Position Statement 09-01 (gifts from lobbyists)
POSITION STATEMENT 09-01
(Gifts from Lobbyists
and Organizations Represented by Lobbyists)
I. Introduction
The Colorado Constitution authorizes the Independent Ethics Commission (¿IEC¿
or "Commission") to give advice and guidance on ethics issues arising under Article
XXIX of the Colorado Constitution and any other standards of conduct and reporting
requirements as provided by law. The IEC issues this Position Statement for the
purpose of clarifying the provisions of Section 3(4) of Article XXIX of the Colorado
Constitution Section 3(4), relating to gifts from lobbyists. It is the Commission's hope
that this Position Statement will increase the awareness of public officials and
employees and the public at large. The Commission encourages public employees and
officials to request further clarification if needed, through a request for advisory 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 constitutional
guidelines, and to interpret Colorado Constitution Article XXIX in a manner that
preserves what it believes was the intent of the electorate "to improve and promote
honesty and integrity in government and to assure the public that those in government
are held to standards that place the public interest above their private interests." The
Commission 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
Section 2 of Article XXIX (Definitions) reads in relevant part:
(5) "Professional lobbyist" means any individual who engages himself or herself
or is engaged by any other person for pay or for any consideration for lobbying.
"Professional lobbyist" does not include any volunteer lobbyist, any state official
or employee acting in his or her official capacity, except those designated as
lobbyists as provided by law, any elected public official acting in his or her official
capacity, or any individual who appears as counsel or advisor in an adjudicatory
proceeding.
Section 3 of Article XXIX reads in relevant part:
(1) No public officer, member of the general assembly, local government official,
or government employee shall accept or receive any money, forbearance, or
forgiveness of indebtedness from any person, without such 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 accepted or received the money, forbearance or forgiveness of
indebtedness.
(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.
***
(4) Notwithstanding any provisions of this section to the contrary, and excepting
campaign contributions as defined by law, no professional lobbyist, personally or
on behalf of any other person or entity, shall knowingly offer, give, or arrange to
give, to any public officer, member of the general assembly, local government
official, or government employee, or to a member of such person's immediate
family, any gift or thing of value, of any kind or nature, nor knowingly pay for any
meal, beverage, or other item to be consumed by such public officer, member of
the general assembly, local government official, or government employee,
whether or not such gift or meal, beverage or other item to be consumed is
offered, given or paid for in the course of such lobbyist's business or in
connection with a personal or social event; provided, however, that a
professional lobbyist shall not be prohibited from offering or giving to a public
officer, member of the general assembly, local government official, or
government employee who is a member of his or her immediate family any such
gift, thing of value, meal, beverage, or other item.
Sec. 24-6-301(6), C.R.S. reads in relevant part:
"Professional lobbyist" means any individual who engages himself or is engaged
by any other person for pay or for any consideration for lobbying. "Professional
lobbyist" does not include any volunteer lobbyist, any state official or employee
acting in his official capacity, except as provided in section 24-6-303.5, any
elected public official acting in his official capacity, or any individual who appears
as counsel or advisor in an adjudicatory proceeding.
IV. Discussion
Section 3 prohibits a public official or employee from soliciting, accepting or
receiving any gift or other thing of value worth more than $50 in any calendar year, from
a person, without that person receiving lawful consideration of equal or greater value in
return, unless it falls under a listed exception. Article XXIX Sec. 3(4) prohibits
"professional lobbyists" from knowingly offering, giving, or arranging to give, any gift or
other thing of value to government employees or officials or their immediate families.
This is an absolute prohibition, not subject to the $50 gift threshold applicable to
accepting gifts and other things of value from persons who are not professional
lobbyists, with two exceptions.
A. Gifts From Lobbyists, Generally
The IEC believes that lobbying as education and persuasion fulfills an important
function in government, and that the free exchange of information and argument should
be encouraged. However, a line should be drawn between those types of activities and
other activities, such as gift-giving, that can create conflicts of interest or appearances
of impropriety.
Constitution Article XXIX Sec. 3(4) creates an absolute ban on gift-giving by
professional lobbyists. The language is so clear that it would be difficult to argue that
the voters intended otherwise. Therefore, even though public officials and employees
are generally bound by the $50 gift limit, a professional lobbyist may not give gifts or
things of value to these individuals at all, in any amount. This flat prohibition also
extends to immediate family members of public officials and employees. There are two
exceptions: A professional lobbyist is permitted to give gifts to members of his or her
own immediate family1. The provision also exempts political campaign contributions.
B. "Professional Lobbyist" Defined
Article XXIX Sec. 2(5) defines "professional lobbyist" as "any individual who
engages himself or herself or is engaged by any other person for pay or for any
consideration for lobbying." Expressly excluded from the definition are "volunteer
lobbyists, any state official or employee acting in his or her official capacity, except
those designated as lobbyists as provided by law, any elected public official acting in his
or her official capacity, or any individual who appears as counsel or advisor in any
adjudicatory proceeding"
This definition is substantively identical to the definition of "professional lobbyist"
found in §24-6-301, C.R.S. (Secretary of State). The only differences are that the
definition used by the Secretary of State is not gender neutral and that a specific statute
is cited. These differences are explained by exchanges during the Review and
Comment Hearing with the Office of Legislative Legal Services, Colorado General
Assembly, between Jennifer Gilroy, Revisor of Statutes for Legislative Legal Services,
and Martha Tierney, an attorney who was one of the proponents of Amendment 41 2.
Clearly, then, the drafters intended that the definition of professional lobbyist
included in Article XXIX be the same as that used by the Secretary of State's office.
Regulations and opinions relating to lobbyists, as promulgated and issued by the
Secretary of State's office, should be highly persuasive in applying and interpreting who
is a "professional lobbyist," as defined in Article XXIX Sec. 2(5).
C. Organizations Represented by Professional Lobbyists
Professional lobbyists may not knowingly offer, give, or arrange to give any gift
or thing of value to a government official or employee. The IEC believes, however, that
this prohibition does not extend to organizations or groups that might be represented by a professional lobbyist or whose industry may be represented by a professional lobbyist.
In these situations, the other provisions of Article XXIX would apply, such as the $50 gift
threshold, and any relevant exceptions, such as exceptions "e" (admission to and food
and beverages consumed at a reception, meal or meeting when the recipient is part of
the scheduled program) or "f" (reasonable expenses paid by a qualifying nonprofit
organization for attendance at certain types of events under certain circumstances). In
the event that questions do arise with regard to whether or not an organization's gift is
merely a subterfuge for a professional lobbyist who has "arranged to give" a gift through
that client, those case-specific questions may be resolved through a request for
advisory opinion or letter ruling (in advance) or a complaint to the IEC.
D. Lobbyist Gifts to Groups
The IEC believes that the prohibition on gifts from professional lobbyists, in any
amount, to "any public officer, member of the general assembly, local government
official, or government employee" should also apply to gifts given to groups that are
composed of these individuals. Therefore, gifts from a professional lobbyist to an office
or a group of these public officials or employees should be deemed to be gifts to the
individuals, and thus prohibited in any amount and in whatever form.
E. Non-Lobbyist Gifts to Groups
In section C above, the IEC stated its belief that the prohibition against lobbyist
gift-giving does not extend to organizations or groups that might be represented by a
professional lobbyist or whose industry may be represented by a professional lobbyist,
where there is no subterfuge or interference by the professional lobbyist. Therefore,
government officials and employees may accept gifts from these organizations or
groups provided they fall under the $50 gift threshold.
However, here, too, gifts to an office or a group of these government officials or
employees should be deemed to be gifts to the individuals. Therefore, any gift given by
a non-lobbyist to an office or a group of government officials or employees must have a
fair market value or actual cost of $50 or less. The value should not be allocated
among the officials or employees. The gift as a whole cannot exceed a value of $50
and the aggregate cost of gifts from the particular donor to the particular recipient group
cannot exceed $50 in any calendar year.
This, as all Position Statements, is intended to give broad advice to government
officials and employees and the public. The Commission encourages individuals with
particular questions to request more fact-specific advice through requests for advisory
opinion 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
January 23, 2009.
1. The $50 gift limit would then apply if the recipient were a public official or employee.
2. Gilroy: In the definition of "professional lobbyist" set forth in Section 2. of the
proposed measure, it appears that a word or words are missing from the first line, in
which the definition reads, "Professional lobbyist" means any individual who engages or
is engaged by any other person for pay or for any other consideration for lobbying.¿ The
same definition found in 24-6-301(6), Colorado Revised Statutes, includes the word
"himself" following the word "engages". In order to clarify this definition and maintain
gender neutrality, would the proponents consider adding the words "himself or herself"
or the word "individually" to the definition after the word "engages"?
Tierney: Yes. We took that word out because of the gender neutral issue
thinking it was clear enough, but if your reading indicates that maybe its [sic] not so
clear then we'll can (sic) consider adding the [inaudible].
* * *
Gilroy: In the definition of "professional lobbyist" set forth in Section 2. of the
proposed measure, the proponents use the term "lobbying". This term is not defined in
the measure. What do the proponents intend by this term? In order to eliminate the
possibility of ambiguity, would the proponents consider adding a definition of "lobbying"?
If not is it the proponents¿ intent that the definition set forth in section 24-6-301(3.5) of
the Colorado Revised Statutes govern the proposed measure in this respect?
Tierney: It is our intent that the existing definition govern the measure.
Proposed Initiative Measure 2005-2006 #118. Concerning Ethics in Government Transcript of May 4, 2006 Review and Comment Hearing, pp.15-16.