Blake: Battle looming over 41

Published December 20, 2006 at midnight

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Very few state lawmakers are fond of Amendment 41, the strict ethics-in-government measure that voters just added to the Constitution.

But the coming fight in the legislature over the legislation implementing it will be between those who want to soften the blow - "the voters really didn't mean to say that" crowd - vs. those who want the language strictly interpreted.

One of those in the first group is Senate Majority Leader Ken Gordon, D- Denver. He suggests the penalty clause can be used to modify some of the harsher restrictions, such as the strict prohibition on gifts over $50 to state officers, employees or contractors.

The penalty clause specifies that any public official or government employee "who breaches the public trust for private gain" and those who "induce such breach" shall be liable to the offended government for twice the value of the gift.

Elected officials knew the consequences, Gordon said, but what of the maintenance man employed by the state who is given a used lawnmower by a neighbor who's moving to California? The public, he says, "didn't intend to cover that situation." After all, the maintenance man doesn't influence public policy and the neighbor doesn't expect him to.

He suggested the ethics commission created by the amendment could offer advisory opinions establishing a body of law letting people know what's allowed and what's not.

That sort of thinking doesn't sit well with Sen. Shawn Mitchell, R-Broomfield.

Some of the coming suggestions "would write out of existence the troubling provisions of Amendment 41," he said. "We might all wish it did more reasonable things but it doesn't. It's a poorly drafted pile of quicksand and the legislature can't convert it into an innocuous, reasonable measure."

Added Mitchell: If the legislature proclaims that gift restrictions "apply only to elected officials and only when they appear to betray the public trust, rather than to all government employees at all times, that simply ignores the plain and simple language of the amendment."

Chimes in Senate Minority Leader Andy McElhany: "Everyone I've talked to has a serious problem trying to use a statute to change the constitutional intent of the voters."

But Gordon notes that every bill passed by the legislature is presumed to be constitutional. If it approves an enabling measure that seems to be in conflict with that document, somebody is going to have to take the trouble, time and expense of mounting a court challenge. Few are willing to do that.

Caught in the middle is Rep. Rosemary Marshall, D-Denver, House sponsor of the implementing legislation. There is no Senate sponsor yet.

Some sort of bill is necessary, she said, just to get the ethics commission going. As for other modifications, "I have no intention of trying to go outside what we think the voters' message was to us."

Hmmm. Her stress on voter intent over language would seem to put her more in Gordon's camp than Mitchell's. But this isn't necessarily going to break down into a partisan fight. There are plenty of Democrats who are reluctant to tamper with the language of initiated amendments, just as there are some Republicans who would be happy to see the harsher restrictions modified.

Taken aback by the confusion and negative reaction to Amendment 41, the sponsors - who include moneybags Jared Polis - hired attorney Mark Grueskin to help draft the implementing legislation.

But the sponsors made his task harder by including this final paragraph in the amendment: "Legislation may be enacted to facilitate the operation of this article, but in no way shall such legislation limit or restrict the provisions of this article . . ."

Oath of office: Two new senators will be sworn in at 2 p.m. today: Steve Ward, who was elected by a vacancy committee to succeed Jim Dyer, and Donna Johnson, the interim successor to Dan Grossman.

Dyer resigned early because he was elected an Arapahoe County commissioner in midterm; Grossman quit to escape Amendment 41, which would seem to prohibit him from lobbying the legislature even part-time for two years.

Johnson, a long-time legislative aide, will serve only until Jan. 10, when Chris Romer will be sworn in to a four-year term. The vacancy committee couldn't muster a quorum; Johnson was appointed by Gov. Bill Owens.

Ward defeated former Centennial Councilwoman Betty Ann Habig 75-50 in a hard- fought vacancy committee election Saturday.

blakep@RockyMountainNews.com or 303-954-5119.

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