Gift ban restored, but ruling leaves much unsettled
High court's decision on Amendment 41 doesn't address constitutionality
By Myung Oak Kim, Rocky Mountain News (Contact)
Tuesday, February 26, 2008
Darin McGregor / The Rocky
Rep. Al White, R-Hayden, sits between lobbyists Jason Hopfer, left, and John T. Kunkle outside the committee rooms at the Colorado Capitol on Monday.
Nancy Friedman
Phillip M. "Matt" Smith
Sally Hopper
Roy Wood
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A Monday court ruling on Amendment 41, the controversial law that limits gifts to government workers, failed to clarify the measure and leaves the door wide open for more court challenges.
The state Supreme Court reinstated the gift ban and ordered a lower court to remove an injunction it issued in June.
But in its ruling, the court declined to comment on the larger issue of whether the gift ban is constitutional.
"The fight over the merits hasn't even begun," said Doug Friednash, a lawyer who sued the state, arguing that Amendment 41 is unconstitutional. "From that perspective, and the perspective of seeking clarification . . . I think there's going to be potentially hundreds of cases.
"It's not a question of if, it's a question of when cases are going to go forward."
The state's high court said it's too early to challenge the state constitutional amendment, approved by voters in November 2006, because an ethics commission charged with enforcing the measure hasn't completely formed yet.
Backers of Amendment 41 applauded the decision, calling it a victory for those pushing for clean government.
"Today is a good day for open, honest and accountable government," said Jenny Flanagan, executive director of Colorado Common Cause.
The injunction against the gift ban remains in effect for two weeks, while opponents consider an appeal. If opponents ask the state for another hearing, the law could remain blocked longer. Friednash said they haven't decided what to do yet.
"I think today there are more questions than ever before as to the meaning of Amendment 41," Friednash said.
Friednash said Monday's ruling failed to clarify the law's scope and could put certain gifts, such as college scholarships, in jeopardy.
Attorney General John Suthers agreed that the decision "gives very little direction to all these public employees out there."
Amendment 41 was designed to reduce the influence of lobbyists and interest groups on government. It bans all gifts from lobbyists and limits other gifts and services to no more than $50 per year. Elected officials, state and certain local government workers and their children and spouses are subject to the law. In addition, elected officials cannot take lobbying jobs until two years after leaving office.
Early last year, the law drew sharp criticism because of interpretations, including from Suthers, that gifts such as scholarships to children of state workers and Nobel Prize money to state college professors were in jeopardy.
Two scholarship groups, the Boettcher Foundation and the Daniels Fund, filed lawsuits asking judges to declare that their scholarships were not subject to Amendment 41. Judges granted those rulings.
Last spring, Friednash and lawyer Jean Dubofsky asked Denver District Court Judge Christina Habas to block Amendment 41's gift-ban provision, arguing that it prevents constituents from communicating effectively with lawmakers. They sued on behalf of a group of individuals, elected officials and nonprofits, including the Adams County Economic Development Council and Developmental Pathways.
Habas ruled in their favor.
The state attorney general's office appealed to the state Supreme Court.
In its ruling, the court acknowledged that Amendment 41 has caused anxiety.
"Perhaps in the future, there may be truth to the concerns expressed by plaintiffs, but that is for the commission to consider as it enforces the amendment, not for this court at this time," the ruling said.
"For now, these fears, which undoubtedly have caused plaintiffs and others much anxiety, are merely speculative interpretations of what might occur once the (ethics) commission is operative. We refrain from entering this sphere of uncertainty."
kimm@RockyMountainNews.com or 303-954-2361
What's next
Monday's ruling leaves plaintiffs free to pursue their claims that Amendment 41 violates freedom of speech, association and petition.
The ruling threw out only a lower court injunction blocking implementation of Amendment 41, saying it was premature because the ethics commission established under the ballot measure has not yet begun its work. The suit itself is still alive.
Plaintiffs have several broad options, said their attorney, Douglas Friednash:
* They can wait until the ethics commission meets and amend their suit, based on the panel's actions.
* They can argue that Amendment 41 is unconstitutional no matter what the commission does and should be thrown out at once - a move hinted at by the court itself.
* They can ask the court to reconsider its decision. They will decide early next week whether to take that step.
* The ethics commission still needs to appoint a fifth member and create procedures to handle complaints. The panel's next meeting is March 17.
History of the measure
* November 2006: Voters approve Amendment 41, billed as a way to reduce lobbyists' influence on government officials.
* December 2006: Colorado Attorney General John Suthers says the law bars University of Colorado professors from accepting Nobel Prize money and public employees' children from taking certain scholarships.
* January 2007: Vague language in the law causes confusion over to whom the law applies and what is prohibited.
Amendment 41 backers say lawmakers can refine Amendment 41 to answer all questions, but legislative leaders are reluctant to touch the political hot potato. Two groups form: the Article 29 Coalition that backs the amendment, and the First Amendment Council, which opposes it.
* February 2007: Several fixes are floated in the legislature. The Boettcher Foundation wins a court ruling that says scholarships are exempt. The decision is supported by the Colorado attorney general's office. The Daniels Fund receives a similar ruling.
* March 2007: Lawmakers hammer out Senate Bill 210, which puts into place an ethics commission created under Amendment 41.
* April 2007: Gov. Bill Ritter signs SB 210.
* May 2007: A court hearing is held on a lawsuit claiming that Amendment 41 is unconstitutional because it creates a chilling effect on free speech.
* June 2007: Denver District Court Judge Christina Habas issues an injunction blocking the gift-ban provisions. The ruling means lobbyists and others are free, for now, to give gifts and meals. The state appeals to state Supreme Court.
* February 2008: The Supreme Court reinstates Amendment 41, saying Habas ruled prematurely.
The commission
Amendment 41 created an independent ethics commission that is charged with reviewing complaints and issuing advisory opinions about gifts and potential violations of standards of conduct by elected officials, government workers and their immediate relatives. The commission has four of the five required members and hasn't opened for business yet.
Nancy Friedman: Interim chair; Evergreen Democrat appointed by Gov. Bill Ritter; a lawyer and business consultant who served many years handling ethics issues for New York City government.
Phillip M. "Matt" Smith: Grand Junction Republican; appointed by state Supreme Court Chief Justice Mary Mullarkey; a lawyer and former state representative.
Sally Hopper: Golden Republican; appointed by state Senate; a former state senator.
Roy Wood: Denver Democrat; appointed by House of Representatives; a University of Denver communications professor specializing in ethics issues.
Amendment 41
* What: A constitutional amendment approved by voters in November 2006 that bans lawmakers from accepting gifts from lobbyists - or gifts of more than $50 from anyone. It also ban gifts worth more than $50 to state employees or their immediate families.
The amendment also states that elected officials cannot take lobbying jobs until two years after leaving office.
Practical effects of court ruling (which could take effect in two weeks):
* No gifts worth more than $50 in a single year to state employees or their families.
* No gifts at all by lobbyists to legislators - not even meals.
* The attorney general earlier ruled that employees' children can accept scholarships that require students to provide something in return for the money, such as maintaining a certain minimum grade point average.
* Unresolved is whether lawmakers and other public officials can go to dinners and other events held by nonprofits as nonpaying guests, said John Meeker, director of Developmental Pathways, which sued to block the amendment. The events are an opportunity for the state officials to see the groups' work firsthand. More than 20 legislators came to the group's annual dinner in 2006. Only two showed up in 2007, Meeker said.
Comments
Posted by Froward69 on February 25, 2008 at 9:37 a.m. (Suggest removal)
oh oh... I just gave an I-pod to my brother for his birthday... He works at DIA... I hope we aren't prosecuted. as by that act (I gave he received) we both are guilty...
Posted by angka on February 25, 2008 at 9:48 a.m. (Suggest removal)
BS -- an ethics commission that doesn't even exist yet would have to give a crap about your ipod, which they wouldn't, and somebody would have to prove that you gave it to him for an official favor--extra barf bags or something. you're buying "lobbyist-driven hysteria," but you probably already know that.
Posted by malis on February 25, 2008 at 10 a.m. (Suggest removal)
Ho ho ho Frowald...If *I* give an iPod to your brother in exchange for an introduction to an official who might give me business, there'd be a case. Since the language of the statute specifically exempts gifts among family and friends on customary occasions, you're safe. (angka, I wouldn't assume Frowald already knows that...he doesn't seem very bright).
Posted by infidel91 on February 25, 2008 at 10:30 a.m. (Suggest removal)
Amendment 41 does exempt gifts by family members on special occasions.
However, I can't find anything in the text of the amendment that requires that a transfer of money or a gift to a public employee be made in exchange for access or governmental favors in order to be a violation. The plain language of the amendment makes such a transfer a per se violation.
Posted by freethinker07 on February 25, 2008 at 11:06 a.m. (Suggest removal)
The language of the Amendment (the statute hasn't been written yet) exempts only "special occasions" not "customary occasions."
"special occasions" does not appear to have been a legal term before Amendment 41. So we will have to see what the courts say it means.
After what they have done with "marriage", "gay", "discriminate", and "preference" I shudder to think what they might come up with.
And Malis, you might look up the difference between a constitutional amendment and a statute.
Posted by Diff on February 25, 2008 at 12:05 p.m. (Suggest removal)
I think this is a move in the right direction - I believe money going to law makers via campaign contributions and lobbyists is one of biggest things hurting the democratic process! Yes I know this covers more than those elected in Colorado as it should. Good move by our Supreme court.
Now if we could get term limits for all elected official and some level of limits on judges (+-10 years?)
We just might make some headway toward making the legislature work for and pay attention to the people who they represent and not just those who but cash in their pockets!
Posted by RickyLee on February 25, 2008 at 12:13 p.m. (Suggest removal)
Talk about fear-mongering. Nobody's going to NOT get their scholarship over this, and no kid is going to go without Christmas
...(I mean HOLIDAY)....presents like an I-Pod.
If and when the commission gets it's act together, some sense will be administered.....I hope.
Posted by malis on February 25, 2008 at 12:20 p.m. (Suggest removal)
freethinker, thanks for the clarification...has been long enough, and it's unimportant enough, that most of the specifics slipped from my mind. I should have remembered because I voted against Amendment 41 simply because I think it's too limited an issue to be in the state Constitution.
That despite my opinion that most opponents "doth protest too much." They could have avoided it had they passed a reasonable law but they couldn't manage that so are stuck with the language of their worst opponents (and you're right...the law with the highest impact is the Law of Unintended Consequences).
Posted by 3rdGenerationNative on February 25, 2008 at 12:31 p.m. (Suggest removal)
freethink, does this apply to other forms of graft? For two examples, Doug Bruise alleges corruption by a SW Colorado school board and swears he won't take bribes (free lunches) from lobbyists.
Yet, he's on record as offering to take every other legislator to lunch in an attempt to -I don't know - quiz them on the US Constitution, maybe. Yet, he's on record as giving bags of jelly bellies and/or bouquets to house members and secretaries.
In the El Paso County commissioners minutes is this record: Dougie won a contract for county office supplies from a local dealer but when they found it was the highest bid, PLUS the supplier was one of DB's biggest campaign contributers, the other commissioners renegotiated the contract with an out-of-town company and forced Bruce to return the overpriced merchandise.
Maybe there are other amendments or statutes in place before 41 that apply to DB. Just asking.
As long as I'm off-topic, anyone want more background in contentious history of His Highness' Colorado Springs colleagues?
Posted by theQ on February 25, 2008 at 1:08 p.m. (Suggest removal)
You pigs better get to the trough before its two late.
Posted by IKnowIt on February 25, 2008 at 2:01 p.m. (Suggest removal)
Anyone who knows anything about how things work at the State Capitol is aware of the fact that the negative "lobbyist" stigma is a joke. They simply provide information to already friendly legislators who have no staff and very few other resources. If you want to talk about federal lobbyists, that's a different story. But the Polis Amendment was nothing but an attempt by Jared to make a congressional campaign platform out of nothing. Great job, Jared. Joan Fitz-Gerald will make a mockery out of him. By the way, both the AG and the legislature's lawyers have already said that this will apply to all gifts and includes scholarships. Of course, everyday will be a "special occasion" for me so none of this will apply.
Posted by buffsblg on February 25, 2008 at 2:31 p.m. (Suggest removal)
While I sympathize with many of the issues Amendment 41 tried to address, I eventually voted against it because it was poorly written and much too broad. I do not believe the commission can alter the language of the amendment and as written, scholarships and grants to the children of state employees are banned. If the supporters do not like that interpretation, they should have written a better amendment. The law of unintended consequences strikes again.
Posted by farsidefan on February 25, 2008 at 5:49 p.m. (Suggest removal)
Great news ! Now maybe the average Joe can get a seat in a restaurant near the capitol. For years and years, I've seen lobbyist(s) and policiticians eating lunch, dinner together. Anyone remember the great days and nights at the Quorum restaurant before it closed ? Or the Le Profile ? Full of lobbyists and politicians.
How about all those buses pulling up in the capitol circle to take legs to dinners,games,ski areas, etc.
I agree it is not to the level of the feds lobbyists. They still curry favor with gifts,meals, etc.
One of my friends was a state senator for years. Ah, the stories he would tell.
Posted by hmmm on February 25, 2008 at 9:52 p.m. (Suggest removal)
It's interesting that all the supporters of this Amendment talk aobut Legislator or elected officials accepting gifts in return for "favors" - not government employees. Yet, the Amendment covers employees.
RickyLee - Christmas (or Hanukah, or Kwanzaa, or Solstice, Easter, Passover, birthday, graduation) would presumably count as a "Special Occasion", so of course my kids are going to be able to get presents on those occasions. It's the "just because" gift from Grandma (not one of those days listed above) that are banned now. So Grandma can't be out shopping, see a cute toy or outfit & give it to her grandchild "just because" - unless of course, I give her the purchase price for it. Why? Because I am a State employee. A friend can't even treat me to lunch because it violates 41. The Amendment is poorly written. The least Polis could have done was include language that prohibited gifts IN EXCHANGE FOR GOVERNMENT SERVICES OR PREFERENTIAL TREATMENT. But wait, there are laws on the books already that cover bribery.
Frankly, Amendment 41 has already proven to be a deterrent to recruiting qualified people to work for a non-federal government organization. Who wants to give up "gifts"? Private Sector employees - would you be willing to work for a company that had this gift ban as corporate policy? Somehow, I think not. I also think that a lot of good government employees are going to leave service because of Amendment 41. For all that civil service employees have a reputation of being lazy & useless, I've never met one like that. As a result of 41, the State will face more difficulty recruiting & retaining qualified staff.
That's my 2 pennies. Thanks for listening to me rant.
Posted by KneeDeep on February 26, 2008 at 4:26 a.m. (Suggest removal)
hmmm you nailed it!
41 was a poorly crafted Amendment for a problem that did not exist! If you think a free lunch with a State employee will win you Million dollar contracts you live in a fantasy land. Once again Populism in the name of Democracy will ultimately cost the taxpayer money and unleash a rash of unintended consequences. Folks, we do not live in a Democracy, we live in a Constitutional Republic (Thankfully so!). A constitutional republic is a state where the head of state and other officials are elected as representatives of the people and must govern according to existing constitutional law that limits the government's power over citizens. In a constitutional republic, executive, legislative, and judicial powers are separated into distinct branches so that no individual or group has absolute power and the power of the majority of the population is checked by only allowing them to elect representatives. The fact that a constitution exists that limits the government's power, makes the state constitutional. That the head(s) of state and other officials are chosen by election, rather than inheriting their positions, and that their decisions are subject to judicial review makes a state republican.
This is the true value of our form of government, it provides protection from the tyarrany of the majority and allows equal representation for all. This allows freedom of religion as well as freedom from religion. This allows the lunatic left and the knee jerk right to coexist. The problem with Admendment 41 is that there is an Admendment 41 in the first place! The State constitution should not be allowed to be so easily changed by the referendum process in place. If you value freedom, understand these precepts, our Founding Fathers certainly did!
Posted by rhoadie on February 26, 2008 at 7:44 a.m. (Suggest removal)
The basic issue underlying this debate is whether or not we can trust our elected officials to be ethical, law-abiding citizens who will put OUR best interests before their own personal interests. If we cannot, then our entire system of representative government is deeply flawed.
Posted by theQ on February 26, 2008 at 1:31 p.m. (Suggest removal)
I told you pigs that you would have to get to that trough quick.
Posted by 3rdGenerationNative on February 26, 2008 at 1:41 p.m. (Suggest removal)
Does the term 'Pigs' apply to both politicians and government public servants alike? Show me where utilities employees get a break on their utility bill, Denver general Hospital employees get free dental/medical insurance, Denver water board gives free lift tickets to Winter Park.
Posted by Tsarovite on February 26, 2008 at 4:19 p.m. (Suggest removal)
Both of my parents happen to work for the state, and I will be graduating from high school next year. Does this revival of Amendment 41 mean that I cannot accept scholarships? If so, than I am losing my right as a citizen to further continue my education, and my 4.0 GPA means nothing since my family does not currently have the funds to send me to college without a scholarship or two.
Thank you, Colorado. I'll be sure to make stupid decisions too when I'm old enough to vote.
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