Advisory Opinion 09-09 (Free Admission to Events)
Advisory Opinion 09-09
(Free Admission to Events by Public Employees Accompanying the
Governor)
SUMMARY: It would not be a violation of Colorado Constitution Art. XXIX for members
of the Governor's cabinet and his staff to accept free admission to events with an
admission price in excess of $50, when they are attending such events with the
Governor as part of their official duties so long as certain criteria are met.
I. BACKGROUND
The Independent Ethics Commission ("IEC" or "Commission") has received a
request for advisory opinion by the Governor1, asking whether members of the cabinet
and members of his staff may accept free admission to events with a ticketed price in
excess of $50, when they are attending such events to provide staff support to the
Governor. In Advisory Opinion 09-03, the Commission considered a similar issue and
decided that State Patrol officers may accept free admission and meals when providing
security to the Governor or Lieutenant Governor or members of their families at events.
II. JURISDICTION
The IEC finds that members of the Governor's staff are "government employees"
and members of the cabinet are "public officers" subject to the jurisdiction of the
Commission. CO Const. Art. XXIX (2)(1),(6).
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, 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.
In Advisory Opinion 09-03, the Commission considered the issue of whether
State Patrol Officers may accept free admission to events when they are accompanying
the Governor, Lieutenant Governor, the Governor-elect, or members of their families as
part of a security detail. The Commission noted in that opinion that C.R.S. §24-33.5-
216 specifically requires that the Governor of the State of Colorado be provided with a
security detail for his and his immediate family¿s protection, and that a security detail is
also provided for the Lieutenant Governor (at the discretion of the Governor), and for
any governor-elect. The situation described in this request is slightly different. The
Governor's request is not made for safety reasons, but rather to assist the Governor in
the performance of his official duties.
In Position Statement 08-02 (Travel), the Commission recognized that travel that
is not expressly exempted from Article XXIX Section 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. The Commission
believes that under certain circumstances, the attendance by these public employees
and officials may be considered a gift to the state.
IV. DISCUSSION
In this request, the Governor states that the participation of these individuals is a
benefit "to the State of Colorado and not to the individual employee, because their
attendance clearly enhances the quality of the Governor's participation." The
Commission therefore analyzed this request in light of the criteria set forth in Position
Statement 08-02 (Travel) in deciding whether a gift may be considered a gift to the
State:
Condition #1: The gift is for a legitimate State or local government purpose.
The Commission believes that if the Governor is speaking at an event, and the
public employee's or public officer's area of expertise is such that his or her attendance
would assist the Governor, then that staff or cabinet member's attendance may be
appropriately classified as for a legitimate state purpose.
Condition #2: The arrangements are appropriate to that purpose.
As stated in Position Statement 08-02, the travel arrangements must be
appropriate to the purpose of the event. The staff or cabinet member attending the
event with the Governor must have the same accommodations and meals as the other
participants to the event. As stated above, the event must be closely tied to the staff or
cabinet member's area of expertise such that his or her participation would be of benefit
to the Governor and the state.
Condition #3: The event is no longer than reasonably necessary to accomplish
the business which is its purpose. If the staff or cabinet member is attending the event to assist the Governor, then he or she may not remain at the event for an extended period of time beyond the time reasonably necessary to assist the Governor. For example, if the Governor is speaking at a luncheon, then the staff member may not receive free admission to a three-day conference, but rather only for that portion of the event at which he or she is providing staff support to the Governor.
Condition #4: The government official or employee who will be attending 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 donor.
A public official or employee who has been in the past, or will in the foreseeable
future be in a position to take direct official action with respect to the donor, may not
accept a free gift, regardless of the potential benefit to the Governor. The Commission
believes that this condition goes to the heart of preserving public confidence in
government. The inclusion of this criterion is to avoid any perception that that individual
is being rewarded for a previous official act or decision or to influence a future official
act.
Condition #5: Government officials and employees are required to verify
compliance with conditions #1 through #4 above. This condition would be satisfied
by a statement by the Governor as to why this person's attendance would be beneficial.
If these five criteria are met then the free admission could properly be termed as
a gift to the state, not the individual staff or cabinet member. The Commission notes,
however, that this Advisory Opinion does not mean that the Governor may request free
admission for a large number of staff to attend a particular event. Only those cabinet
and staff members whose presence is reasonably necessary to assist the Governor
may accept free admission and/or meals at an event. Moreover, the acceptance of free
admission and/or meals is only permissible at events at which the Governor is speaking
on a policy issue, not at events at which the Governor has only a ceremonial or minor
role.
V. CONCLUSION
It would not be a violation of Colorado Constitution Art. XXIX for members of the
Governor's cabinet and members of his staff to accept free admission to events when
they are accompanying the Governor to speaking engagements with an admission price
in excess of $50, when they are attending such events with any of those officials as part
of their official duties. The Commission believes that such free admission may be a gift
to the State of Colorado, rather than to the individual public official or employee under
the circumstances described in this Opinion.
The Independent Ethics Commission
Matt Smith, Chairperson,
Roy Wood, Vice Chairperson
Dan Grossman, Commissioner (Did not participate)
Sally H. Hopper, Commissioner
Larry R. Lasha, Commissioner
Dated: October 19, 2009
1 The Governor has waived confidentiality relating to this request.