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State's ethics commission makes hash of Amendment 41

Rocky Mountain News

Published December 8, 2008 at 12:05 a.m.

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If Office Depot gives a 15 percent discount to all Colorado public school teachers who buy school supplies, that's probably OK. But if a Krispy Kreme store offers half-price doughnuts to cops from Denver but not Aurora, that may be a "special discount" violating Amendment 41.

That's the degree of hair-splitting the state's Independent Ethics Commission is making in its efforts to enforce that noxious amendment. The amendment clearly states that it's a violation of the Colorado Constitution for a public official to accept, solicit or receive any "special discount," along with other gifts and favors.

And yet the commission seems determined to twist that plain language so that politicians and public workers can continue to receive a wide variety of goodies that by any literal reading should be considered illegal.

Don't get us wrong. The plain language of the amendment defies common-sense remedies. But by offering such leeway, the commission is in fact sanctioning unconstitutional actions by government officials.

The "special discount" ruling, issued last week, follows a July ruling on most of 41's gift ban and a November decision on official travel.

In July, the commission allowed public officials and their family members to receive most scholarships, honoraria, inheritances and prizes worth more than $50 in a calendar year - even though all are banned by Amendment 41.

The November decision stated that it was OK for government officials to accept subsidized travel from business groups - for example, the recent trade mission to Asia joined by Gov. Bill Ritter and other public officials and business leaders - under certain circumstances. Why, when Amendment 41 plainly prohibits travel allowances? "[A]cceptance of travel-related expenses may be considered a gift to the state or local government," the commission concluded, "rather than to the public official or employee" (our emphasis).

So that's the ticket. The government is the true beneficiary, not the people who got free or discounted plane fares and hotel stays in Tokyo, Beijing and Shanghai.

Such junkets can indeed improve commercial relationships with overseas governments and entrepreneurs. But 41 bans them, so long as the government officials on the trips don't pay full price.

The same should apply to special discounts. While 41 says no government employee can solicit or accept "any gift or other thing of value . . . greater than fifty dollars ($50) in any calendar year, including but not limited to . . . special discounts," the commission has presumably found some hidden meaning that's not part of the amendment.

Rather than disallowing all such favors for public workers, the ruling says "the [c]ommission does not believe that the voters intended to bar commercial discounts that are made available to a broad group of individuals, where there is no realistic possibility that the offeror is seeking to influence an official act or decision or to reward a government official or employee for any official action."

Essentially, the commission thinks its role is to determine what it believes the voters intended, rather than apply the plain language of the amendment they actually approved.

Because the Colorado Supreme Court has ducked the opportunity to consider whether the amendment infringes on freedom of association and other core liberties, the commission will presumably continue to get away with interpreting voter intent rather than enforcing the constitution - even the ridiculous parts.

Comments

  • December 8, 2008

    5:29 a.m.

    Suggest removal

    roger44 writes:

    So that makes the ethics commission unethical....

  • December 8, 2008

    6:23 a.m.

    Suggest removal

    Mike_In_Hartsel writes:

    ...and stupid

  • December 8, 2008

    6:42 a.m.

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    blacksho89 writes:

    Senator-elect Jared Polis wrote the POS amendment. Ask HIM what it means. He has previously refused to do so.

  • December 8, 2008

    7:15 a.m.

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    angka writes:

    Really can't stand that this is all getting sorted out, can you?

    Yes, the state can be the beneficiary of travel. Yes, the commission can set reasonable interpretations of the law like we do with all kinds of laws. No, the sky is not going to fall, even though Peter Groff has to pay for his Rockies tickets now. Clutch those pearls!

    For God's sake, let it go, Rocky. It's ridiculous, the people spoke over two years ago.

  • December 8, 2008

    8:02 a.m.

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    freethinker07 writes:

    angka

    Yes the people spoke two years ago. Now the politicians are speaking. And they have said that junkets at corporate expense are ethical.

    Do you think that when defense contractors send members of congress to luxury hotels that it is ethical? Or are you one of the people who think that it is only ethical for Democrats to go to luxury hotels?

  • December 8, 2008

    9:50 a.m.

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    mikeyg writes:

    If I remember the last court ruling right they said that the legal challenges to A 41 were not ripe until rules had been passed and individuals actually harmed before they'd judge the constitutionality of A 41 and it's worst provisions.

    It seems to me that with the ethics committee passing these rules that are in clear contradiction to the plain language of the amendment that all we need now is a harmed or aggrieved person or class of people to step up and file the challenge.

    So, who will it be? Will it be the male state government employee who watches a pretty single co-worker get promoted ahead of him who he knows regularly gets drinks bought for her or goes on dates where she's treated to dinner and a movie, something prohibited by A 41, but possible with the committee's rules? Will it be vendors competing for the same contract who find out that the children of public officials awarding the contract are on any kind of scholarship?

    Since the committee is going out of its way to make sure A 41 doesn't impact anyone who they are divining the voters who passed A 41didn't want impacted, despite the plain language of the amendment, there will certainly fewer obvious people harmed by A 41. The legal challenge will need to come from someone who is jilted by government at any level; that person who knows of a violation of the all-encompassing restrictive language of A 41 that prohibits grandparents from taking their grandchildren to Broncos games if the parent works for any government.

    So, who out there has a grudge, loves the sweet smell of revenge, just enjoys being a pain in the butt to "the man" and any other malcontent? C'mon, there's lots of folks like that in our society, which ones of you will step up and exact your revenge?

  • December 8, 2008

    12:01 p.m.

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    opinionatedcolo writes:

    Those who passed this ill advised terribly written foolish bill (including Representative elect Polis) kept claiming that the stupidest parts of the bill would be "interpreted" by the commission to make them less moronic. The problem is and remains the language of the statute.

    It appears that the commission is doing its best to make this work without the worst consequences.I do not disagree that most of the exceptions and rules made by the commission are reasonable, but the amendment does not allow them to substitute their judgment in place of the clear language of the law. The Supremes reserved the right to review the regulations and I just do not see them sustaining most of these exceptions. The people voted for this stupid law despite numerous warnings, and they should have to live with the consequences.

  • December 8, 2008

    3:11 p.m.

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    HopiMedicineMan writes:

    We didn't need Amendment 41 for any purpose. State government has been functioning just fine until envy became the national value.

  • December 9, 2008

    9:48 a.m.

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    conniesz writes:

    Laws are subject to interpretation all the time. Even laws passed by congress and signed by the president are then subjected to the "policy wonks" who determine what the newly passed legislation "really" means. It's the way our government works. Language is never so clear as to not be open to interpretation - just look at what is done with the very plain and simple language of the US Constitution.

    'Twas ever thus.