Position Statement 09-02
(Restrictions on Representation after Leaving Office)

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 4 of Article XXIX of the Colorado
Constitution. This section relates to restrictions imposed by Article XXIX to activities by
statewide elected officials and members of the general assembly. 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 apply 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 4 of Article XXIX restricts the subsequent employment of certain elected
officials after leaving office. Section 4 states:

No statewide elected officeholder or member of the general assembly
shall personally represent another person or entity for compensation
before any other statewide elected officeholder or member of the general
assembly, for a period of two years following vacation of office. Further
restrictions on public officers or members of the general assembly and
similar restrictions on other public officers, local government officials or
government employees may be established by 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.

 

IV. Discussion

A. Prohibited Activities/Professional Lobbying

1. Lobbyists Registered under C.R.S. § 24-6-301

Article XXIX, Section 4 expressly prohibits elected office holders and members of
the general assembly from personally representing persons or entities for compensation
before statewide elected office holders or members of the general assembly for a period
of two years. The term ¿personally represent¿ is not defined in Article XXIX. The
Commission realizes that the term ¿personally represent¿ could encompass several
different situations including, but not limited to, traditional lobbying, representing a client
as an attorney, or representing an individual as an agent or in some other capacity.
Because of this ambiguity, the Commission reviewed the history of Section 4 to discern
the intent of the voters. It is established under Colorado law, that while not binding, the
Blue Book provides important insight into the electorate¿s understanding of a ballot
measure. See, Sanger v. Dennis, 148 P 3d 404, 413 (Co.2006), citing Tivolino Teller
House, Inc. v. Fagan, 926 P 2d 1208, 1214 (Co. 1996).

In the Review and Comment Hearing conducted by the Office of Legislative
Legal Services, Martha Tierney, one of the proponents of the Amendment, when asked
about the meaning of Section 4 stated, ¿[i]t is not our intent that it would restrain one-onone
lobbying. We believe this language would apply to lobbying before any member of
the general assembly.¿ Proposed Initiative Measure 2005-2006 #118. Concerning
Ethics in Government Transcript of May 4, 2006 Review and Comment Hearing, p. 23.
The Summary and Analysis in the 2006 State Ballot Information Book (¿Blue
Book¿) published by the legislature and distributed to voters prior to the 2006 General
Election supports the interpretation that this section was meant to restrict professional
lobbying. The Blue Book states that the Amendment also prohibits statewide elected officeholders and state legislators from lobbying professionally for two years after leaving office. This restriction applies only to lobbying a state legislator or a statewide elected officeholder. Professional lobbying is when a person is paid to advocate an interest or position to policymakers. Blue Book p. 9.

Therefore, the Commission determines at this time that the term ¿personally
represent¿ was intended to mean that elected office holders and members of the
general assembly are prohibited from serving as ¿professional lobbyists¿ for two years
following leaving office.

As stated in Position 09-01 (Gifts from Lobbyists), the definition of professional
lobbyist found in Article XXIX is substantially the same as that found in C.R.S. §26-6-
301(6), and ¿[r]egulations 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).¿ See
Position Statement 09-01, pp. 4-5. 1

This may mean that an office holder or member of the general assembly would
be barred from accepting a position of Executive Director of a trade organization or
similar lobbying organization, even if that former elected official never actually appeared
before the general assembly, if their activities fell within the purview of the Secretary of
State¿s Rules and Regulations and other applicable laws. Simply stated, any former
elected office holders or members of the general assembly cannot accept employment
that will also require their registration as a professional lobbyist under § 24-6-301.2
2

 

2. Legislative Liaisons

In Colorado, each principal department of state government designates a
particular individual to be responsible for lobbying activities for the department. These
legislative liaisons are required to register with the Secretary of State. See C.R.S. §24-
6-303.5. Although the Commission recognizes that legislative liaisons are required to
register under a different statute than other professional lobbyists, do not pay a
registration fee, have different reporting requirements than other professional lobbyists,
and are not listed as professional lobbyists on the Secretary of State¿s website, we find
no basis in the definition of professional lobbyist which would permit an exemption for
lobbyists who work for governmental entities. The Commission consequently
determines that a former statewide elected official or member of the general assembly
could not accept a position as a legislative liaison for a state agency within two years of
leaving office.

The IEC therefore finds that the statewide elected officials and members of the
general assembly are barred from becoming professional lobbyists as that term is
defined in Article XXIX (2)(5) for a period of two years. If a former statewide
officeholder or member of the general assembly would be required to register as a
lobbyist under the Rules of the Secretary of State, and other relevant laws and statutes
in his or her new position, then the former elected official could not accept that
employment.

B. Other Governmental Employment
Statewide elected officials or members of the general assembly are frequently
appointed or asked to serve in the Governor¿s cabinet or in other governmental
positions. The Commission determines that it would be permissible under Article XXIX
Section 4 for a former statewide elected official or a member of the general assembly to
accept another job in state government, such as a position in the Governor¿s cabinet,
within two years of leaving elected office. The fact that a cabinet member or other state
employee may appear before a committee of the general assembly and perform other
¿lobbying¿ activities incidental to his or her primary responsibility does not disqualify that
former elected official from meeting with another statewide elected official or member of
the general assembly on behalf of a state agency. The Commission notes that
¿[m]embers of the governor¿s cabinet and personal staff employees in the offices of the
governor and lieutenant governor¿ are specifically excluded from the requirement to
register as a lobbyist. C.R.S. § 24-6-303.5(4)(c).3

V. Conclusion

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
Matt Smith, Chairperson
Roy Wood, Vice Chairperson
Dan Grossman, Commissioner
Sally H. Hopper, Commissioner
Larry R. Lasha, Commissioner

August 21, 2009

 

1 Volunteer lobbyists are expressly excluded from the definition of professional lobbyists in Article XXIX, Section 2(5). Volunteer lobbyists, whose only compensation is ¿receipt of money or other thing of value consist[ing]¿ of nothing more than reimbursement for actual and reasonable expenses¿ are also not required to register or file reports with the Secretary of State¿s Office. C.R.S. §24-6-301(7). Thus, nothing in Section 4 would preclude a former statewide elected official or member of the general assembly from working as a volunteer lobbyist within two years after leaving office.

 

2 The Commission is aware, furthermore, that several states and the federal government have similar ¿revolving door¿ provisions, which limit the ability of specified public officials from appearing before legislative committees or contacting public officials on official matters within a prescribed period after leaving office. These statutes and rules vary greatly from state to state. See, e.g., §18 USC 207(e)(1)(a)(2008) (a former Member of Congress is prohibited from contacting a Member of Congress for one year with the intent to influence the Member of Congress in his or her official capacity). Connecticut, Iowa,Kentucky New Jersey, and North Carolina prohibit former legislators from becoming registered lobbyists. Delaware, New Mexico and West Virginia exempt members of the state legislature from their revolving door provisions. Arkansas, Georgia, Idaho Illinois, Indiana, Illinois, Maine, Minnesota, Nebraska, Nevada, New Hampshire, North Dakota, Tennessee, Texas, Utah, and Vermont do not have revolving door restrictions.
3 Many other governmental employees, such as members or employees of the legislative and judicial branches and members of boards and commissions who serve without compensation are similarly excluded from having to register with the Secretary of State. C.R.S. §24-6-303.5(4).

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