Advisory Opinion 09-08 (Acceptance of a Fellowship from a Nonprofit Entity)
Advisory Opinion No. 09-08
Acceptance of a Fellowship from a Nonprofit Entity
(Rodel Foundations and Aspen Institute)
SUMMARY: It would not be a violation of Colorado Constitution Art. XXIX for a member of the general assembly accept a fellowship from a nonprofit entity to attend a 24 month leadership program offered by the Aspen Institute and the Rodel Foundations under the circumstances described by the requestor.
I. BACKGROUND
The Independent Ethics Commission ("IEC" or "Commission") has received a
request for advisory opinion, asking whether a member of the general assembly may
accept a two year fellowship to attend the Public Leadership Program ("Program")
offered by the Aspen Institute. The total cost of the Program, including transportation,
lodging, meals, receptions and other miscellaneous costs is $18,000 for a week and a
weekend in the United States, as well as approximately $18,000 per week for the two
week international portion of the Program for a total of $54,000. The entire cost will be
paid for by the Rodel Foundations, a nonprofit entity, which according to the requestor
receives less than 5% of its funding from for profit entities.
II. JURISDICTION
The IEC finds that a member of the general assembly is a government employee
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:
(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.
(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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(f) Reasonable expenses paid by a nonprofit organization for
attendance at a convention, fact-finding mission or trip, or other meeting if
the person is scheduled to deliver a speech, make a presentation,
participate on a panel, or represent the state or local government,
provided that the non-profit organization receives less than five percent
(5%) of its funding from for-profit organizations or entities.
In Position Statement 08-01 (Gifts), as in all subsequent position statements and
opinions rendered by the Commission, 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 facts underlying Advisory Opinion 09-05 (Acceptance of a Fellowship from a
Nonprofit Entity) are similar to those in this request. In Advisory Opinion 09-05, the
Commission determined that it would not be a violation of Article XXIX for a
governmental employee to accept a fellowship to the John F. Kennedy School of
Government where the fellowship was paid for largely by the Gates Foundation.
Although some of the facts that formed the basis of that opinion are not present in the
instant case, the Commission believes that the result is the same.
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. Sec. 3(3)(f) [exception (f)] exempts
reasonable expenses paid by a nonprofit organization for participating in a convention,
fact-finding mission, trip, or other meeting under certain circumstances. This exception
is limited to nonprofits that receive less than 5% of their funding from for-profit entities or
organizations.
The requesting member of the general assembly has been offered a fellowship to
attend the Aspen Institute's Rodel Foundations Public Leadership Program. The 24
month program consists of three plus weeks: one week in Aspen, one weekend in
Louisiana, one week in Asia and one week in the Middle East. All costs would be paid
by the Rodel Foundations. According to information supplied by the requestor, "The
Rodel Fellowship program is open by invitation only. Each public leadership class
consists of twenty four fellows, twelve Republicans and twelve Democrats, identified by
the Aspen Institute as America's most promising new public leaders." Prior classes
have included Colorado legislators, as well as the Governors and Attorneys General of
several states. This year's invitees also include legislators from Texas and Arizona, as
well as the Attorney General of Missouri, and several local officials from across the
country.
The requestor quotes the Aspen Institute's web site as stating that "[t]he Rodel
Fellowship is not a political program but an educational and leadership training program
based on the belief that by exposing participants to a variety of philosophies, viewpoints
and strategies, we will improve the quality of problem-solving in the states and in our
local communities."
Exception (f):
Under Article XXIX, a government employee may not accept a gift, or other thing
of value worth more than $50 in any calendar year, unless it falls under an enumerated
exception. Exception (f) exempts: "[r]easonable expenses paid by a nonprofit
organization for attendance at a convention, fact-finding mission or trip, or other
meeting if the person is scheduled to deliver a speech, make a presentation, participate
on a panel, or represent the state or local government, provided that the non-profit
organization receives less than five percent (5%) of its funding from for-profit
organizations or entities."
Applying exception (f) to the request currently before the Commission, the
Commission makes the following determinations:
1. "Reasonable Expenses"
The request does not contain any specific information pertaining to the
breakdown of expenses for the trip. The requestor asserts that "the travel and
accommodation arrangements for this opportunity are appropriate and conducive to that
purpose." If this information is correct, then the requirement that the expenses be
reasonable appears to be satisfied.
2. Purpose of Attendance
In order to decide whether exception (f) applies, the Commission must determine
whether the recipient of the fellowship is attending "a convention, fact-finding mission or
trip, or other meeting" and if he is representing the State. As previously noted, the
Commission determined in Advisory Opinion 09-05 (Acceptance of a Fellowship from a
Nonprofit Entity) that "trip or other meeting" may be interpreted to cover this type of
Program. Although in that situation the Commission relied on the fact that the
employee's agency was paying for a portion of the trip as evidence that there was a
state purpose, the Commission believes that is not a necessary requirement to find a
gift to the state. Moreover, the Commission believes that participation in this fellowship
by a member of the general assembly provides a real benefit to the State. This criterion
therefore appears to be satisfied.
3. Nonprofit Entity
The final criterion that must be met under exception (f) is that the donor of the gift
must qualify as a nonprofit entity that receives less than 5% of its funding from for-profit
entities or organizations. The Rodel Foundations is a tax exempt nonprofit under section
501(c)(3) of the Internal Revenue Code. According to the requestor he has been
assured that the Foundations do not receive funding from for profit sources. The
Commission therefore believes that this request falls squarely under exception (f), and
acceptance of the fellowship would be permissible.
Finally, the Commission believes that there is no inherent or potential conflict of
interest or appearance of impropriety in this instance. The Commission has been
informed that neither the Aspen Institute nor the Rodel Fellowship Program are affiliated
with or use lobbying entities. Furthermore, there is no indication that the fellowship was
offered to solicit the goodwill of the government employee or to influence an official act.
V. CONCLUSION
It would not be a violation of Colorado Constitution Art. XXIX for a government
employee to accept a fellowship to attend this type of program, expenses of which
would be paid by a nonprofit entity that receives less than 5% of its funding from for profit
sources.
The Independent Ethics Commission
Roy Wood, Vice Chairperson
Dan Grossman, Commissioner
Sally H. Hopper, Commissioner
Larry R. Lasha, Commissioner
Dated: August 21, 2009