A newly released opinion from the Colorado Independent Ethics Commission “effectively dismantles” the Amendment 41 gift ban for public officials that voters approved in 2006, says a Denver attorney who has been a chief critic of the law.
“I think this is the most dramatic and far-reaching opinion ever issued by the ethics commission,” said attorney Doug Friednash, a former Democratic state lawmaker who represented opponents of the gift ban in an unsuccessful legal challenge to overturn it.
“Over time, they (the ethics commission) have chipped away at it,” he said, “but this is almost like a smart bomb that just implodes Amendment 41.”
But supporters of the gift ban didn’t read Friday’s opinion that way, saying the commission crafted a narrow exception that won’t lead to abuse.
“It’s very clear that this is not a way around anything,” said U.S. Rep. Jared Polis, D-Colo., the chief proponent of the gift ban.
Elena Nuñez, program director for Colorado Common Cause, which also supports Amendment 41, agreed, calling the decision “careful.”
The opinion, approved by the ethics commission on a 4-0 vote, was in response to a query from the Colorado Legislative Women’s Caucus, a bipartisan group composed of the legislature’s 37 female lawmakers.
The group asked if it would violate Amendment 41 to partner with a nonprofit associated with Metro State College or, alternately, form its own nonprofit to solicit donations.
The group wanted to raise some $8,400 to be used for support staff, website costs and other expenses — such as food — in the course of honoring past and present women legislators.
“Modest amounts of money”
State Rep. Karen Middleton, D-Aurora, led efforts to organize the caucus and said the group held one catered event in April at the governor’s mansion that featured about 80 current and former women legislators. She said lawmakers involved in the group were careful to avoid any appearance that the group was soliciting contributions for personal or political gain.
“We had a lot of conversations about spending modest amounts of money,” Middleton said, adding that the group believed it should adhere to individual gift limits for public officials under Amendment 41.
In Friday’s opinion, the commission noted that while Amendment 41 bars lawmakers, like other public officials, from seeking or accepting gifts worth more than $50 per year, “this prohibition does not extend to an organization that the member (of the legislature) supports.”
“A public official therefore generally could solicit donations to private charities or other organizations in which they may be involved,” the opinion said. “This does not mean, however, that members of the caucus can do something through their association that they are not permitted to do as individuals under (Amendment 41).”
Potential for abuse anticipated
The commission seemed to anticipate potential abuse of the opinion, noting: “There is some additional concern by the commission that permitting individual members or groups of members of the General Assembly to create a section 501(c)(3) organization in order to solicit funds could be abused and used as a means to get around (Amendment 41) and campaign finance laws.”
Friednash said that could happen easily enough by lawmakers creating new caucuses based on issues, geographic region or other things they have in common.
“You can think of (creating) every kind of caucus possible,” he said. “The water caucus. The pro-choice caucus. The pro-life caucus.”
The opinion says lawmakers in nonprofits should avoid taking contributions from groups “actively supporting proposed legislation” or who have business before the legislature while it is in session. But Friednash said, “All you have to do is put the money together before you go into session, and you’ve paid for all your activities throughout the session.”
Nuñez said the opinion doesn’t allow that.
“I think there could still be a violation if some organization were formed and really it was just to provide fancy lunches for legislators,” she said.
Tim Hoover: 303-954-1626 or thoover@denverpost.com
