Advisory Opinion 09-02 (ALJs)
Advisory Opinion No. 09-02 (ALJ Bar Membership)
SUMMARY:
It would not be a violation of Colorado Constitution Art. XXIX for an
administrative law judge to accept free membership in the Colorado Bar Association
from his or her employer. It would, however, be a violation to accept free membership
in the Denver Bar Association from the Association.
I. BACKGROUND
The Independent Ethics Commission ("IEC" or "Commission") has received a
request for advisory opinion, asking whether an administrative law judge ("ALJ")
employed by the Office of Administrative Courts ("OAC") may accept free membership
in the Denver Bar Association. The Commission has learned that OAC pays
administrative law judges' membership dues in the Colorado Bar Association for the
purpose of, according to OAC, providing the judges with Casemaker, a legal research
tool. Because the Colorado Bar Association requires its members to also be members
of a local bar association, OAC enrolls its ALJs as members of the Denver Bar
Association. The Denver Bar Association waives the membership fee for all judges,
including ALJs, it has stated, to encourage participation by the judiciary in its programs.
II. JURISDICTION
The IEC finds that administrative law judges employed in the Office of
Administrative Courts are "government employees" subject to the jurisdiction of the
Commission. CO Const. Art. XXIX (2)(1).
III. APPLICABLE LAW AND PRECEDENT
Section 3 of Article XXIX (Gift ban) 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, 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.
(3) The prohibitions in subsections (1) and (2) of this section do not apply
if the gift or thing of value is:
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(h) A component of the compensation paid or other incentive given to the
recipient in the normal course of employment.
In Position Statement 08-01 (Gifts), as in all subsequent position statements and
opinions rendered by this body, the Commission interpreted 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 referenced Section 6, which provides that those who
breach the public trust for private gain or induce such breach shall be liable for
monetary penalties.
In Position Statement 08-02 (Travel), the Commission recognized that travel that
is not expressly exempted from Sec. 3 may nonetheless be permissible in certain
circumstances as a gift to the State or local government, rather than to the public official
or employee, when certain specified conditions are met.
In Position Statement 08-03 (Special Discounts), the Commission stated its belief
that ¿government employees and officials may generally accept certain opportunities
and benefits that are available to " a subset of employees and officials, so long as the
opportunity is uniformly offered and the group is large enough that it is unlikely that the
discount would in any way influence the recipients in the performance of their official
duties."
IV. DISCUSSION
The ALJs in OAC are receiving free membership in the Colorado Bar
Association, which is valued at more than $50. They are receiving that free
membership from OAC, their government employer. Because all ALJs in that agency
are offered the free membership and because OAC's stated purpose in giving that
membership is to provide a well-regarded legal research tool to its employees, the
Commission believes that OAC's payment of membership dues in the Colorado Bar
Association for all of its ALJs is part of each ALJ's compensation package in the normal
course of employment. Therefore, the gift prohibitions do not apply because the paid
bar membership is "a component of the compensation paid or other incentive given to
the recipient in the normal course of employment" under exception "h".
The free membership in the Denver Bar Association, however, requires a
different analysis. In this instance, the Denver Bar Association is waiving its
membership dues for all judges, including administrative law judges. It is unknown
whether or not OAC would pay for the individual Denver Bar Association membership
dues in the event the dues were not waived. Therefore, exception "h" is not readily
applicable here.
Under Article XXIX Sec. 3(1), government officials and employees are barred
from accepting or receiving any forgiveness of indebtedness, without giving lawful
consideration of equal or greater value in return, unless it falls under a listed exception.
Sec. 3(2) prohibits government officials and employees from soliciting, accepting or
receiving any gift or other thing of value worth more than $50 in any calendar year, from
a person1, without that person receiving lawful consideration of equal or greater value in
return, unless it falls under a listed exception. Free bar membership can be viewed as a
"forgiveness of indebtedness," or alternatively, as a "gift".
As none of the exceptions listed in Sec. 3(3) apply here, the next issue to be
determined is whether or not the ALJs are giving "lawful consideration of equal or
greater value in return." This would need to be examined on an individual basis, taking
into account whether a particular ALJ were leading continuing legal education (CLEs),
participating on panels, and were otherwise involved in bar association activities in
furtherance of the bar association's stated goal to encourage participation by the
judiciary in its programs. The Commission believes that this type of active volunteer
involvement could constitute lawful consideration depending upon the degree of
participation. However, in the absence of this active involvement, the Commission finds
no lawful consideration of equal or greater value being given to the Denver Bar
Association.
The Commission took note of its Position Statement 08-02 (Travel), in which
travel otherwise prohibited by Article XXIX might nonetheless be permissible in certain
circumstances as a gift to the State or local government, rather than to the particular
public official or employee, to see whether this, too, could be considered a gift to the
State. Here, however, the Commission determined that this is a gift to the individual
ALJ, rather than a gift to the State, because 1) it is unknown whether OAC would decide
to pay the membership in the event it were not waived, or if it would pass the expense
on to the individual ALJs; and 2) the Commission is unaware of any other local bar
associations in Colorado that waive payment of bar dues for ALJs.
The Commission also examined its Position Statement 08-03 (Special
Discounts), which allowed government employees and officials to accept benefits and
opportunities available to the general public, or a large class of government employees
or officials. The Commission believes it inappropriate to determine whether a class of
government employees may accept a benefit based solely upon the number of
employees in that class. See Position Statement 08-03: "The Commission, however,
also recognizes that the size of the group may be irrelevant in some situations."
Rather, such a determination should be made based upon several factors including
number, degree of discretion inherent in the official position, and the degree to which
employee decisions can benefit or harm the provider of the discount. In this instance,
the Commission was presented with no information on the degree to which ALJ
decisions can affect the DBA. Accordingly, the Commission has decided the issue on
the previously stated grounds.
V. CONCLUSION
The ALJs' acceptance of free membership in the Colorado Bar Association is
permissible under Article XXIX of the Colorado Constitution because it is "a component
of the compensation paid or other incentive given to the recipient in the normal course
of employment" under exception "h". However, it would be a violation of Colorado
Constitution Article XXIX for an administrative law judge to accept free membership in
the Denver Bar Association from the Association, absent active volunteer participation
in the Association's activities and programs sufficient to constitute lawful consideration.
The Commission also notes that ALJs, as attorneys and judges, are subject to
other codes of conduct in addition to CO Const. Art. XXIX. The Commission
recommends that the ALJs consult those other applicable codes and seek interpretive
guidance from the appropriate governing entity or entities.
The Independent Ethics Commission
Nancy E. Friedman, Chairperson
Matt Smith, Vice Chairperson
Sally H. Hopper, Commissioner
Larry R. Lasha, Commissioner
Roy Wood, Commissioner
Dated: April 6, 2009
1 The Constitutional definition of "person" includes entities and associations.