I. Introduction

 

The Colorado Constitution authorizes the Independent Ethics Commission ("IEC"

or ("Commission") to give advice and guidance on ethics issues arising under ArticleXXIX of the Colorado Constitution and any other standards of conduct and reportingrequirements as provided by law. The IEC issues this Position Statement for thepurpose of further clarifying the provisions of Section 3 of Article XXIX of the ColoradoConstitution ("Section 3"). In this Position Statement, the Commission responds to theuncertainty surrounding Section 3 (2), relating to special discounts. It is theCommission's hope that this Position Statement will increase the awareness of publicofficials and employees and the public at large. The Commission encourages publicemployees and officials to request further clarification if needed, through a request foradvisory opinion.

 

II. Guiding Principles

 

The Commission reaffirms its Guiding Principles as set forth in Position

Statement 08-01 (Gifts). The Commission continues to follow applicable constitutionalguidelines, and to interpret Colorado Constitution Article XXIX in a manner that preserves what it believes was the intent of the electorate "to improve and promotehonesty and integrity in government and to assure the public that those in governmentare held to standards that place the public interest above their private interests." TheCommission also references Section 6, which provides that those who breach the public trust for private gain or induce such breach shall be liable for monetary penalties.

 

III. Applicable Law and Precedent

 

Section 3 of Article XXIX reads in relevant part:

 

(2) No public officer, member of the general assembly, local government official,

or government employee, either directly or indirectly as the beneficiary of a gift or

thing of value given to such person's spouse or dependent child, shall solicit,

accept or receive any gift or other thing of value having either a fair market value

or aggregate actual cost greater than fifty dollars ($50) in any calendar year,

including but not limited to, gifts, loans, rewards, promises or negotiations of

future employment, favors or services, honoraria, travel, entertainment, or

special discounts, from a person, without the person receiving lawful

consideration of equal or greater value in return from the public officer, member

of the general assembly, local government official, or government employee who

solicited, accepted or received the gift or other thing of value.

In Position Statement 08-01 (Gifts), in the Commission's discussion of the

acceptance of prizes, raffles, lotteries, and silent auctions, the Commission stated itsbelief that "government officials and employees should not be prohibited from acceptingoffers and benefits given to the general public or a class of people under circumstanceswhere others receive the same opportunity. "

 

IV. Discussion

 

Under Article XXIX (3), a "special discount" is to be considered a prohibited "thingof value" if its fair market value or aggregate actual cost is greater than $50, and if thereis no lawful consideration of equal or greater value given in return. The term "special discounts" is not defined in Article XXIX. The Commission believes that a "specialdiscount"  refers to a discount that is specifically targeted at a particular governmentemployee or official, or a small group of government employees or officials, where thereis a potential to influence government action. This type of discount would, in the Commission's opinion, be an impermissible violation of the public trust.

 

The Commission, however, does not believe that the voters intended to bar

commercial discounts that are made available to a broad group of individuals, wherethere is no realistic possibility that the offeror is seeking to influence an official act ordecision or to reward a government official or employee for any official action.

 

Under this analysis, the IEC believes that government employees and officials

may generally accept certain opportunities and benefits that are available to the generalpublic or to all government employees and officials, or to a subset of employees andofficials, so long as the opportunity is uniformly offered and the group is large enoughthat it is unlikely that the discount would in any way influence the recipients in theperformance of their official duties. These benefits may include reduced rates forgovernment employees at hotels, telephone service, or other commercial consumerdiscounts. They may also include general discounts that are available to the public,such as coupons accessible on the Internet, AAA discounts and other similar consumer  discounts.

 

The Commission, however, also recognizes that the size of the group may be

irrelevant in some situations; e.g., as in the case of a county contract procurement

officer who participates in a group discount from Vendor A and who has influence overwhether Vendor A is awarded a contract by the county. In such situations, individualsare strongly encouraged to seek advice from the Commission through a request foradvisory opinion.

 

This, as all Position Statements, is intended to give broad advice to government

officials and employees and the public. The Commission encourages individuals withparticular questions to request more fact-specific advice through requests for advisoryopinion and letter ruling.

 

The Independent Ethics Commission

 

Nancy E. Friedman, Chairperson

Matt Smith, Vice Chairperson

Sally H. Hopper, Commissioner

Larry R. Lasha, Commissioner

Roy Wood, Commissioner

 

December 2, 2008

© State of Colorado, Denver, CO