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January 14, 2007 07:37 PM UTC

Amendment 41 Developments

  • 28 Comments
  • by: Colorado Pols

The Rocky Mountain News reported on Thursday about two conflicting efforts emerging to “fix” the perceived problems with Amendment 41, the “ethics in government” initiative approved by Colorado voters last November — now known by its new name, Article XXIX of the Colorado Constitution.

The “clarifying” bill from supporters of 41, drafted by attorney Mark Grueskin, will be introduced either this week or the next. His bill if passed would take effect quickly, and would restrict Amendment 41’s provisions to “decision makers” in state government, according to the Rocky. The House sponsor will reportedly be Rep. Rosemary Marshall (D-Denver), a smart choice as she was a known opponent of Amendment 41 before the election.

Meanwhile, Minority Leader Mike May (R-Parker) is drafting a referred measure for voters in 2008 that would restrict Amendment 41’s provisions to elected officials only. Republicans in the state house are pretty much together on the argument that Amendment 41 can’t be altered by the General Assembly, and by law it can’t be altered by voters until the next general election — leaving two years of seemingly unavoidable, to quote Attorney General John Suthers, “absurd results.”

A number of Democrats agree with them, sometimes including Speaker of the House Andrew Romanoff. Romanoff has inconsistently expressed both dismay and praise for Amendment 41 in the press. Witness his “All of Colorado is fuming” remark printed a week ago compared to his statement to the News Thursday that he wants “Colorado to have the highest ethical standards in the nation” and he thinks “we should treat this amendment as an opportunity to advance that goal.” He is privately said to be open to a legislative solution if one can be found, with one small caveat —

In the form of Senate President Joan Fitz-Gerald, who has consistently pushed a hard line on not altering the implementation of Amendment 41 in any way. She was quoted by the Denver Post as telling government employees to “take absolutely nothing and go to absolutely nothing and be as clean as Caesar’s wife.” A vocal opponent of Amendment 41 whose husband is a lobbyist for a Colorado-based mining corporation, her position would appear on the surface to be a commendable act of respect for the will of the electorate.

That is, until you take a look at the Big Line for CD-2. Much of the funding for the campaign to pass Amendment 41 came from Boulder gazillionaire Jared Polis, who along with Fitz-Gerald are considered the two likely frontrunners to replace Rep. Mark Udall when he makes his Senate run in 2008. Fitz-Gerald would be a fool not to see Amendment 41’s flaws as a stick she can beat Polis with — perhaps enough to overcome his vast personal wealth in a Boulder primary. Remember that it was CU President Hank Brown (R) who requested the opinion from AG Suthers on 41. However you feel about that opinion, it’s being taken very seriously at CU.

The outcome–and its effect on upcoming elections, if any–will depend on how the issue is spun on the floor of the legislature. All agree that the issue is complex, insider-driven and heavily spinnable by both sides. The only thing nobody can dispute is that Amendment 41 was approved by a big margin, one of the biggest of any statewide ballot measure in recent memory.

Polis has belatedly realized that his political future might depend on how this is resolved, and is working the phones hard with others who stand to lose if Amendment 41 goes down in history as a huge screw-up. The Denver Post and Boulder Daily Camera’s editorial boards have come out in defense of 41 and Grueskin’s clarifying legislation, calling out Democratic leadership in unusually strong terms. They strain to remind their audience that such legislation has been used recently on other constitutional amendments, and upheld by the courts.

Sources say Sen. Fitz-Gerald has been approached with the suggestion that with Republicans ready to pounce on the issue with their own solution and “reclaim” ethics from the Democrats, as well the harm that may result if Suthers’ strict interpretation of 41 actually governs the state for two years, this may not be the best issue to capitalize for her upcoming congressional race–a race in which she may already be the comfortable favorite anyway.

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28 thoughts on “Amendment 41 Developments”

  1. Does Amendment 41 screw up company’s & individuals’ ability to fund, wine and dine our out of town guests as well as our own legislators & delegates?

    1. 41 only concerns public employees governed by the state of Colorado. It may affect the ability of Colorado public employees to attend some events during the DNC that visiting officials can attend.

      A Colorado DNC delegate would probably not be affected, as that isn’t an official state position.

      1. This is a great thread.  It actually gives us a chance to think through how 41 has to be interpreted – and will really clarify the “Boy, I don’t know” issues.

        41 clearly applies to specific state and local public officials and government employees including independent contractors.  So the first test has to be is the individual human being one of the identified roles.  If, the answer is NO, then nothing more in 41 applies – unless that person decides to become a professional lobbyist or tries to give a gift of a prohibited amount.

        The next question becomes, does the DNC represent an organization that a 41-subject individual can attend and have some expenses picked up.  There are 3 such circumstances in 41.  Two of the exceptions might apply. If the 41-subject person is to speak or answer questions as part of a scheduled event, it looks like he or she could have admission, and the cost of food and beverages consumed to be comped. 

        The second exception is that he or she can receive reasonable expenses paid by a nonprofit organization 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 to represent the state or a local government.  So, it is possible this exclusion might be a way out for the person.  Unless the BIG poison pill applies.  The BIG poison pill is the 5% rule. This exclusion does not apply if the organization receives more than 5% of its funding from for-profit entities.  This might make the DNC a tainted entity.

        If the 41-subject person is a local official in a home rule city or county that has its own ethics code, that person might be able to circumvent 41 based on the local code.

        It seems that there are probably ways to comply with 41, but the burden is on the 41-subject person to make sure that he or she is in compliance.  Keeping a little accounting book would probably be a good idea.

        Maybe both the critics and proponents have been wrong in their spin tactics.  Perhaps we should approach the interpretation as kind of an Agatha Christie mystery and try to figure out whodunit.

  2. I have to say I agree with the Repubs on this one.  Clarifying legislation that significantly alters the scope of the amendment is no better than Bushie’s signing statements.  Put it on the ballot and hope to clean it up in two years.  That said, J F-G’s failure to come forward with a plan to make that happen in favor of leveriging the issue is pretty low, given the potential this has to cause real problems for people not named Jared.

    2. If we don’t like a law, we work to get it changed. We don’t ignore it or pass “clarifying legislation” that violates the letter of the written amendement.

      If we do ignore it then all of our laws sit at the whim of those enforcing them.

      1. there is no talk of changing the amendment.

        The Legislature has passed bills that help make amendments stronger and clearer.  There are municipal, county and state attorneys coming up with opinions on how Amend 41 affects us, but what we need is our legislative branch to stand up and say, “yes, we agree ethics need to be important in governing, yet voters did not want the mayor of Holyoak, CO to resign because her daughter got a scholarship”.

        Again, Grueskin’s bill doesn’t violate the written letter of the amendment and doesn’t change the intent.

        1. You make the statement:

          “yes, we agree ethics need to be important in governing, yet voters did not want the mayor of Holyoak, CO to resign because her daughter got a scholarship”.

          But that statement can only be used where the amendment is vague or unclear. Where the amendment is unambiguous the law cannot change it based on the preceived intent of the voters.
          After all, maybe the voters do not want state employees children to get scholarships. You cannot say what each voter was thinking when they made that vote.

          1. If any of you ever find yourselves in rural Colorado with all the stupid hicks remember that Holyoak is actually Holyoke, and Canyon City is actually Canon City (http://coloradopols….).

            I realize this may be nitpicky and stupid, but I guarantee if someone from a small town spelled Denver as “Dinver” it would irritate you. Go Broncohs.

        2. I wish I could agree with you, Car.  I feel like an idiot for voting for this thing (yes, Phoenix, I should have listened to you, and to my wife for that matter), and I would love to think it’s really not that bad.  But I just skimmed it for a first time in, well, to be honest maybe forever (that’ll teach me to rely on the pro and con statements in the good book), and it seems to pretty clearly define any government employee as, well, any employee of the government.  So I pretty much have to conclude (with the caveat that I have been out and had a bit to drink this evening, so my conlcusions really aren’t to be trusted) that “clarifying” legislation that said government employee really just means some important decision maker type, and not the bus driver whose kid just got offered a scholarship, is not clarifying at all but attempting to replace the law that got passed with the law that should have been passed.  The majority of we the people screwed this one up, and we pretty much just need to apologize to that bus driver’s kid, hope for prosecutorial discretion, and vote to clean this shit up in less than two years.

      2. “we do ignore it then all of our laws sit at the whim of those enforcing them”
        Like how Ritter chose not to enforce laws preventing Policing from Murdering citizens?

        1.   Both Ways kept ranting about Ritter and his “crime wave”  last Sept. and Oct.  Did you guys miss the results on Nov. 7 as to what the voters thought about your candidate’s big issue? 
            Get a clue……

        2. The ones on our books for crimes that those guys did not commit here?  That was later, in California.  And those laws did what they were supposed to.

          AAAAARGH!

          1. I could care less about the stupidity of BWB and his Illegal Immigrant diversion. This is about Bill Ritter refusing to EVER bring chages against a Law Enforcement officer and his way of deciding what laws he is going to enforce. It is On Topic and relevant. and as much as this “Left Leaning” Blog wants me to go away – it ain’t going to happen.

            I quote the Denver Post.
            But the flash point of his DA career – the controversies that even his backers acknowledge can blind the public to the successes – came when he repeatedly declined to bring charges in 70 (That is not a typo) police-involved shooting cases, including several high-profile cases where community activists believed officers used excessive force.
            The notorious string of cases included that of Jeff Truax, an Aurora man who died when two Denver police officers, working off duty, killed him in a 25-bullet barrage outside a Broadway bar in 1996. Police said the officers acted in self-defense after Truax nearly ran them over as he was backing out of a parking lot. Prosecutors said they couldn’t prove beyond a reasonable doubt that the two officers weren’t protecting themselves and others.
            In another memorable case, Ismael Mena was fatally shot after he allegedly pointed a gun at Denver officers when they burst into his home in 1999 in the execution of a no-knock search warrant. The officers were looking for drugs, found none, and it was later discovered the warrant contained the wrong address.
            In these and other cases, including one in 2003 that saw a Denver officer shoot a developmentally disabled boy wielding a knife as he exited his home, Ritter concluded it would have been unethical to take cases to trial as the evidence failed to support proof beyond a reasonable doubt of guilt.
            “It might have been politically helpful (to bring charges against the police),” Ritter said, “but it wouldn’t have been the right thing to do.”

            His view of “Right thing to do is an OUTRAGE and I will continue to tell everyone I know about it as long as he is in office.
              So you fucking deal with it OQD

            1. OK, I back off.  I thought you were referring to the illegals who bargained to agricultural trespass.  There was no indiciation in your post about Trueax, et al., and that was minor in the election arguements compared to the illegals. 

              So solly.

            2. You forgot to mention a couple of things.

              Jeff Truax and his buddies had just finished beating a club-goer to unconsciousness with a brick in the alley behind the club.  Truax was told to stop, disobeyed the order and backed over an officer so violently that his arm went through the back windshield of the car, and then the officer disappeared under the car.

              Ismael Mena’s address was incorrectly given by an informant. Still, I noticed you didn’t bring up the fact that the officers identified themselves in spanish and english as police, and he still pulled a gun and fired three shots at them before he was shot. 

              The police had been called to Paul Childs’ house more than forty times in the past, and in the 911 call that particular day the dispatcher was told that “My brother has a knife, and he’s trying to stab my mother with it.”  Officers are trained to react if someone has a knife within 21 feet.  Childs was much closer than that, and tragically did not drop the knife he had after being warned multiple times.

              These are all tragic events, but put yourself in a cop’s shoes.  Try, at least.

              As a side note:

              ‘So you f*****g deal with it OQD’

              No need for this kind of garbage.  A little civility would go a long way – Nobody’s a tough guy here in anonymous land.  Get over yourself.

    1. Anyone can report a violation of the amendment.  The Commission then must investigate (including issuance of subpoenas), hold public hearings, and render findings.  The penalty, though, isn’t just taking the scholarship away.  The amendment stipulates that if the Commission finds you guilty, then you must pay back double the value of the unlawfully received gift.  So long as your kid’s scholarship is small, or so long as you don’t have any enemies who wouldn’t mind making life difficult for you (without really having to invest anything themselves), then you should be fine.

    2. I work for a government law office. My job includes making sure government employees follow the law. I believe in following the law, even when I’m not likely to get caught if I break it. I owe that to the taxpayers who pay my salary, even when the same taxpayers vote for a stupid law like Amendment 41.

      I believe that unless Am. 41 is significantly amended (by the voters, not the Gen Ass), you will see a lot of us non-policy-making government employees leave for the private sector. Not because we have to buy our own lunch, we already do that; because we are the little fish caught in this net for no good reason.

  4. The new Ethics Commission has jurisdictional authority, and it is totally independent of all other governmental bodies. However, it does not appear that it is the authority to strike out on its own – it needs someone to bring the matter to its attention.

    Any person can file a written complaints asking (not alleging) whether an ethics violation has occurred.  The Commission is mandated to investigate.  If they find that the issue is frivolous, they can reject the complaint and keep everything confidential.

    However, if it is not frivolous they are mandated to hold a public hearing and they have the power of subpoena.

    The penalty provisions are a little odd.  It holds that the culprit is liable to the affected government in an amount twice the financial equivalent of any benefits obtained by the receipt.  It is odd because it appears to trigger off a “breach of the public trust for private gain” and it applies to the giver as well as the recipient.

    It is hard to imagine how your child accepting a merit scholarship or an athletic scholarship is a breach of the public trust.

    Seems like a huge loophole to me.

    1. While I was drafting my response above, you were posting yours.  Agreed, that the penalty language does appear to be most closely tied to the “breach of trust” loophole.  However, wouldn’t it seem that someone could argue that knowing violation of the State Constitution in an of itself is a breach of public trust?

      1. How could you stand in front of the Ethics Commission with a straight face and say, “Constitution, what Constitution?”

        What I find among the weirder problems with 41 is that the whole body triggers on the role that someone is in – Mayor, Regent, employee, etc. – and has nothing to do with conflicts of interest or the normal ethics codes we are all familiar with.

        Then, we get to the penalties and they have this somewhat lame self enrichment standard.

        And they wonder why folks are having a hard time figuring it out.

        1. An overwhelming majority of Colorado voters believes accepting something of value over $50 makes a person unable to make clear and ethical decisions, but ONLY if they are associated in some way with Government service.  The person doesn’t have to actually DO anything unethical, but is presumed to be about to do so, just by virtue of the job they hold.  I say they fix the amendment to outlaw receipt of gifts over $50 for EVERYONE and truly set a new standard for ethics in the state.

          The Legislature should fix this thing how ever, and as best it can, not to stick it to Polis and Common Cause, but because it is the RIGHT thing to do.  And if their fix ends up in court, then they shouldn’t hold anything back in fighting this Constitutional garbage as publicly as possible to the very end.

          1. If the legislature tries to change the meaning of the amendment it makes the legislature less trusted by the people. Because there will be many (hopefully not a majority) who may be fine with what the law actually says.

            And there are many others, like me, who will lost trust in the legislature if they try to make an end run around the law.

            I think 41 is very bad (I voted against it) but I don’t want a legislature that feels free to emasculate amendments passed by the voters. The ends do not justify the means.

            – dave

          2. I actually recall following some research done with respect to the medical industry.  The conclusion was there is a strong social pressure for many doctors to prescribe drugs from a particular manufacturer in response to any gifts.  There was a correlation that showed up loud and clear in statistical analysis; controlling for all other factors, pharmaceutical sales people who gave the gifts from this study were statistically speaking wildly more successful.  The doctors involved were (I think it’s safe to assume) motivated to try to help their patients as best they could, but they just kept deciding that certain drugs WERE best for their patients, far more often than doctors who heard the same sales presentations but didn’t receive these gifts from those companies.  What were these miracle gifts?  The study looked at gifts of ink pens and free coffee.

            So a $50 gift ban looks fine, but what about a 25 cent gift ban?  41 just chases the wrong problem.  I don’t know the answer, but looking for silver bullets isn’t gonna help.  All I can say is: I didn’t vote for it.

            1. or voting powers, as in a State Rep.  I don’t see how a maintenance worker for a State building can effect decisions or funding for CU if his kid gets a scholarship. 

              1. I agree with you on this – it is a shame that so many people are caught up in the A-41 net that shouldn’t be.

                We’ll watch and see if Grueskin’s bill gets any traction or whether leadership decides it is too hot a topic to handle right now.

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