil lawsuit for defamation filed by the bill sponsor.

The correct answer is d. Because the legislator made the claim during an official legislative proceeding while acting as a lawmaker, legislative immunity protects the legislator from liability in a civil lawsuit for defamation filed by the bill sponsor. However, while this is technically correct in the context of potential liability in a civil lawsuit, a legitimate question exists as to whether the legislator’s claim is, in fact, ethical. The question and answer are illustrative of the tension between what is legal and what is ethical that legislators often face in the course of their legislative activities.

Situation #2.  During heated floor debate on a controversial bill that would repeal all state restrictions on private swimming pools near busy intersections, a legislator who opposes the bill claims that the bill sponsor is only carrying the bill because a Colorado-based swimming pool manufacturer bribed him.

Assuming that the accusation of bribery is true, does legislative immunity prevent criminal prosecution of the accused legislator?

1. NO, legislative immunity does not protect a legislator from criminal prosecution. It only protects a legislator from being a defendant in a civil lawsuit or from otherwise being questioned as part of a civil proceeding.
2. NO, legislative immunity does not prevent criminal prosecution of the legislator. Prosecution for bribery does not require a protected inquiry into a legislator’s motives for the legislative acts of sponsoring or voting on a bill because the alleged crime occurred when the legislator accepted money in exchange for a promise to sponsor the bill and could be proven even if the legislator had not actually sponsored the bill.
3. YES, the purpose of legislative immunity is to prevent intimidation of legislators through, among other things, questioning of their motives for taking legislative actions. Because sponsorship of legislation is a legitimate legislative function that is within the “sphere of legitimate legislative activity,” a legislator’s improper motivation for sponsoring legislation cannot form the basis of a criminal prosecution of the legislator.
4. NO, because a legislator’s compensation is prescribed by law in accordance with article V, section 6 of the Colorado Constitution and such compensation does not include bribes. Taking a bribe as compensation for what is normally a legislative act of sponsoring legislation makes the sponsorship of the legislation violate a constitutional rule of procedure that governs the legislative process and therefore places the sponsorship outside of the protected “sphere of legitimate legislative activity.”

The correct answer is b. Legislative immunity does not prevent criminal prosecution of the legislator.

Although sponsoring legislation falls within the “sphere of legitimate legislative activity,” the United States Supreme Court has found that “[t]aking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act (U.S. v. Brewster, 92 S. Ct. 2531, 2544 (1972)). In this hypothetical, because a successful bribery prosecution requires only proof that the accused legislator accepted money in exchange for a promise, fulfilled or unfulfilled, to sponsor a bill, and does not require examination of the legislator’s legislative act of actually sponsoring the legislation, legislative immunity does not prevent criminal prosecution of the legislator.

Situation #3.  The CEO of a privately held swimming pool company testifies during a meeting of a special Interim Committee on Swimming Pools Near Busy Intersections that imposing a statewide ban on these pools will drive swimming pool companies out of Colorado and severely damage Colorado’s economy. In response, a legislator on the committee who supports a statewide ban on all swimming pools calls the CEO a “greedy child-killing liar” who is concerned only about the bottom line and says that “you don’t even care that swimming pools near busy intersection pose a clear safety hazard to children!” The CEO sues the legislator for defamation.

Does legislative immunity prevent the legislator from being found liable for defamation?

1. NO, because interim committees are study committees rather than committees of reference and only have the power to act regarding proposed legislation that has not yet been introduced and assigned a bill number, the legislator’s allegedly defamatory statements were not made within the “sphere of legitimate legislative activity.”
2. NO, because the legislator’s allegedly defamatory statements were so outrageous that the “outrageous conduct” exception to legislative immunity applies.
3. YES, because the interim committee meeting at which the legislator made the allegedly defamatory statements was an official legislative proceeding. The legislator was acting within the “sphere of legitimate legislative activity” and cannot be found liable for the statement in a civil lawsuit.
4. YES, because the allegedly defamatory statements were made in the context of a discussion about public policy options that could reasonably expect to lead to legislation being proposed, they fall within the “sphere of legitimate legislative activity.”

The correct answer is c. The interim committee meeting at which the legislator made the allegedly defamatory statements was an official legislative proceeding and, therefore, within the sphere of legitimate legislative activity. Statements made during a legislative committee meeting almost always fall within the sphere of legitimate legislative activity, and legislative immunity protects a legislator who makes such a statement from being held liable for the statement in a civil lawsuit.

And, in case you were wondering, there is no “outrageous conduct” exception to legislative immunity.

Situation #4.  The CEO of a privately held swimming pool company testifies during a meeting of a special Interim Committee on Swimming Pools Near Busy Intersections that imposing a statewide ban on these pools will drive swimming pool companies out of Colorado and severely damage Colorado’s economy. In response, a legislator on the committee who supports a statewide ban on all swimming pools calls the CEO a “greedy child-killing liar” who is concerned only about the bottom line and says that “you don’t even care that swimming pool near busy intersection pose a safety hazard to children!” The CEO sues the legislator for defamation. Following the completion of the Interim Committee on Swimming Pools Near Busy Intersections’ meetings, the committee, with the assistance of Legislative Council Staff, issues a written final report that quotes as part of a summary of proceedings the allegedly defamatory statements made by the legislator. The CEO then amends his defamation complaint to include both the other legislators who served on the committee and the legislative staff who prepared the report as defendants.

Does legislative immunity prevent the legislators and legislative staff from being found liable for defamation?

1. NO, although the legislator who made the allegedly defamatory statements is entitled to legislative immunity because the statements were made during an official legislative proceeding, the other legislators and legislative staff are not entitled to legislative immunity because they republished the statements outside of the meeting.
2. YES, because the republication of the allegedly defamatory statements occurred in an official legislative report it falls within the “sphere of legitimate legislative activity.” And legislative privilege applies to legislative staff to the same extent it applies to legislators.
3. YES and NO. Because the republication of the allegedly defamatory statements occurred in an official legislative report, it falls within the “sphere of legitimate legislative activity” and the legislators cannot be found liable for defamation. But the legislative staff may be found liable for defamation because legislative immunity only protects legislators.
4. NO, legislative immunity does not protect the other legislators and staff from being found liable for defamation. But under the law of defamation itself, the other legislators and legislative staff cannot be found liable for defamation because only the person who originally makes an allegedly defamatory statement may be held liable for the statement

The correct answer is b. Republication of the allegedly defamatory statements occurred in an official legislative report. The preparation, adoption, and publication of the official report of a legislative interim committee falls within the “sphere of legitimate legislative activity.” Consequently, legislative immunity protects both the legislators and the staffers from being found liable for defamation for actions taken in preparing, adopting, and publishing the report.

If you want to read more about legislative privilege and immunity, check out “A Look at the Limits of Legislative Immunity.”

Want to learn more about legislative ethics? Take the Legislative Ethics Tutorial.