Dangerous overkill in Amendment 41

A Draconian measure in the name of ethics

Published October 2, 2006 at midnight

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"This is like deja vu all over again."

- Yogi Berra

Yes, here we go again. Another well-intended group wants to insert a sweeping, complex law into the Colorado Constitution, this time in the name of ethics in government.

Now, we're all for ethics in government. We bet you're for ethics in government, too. No doubt proponents of Amendment 41 are counting on this universal attitude to put their draconian measure over the top.

But just because ethics in government are a good thing doesn't mean that a detailed description of what kind of gifts and favors can and can't be given to tens of thousands of public employees ought to be written into the state constitution.

Nor is the constitution the place for complex details governing how a new state ethics commission will function, or where we should spell out a ban on certain kinds of employment by elected officials after they leave office.

If Coloradans want to impose comprehensive ethics rules on their government, it should be done through a regular statute that can be adjusted over time to reflect new circumstances and unanticipated problems. But Amendment 41 provides no such flexibility. If voters pass it, we'll be stuck for many years not only with its virtues but with its far more numerous flaws.

Yes, Colorado needs to tighten controls on gifts that lawmakers can legally receive. The group sponsoring Amendment 41, Coloradans for Clean Government, justifiably makes much of the fact that gifts to lawmakers last year included one IBM Pocket PC worth more than $600, ski jackets, river tours and ski lift tickets, not to mention thousands of dollars in golfing and greens fees and numerous tickets to sporting and entertainment events. These larger gifts to lawmakers and state elected officials should be banned and we'd have no problem with legislation aiming to do so.

Nor do we object to creating an ethics commission to handle a limited list of complaints and issue findings, or a modest cooling off period before former politicians can lobby elected officials.

But Amendment 41 goes way beyond such worthwhile reform. Its scope is so wide and its gift-giving ban so broad that it is hard to see how it could be fully enforced. Indeed, the amendment's authors are promising, in effect, that it won't be enforced literally - as indeed they must if they expect the public to take them seriously.

Here's what we mean: Amendment 41 not only bans all lobbyist gifts to lawmakers, it also outlaws any "gift or thing of value" worth more than $50 a year to any employee of state, county or local government, or institution of higher education. It also bans such gifts to workers' spouses and dependents, and even to independent contractors that do business with the state. The implications of this definition are simply staggering.

As a coalition of opponents has pointed out, Amendment 41, if taken literally, could curtail such innocent and laudable activities as providing scholarships to the children of public safety officials injured in the line of duty; treating the children of government workers to a trip to Elitch's; babysitting the kids of a government worker for free; and perhaps even having the family of a government worker over for dinner.

Not so, retorts Coloradans for Clean Government. No one wants to ban such activities and no sane ethics committee would dare do so, it insists. Why, these activities don't even fall within the measure's stated purpose, one spokesperson told us, which is to outlaw "conduct that is in violation of (employees') public trust or that creates a justifiable impression . . . that such trust is being violated."

Well, we don't think a sane ethics committee is likely to go so far, either, but it could under the plain language of the amendment, even with its nice-sounding but vague preamble. And there must be hundreds of truly ambiguous cases that neither side in the debate over the amendment now anticipates. Why give an ethics committee in which individual members can issue subpoenas the right to make up answers as it goes along?

For that matter, at least a few phrases in the amendment might lead the ethics committee to think it should enforce a strict ban on harmless gift-giving.

For example, the amendment grants an exemption to the $50 limit for gifts "given by an individual who is a relative or personal friend of the recipient on a special occasion." Why use "on a special occasion" unless the amendment meant to bar gifts of more than $50 from relatives and personal friends of government employees on occasions that aren't "special"?

In other words, doting aunts and uncles used to showering gifts on their niece whose father works for the state Department of Transportation had better throttle back their generosity if Amendment 41 passes.

We are simply baffled as to why proponents wrote such a sweeping amendment. What problem were they trying to solve?

You'd think Colorado government, from top to bottom, was a cesspool of corruption, a place where every building inspector, environmental officer, corrections guard, wildlife official and permit granter were on the take. It isn't. Amendment 41 is overreaching and in large part unnecessary. Meanwhile, its few valuable provisions should be enacted as a regular law, not as a constitutional amendment.

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