by Bob Lackner

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.

However, the necessity of serving “competing masters” 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 his or her public responsibilities. Stated differently, the legislator’s personal interest pulls him or her 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 he or she may have in a public matter.

How does a legislator know if he or she has 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 is supposed to demonstrate as a public servant undertaking his or her official duties. 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 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 he or she has a personal or private interest 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 concludes that he or she does have 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 he or she has a conflict? A legislator who thinks he or she may be in a conflict of interest situation, or too close for comfort, should follow one or more of the following courses of action:

1. 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. Although maintaining a proper appearance may not be strictly required, 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!

*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.

by Jennifer Gilroy

Ten years ago voters in Colorado approved a citizen-initiated measure—Ethics in Government—aimed at enhancing the public’s confidence and preserving the public’s trust in government officials and employees by imposing gift bans on state and local government officials and employees, limiting gift-giving by professional lobbyists, and restricting certain public officials’ post-public-service employment.  Effective December 31, 2006, the measure became Article XXIX of the Colorado Constitution, but among those folks who are subject to its ambitious restrictions, it is simply referred to as “Amendment 41,” the number it bore on the 2006 ballot. We hear and read a lot about Amendment 41’s gift bans, but far less about another essential component of Amendment 41: the “independent ethics commission,” also established by the measure and now celebrating its 10^th birthday.

Intended to be completely independent of all three branches of government, the independent ethics commission, or IEC, is composed of 5 volunteer members, one each appointed by the Colorado Senate, the Colorado House of Representatives, the Colorado Governor, and the Chief Justice of the Colorado Supreme Court.  These 4 commissioners appoint the final member of the commission, who must be a local government official or employee. The constitution contemplates that the commissioners serve staggered 4-year terms. But over the IEC’s short history, at least one commissioner served a shorter duration—departing after just 6 months of service—and another served more than 4 years until her successor was selected and appointed.  Not surprisingly, finding a qualified individual willing to serve for free on a commission that meets at least monthly and that undertakes the thankless work of investigating complaints against public officials and government employees can be challenging for the appointing authorities.  To further complicate matters, but more importantly to preserve bipartisanship, Amendment 41 directs that not more than two commissioners may be affiliated with the same political party.  This June the terms of both the state Senate’s appointee and the Governor’s appointee will expire, and the composition of the commission will change once again.

The IEC is charged with hearing complaints against public officers and other state and local government officials and employees who are alleged to have violated the terms of Amendment 41 or some other standard of conduct or reporting requirement established in law.  Discerning which of those standards and reporting requirements the commission has jurisdiction to enforce, however, is not a simple task, as the commission has already learned.  The Colorado Supreme Court has agreed to hear the case of Gessler vs. Grossman, et al, 15SC462, (see p. 8) to address this very issue.

As part of the complaint process, the IEC must issue findings and assess penalties (Amendment 41 authorizes fines that are double the amount of any benefits realized as a result of wrongdoing) if the commission determines that the public official or employee has breached the public trust for private gain.  However, individuals whose conduct is under the IEC’s scrutiny may find that the public nature of the process is more punitive than the threat of any penalty.  The IEC’s proceedings are subject to the Colorado Sunshine (open meetings) Law and the Colorado Open Records Act.  Also, public interest groups typically attend the IEC’s meetings and tweet highlights of the commission’s discussions.  And the IEC is currently working to begin live audio broadcasting of its proceedings in real time.

But the IEC has an equally, if not more, important role as an advisor, consultant, and instructor on ethics-related matters.  The constitutional amendment directs the IEC to provide advice to individuals who are subject to Amendment 41 and are facing ethics dilemmas arising under the amendment or another standard of conduct or reporting requirement.  Over the years, the IEC has issued dozens (approximately 124 to date) of topic-specific opinions to help guide the behavior and conduct of public officials and employees.  Included in these opinions are many position statements that the IEC has periodically issued in an effort to alleviate uncertainty and provide its interpretation of the sometimes confusing and often ambiguous language of Amendment 41.

Anyone who is interested in requesting an advisory opinion from the IEC must realize that timing is critical.  Submissions must comply with the IEC’s internal procedural rules, which require that requests be in writing and delivered to the IEC at least 10 days before its next meeting.  In most circumstances, the IEC will issue its opinion within 30 to 60 days after receiving the request.

The IEC also conducts helpful public outreach.  It has published an Ethics Handbook and the executive director of the IEC—the commission’s only paid staff—has historically conducted training for government agencies and offices.

Happy Birthday, IEC!

by Bob Lackner

Arguably, the worst offense a public official can be accused of is the crime of bribery — essentially offering, giving, receiving, or soliciting something of value for the purpose of influencing an official in the discharge of his or her public duties. The crime violates a basic notion inherent in a healthy democracy: That a public servant’s sole motivation is the promotion of the public interest — not the securing of private gain. Although it is fortunate that, in Colorado, accusations of bribery against public officials are rare, every public official should have a basic understanding of the nature of the crime to avoid even coming close to what would constitute criminal behavior.

The crime of bribery made its first appearance in Colorado law in the original state constitution, which went into effect on August 1, 1876. Section 40 of article V of the state constitution, the article that governs the Legislative Department, is entitled “Bribery and influence in general assembly”, and it states in relevant part:

If any member of the general assembly shall give his vote or influence for or against any measure or proposition pending in such general assembly, or offer, promise, or assent so to do, upon condition that any other member will give or will promise or assent to give his vote or influence in favor of or against any other measure or proposition pending or proposed to be introduced in such general assembly, or in consideration that any other member hath given his vote or influence for or against any other measure or proposition in such general assembly, he shall be deemed guilty of bribery; and any member of the general assembly, or person elected thereto, who shall be guilty of either of such offenses shall be expelled, and shall not be thereafter eligible to the same general assembly; and, on conviction therefor in the civil courts, shall be liable to such further penalty as may be prescribed by law.

Thus, as applied to a member of the General Assembly, this constitutional prohibition applies to the specific crime of “vote-trading,” whereby a legislator agrees to vote a certain way on the condition that another legislator votes in a particular way. (This practice is more informally referred to as “log-rolling.”) The inclusion of a prohibition on this practice in the section governing the legislative department reflects the deep distaste the framers of our state constitution had for the practice.

This is especially true given that section 40 does not forbid (or even address) what we now think of as bribery; that is, offering, giving, receiving, or soliciting something of value for the purpose of influencing an official in the discharge of his or her public duties. This more conventional form of bribery is addressed and prohibited in section 6 of article XII of the state constitution, which applies to civil officers and members of the General Assembly. In relevant part, this section prohibits those individuals from soliciting or receiving, directly or indirectly, anything of value for their votes, official influence, or actions. Like the aforementioned log-rolling provision, this provision has been part of the state constitution since its adoption in August of 1876.

Bribery is also among the many crimes addressed and prohibited in our state’s Criminal Code. Under section 18-8-302 (1)(b), C.R.S., which concerns “Bribery and Corrupt Influences,” a public servant (which includes a member of the General Assembly) commits bribery if he or she solicits or accepts any financial benefit upon any agreement or understanding that his or her vote, opinion, or other action as a public servant will be influenced. A person who offers or agrees to extend a benefit to a public servant with the intent to influence the public servant’s action in his or her official capacity commits the crime as well. (See section 18-8-302 (1) (a), C.R.S.)

Bribery is a class 3 felony, which means that a person convicted of the crime faces a prison sentence of four to 12 years. (See section 18-1.3-401 (1) (a) (V) (A), C.R.S.)

Other criminal offenses in the Colorado Criminal Code relating to bribery include:

• Compensation for official past behavior (when a public servant accepts any benefit as compensation for taking official action in favor of another);
• Trading in public office (accepting a benefit in exchange for appointing someone to public office);
• Directing a bidder or contractor to deal with a particular person in connection with obtaining goods or services in bidding on a contract; and
• Failing to disclose a conflict of interest when the public servant owns a substantial interest in a private entity participating in the transaction.

In McDonnell v. United States, 579 U.S. ___ (2016), the United States Supreme Court stated that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns…”. (For an in-depth discussion of the case, see this recent Legisource post) Ethical and conscientious legislators know the appropriate actions to take on behalf of their constituents and others with interests in public policy. They are also aware of those actions that may subject the legislators to criminal prosecution for engaging in bribery or related offenses that harm the public trust at the heart of representative government.

by Jennifer Gilroy

The deadline. We all know that April 15th is the last day to file tax returns, but did you remember that it’s also the day you have to file your quarterly gifts and honoraria disclosure statement with the Secretary of State’s office? Section 24-6-203, C.R.S., requires every incumbent in, or candidate elected to, public office (that includes legislators) to file a report with the Secretary of State’s office every January 15, April 15, July 15, and October 15 disclosing all of the gifts and honoraria received in connection with his or her public service since the last reporting date.

Well, actually, as an incumbent or newly elected official you don’t have to report everything you’ve received in connection with your public service. There are exceptions. But it’s really confusing to figure out just exactly what you must report. And then, to complicate matters further, the laws identifying the gifts you are permitted and not permitted to accept are completely separate and distinct from the law describing the gifts you must report each quarter. As tempting as it is, don’t allow yourself to be tripped up by thinking they are the same. They are not.

The details. Let’s break it down. Once you’ve been sworn in to office, you must submit a report to the Secretary of State’s office each quarter (on their form) disclosing certain gifts and honoraria that you have received in connection with your public service. The law provides a list of items you must report and a list of items that you don’t have to report, but you may choose to report. Of course if, since the last reporting date, you have not received any gifts, honorarium payments, or other items that the statute requires you to disclose then you do not have to file a report at all.

• Honoraria – payments you’ve received for giving a speech or making an appearance or authoring a publication.

• Travel and lodging – payments or reimbursements you’ve received for expenses you’ve incurred for travel  and lodging to attend a convention, fact-finding mission or trip, or other meeting that you are permitted to accept under Amendment 41, unless the payment or reimbursement of the expenses is made from public funds of a state or local government or from an association of public officials or public entities whose membership includes the reporting individual’s office or governmental entity (in which case you may report, but you are not required to). You must also report payments or reimbursements for those same types of travel and lodging expenses if they are paid for by a “joint governmental agency” to which the state pays dues, such as the National Conference of State Legislatures, the Council of State Governments, or the Energy Council.
• Meals – a gift of a meal at a fund-raising event of a political party.

• Campaign contributions – campaign contributions you’ve received that you’ve already reported under the Fair Campaign Practices Act.
• Unsolicited tokens or awards – unsolicited items of trivial value and unsolicited tokens or awards of appreciation.
• Travel and lodging – As stated earlier, if a state or local government or an association of public officials or public entities whose membership includes the reporting individual’s office or governmental entity pays, or reimburses you, for expenses you’ve incurred for travel and lodging to attend a convention, fact-finding mission or trip, or other meeting that you are permitted to accept under Amendment 41, you do not have to report the payment or reimbursement.
• Salary – payment of salary from employment, including other government employment, that is in addition to what you earn as a member of the General Assembly (although you should be disclosing the source(s) of that income on another report you must file with the Secretary of State’s office pursuant to §24-6-202, C.R.S.
• Amendment-41-permitted gifts – any other gifts or things of value that you are permitted to solicit, accept, or receive pursuant to Amendment 41.

The crime. Clear as mud? It is a confusing area of law. And yet any person who willfully files a false or incomplete gifts and honoraria report is guilty of a misdemeanor and, if convicted, may be subject to a fine of up to $1,000. So you should take some time and be thoughtful about what you need to report. The same section of law requires those who provide you with an item that you must report to furnish you with a written statement of the dollar value of the item. But this doesn’t always happen, so don’t rely on it. Just because the donor of a gift didn’t give you a statement of value, it doesn’t mean you don’t have to report the item.

The form and resources. The form you must use to report gifts and honoraria is available on the Secretary of State’s webpage. The Majority and Minority offices in both chambers also have hard copies of the form if you prefer.

Questions about the gifts and honoraria reporting requirements should be directed to the Secretary of State’s office at (303) 894-2200. And you may always contact the OLLS with any questions you have related to gifts and honoraria reporting or consult our indispensable “Ethics Flash Card”, on the back of which you’ll find a summary of the reporting requirements entitled, “Do I Need to Report this Gift to the SOS?”.

Don’t forget, the deadline is April 15th!

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.

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: (more…)

by Jennifer Gilroy

Bravo!! You’ve just realized that the invitation you received today to participate in a legislative conference in Las Vegas, or a business luncheon in your district, or a tour of the southwestern Colorado river basins may actually present an ethics issue that you need to consider before immediately accepting. You are momentarily pleased with yourself for recognizing the ethics issue, but then trepidation sets in as you begin to ponder the many sources of ethics laws in Colorado. Suddenly you are overwhelmed and confused. There’s something about gifts over $53, refusing all gifts from lobbyists, conflicts of interest, and undue influence. The sources of ethics laws in Colorado seem so complicated and confusing and, frankly, you’re really not sure if you understand them well enough to evaluate your situation accurately. Where can you turn for guidance when you are faced with an ethics dilemma? (more…)