Editor’s note: This article was originally written by Bob Lackner and posted on March 24, 2022. This version has been updated where appropriate.

Use of House and Senate legislative staff, equipment, and resources

Perennial questions arise concerning the possible use of state equipment or state buildings and the use of staff time for political purposes, namely a member’s reelection efforts and related advocacy activities on behalf of the member’s political party or other candidates for partisan office. These questions naturally tend to be more pressing in election years when legislators are often pulled between their official legislative duties and critical political tasks necessary to ensure reelection for themselves or other candidates of their political party.

There is not much law that provides clarity on most questions in this area. The most concrete guidance is a statute that prohibits, among other things, a state agency, including the General Assembly, from making any contribution in campaigns involving the nomination, retention, or election of any person to public office. [1] A violation of this section subjects the offender to sanctions including an order directing the person making the contribution to reimburse the fund of the state from which the moneys were diverted for the amount of the contribution. [2] Over the years, the Office of Legislative Legal Services (Office) has recommended that the wisest default position for legislators, partisan staff, and House and Senate employees is to avoid, to the greatest extent practicable, the use of Capitol office space, public resources, or staff time for political campaign activity of a partisan nature. Following this advice may avoid an ethics complaint being filed. We have come to publicize this advice in terms of the “Three Nos.” Specifically:

• No Capitol space: With one limited exception as noted below, rooms in the Capitol building, including private offices, should not be used to carry out political campaign activity.
• No equipment: State-funded equipment and other related resources for the use of members of the General Assembly and their staff in fulfilling their official duties, including desktop and laptop computers, tablets, telephones, fax machines, copier machines, paper products, office supplies, and internet connectivity, should not be used to carry out political campaign activity.
• No staff: Staff for elected officials should not be using their time for which they are paid to assist the member in carrying out the member’s official legislative duties to carry out political campaign activity. Staff is permitted, however, to engage in political campaign activity in their free time while “off the clock”, outside the Capitol building, and without the use of state resources.

With respect to the Capitol building, there has been an accepted practice over many years of legislators using photographs of the legislator from inside the building for use in campaign materials. A popular setting for the use of such a photograph is from the House or Senate floor. In more recent years, the photograph is often displayed on the candidate’s website or for use in social media. As long as the photograph does not include the state seal or the seal of either the State Senate or the State House of Representatives, this practice has been permitted as a narrow exception to the general rule against political activity within the state Capitol.

Some of the other perennial questions in this area include:

• May House or Senate legislative staff, equipment, or resources be used during regular business hours to arrange “town hall” meetings on behalf of a member of the General Assembly? Legislative staff, equipment, or resources may be used during regular business hours to arrange a “town hall” meeting on behalf of a member of the General Assembly as long as the meeting relates exclusively to the legislator’s official duties—that is, legislation, a discussion of state issues, policymaking, etc.—and the legislator or staff do not engage in political activity relating to the election of a candidate. Similarly, staff may use state equipment during business hours to communicate with constituents on legislative matters on behalf of members as long as the communications are not for campaign or political purposes.
• May political literature be handed out at a town hall meeting held in connection with a member’s official duties? This practice is not advisable. If the town hall meeting is held for the purpose of communicating with the public about legislative business, it should not be coupled with any activity, such as handing out campaign literature, that suggests a political purpose.
• May House or Senate legislative staff maintain a legislator’s website that is predominantly devoted to legislative activities but that also contains some content that could be characterized as political or campaign-related?  The member and staff should remain conscious of the fact that the line between what is legislative and what is political in the context of written or electronic communications oftentimes becomes blurred. Accordingly, when staff uses state time or resources to generate materials that appear, or might be construed, to be created or used for a campaign or political activity or purpose, the likelihood of a complaint is greater.

May House or Senate partisan staff undertake political activity on the weekend or at night when the staff person may also be engaged in work on official legislative business? Yes. The boundary between time that may be spent on official legislative duties and time spent on political activity is essentially governed by the staff person’s official legislative work schedule. The staff person needs to refrain from undertaking political activity while on the legislative clock.

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[1] §1-45-117 (1)(a)(I), C.R.S.

[2] §1-45-117 (4)(a), C.R.S.

by Bob Lackner

In our previous article on election year precautions, we looked at whether legislators may hold another public office. In this article, we’ll look at the use of state resources.

Use of House and Senate legislative staff, equipment, and resources

Perennial questions arise concerning the possible use of state equipment or state buildings and the use of staff time for political purposes, namely a member’s reelection efforts and related advocacy activities on behalf of the member’s political party or other candidates for partisan office. These questions naturally tend to be more pressing in election years when legislators are often pulled between their official legislative duties and critical political tasks necessary to ensure reelection for themselves or other candidates of their political party.

There is not much law that provides clarity on most questions in this area. The most concrete guidance is a statute that prohibits, among other things, a state agency, including the General Assembly, from making any contribution in campaigns involving the nomination, retention, or election of any person to public office.[1] A violation of this section subjects the offender to sanctions including an order directing the person making the contribution to reimburse the fund of the state from which the moneys were diverted for the amount of the contribution.[2] Over the years, the Office of Legislative Legal Services (Office) has recommended that the wisest default position for legislators, partisan staff, and House and Senate employees is to avoid, to the greatest extent practicable, the use of Capitol office space, public resources, or staff time for political campaign activity of a partisan nature. Following this advice may avoid an ethics complaint being filed. We have come to publicize this advice in terms of the “Three Nos.” Specifically:

• No Capitol space: With one limited exception as noted below, rooms in the Capitol building, including private offices, should not be used to carry out political campaign activity.
• No equipment: State-funded equipment and other related resources for the use of members of the General Assembly and their staff in fulfilling their official duties, including desktop and laptop computers, tablets, telephones, fax machines, copier machines, paper products, office supplies, and internet connectivity, should not be used to carry out political campaign activity.
• No staff: Staff for elected officials should not be using their time for which they are paid to assist the member in carrying out the member’s official legislative duties to carry out political campaign activity. Staff is permitted, however, to engage in political campaign activity in their free time while “off the clock”, outside the Capitol building, and without the use of state resources.

With respect to the Capitol building, there has been an accepted practice over many years of legislators using photographs of the legislator from inside the building for use in campaign materials. A popular setting for the use of such a photograph is from the House or Senate floor. In more recent years, the photograph is often displayed on the candidate’s website or for use in social media. As long as the photograph does not include the state seal or the seal of either the State Senate or the State House of Representatives, this practice has been permitted as a narrow exception to the general rule against political activity within the state Capitol.

Some of the other perennial questions in this area include:

• May House or Senate legislative staff, equipment, or resources be used during regular business hours to arrange “town hall” meetings on behalf of a member of the General Assembly? Legislative staff, equipment, or resources may be used during regular business hours to arrange “town hall” meeting on behalf of a member of the General Assembly as long as the meeting relates exclusively to the legislator’s official duties—that is, legislation, a discussion of state issues, policymaking, etc.,—and the legislator or staff do not engage in political activity relating to the election of a candidate. Similarly, staff may use state equipment during business hours to communicate with constituents on legislative matters on behalf of members as long as the communications are not for campaign or political purposes.
• May political literature be handed out at a town hall meeting held in connection with a member’s official duties? This practice is not advisable. If the town hall meeting is held for the purpose of communicating with the public about legislative business, it should not be coupled with any activity, such as handing out campaign literature, that suggests a political purpose.
• May House or Senate legislative staff maintain a legislator’s website that is predominantly devoted to legislative activities but that also contains some content that could be characterized as political or campaign-related? Nevertheless, the member and staff should remain conscious of the fact that the line between what is legislative and what is political in the context of written or electronic communications oftentimes becomes blurred. Accordingly, when staff uses state time or resources to generate materials that appear, or might be construed, to be created or used for a campaign or political activity or purpose, the likelihood of a complaint is greater.

May House or Senate partisan staff undertake political activity on the weekend or at night when the staff person may also be engaged in work on official legislative business? Yes. The boundary between time that may be spent on official legislative duties and time spent on political activity is essentially governed by the staff person’s official legislative work schedule. The staff person needs to refrain from undertaking political activity while on the legislative clock.

 

 

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[1] § 1-45-117 (1)(a)(I), C.R.S.

[2] § 1-45-117 (4)(a), C.R.S.

by Bob Lackner

2022 is an election year, which means that most of the members of the General Assembly will be running for reelection (or sometimes another office). Running for office can become an all-consuming endeavor, which can cause legislators who are also candidates to forget or lose sight of some of the legal restrictions on legislators who may also be candidates. This article, the first in a two-part series, discusses whether legislators may hold another public office. The second part of this series will cover the use of state resources.

Holding dual offices

One issue members may confront during their tenure in the General Assembly is the ability to hold another public office at the same time they are serving in the General Assembly. Perhaps they were serving in another office when elected to the General Assembly and would like to continue in that role. Or, maybe an opportunity arises for a sitting member of the General Assembly to seek another state or local office.

The Colorado Constitution provides that “[n]o senator or representative shall, while serving as such, be appointed to any civil office under this state; and no member of congress, or other person holding any office (except of attorney-at law, notary public, or in the militia) under the United States or this state, shall be a member of either house during his continuance in office.”[1] Colorado court decisions suggest the use of the following general guidelines in applying this constitutional section[2]:

• During their term of office, no member of the General Assembly can be appointed to a civil office in state government.
• Because the Colorado courts have not had occasion to specifically address the prohibition against holding other state elective office and because of separation of powers concerns and possible conflicts of interest, perceived or real, it is less clear whether a member of the General Assembly could simultaneously hold another elected office in state government.
• It is clear that a member of the General Assembly may hold an elected or appointed office in a local government.
• Legislators may also be employed by the state or a local government. An “appointment,” as contrasted with an “appointment to a civil office,” exists as long as the person is not required to exercise independent decision-making authority and is not entrusted with the sovereign power of the state.

Although these guidelines indicate that a legislator may serve in certain other civil offices, most electors decide not to serve in other public offices during their tenure in the General Assembly because of the time demands of being a legislator, concerns about the possible appearance of a conflict of interest, and the need to abstain from voting when a conflict exists.[3] The potential exists for many potential conflicts of interest between votes and positions taken as a member of the General Assembly while simultaneously holding another public office. In evaluating whether to hold another public office while serving as a member of the General Assembly, it may be of benefit to consider the degree to which the state affects the other government’s activities and the potential for conflicts between the members’ roles. For example, there may be a higher likelihood of conflict between large cities and counties than for other types of governmental entities such as small (statutory) towns or special districts.

On a related note, section 1-4-501 (2), C.R.S., prohibits any person from being an eligible candidate for more than one office at one time.[4] Therefore, assuming a member of the General Assembly is also permitted to hold an elected office in a local government, the legislator cannot run for a legislative seat and that other office in the same election.[5]

 

 

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[1] Colo. Const. Art. V,  § 8.

[2]Carpenter v. People ex. El. Tilford, 8 Colo. 116, 5 P. 828 (1884) and Hudson v. Annear, 101 Colo. 551, 75 P. 2d 587 (1938). A civil office is an office in which its holder is required to take an official oath or to give bond. Hudson, 101 Colo. at 555-556, 75 P.2d at 588-589.

[3] See Colo. Const. Art. V § 43 and § 24-18-107, C.R.S., and House Rule No. 21 (c) and Senate Rule No. 17 (c).

[4] § 1-4-501 (2), C.R.S.

[5] The material in this section of the article is taken from a memorandum from the Office of Legislative Legal Services to Interested Persons dated November 29, 2021, entitled “Legislators Holding Other Offices”.

by Bob Lackner

Congratulations! The election is over and you’re now a member of the General Assembly! You know the official salary for the job will hardly compensate you in full for the many official duties you’ll be undertaking, and you also know the state won’t pay for a lot in terms of funding your office or hiring staff. You likely have campaign funds remaining after the election and know there are probably some rules addressing the use of such money (after all, as you know from your campaign, there is never any shortage of rules governing the use of campaign money), but you don’t know what they are.

For starters, this is a nice problem to have. As we will see, the law allows elected officials to use leftover campaign funds for a number of specified and beneficial purposes—and having leftover campaign money certainly gives an advantage over elected candidates who finish the election without these additional resources. In addition, the rules in this area are mostly clear and concise.

The legal term for leftover campaign money is “unexpended campaign contributions.” [1] This year, the 2020 election cycle ends on December 3, 2020. A candidate committee’s unexpended campaign contributions will be the amount of money the committee has on hand as of the first day of the new election cycle, or December 4, 2020, less any unpaid obligations the candidate committee has incurred as of that date.

Rules governing the use of campaign contributions are specified in the Fair Campaign Practices Act (FCPA).[2] As a threshold matter, the amount of money a candidate committee may retain after the end of the election is subject to an important restriction found in the campaign finance requirements of article XXVIII of the Colorado Constitution (Article XXVIII). Under Article XXVIII, the amount of any unexpended campaign contributions retained by a candidate committee on the first day of the new election cycle is treated as a contribution by a political party, regardless of the original source of the contributions, for purposes of the limit on political party contributions in that election cycle. This means that all unexpended campaign contributions that a candidate retains at the beginning of the new election cycle convert, or are “morphed,” into political party contributions.

To make things more complicated and challenging, under current campaign contribution limits, for the election cycle that begins on December 4, 2020, a political party cannot contribute more than $24,425 to Senate candidates and $17,625 to House candidates.[3] On December 4, 2020, if a candidate committee retains unexpended campaign contributions in an amount that exceeds the limits for Senate and House candidates, respectively, the candidate committee will be in violation of the law because it will have, on that date, accepted more in contributions from a political party than is permissible. A candidate committee in that position must spend down enough of the unexpended campaign contributions so that the amount retained on December 4, 2020, is below the applicable limit.

The statute classifies permitted uses of unexpended campaign contributions in two groups. Under the first group,[4] unexpended campaign contributions may be:

• Contributed to a political party;
• Contributed to a candidate committee established by the same candidate for a different public office in accordance with the applicable campaign contribution limits as long as the candidate committee making the contribution is terminated no later than 10 days after the contribution is made;
• Donated to a charitable organization recognized by the Internal Revenue Service; or
• Returned to the contributors or retained by the committee for use by the candidate in a subsequent campaign.

In addition to the uses described above, a person elected to office may also use unexpended campaign contributions for any of the following additional purposes:[5]

• Voter registration;
• Political issue education, which includes obtaining information from or providing information to the electorate;
• Postsecondary educational scholarships;
• To defray reasonable and necessary expenses related to mailings and similar communication to constituents; or
• To pay expenses that are directly related to the candidate’s official duties as an elected official, including, without limitation, expenses for purchasing or leasing office equipment and supplies; room rental for public meetings; necessary travel and lodging expenses for legislative education expenses such as seminars, conferences, and meetings on legislative issues; and telephone and pager expenses.

The Office of Legislative Legal Services (OLLS) refers to the last provision as the “catch-all” provision because, by its very terms, it permits the use of unexpended campaign contributions for “any expenses that are directly related to such person’s official duties as an elected official….” This is the provision we consult to research a contemplated use of unexpended campaign contributions that is not explicitly addressed in the statute. Questions involving use of the “catch-all” provision typically hinge on how direct the connection is between the contemplated use of the money and the member’s official duties as a legislator.

If the use of the money is directly connected to a task enabling the member to perform his or her duties as a legislator, the OLLS is likely to recommend that the use conforms to the statutory requirements. For example, the OLLS has regularly advised members that they may use unexpended campaign contributions to retain one or more legislative aides.

A candidate committee for an officeholder who does not run for reelection or is not reelected or for a person who is not initially elected to office must use all unexpended campaign contributions retained by the committee no later than nine years after the date the officeholder’s term ends or after the date of the election at which the unelected person was on the ballot, whichever is later.[6] As with any other form of campaign expenditure, a candidate committee must disclose the use of unexpended campaign contributions in its regular campaign finance disclosure reports required to be filed by law.[7]

If you are a member of the Colorado General Assembly, we encourage you to contact the OLLS if you have any questions about the propriety of using unexpended campaign contributions for a particular purpose. Additional information on this topic is provided in a document on the Colorado General Assembly’s website entitled “Frequently asked questions and answers involving the conversion or use of unexpended campaign funds.” In accordance with our customary recommendations on these matters, we also encourage legislators with questions to seek the advice and counsel of the Colorado Secretary of State’s Office as the body charged by law with the administration and enforcement of the state’s campaign finance laws.

 

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[1] The campaign and political finance provisions of the state constitution define “unexpended campaign contributions” to mean “the balance of funds on hand in any candidate committee at the end of an election cycle, less the amount of all unpaid monetary obligations incurred prior to the election in furtherance of such candidacy.” See article XXVIII, section 2(15) of the Colorado Constitution.

[2] The FCPA is codified in article 45 of title 1, C.R.S. The section of the FCPA that addresses unexpended campaign contributions is § 1-45-106, C.R.S.

[3] See Rule 10.17(h) of the Secretary of State’s Rules Concerning Campaign and Political Finance.

[4] § 1-45-106 (1)(a)(I)(A)–(D), C.R.S.

[5] § 1-45-106 (1)(b)(I)–(V), C.R.S.

[6] § 1-45-106 (1)(a)(III), C.R.S.

[7] In general, these disclosure requirements are specified in § 1-45-108, C.R.S.

by Esther van Mourik and Pierce Lively

It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” – Supreme Court Justice Hugo Black

He has the backbone of a chocolate éclair.” – President Theodore Roosevelt on President William McKinley.

You’ve just been sworn in to serve as a legislative member of the Colorado General Assembly[1] and you are now a public official. Congratulations! If you would like to know your rights as a legislator when you’re being criticized by the public, when you’re making speeches, or when you’re being threatened, read on!

It is a foundational principle that the success of a democracy is built on the back of free political discussion. This discussion is a fundamental right protected by the First Amendment of the United States Constitution and article II, section 10 of the Colorado Constitution. But freedom of speech is not absolute. For example, it does not protect a person who shouts “fire!” in a crowded theater and causes a panic. Over the years the judiciary has justified regulating speech when the restriction outweighs the value of the expression. So, where is the line drawn? In particular, when is speech directed toward, or made by, a legislator protected and when is it not?

Speech directed toward a public official

Let’s say that a critic has publicly said you are “ripping off taxpayers” by sponsoring a tax credit for businesses. Do you have a complaint against that critic for defamation? Probably not.

Defamation is a catch-all term for civil, not criminal, damage claims stemming from false statements that hurt someone’s reputation.[2] Defamation laws are an important recourse for those who are harmed by false statements. However, defamation laws are in direct conflict with the constitutional right to free speech, and consequently, courts look at punishing that speech very carefully. This conflict is particularly acute in the case of public officials, such as legislators, because robust political debates and discussions are fundamental to our democratic system and should not be chilled.

In New York Times v. Sullivan, the United States Supreme Court addressed this conflict by holding that the First Amendment’s right to free speech prohibits a “public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

What does this mean for public officials, including legislators, in Colorado? A public official can only recover damages for a statement if he or she can prove that (1) a person published or otherwise communicated the statement to a third party, (2) the statement caused the public official actual damage, and (3) that when the person made the statement, he or she either knew it was false or had a reckless disregard as to whether it was false. This “actual malice” standard imposes a high burden on public officials in a defamation case.

So, when a critic has publicly said you are “ripping off taxpayers” because you sponsored a tax credit for businesses, this may hurt your reputation, but it is probably not defamation. The critic is entitled to his or her opinion, and opinions are hard to prove true or false.

Speech made by a legislator

An “unrestricted debate of public issues” requires protecting not only a public official’s critics, but also protecting the public official. As regular readers of LegiSource will already know, this protection is achieved through “legislative immunity.”[3]

Let’s say you make a statement during legislative debate that offends someone. Is your speech protected? Yes. The Colorado Constitution includes protections to ensure that you can do your job as a public official without interference or intimidation.

Under Article V, section 16 of the Colorado Constitution, legislators are immune from civil lawsuits and state criminal prosecution for actions that fall within the “sphere of legitimate legislative activity.”[4] Although Colorado courts have not defined the phrase “sphere of legitimate legislative activity,” in Gravel v. United States, the United States Supreme Court held that activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House” are within the sphere.

In general, these activities include conducting hearings, preparing and authorizing the publication of reports, delivering floor speeches, and voting but do not include meeting with or influencing executive branch or local government officials or political activities related to campaigning.

When a constituent is offended by something you said during legislative debate about a particular bill, your speech is protected, and you are immune from any liability related to that speech.

When speech turns criminal

Legislative immunity protects legislators and the high burden in defamation cases protects critics of the government, but no one is protected while threatening others. Actions that constitute criminally threatening behavior include:

• Attempting to influence legislators and other public servants through “deceit or by threat of violence or economic reprisal”;[5]
• Threatening or using physical action to place another “in fear of imminent serious bodily injury”;[6]
• A continuous course of conduct where one follows, approaches, contacts, places another under surveillance, or communicates with someone in a manner that causes that person to suffer serious emotional distress;[7] and
• Harassment. [8]

If you feel threatened in any way while in the capitol, call state patrol (303-866-3660). If you feel threatened outside of the capitol, call local law enforcement. If you think the person threatening you away from the capitol may come to the capitol, please call state patrol.

Final thoughts

As you embark on your new careers as members of the General Assembly, it’s important to remember that open and robust discussion of public issues is a fundamental part of our democracy. Our laws strive to protect discussion both by critics of the government and the government itself. Critics of the government are protected by requiring public officials to clear a high bar before they succeed in defamation cases. Legislative immunity protects members of the government in relation to statements they make within “the sphere of legitimate legislative activity.” But expression that improperly influences, threatens, or harasses a person is illegal and unprotected. If you have any further questions about any of these issues, please contact the Office of Legislative Legal Services.

 

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[1] Or maybe you’re already a legislator and you just want a refresher!

[2] If defamation is written, it is libel, and if it is spoken, it is slander.

[3] See Legislative Ethics – Legislative Immunity and A Look at the Limits of Legislative Immunity.

[4] For an in-depth discussion of how this doctrine applies to subpoenas, see To Testify or Not to Testify: Responding to a Subpoena.

[5] Section 18-8-306, C.R.S.

[6] Section 18-3-206, C.R.S.

[7] Section 18-3-602, C.R.S.

[8] Section 18-9-111, C.R.S.

by Julie Pelegrin

Unless you’re living under a rock on another planet, you’re well aware that this year is a big campaign year. Throughout the summer and next fall, people will be campaigning and voting on several candidates and ballot questions. Before the session ends, let’s review the restrictions on using state resources for political campaigns.

Use of State Resources
Let’s be clear: It is improper and unethical for a legislator or an employee of the General Assembly 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 purposes. Using state equipment or services for these purposes potentially leads to both civil and criminal liability. This means state telephones, computers, copiers, etc., which are to be used primarily for business purposes at all times, should never be used for political purposes or activity. Questions about material being copied should be referred to the Chief Clerk of the House or the Secretary of the Senate, whichever is appropriate.

Political Activity v. Legislative Activity
In determining whether a legislator or staff can use state resources during legislative time for an activity, it’s important to distinguish between “political activity” and “legislative activity.”

Political activity means any form of campaigning or electioneering, including:

• Attending or arranging for political meetings;
• Transporting candidates or other persons who are engaged in campaigning or electioneering;
• Distributing campaign material, whether it’s literature, political guide cards, placards or signs;
• Soliciting or canvassing for campaign funds;
• Developing or distributing opinion polls or surveys that are not related to legislative business; or
• Any other form of political work.

Legislative activity means activities that relate exclusively to the legislator’s official duties:

• Introducing, debating, taking testimony, amending, and voting on legislation;
• Discussing state issues that may be the subject of legislation; and
• Other types of policymaking.

Based on this distinction, a legislator and a legislative employee cannot engage in political activities within the State Capitol or on legislative time. Nonpartisan legislative staff do not engage in political activity, other than voting, at any time. The partisan staff employed by the House of Representatives and the Senate cannot engage in political activities while in the State Capitol or during regular work hours.

Additionally, a legislator may use legislative staff and state resources during regular business hours within the Capitol building to arrange town hall meetings, so long as the meetings relate exclusively to the legislator’s official duties and legislative activities and the legislator and staff do not engage in election campaign activity relating to the election of a candidate or the support or defeat of a ballot measure at the meeting. It is important to ensure that a town hall meeting avoids even the appearance of being a campaign event; handing out campaign or other election materials at a town hall meeting is probably not a good idea.

Maintaining a Website
Another potentially grey area arises when a legislator uses legislative staff to help maintain the legislator’s website. If the legislator’s website predominantly consists of information relating to legislative activities, he or she may use legislative staff and state resources to maintain the website. However, the website may include some content that could be interpreted as being political or related to a campaign. If legislative staff is using state time and resources to maintain material on the website that is arguably political or campaign related, questions may arise with regard to these materials. In this case, the legislator should consider not using state resources to maintain the website.

Political Contributions
The General Assembly – including any persons employed by the General Assembly – cannot make a contribution in any form to a person’s campaign for public office. A contribution includes anything of value that is given to a candidate, directly or indirectly, to promote the candidate’s nomination, retention, recall, or election. This includes in-kind contributions in the form of services. Also, the General Assembly and its staff cannot expend public money or make any contributions to urge voters to vote for or against a ballot measure. The intent of these restrictions is to ensure that the General Assembly and its employees do not use public resources to persuade voters during an election.

Partisan employees of the House or the Senate can participate in candidates’ campaign activities or issue campaigns on their own time outside of the Capitol building. Under the Senate employee handbook, Senate employees who take time away from work for political and campaign-related activities cannot use annual, sick, or other personal leave and will not be paid by the Senate for time spent away from work engaging in these activities.

Mailings
A Senator cannot send out mailings at the state’s expense unless the item being mailed is in response to a constituent request or comment. Similarly, a Representative can send a mailing at the state’s expense only if it is generated in response to a request for information. Legislators must use their campaign funds for campaign mailings.

Deciding what is legislative and what is political is not clear in many cases. For more information on how state resources should and should not be used, you may want to read the OLLS memo: Use of House and Senate legislative staff, equipment, and resources. Also, we encourage legislators to contact the OLLS with their specific questions concerning the appropriate use of legislative staff and state resources.

by Sharon Eubanks

Citizens often turn to the courts to challenge the acts of the General Assembly and its members, which can lead to legislators being served with subpoenas commanding them to appear at a deposition, trial, or administrative proceeding to give testimony. Because responding to a subpoena can be time consuming and inconvenient and can implicate the interests of the General Assembly as a whole, legislators should be familiar with the range of options that are available if they are served with a subpoena.

Does the subpoena seek testimony regarding the legislator’s legislative duties?
When a legislator is served with a subpoena, he or she must generally appear at the time and place specified in the subpoena to give testimony unless the doctrine of legislative immunity provides an evidentiary privilege against testifying. Legislative immunity provides this evidentiary privilege only with respect to activities that fall within the sphere of legitimate legislative activity, such as:

• Taking actions during committee meetings and floor sessions;
• Taking actions during the course of committee investigations;
• Participating in impeachment proceedings; and
• Enacting and enforcing legislative rules.

In contrast, courts have found the following actions to be outside the sphere of legitimate legislative activity:

• Meeting with or influencing executive branch or local government employees or officials; and
• Engaging in committee activities that are outside the scope of the committee’s powers.

For further discussion of the doctrine of legislative immunity and activities that fall within the sphere of legislative activity, see this LegiSource article.

The Office of Legislative Legal Services (OLLS) can help a legislator determine whether a particular activity is likely to fall within the sphere of legitimate legislative activity. If the subpoena is seeking testimony regarding an activity that does not fall within the legislative sphere, the subpoena probably applies to the legislator as a private citizen and the legislator may be compelled to testify. In this case, the legislator should consider retaining private counsel if he or she wants to try to avoid testifying; the OLLS will not be able to provide further legal assistance.

Options when the subpoena seeks testimony with respect to legislative activities.
If a legislator is subpoenaed to testify regarding activities that fall within the sphere of legitimate legislative activity, the legislator has the option of deciding whether to testify and, if a legislator decides not to testify, the legislator may ask the Committee on Legal Services to retain legal representation to assist with the matter.

If the legislator does not wish to testify, the appropriate legal action is to file a motion to quash the subpoena. Alternatively, the OLLS has found that many private attorneys are unfamiliar with the doctrine of legislative immunity and will voluntarily withdraw a subpoena once informed of the doctrine.

Legislative immunity does not prohibit a legislator from testifying voluntarily, and the legislator must ultimately make the decision about whether to testify. However, before deciding to testify and while testifying, a legislator should consider the following issues:

• Testifying can be time consuming and can interfere with the legislator’s legislative duties;
• The best evidence of legislative intent or of what was said during a debate is the recording or transcript of the debate itself, and a legislator’s subsequent testimony as to legislative intent will likely be inadmissable; and
• The legislator should clearly state while testifying that he or she is testifying solely as an individual and that he or she is not representing the views of the General Assembly as a whole.

In sum, a legislator who is served with a subpoena can often avoid testifying and, before deciding to testify, should give serious consideration to the potential consequences of testifying and the possibility that his or her testimony may be given little weight or even ruled inadmissible. After being handed a subpoena, the first call that a legislator makes should be to the OLLS so the Office may help the legislator work through these issues.

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