Letter Ruling 09-05 (Attendance at Educational Events)
Letter Ruling No. 09-05
(Attendance at Educational Events Provided by the Colorado Health
Institute)
SUMMARY: It would not be a violation of Colorado Constitution Art. XXIX for a member of the general assembly and their staff to attend educational events sponsored by the
Colorado Health Institute, a nonprofit entity, under the circumstances described in the
request. However, it would be a violation of Art. XXIX for the nonprofit entity to pay a
per diem to members of the general assembly and their staff.
I. BACKGROUND
The Independent Ethics Commission ("IEC" or "Commission") has received a
request for a letter ruling,1 asking whether certain educational events which the
Colorado Health Institute ("CHI")2 would like to sponsor for members of the general
assembly and their staff would constitute a violation of Article XXIX. Specifically, CHI
asks three questions:
1. May CHI sponsor educational roundtables on health policy issues and provide
lunch to attendees?
2. May CHI sponsor a two day health policy conference and provide lodging,
meals and travel expenses for the participating members of the general assembly?
3. May CHI sponsor an 8-10 session certificate program for members of the
general assembly, and pay the participating legislators a $99 per diem for those
meetings that occur while the general assembly is not in session, in addition to travel
expenses for those legislators coming from outside the Denver Metro area?
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."
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. Section 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.
According to its submissions to the Commission, CHI is a nonprofit entity which
receives less than 5% of its funding from for profit sources. It is a "neutral, nonpartisan
source of health-related data and policy analysis for policy makers, health planners, the
business and nonprofit communities, and advocacy and consumer groups, health care
providers, foundations and the media." CHI is not registered as a "professional
lobbyist."
Prior to the passage of Article XXIX, CHI sponsored several roundtable
discussions on health care issues for members of the general assembly. These
roundtable discussions include a lunch which is valued at less than $10 per person.
CHI also sponsors a two-day health policy conference. CHI provides meals, lodging
and travel expenses for legislators which would be in excess of $50. Finally, CHI also is
planning an 8-10 session certificate program for members of the general assembly
which would consist of policy discussions. Some of these sessions would occur during
the legislative session, and some would be during the interim. CHI would pay
legislators a $99 per diem for those sessions which are scheduled while the General
Assembly is not in session.
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 from a person, 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 nonprofit
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"
CHI has informed the Commission that the lunches for the roundtable
discussions are less than $10 per lunch. This amount is reasonable. The request does
not contain any specific information pertaining to the costs for the Health Care
Conference. If the accommodations and travel expenses are appropriate, 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. The Commission has
previously interpreted this provision broadly. (See, Advisory Opinions 09-05 and 09-
08). The Commission believes that these roundtable discussions and conferences are
"fact-finding missions" and may be considered as gifts to the state since they relate to
issues likely to be considered by the general assembly, and a thorough understanding
of these issues is important 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. CHI is a tax exempt nonprofit under section 501(c)(3) of the
Internal Revenue Code. According to its submissions to the Commission, CHI is funded
exclusively by three foundations, Caring for Colorado Foundation, the Colorado Trust
and the Rose Community Foundation. The Commission therefore finds that this request
falls squarely under exception (f), and participation by members of the general
assembly at these programs would be permissible.
The Commission finds that there is no inherent or potential conflict of interest or
appearance of impropriety in this instance. The Commission has been informed that
CHI is not affiliated with nor does it use lobbying entities. Furthermore, it appears that
the purpose of these conferences is to educate legislators, rather than to solicit the
goodwill of the members of the general assembly or to influence an official act.
Finally, the Commission has considered the issue of the per diem offered for the
health policy certificate program.
There is no provision in "exception f" for the payment of any funds other than
reasonable expenses. The Commission therefore determines that the acceptance of a
per diem in addition to reasonable expenses is not permissible under Article XXIX.
V. CONCLUSION
It would not be a violation of Colorado Constitution Art. XXIX for a government
employee to participate in these conferences, expenses of which would be paid by a
nonprofit entity that receives less than 5% of its funding from for-profit sources, however
the acceptance of a per diem in addition to reasonable expenses is not allowed.
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 request was made as a request for advisory opinion, but because the nonprofit entity is not under the jurisdiction of the Commission, the response is in the form of a letter ruling.
2 The Colorado Health Institute has waived confidentiality relating to this request.