Murky ethics

No one is sure exactly what Amendment 41 means, covers

By Robert St. John Roper

January 6, 2007

Even with the so-called ethics in government Amendment 41 now enacted into law, its implications remain murky.

It seemed like an awfully good idea this past Election Day. Colorado’s voters approved an amendment to the state constitution that bans any public official or government employee (including independent contractors), and members of their immediate families, from accepting gifts valued at more than $50 from lobbyists, business associates and everyone else.

Unfortunately, this simple concept has yielded a somewhat disconcerting situation for those who do business with Colorado state and local governments: There aren’t yet any authoritative interpretations of what Amendment 41 means in practice, and, accordingly, what interactions with governments are lawful and what are not.

And, last week, Colorado Attorney General John Suthers weighed in. In a letter to University of Colorado President Hank Brown, Suthers opined that Amendment 41’s specifics are “problematic” and could yield “absurd result(s).”

Amendment 41 proponents responded that the state legislature can write enabling legislation that would interpret the popular constitutional amendment in a “reasonable way,” the ultimate aim being to ban lobbyists’ gifts.

Clearly, questions about the reach of Amendment 41 still abound and have even been raised by organizations of firefighters and law enforcement officials, who are uncertain whether the measure now prohibits them from providing college scholarships and other financial aid to members and their families. And the Colorado Education Association wonders if Amendment 41 means that a National Education Award winner can no longer accept a donated cash stipend.

Even the legislature’s in-house counsel isn’t exactly sure what Amendment 41 means – so far:

On one hand, the Office of Legislative Legal Services is pretty confident that, subject to a few limited exceptions, Amendment 41 would prohibit a public official or government employee from attending information meetings, social events or conferences hosted by local governments or special-interest groups for which transportation, meals and/or lodging is provided.

On the other hand, OLLS is “uncertain” whether public officials and government employees can attend conferences sponsored by joint governmental agencies, such as the National Conference of State Legislatures, or paid for by federal government grants.

Also, while Legislative Legal Services thinks it “seems unreasonable” to conclude that Amendment 41 would ban a government official or employee from accepting a gift valued at more than $50 from a friend or spouse – except on a birthday, anniversary or some other, undefined, “special occasion” – they don’t know if that’s how Amendment 41 will eventually be interpreted.

Finally, when asked if the ban means that a government employee’s dependent child can’t apply for or accept a college scholarship, OLLS said: “Arguably, the answer to this question is ‘yes.’ “

Adding to the confusion is Amendment 41’s creation of an “independent ethics commission” that has the power to conduct investigations, issue subpoenas, hold public hearings and impose penalties in connection with violations of Amendment 41 “or any other standards of conduct.” The commission also has the authority to issue advisory opinions on ethics issues arising under Amendment 41 or any other standards of conduct.

Amendment 41 is silent on what branch of government this commission is to be a part of, nor does it address how the commission will interact with the already-existing ethics boards lodged in the executive and legislative branches. Legislative Legal Services notes, however, that under Amendment 41, the commission’s rulings and opinions would take precedence over the rulings and opinions of the ethics boards, implying that a company’s employees can no longer rely on those rulings and opinions to govern professional or personal relationships with public officials and government employees.

In light of what the Office of Legislative Legal Services accurately characterizes as Amendment 41’s “vague terms, broad definitions and ambiguous provisions,” business dealings with Colorado state and local governments – even interactions that were perfectly lawful and commonly accepted in the past – must be scrutinized cautiously and conservatively, lest one inadvertently run afoul of Amendment 41. Future enabling legislation, commission actions and court rulings may, over time, clarify Amendment 41.

Meanwhile, stay tuned.

Robert St. John Roper is a partner with the Denver law firm Moye White LLP. Roper is the firm’s telecom and media chair. He can be reached at robert.roper@moyewhite.com.

Copyright 2007, Rocky Mountain News. All Rights Reserved.