AG answers questions on Amendment 41


January 11, 2007

By Marianne Goodland

Silver & Gold Record reporter

Colorado Attorney General John Suthers has responded to a Dec. 4 letter from President Hank Brown, who sought clarification on a number of issues related to Amendment 41, the “Ethics in Government” ballot measure passed in November. In a Dec. 28 press release, Suthers indicates strict interpretation of the amendment would produce an “absurd result” and agrees that the amendment needs to be clarified.

In his letter, Brown asked for guidance on whether the amendment applies to prizes awarded to faculty such as Nobel Prizes or to scholarships granted to children of University employees.

The Attorney General Office’s opinion was written by Deputy Attorney General Jason Dunn, who states that based on the amendment’s language, it is unlikely that university professors would be able to accept Nobel Prizes or that children of university employees would be able to accept scholarships.

Dunn’s memo focuses on two concepts: “lawful consideration,” a term used in the amendment but not defined, and “past performance.” According to Amendment 41, public officials and state or local government employees may accept gifts of $50 or more if there is “lawful consideration” given in exchange for the gift. But without a definition of that term, Dunn says, the state must apply traditional contract law principles, and previous case law shows that lawful consideration does not include past performance, which he says is the basis on which a Nobel Prize and similar awards are given. “If, however, there is a requirement that the monetary portion of the award be used for a specific purpose or in a certain manner, then the promise of future performance under those guidelines may constitute lawful consideration,” Dunn wrote. For example, a research grant would probably be acceptable under Amendment 41, Dunn says, because the grant is expressly tied to future conduct.

Dunn explains that the monetary portion of a Nobel Prize or similar cash award “is clearly a `gift or other thing of value’ worth more than $50,” as defined in Amendment 41. Hence, a state employee cannot accept such an award if it is given by a “person,” defined in the amendment as individuals, corporations, business trusts, estates or other similar entities. Dunn says that while the definition of “person” includes corporations, it does not specify whether the corporation must be based in Colorado.

The concept of past performance also applies to scholarships received by university employees or their dependents, Dunn says. Scholarship awards that are based solely on past performance by the student would be prohibited, he says. However, if a scholarship requires the student to maintain a specific grade point average in the future, that could fit the definition of “lawful consideration,” he says.

In his letter, Brown asked whether university employees could receive gifts or aid from private or non-profit entities such as the American Red Cross or Make-A-Wish Foundation. “As unfortunate as it may seem,” Dunn replies, “poor drafting of the measure likely prohibits such gifts.” While the amendment allows employees to receive gifts on special occasions from relatives or friends, Brown asks if that eligibility would apply to gifts from relatives or friends on “non-special occasions.” Dunn says the amendment would prohibit such gifts, but notes that the term “special occasion” is “undefined and extremely vague.” In response to another of Brown’s questions, Dunn says employees would be able to accept lottery or raffle winnings, because the employee would have given something of value to receive an opportunity to win the prize.

In the press release that accompanied Dunn’s memo, Suthers said his office’s analysis of Amendment 41 has drawn “extremely unfortunate but unavoidable conclusions.” He said denying monetary prizes to professors or scholarships to children of university employees would be an “absurd result.”

However, Mark Grueskin, an attorney for Coloradans for Clean Government, which sponsored Amendment 41, told S&GR this week that courts have uniformly said they cannot interpret ballot initiatives to yield “absurd results.” With regard to Amendment 41, Grueskin said, voters did not intend such an “absurd” interpretation of the ballot initiative that would block scholarships or Nobel Prize awards, and that the Legislature and the courts “are not bound to adhere to the `absurd results’ that the attorney general found.”

Grueskin said the attorney general’s memo and press release “opened the door for legislative action by saying that if you read Amendment 41 literally, you will only end up with absurd results. You have to look at legislative intent. This is to keep a line drawn between people who want to influence government decisions and the decision makers. It has nothing to do with scholarships and Nobel Prizes.”

Dunn suggests that legislation could be drafted to define some of what he calls “ambiguous” terms contained in Amendment 41. In his press release, Suthers adds that he hopes the General Assembly will refer a measure to the ballot to give voters a chance to correct some of the confusion related to the amendment.

Brown told S&GR this week that University officials will urge the Legislature to clarify the amendment. He noted that many newspapers that originally supported Amendment 41 are now calling for the Legislature to address these concerns. The president also posted a letter to the University community on the CU Web site outlining his questions and the attorney general’s responses. The letter is published in this week’s issue.