Colorado Amendment 41
||The neutrality of this article is disputed. (March 2012)|
|Elections in Colorado|
Amendment 41's "gift ban" places new restrictions on gifts, broadly defined, given to Colorado state and local elected officials and employees in executive and legislative branches. Such persons are prohibited from receiving gifts with value exceeding $53 per year, subject to an adjustment for inflation. Gifts from lobbyists are banned regardless of amount. There are several exceptions to the gift ban, including an exception for gifts given between personal friends and relatives on special occasions and another for travel paid for by non-profits that receive less than 5% of their revenue from corporate donations or by other state or local governments.
Amendment 41's "anti-revolving door" provision prohibits statewide elected officeholders from lobbying certain state elected officials for pay for two years after leaving office.
Finally, Amendment 41 creates the Colorado Independent Ethics Commission. Four members of the Commission are appointed by the State House, State Senate, Governor and the Chief Justice of the Colorado Supreme Court. The fifth member must be an official or employee of a local government and is selected by the other four members. Members serve staggered four-year terms and receive no salary. No more than two Commissioners may be members of the same political party.
The Ethics Commission issues advisory opinions and letter rulings to covered individuals or others asking whether a proposed course of conduct would violate Amendment 41 or any other ethical standard of conduct or reporting requirement. The Ethics Commission is also required to investigate and hold a hearing on all non-frivolous complaints alleging violations of the gift ban, the anti-revolving door provision, or any other standard of conduct or reporting requirement in state law.
The Ethics Commission was originally placed in the Colorado Department of Personnel and Administration. In June 2010, it was moved to the Judicial Branch.
The state legislature, in the same legislation stating its interpretation of the initiative, asked the Colorado Supreme Court to resolve the dispute over the constitutionality of this implementing legislation, but it declined to act.
A state trial court of general jurisdiction in Denver, Colorado issued a preliminary injunction against the enforcement of Amendment 41 on U.S. constitutional grounds in 2007. The state court in this case issued a preliminary injunction banning enforcement of the gift ban on First Amendment grounds during the pendency of the litigation.  On appeal to the Colorado Supreme Court, the preliminary injunction was then vacated on February 25, 2008, on the grounds that the suit was not ripe prior to the organization of the independent ethics commission, without reaching the merits of the constitutionality of Amendment 41 .
In 2008, then-Secretary of State Mike Coffman filed suit in Denver District Court against the Ethics Commission, attempting to block an inquiry into whether he permitted employees in his office to run outside private businesses using government data. After the Commission found that he was not aware of such activities, the legal challenge was dropped.
In 2008, Colorado Ethics Watch filed suit in Denver District Court against the Ethics Commission for failing to make documents regarding advisory opinion requests, letter ruling requests and non-frivolous complaints available for inspection under the Colorado Open Records Act. The case resulted in an order requiring documents to be made public and an award of attorneys' fees.
In 2009, The Colorado Independent filed suit in Denver District Court against the Ethics Commission for violating Colorado's Open Meetings Law by deciding the complaint against Mike Coffman behind closed doors. The case resulted in an order for production of executive session tapes and an award of attorneys' fees.
After these two legal losses, the Ethics Commission took steps to improve its compliance with Colorado's transparency laws.
In 2013, Secretary of State Scott Gessler filed suit against the Ethics Commission, arguing that Amendment 41 is impermissibly vague and that the Commission's hearing process violates due process. The case has not been decided.
Proposed constitutional amendments
Amendment 41 supporters proposed a clarifying citizen initiative aimed at the November 2007 ballot, which escapes a usual ban on non-fiscal citizen initiatives at odd numbered elections by including a tax on lobbyists to finance the implementation of Amendment 41. But, this proposal was invalidated by the body that oversees the initiative process in Colorado for failing to state a single subject, and did not make it onto the ballot as a result.
No ballot issues to interpret Amendment 41 will be placed before Colorado voters in 2008. The Colorado General Assembly did not propose any referrenda to do so, and no citizen initiated ballot issues were proposed and had titles approved in time to be included on the November 2008 ballot.
Complaints and Penalties
The Ethics Commission has handled fewer complaints than opponents of Amendment 41 feared, and even fewer have found any violation or imposed any penalty.
In 2009, the Ethics Commission fined a state employee $400 for operating an outside business that conflicted with his state job.
In 2011, the Ethics Commission fined the Public Trustees Association of Colorado just under $3000 for gift ban violations.
On June 13, 2013, the Ethics Commission ruled unanimously that Secretary of State Scott Gessler violated the state discretionary fund statute by using public money to attend the Republican National Lawyers Conference in 2012. It also ruled 4-1 that Gessler violated the discretionary fund statute and state Fiscal Rules by requesting and receiving a fiscal-year end sweep of remaining discretionary account funds as personal income. The Commission voted to fine Gessler approximately $1600.
Amendment 41 was advanced by Colorado Common Cause with the financial support and endorsement of Democrat Jared Polis, then a member of the State Board of Education, and more importantly, one of the leading financial backers of Democrats and liberal causes in Colorado. Many have pointed out the irony of Polis's spending money to establish a public policy of prohibiting the use of money to influence public policy.
Democrats in Colorado have been divided by Amendment 41 before and after its enactment on the lines described above. Democratic members of the Colorado General Assembly have taken differing sides on how to implement the measure since it has been passed.
Some Colorado political observers[who?] have hypothesized that Jared Polis supported the measure in an effort to advance his fortunes in the upcoming open Congressional race in Congressional District 2 (Boulder) which incumbent Democrat Mark Udall is vacating to run for the U.S. Senate in 2008. Those observers[who?] see the battle over Amendment 41 as a proxy fight between Polis supporters and those who did not want Polis to have a major accomplishment going into the 2008 Congressional election.[dubious ] Other observers[who?] discount this political interpretation of the struggle and see this as a dispute over legal interpretation and process issues. Polis won a three-way primary battle over former Colorado Senate President Joan Fitz-Gerald and environmental activist Will Shafroth on August 12, 2008.
Since Amendment 41 was adopted, the Republican caucuses in the state house and state senate, both of which are controlled by Democrats, have largely taking a position embracing strict enforcement of Amendment 41, despite a history of opposing measures proposed by Common Cause. Republicans have generally argued that the Amendment 41 should be given the strict interpretation urged by Amendment 41 opponents, and that legislation to weaken this strict interpretation should not be adopted.
- Colo. Const., art. XXIX, sec. 5.
- Colo. Const. art. XXIX, sec. 5; Colorado Independent Ethics Commission Ethics Handbook 2013-15, http://www.colorado.gov/cs/Satellite/DPA-IEC/IEC/1251588143132/
- Colorado House Bill 10-1404.
- Buescher v. Whitfield, http://www.citizensforethics.org/page/-/COLORADO/pdfs/IEC/Order%20Complaint%2010-06.pdf
- Robert Wechsler, the Conflicts of Colorado's Public Trustees, http://www.cityethics.org/content/conflicts-colorados-public-trustees
- Joey Bunch, "Colorado Secretary of State Scott Gessler wrong to use state funds for trip, ethics commission rules - The Denver Post http://www.denverpost.com/breakingnews/ci_23453397/colorado-secretary-state-scott-gessler-wrong-use-state#ixzz2WJBklUB3
- Legislative Council ballot analysis
- Ballot question language
- Constitutional Amendment language
- Suthers: Amendment 41 prohibits Nobel Prize money
- No On 41 committee opposing the initiative
- Coloradans for Clean Government political action committee supporting the initiative
- Bell Policy Center 2006 Voter's Guide analysis
- [Colorado Independent Ethics Commission website]
- [Eye on the IEC website maintained by private watchdog group Colorado Ethics Watch]