The Practitioner's Guide to Amendment 41 and the Colorado Independent Ethics Commission
| Publication year | 2009 |
| Pages | 37 |
2009, October, Pg. 37. The Practitioner's Guide to Amendment 41 and the Colorado Independent Ethics Commission
October 2009
Vol. 38, No. 10 [Page 37]
About the Author
Douglas J. Friednash, a former Democratic state representative, and Michael R. Davis, a former associate political director for President George W. Bush, are attorneys at Greenberg Traurig, LLP, where they focus on complex civil litigation and litigation involving public policy, campaign issues, the Colorado Constitution, and other matters related to election law and elected officials-friednashd@gtlaw.com; davism@gtlaw.com. Friednash served as defense counsel for Colorado Secretary of State Mike Coffman in the 2008 complaint filed by Colorado Ethics Watch, and as plaintiffs' counsel in Developmental Pathways v. Ritter. Both cases are referenced in this article.
This article provides Colorado lawyers a general guide to Amendment 41 to the Colorado Constitution, a voter initiative that creates a gift and revolving-door ban and establishes an independent ethics commission to enforce Amendment 41's provisions.
In November 2006, Colorado voters enacted Amendment 41, entitled "Standards of Conduct in Government," which was codified as Article XXIX to the Colorado Constitution as "Ethics in Government."(fn1) Amendment 41 generally (1) limits or bans gifts to state and local officials and employees, along with their families; (2) places a ban on elected statewide office holders and members of the Colorado General Assembly from lobbying their former colleagues for two years after leaving office; and (3) establishes an independent ethics commission to enforce Amendment 41's provisions.(fn2)
The proponents of Amendment 41, Common Cause and Coloradans for Clean Government, promoted the Amendment as a "clean-government" initiative.(fn3) The sponsors argued that (1) gifts from lobbyists to public officials damage the public's perception of the political process and Amendment 41 helps strengthen public confidence; (2) Amendment 41's two-year lobbying ban eliminates the temptation for elected officials to make decisions based on the potential of future employment; and (3) the establishment of an independent ethics commission is necessary, because elected officials may not always objectively judge the ethics of their peers.(fn4)
This article describes which individuals Amendment 41 covers, as well as major provisions of the Amendment. It discusses in detail the newly established Colorado Independent Ethics Commission (IEC) and its procedures. It also briefly addresses the Colorado Supreme Court's ruling on Amendment 41. It concludes with a discussion of the IEC's actions and related Colorado court decisions through August 31, 2009.
Covered Officials and Employees
Amendment 41 applies broadly to virtually all state and local officials and employees in Colorado and their immediate family members. This includes the following "covered officials and employees": any elected officer, including statewide elected office holders; the head of any department of the Executive Branch of government; elected and appointed salaried members of boards and commissions; members of the General Assembly; any elected or appointed official of any county or municipality (except home-rule counties and home-rule municipalities with adopted ethics codes); and any employee or independent contractor of the state executive branch, the state legislative branch, a state agency, a public institution of higher education, or a county or municipality.(fn5)
Amendment Prohibitions
Amendment 41 creates two gift bans for covered government officials and employees, as well as their immediate family members.(fn6) First, Amendment 41 creates the "fifty-dollar ban," which generally prohibits covered officials or employees-along with their spouses and dependent children-from receiving any money or gift or other thing of value of $50 or more (adjusted every four years for inflation) from any person in any calendar year.(fn7) For example, a state representative could accept free lunches from one individual-up to $49.99 each calendar year.
Second, Amendment 41 creates a "zero-dollar ban," which prohibits lobbyists from giving anything of value of any kind or nature, including meals or informational material, to covered officials or employees and their immediate family members.(fn8) For example, a lobbyist could not buy a statewide elected official or his wife a cup of coffee.
Amendment 41 also has a revolving-door provision that prohibits statewide elected office holders and members of the General Assembly from engaging in paid representation of other persons or entities before their former elected colleagues for two years after leaving office.(fn9) In other words, if a state representative or statewide elected official resigns or retires, he or she cannot accept money from a client to lobby the General Assembly or a statewide elected office holder for two years after leaving office.
Overview of the Colorado Independent Ethics Commission
Amendment 41 is enforced by the IEC, a five-member body that has jurisdiction over all covered officials and employees.(fn10) The IEC hears complaints, issues findings, assesses penalties, and issues advisory opinions on ethics issues arising under Amendment 41 and "under any other standards of conduct and reporting requirements as provided by law."(fn11) Amendment 41 does not define the term "other standards of conduct."(fn12)
Amendment 41 gives the Colorado legislature the power to pass enabling legislation to facilitate the operation of the Amendment, but this legislation may not in any way limit the scope of the Amendment.(fn13) As noted throughout this article, the Colorado legislature enacted legislation pursuant to Amendment 41.(fn14) Additionally, pursuant to Amendment 41 and confined by Article 4 of the statute, the Colorado legislature delegated to the IEC the requirement to adopt reasonable rules for the purpose of administering and enforcing the provisions of Article XXIX and "any other standards of conduct and reporting requirements as provided by law."(fn15) The IEC promulgated its rules of procedure (IEC Rules) in September 2008.
IEC Complaint Process
Amendment 41 allows any person to file a written complaint with the IEC asking whether any covered official or employee has, within the prior twelve months, violated Article XXIX of the Colorado Constitution or any other standards of conduct or reporting requirements as provided by law.(fn16) Complaints must be submitted in writing and specifically state their factual allegations.(fn17) Any final action of the IEC concerning a complaint is subject to judicial review by the District Court for the City and County of Denver.(fn18)
Complaint Dismissals
The IEC must dismiss without a hearing any frivolous complaint.(fn19) A "frivolous complaint" is defined as:
any complaint filed under...
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