Position Statement 09-03
(Clarification of "promises or negotiations of future employment")

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(2) of Article XXIX of the
Colorado Constitution. This section imposes a ban on gifts greater than fifty dollars
($50) unless it falls under specified exception. 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 3 of Article XXIX sets forth the constitutional restrictions on gifts to
public officials and government employees. Section 3(2) restricts the ability of public
employees and officials to solicit accept or receive "promises or negotiations of future
employment." Section 3(2) states in pertinent 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 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,"promises or negotiations of future employment from a 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 solicited, accepted or received the gift or other thing
of value."(emphasis added).

IV. Discussion

The question raised by this provision is as follows: Are covered individuals
barred from seeking other employment or entertaining offers from prospective
employees during the entire time that they are covered by Article XXIX? The plain
language of Section 3(2) as well as the legislative history of Article XXIX lead to the
conclusion that most employment related offers and negotiations are not prohibited
by Section 3(2).

On its face, Article XXIX, Section 3(2) only prohibits negotiations or promises
of future employment for public officials and employees that are not supported by
lawful consideration of equal or greater value. However, it is axiomatic that most
negotiations and offers of employment are supported by mutual consideration in the
form of the prospective employer's promise to provide compensation to the
prospective employee and the prospective employee's promise to provide services to
the prospective employer. Indeed, it would be the rare case where an employer's
offer of employment is not supported by sufficient consideration from the employee.

It is this rare case to which the plain language of Section 3(2) is directed. If a
public official or government employee solicits or accepts an offer of employment at a
rate of compensation that is reasonable given the value of the service to be provided,
there is no violation of Section 3(2). However, if the offer of employment is at a rate
that is patently excessive given the services provided or if such offer is made or
solicited in a factual context suggestive of a conflict of interest or an attempt to
influence an official act, then the possibility of the appearance of impropriety
becomes more likely, and Section 3(2) may preclude such solicitation or acceptance.

Nothing in the transcript of the Review and Comment hearing conducted by
the Office of Legislative Legal Services, or 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 indicates any intent to deprive
covered individuals of the ability to seek or negotiate future employment during their
government service.1  Indeed, to interpret Section 3(2) so strictly would lead to the
absurd result that government employees would be forced to resign from their jobs
and surrender their compensation and benefits prior to even contacting prospective employers or sending out resumes.  The Commission finds that such a result would
be unduly punitive to the state's public servants and simply could not have been the
intent of the drafters or the voters who approved Amendment XXIX.

The Commission therefore holds that this section should not be so strictly
construed.

In order to determine if negotiations for future employment are barred under
this section for want of lawful consideration of equal or greater value, the
Commission has determined that the totality of the circumstances should be
considered with particular focus on the following two factors:

1. Whether the remuneration that is being offered to the public official or employee is
appropriate or patently excessive.

The Commission believes that if the salary and/or benefits offered are
appropriate to the position, then there is a presumption that the new employment was
negotiated in good faith and not based on the public employment of the job seeker.
However, if the salary and/or benefits are clearly and substantially in excess of the
market rate for the position, then soliciting, negotiating or offering such employment
may run afoul of Section 3(2).

2. Whether the Offer or Solicitation is Made in Circumstances Indicative of a Conflict
of Interest.

If a public official or employee who is negotiating for future employment is not
currently, was not in the recent past, and will not in the reasonably foreseeable
future, be in a position to take direct official action with respect to the prospective
employer, then there will be a presumption that Section 3(2) is not violated.

However, those individuals who are in a position to take direct official action,
either currently or in the reasonably foreseeable future should not be placed in
situations where their judgment might be perceived to be influenced one way or
another. The inclusion of this factor is to avoid any perception that that individual is
being rewarded for a previous official act or decision or that the public employee or
official has a conflict of interest. See, Position Statement 08-02 (Travel). Clearly if
there is any indication that the offer of employment was made to curry favor with the
public official or employee, such as the situation in which it is stated or implied that
employment could result if a public official or employee acted in a specific manner,
then the offer would lack lawful consideration and Section 3(2) would be prohibitive.
In addition, such an offer may implicate the bribery provisions of the Colorado
Criminal Code.

V. Conclusion

In sum, Section 3(2) of Amendment XXIX does not preclude covered
individuals from seeking and obtaining offers of future employment and the
Commission will not scrutinize such offers unless they are patently excessive relative
to market demands or the totality of the circumstances of the offer indicate a conflict
of interest for the covered individual.

 

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 or letter ruling.

The Independent Ethics Commission

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

September 21, 2009

 

1 The Blue Book merely repeats the statement in the Amendment itself that "promises of future employment" would be prohibited gifts. See, Blue Book, page 9.

© State of Colorado, Denver, CO