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January 26, 2007 12:36 AM UTC

Amendment 41: The Other Shoe Drops

  • 48 Comments
  • by: Colorado Pols

There are two stories being told about today’s installment of the Amendment 41 saga. Depending on who’s side you’re on, it’s either the inevitable consequences of a misguided law, or the crass manipulation of a good law for ulterior purposes–not to mention a situation the legislature has the full power to remedy.

As the Rocky Mountain News reports:

Kaela Mattson was on a waiting list to volunteer at Children’s Hospital even before she was diagnosed with a brain tumor.

After doctors there saved her life, she pursued her dream of being a volunteer.

Kaela’s service led to a $900 scholarship that was to have been awarded on Saturday. She will attend the banquet, but the 18- year-old senior at Machebeuf High School has been told she can’t accept the money…

“‘Ethics in government,’ that sounds great,” said Kaela’s grandmother, Donna Mattson, of Denver. “Sure, I don’t want anybody on the take.

“But Amendment 41 is hurting my granddaughter.”

Common Cause’s Jenny Flanagan has said the backers of Amendment 41 do not believe the language ever outlawed scholarships. But she said lawmakers have a chance to clarify that and end the confusion.

[Jared] Polis has hired Eric Sondermann to handle questions directed to him about Amendment 41. Sondermann said “heartwrenching” stories such as Kaela’s is a reason the legislature should review legislation to clarify Amendment 41.

But Sen. Peter Groff, D-Denver, said lawmakers’ hands are tied because Amendment 41 is a constitutional amendment and includes a provision that it can’t be weakened.

Somebody’s getting screwed over, anyway. Maybe it’s this innocent student being set up as the poster-child “victim” of Amendment 41: or maybe she’s being victimized in more ways than one.

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48 thoughts on “Amendment 41: The Other Shoe Drops”

  1. Jared they are going to laugh just as hard whether you make the statements or hide behind a highly paid spokesman. Stop playing hide and go seek as the press is laughing their asses off at the irony of you hiring high paid lobbyists to help save your plan to crack down on high paid lobbyists. Just remember Jared they are laughing at you not with you.
    Unfortunately eveyrone knows that you have to know how to read to graduate from Princeton and Amendment 41 and the parts you are now trying to change are written in clear plain English. Peter Groff is that rare Democrat who makes sense. If Jared is the nominee for Congress Stone will beat him

    1. The scholarship is a form of payment for services performed for the hospital, not an academic scholarship. Kids can’t make a living, if their parents work for the state?

      I don’t think so.

      I’m wondering whether this is a setup by the opponents of 41 who were looking for a poster child and dreamed this one up. Does it fit? Is it accurate?

      Will the press ask? Will the lawyers discuss?

      Be careful of state employees screaming “wolf!”

        1. Vote someday?

          You are right, a poster child.  Why don’t some of these brave legislators just go ahead with some of these absured scenarios and then see what blows up. 

        2. I’ve read the text at least a few times and nowhere does it read: “a legal violation only occurs if you accept gifts with the specific intent to be influenced”. 

        3. The language of the amendment does not reference intent. Any gift above $50 is prohibited. I can’t imagine that the Supreme Court will let this one stand.  It’s too bad that Jared Polis couldn’t have used some of his hard earned money to hire a lawyer.  This thing is a disaster. 

        4. The gift ban makes a point of not having an intent element.

          There is a penalties section that ties a specific penalty (double disgorgement) to a breach of public trust, but that doesn’t make a violation of the gift ban that is anything else legal.

          1. There’s no penalty for a “technical” violation of the statute at all. Some sick child who gets a scholarship is not committing “breach of the public trust.” Neither is a Nobel Prize winner.

            I just love all this “sky is falling” nonsense.

    2. There was nothing to 41 that outlawed lobbyists. It was designed to keep politicians from attaching themselves to a lobbyist’s front pockets like a calf to a cow.That appears to be working. Yes, this is an unintended consequence that was known before hand. But it is far easier to allow something than it is to close something. Basically, it would have been major work to close all the loopholes that stop the corruption. Now it is stopped and it is time for politicians to slowly back off from it to allow good policies.

      What I find interesting is that so many on this list who are intimately connected to politics seem to hate it, whereas those of us who are not directly connected love it. It was a necessary prescription. Hopefully it will not be allowed by Owen’s supreme court.

      1. don’t realize that it has draconian effects on ordinary rank and file government employees that can’t be written out of the law without in the same stroke gutting the law as it applies to legislators and lobbyists.

        If it were limited to the less than 200 elected and non-career service politically appointed individual in state government (and their spouses and dependent children), who combined, received less than $250,000 in gifts from Colorado’s 1100 registered lobbyists in 2005, which is what most people in Colorado thought they were voting for, it wouldn’t be a big deal outside of Capitol Hill.

        But, Colorado has roughly 249,000 people who are primarily impact by Amendment 41 (this is the number of FTE state and local employees in Colorado — it is a little low in the sense that this undercounts part-time employees and independent contractors, but it is a little high in that it includes special district employees and employees in certain home rule cities with their own regulations, however, both discrepencies are small, roughly equal in magnitude and go in the opposite direction, so this number is probably accurate to +/- 10,000).  It also impacts their immediate families.

        Also, while one can argue on the fringes about whether this or that gift is included in the gift ban, the definition of gifts that are banned very clearly requires no nexus with official activities of an official (bribery laws in Colorado have long forbidden those kinds of gifts), and it is very clearly defined includes benefits to someone that go far beyond the common sense definition of the word gift.

        For example, the law clearly defines a credit card company writing off a debt you owe as uncollectible, at least outside of bankruptcy, as a gift.  It also very clearly defines a gift of a fancy dinner or a nice flower centerpiece worth more than $50 as a gift, even if it is from a friend simply because you had a tough day and need a pick me up and not out of any conceivable interest in securing legislative favor.  Such puritanical standards may make sense in cases involving gifts received by legislators or gifts given by lobbyists.  They don’t make sense in the case of someone who happens to be a firefighter’s spouse or a file clerks son.

        And, why should I be worried that a lobbyist is contributing $20 to a class gift to his or her child’s school teacher, another prohibition of the law.

        Amendment 41 was written by an idiot in a way that was deliberately hard to loosen with implementing language, and the people of Colorado were stupid enough to pass it.

         

        1. Assuming our legislators get off their collective butts and actually PASS some legislation to clarify the intent behind the amendment, the Colorado courts will allow that. They allowed such amendments with the campaign spending amendment – even laws that pretty clearly contradicted specific language in the amendment. So relax, everyone: firefighters’ kids will be able to keep their scholarships.

          The career politicians like Joan Fitz-Gerald have a strong self-interest in preventing any commonsense legislation to fix the amendment by statute, because they know the courts would uphold such legislation, and instead they are desperate to have the entire amendment stricken.

      2. It may be a prescription, but not for any illness around here.  You can rail against corruption in the halls of Congress all you want.  Amendment 41 has absolutely NOTHING to do with them!  Amendment 41 applies to State officials and employees and some others.  People who have no clue whatsoever about the most basic precepts of government vote for and defend garbage like Amendment 41 because they think it will do what they’ve heard it will do, not what it SAYS it will do.

        Many who voted for the Amendment might have believed they were doing good for Government.  Many who thought they were doing good might have done better to read it for themselves, and ask questions if they didn’t understand, like:  “How many cases exist where public policy was biased in an unseemly fashion because a snowplow driver inherited a gold watch from his uncle”.

        1. This is a toughie – on the one hand, both parties hate it, so my first reaction is that it’s a good idea.  But on the other hand Jared Polis is behind it, so it’s probably not. 

          In other words, it sounds like a complete debaucle. 

          1. is assuming what the courts will do. After all the bashing “activist” judges get from the right these days, I would be leery of assuming a judge is going to stick his or her neck out to create a contorted ruling that is going to get “activist” judges bashed by the left. This has the potential of having the strict construction upheld by the State Supreme Court and then you have spent the money of a lawsuit only to have taken any discretion out of the legislature’s hands. Why do people believe they know what judges will do?

  3. Woah Woah, Don’t forget the voters of this state passed this bill… and stopped Ref I in the same vote. Attacking Jared Polis is not right thing to do. We have to take a look at making things more clear and defined.

    I think The Colorado General Assembly should and can pass a bill that will preserve the heart of Amendment 41 while limiting any unintended consequences. I think many of the voters were not fully aware of what this bill would do.

    The General Assembly has clear authority to pass common sense legislation implementing Amendment 41.  The legislature has done so before with TABOR and Amendment 27 (campaign finance reform). The legislature should do so again now.

    You also have to admit there are some who opposed Amendment 41 not because of any unintended consequences but because of its central principles.  These people attempt to use money to influence public issues and to give them a leg up on other citizens who petition government. They resent that Amendment 41 has leveled the playing field.

    It is time for at the very least, clarifying legislation will offer extra security to those who are impacted by Amendment 41’s unintended consequences… It is time to act and the state house needs to step up and act now.

    1. The Legislature can implement penalties and define otherwise undefined terms, but it cannot reword the Amendment – that’s why it’s an Amendment and not just a law…

      Its hands are tied by the rather verbose and reasonably explicit wording of 41; the terms used are pretty specific and already have common meaning in legislative terms.  The voters need to own up to a whoops, as do the Amendment’s proponents.

        1. The amendment has specific language prohibiting the General Assembly from taking any steps to weaken the measure.  For those of you who are so fond of it, take time to read the thing.  We are stuck with it. 

          1. Amendment 27 has the exact same language they used in Amendment 41 and the legislature passed clarfying laws in that case.

            You are correct in that the legislature can’t weaken the amendment.  However, there are words used in Amendment 41 that could be defined by the legislature without “weakening” the amendment.

            2. “Legislation may be enacted to facilitate operation of this article, but in no way shall such legislation limit or restrict the provisions of this article or the powers herein granted.”

              1. Usually means enacting enforcement provisions, or implementation decisions.  It excludes re-defining “government employee” and “immediate family” and all the other fine, pre-defined words used in the amendment.

                I just want someone to point me to some words we can define effectively in the Amendment that would blunt the stupid effects, but do so legally.

      2. I agree with you, they couldn’t define the most important terms in the amendment, those you listed, but other words may help limit the scope.

        What about:

        “accept or receive”
        “frivolous”
        “lawful consideration of equal or greater value”
        “provate gain” and “personal financial gain”
        “represent for compensation”
        “vacation of office”
        “special occasion”

        These are some of the terms Mark Grueskin suggested at a presentation a little while ago.

        1. wiggle room in it.  But, that word leave you with two choices — gut the ban for legislators and lobbyists, or apply tough standards for everyone.

      3. That is exactly what happened with Amendment 27: the courts in Colorado allowed a statute that went DIRECTLY against certain EXPRESS language in the Amendment, because the statute furthered the voters’ intent. They’ve done it before, and they’ll do it again.

    2. as the law is unclear about the status of legal guadians or grandparents, as opposed to children and spouses, the General Assembly does not have “clear authority to pass common sense legislation implementing Amendment 41.”

      The General Assembly clearly does have authority to clarify a few aspects of the law.  But, Jared Polis and Common Cause are at fault for drafting a law so precisely defined that there is a great deal that the General Assembly cannot do.

      Any “common sense legislation” will necessarily controvene some express provisions of the law.

      The biggest problem with the law is that for purposes of its gift ban it puts ordinary government employees on the same footing as legislators and other elected officials.

      Those who aspire to change that with implementing legislation are just kidding themselves.

      Also, the notion that TABOR was fixed with implementing legislation simply isn’t true.  Some of the most important goofs in it, like the inclusion of state college tuition in spending caps were only evaded by a wholesale defunding of higher education combined with a total restructing of high education funding from a direct funding model to a primarily voucher model that has forced the state to spend more money on tuition to religiously affiliated colleges than it did before.

      Amendment 27 likewise has not been fixed satisfactorily.  For example, its flaw of treating limited liability companies and corporations differently for campaign finance purposes, despite the fact that for all purposes involving third parties other than income taxation they are identical, has still not been resolved.

      Amendment 41 affects far more people than Amendment 27 or TABOR in a direct personal way.  This is a result of its poor drafting.

      1. I have no idea if you actually are, so don’t mistake this for an accusation — but if you have been retained or are otherwise in the service of Amendment 41’s opponents you should disclose that.

        Your long-winded devotion to this subject makes me wonder.

    3. why don’t you go back to your buddy Jared Polis and tell him that he screwed up and no highly paid lobbyists and lawyers can fix it for him because the legislature can’t do what he wants them to do because of the last clause in the amendment he wrote on top of the fact that it is a constituional amendment. He did it to himself and i and alot of other people don’t feel bad for hum.

      1. Ok ok,

        Well first off lets take a look at what we need to do to fix it. Lives could be hurt in very real and immediate ways if the legislature doesn’t act.  This is not just a legal issue – this is about protecting families that were never intended to be the focus of Amendment 41.  Until the legislature acts, they could lose access to everything from scholarships to disaster aid.

        Our legislature is not acting because no one wants to act because of a number of them running for CD2. It is time to make the legislature act and define the law better.

        Fine pass blame on whoever you want… but make sure you blame the states voters as well. Because voters clearly did not intend absurd results like denying Nobel Prizes to Colorado professors, the legislature should enact the bill to take such issues off the table.

        Am I wrong here… How about we work to fix an issue over just acting like a bitter lobbyist.

        1. and the law here specifically forbids the Legislature from limiting this in any way. Saying it’s because people are running for CD2 is unfair, it’s not legal semantics–IT FORBIDS THE LEGISLATURE FROM LIMITING ITS SCOPE. End of story.

          1. How they did it over and over again to Amendment 27, doesn’t it? Obviously this is only true when these scheming legislators want it to be true.

            I think the skeptics are dead-on with this, that this poor girl and the whole hullaballoo over Amendment 41 is being MANIPULATED by Joan Fitz-Gerald and her lap dog Peter Groff because she wants to eliminate her competition for Udall’s congressional seat, and the legislature in general because they want to get rid of ALL of Amendment 41.

            Fitz-Gerald’s husband lobbies for Newmont Mining, people! Do you really think she’s taking the “high road” out of f’ing altruism? Anybody see her flop like a fish when Grueskin asked her how she could “clarify” Amendment 27 repeatedly when it suited her but somehow not this one? It was pathetic. She basically rolled her eyes.

            The “insiders” on this blog are nothing but amateurs if they can’t see what’s really going on here. This is pure, disgusting politics and the voters are the losers. You have been warned.

            1. Knock it off, Whether or not we supported Amendment 41 last fall, it’s the law now and we need to make it work as well as possible. Legislation can be enacted quickly and it is more certain than legal challenges.

              The General Assembly has clear authority to pass common sense legislation implementing Amendment 41.  The legislature has done so before with TABOR and Amendment 27 (campaign finance reform). The legislature should do so again now.

              So they can… learn your facts and see the elected officals are more than playing with things to better chances in the cd 2 seat… It’s time to get the state house to work to solve an issue.

              1. “The General Assembly has clear authority to pass common sense legislation implementing Amendment 41.”

                This simply isn’t the case, as explained in other comments.

            2. I have yet to see any of the draft language that is supposed to save Amendment 41 from its own flaws, and looked for an introduced bill to do so and didn’t see it.

            3. You are absolutely, spot-on right: that’s exactly what’s happening here. It’s pathetic and disgusting.

              The law can easily be fixed to avoid all the horribles: the sick kid who can’t get a Make-a-Wish gift, the firefighter’s son who can’t get a scholarship, the guy who supposedly can’t inherit a gold watch from his uncle. It’s a load of hooey!

              Also, there are NO PENALTIES under this law except for “breach of the public trust.” There is no breach of the public trust when someone accepts a Nobel Prize.

              Give me a friggin’ break. If anyone gets in trouble for any of the above kinds of “violations,” I’ll… why, I’ll vote for Tancredo!

  4. the only solution is to REPEAL all laws regulating free speech.
    We should be able to get the best legislature that money can buy.
    Just force full disclosure.
    That way, everyone will know that Bill Ritter is beholding to me and my $100 (acutally, my wife’s).

    ,dave

  5. I am begining to find these 41 discussions so predictible.

    I will state what I said before again. OBVIOUSLY the legislature should apply common sense and do what the voters wanted and not apply it to scholarships of public employees.

    Notice how the only people arguing to apply 41 to these absurd circumstances are the people who were opposed to it in the first place? They hated it then and they hated it now because they want to return to the bad old days of lobbyists treating legislators to vacations, sports tickets, fancy dinners, etc. Now that it passed they want it applied to everything.

    If the legislature doesn’t have common sense on this and implement the will of the voters in good faith, it will be them who look completely idiotic, not Common Cause or Jared Polis.

    1. I am concerned, however, that the news coverage of this situation is also not impartial. I have heard rumors that reporters covering this beat have expressed specific and negative opinions about Amendment 41.

      The week’s coverage, from the article setting the stage for  the planned injunctive relief right into the “victim” sob-story…this is a damn set-up if ever there was one. It’s so obvious.

      Will the voters be smarter than the pros ganging up to subvert their clearly expressed intentions? Or will they get taken again, this time by Democrats they think they can trust?

    2. I was and am opposed to Amendment 41 for precisely the reasons that people are criticizing it on this web site.  It has enormous and stupid consequences for all state and many local government employees and contractors.  That’s why I voted against it, and why I was opposed to it in the first place.  I have no use for elected officials who allow themselves to be influenced or appear to be influenced by lobbyists who buy them stuff, take them places, and feed them well.  I would have happily and with a clear conscience voted for an amendment that stopped that.  Amendment 41 is not that amendment, because it doesn’t stop there; by its own terms, it applies to all state employees and contractors, whether or not they are in a position to be influenced by lobbyists.  Trust me, I’ve never gotten a free lunch from a lobbyist and even if I had, I couldn’t have done anything about it.  My job has no effect on policy decisions or legislation.

      Listen, there’s a non-profit foundation that provides emergency grants to state employees who need help with food, medical expenses, utilities, funeral and burial expenses, and things like that.  It is funded by donations from state employees. In its 14 years, it has provided about $400,000 in emergency financial assistance.  The maximum grant is $500, and the checks are made out to the grocery store, medical provider, funeral home, or whatever; they are not payable to the employee.  Now there is some question whether Amendment 41 will allow this foundation to continue providing these emergency grants.

      If the legislature can fix Amd 41 to address this and all the other problems that have been identified, fine.  But WHAT IF IT CAN’T?  What if the courts actually interpret the plain language of the amendment to forbid the kind of legislative weakening of the amendment that you propose? 

      It sounds like you voted for this thing; if so, then why?  Didn’t you read the blue book?  Didn’t you think about these issues?  It seems to you that the only people who are discussing the “absurd circumstances” are ones who want their free lunches back.  Well, it seems to me that the only people who are relying on the legislature to weaken the plain language of the amendment and on activist judges to gut its plain meaning are people who voted for it without bothering to read about it, and now are backpedaling from the consequences that they put into our state constitution.

      1. Your last paragraph is exactly the point!  And it is the self-same ethics champions like DVD Fanatic and Tancredo Watch who actually advocate violating the Constitution because, hey, there isn’t any real penalty.  To them I’d like to say that many people actually WANT and TRY to follow the law, ESPECIALLY the Constitution.  So no, I won’t be taking the gold watch, the Assistance program may not be paying anymore funeral expenses, and some people’s kids are not even applying for the scholarship that they read the Constitution forbids them from getting.  That’s the true and current outcome of your Amendment regardless what the Legislature or the Courts end up doing to it. 

  6. Legislators are prohibited from attacking one another’s motives, of course (heh heh), but let’s face it: the legislative debate over A-41 is strictly a smokescreen for the CD2 primary. Joan’s supporters in the Senate will do everything in their power to block any “clarifying” law, simply to make Jared look as bad as possible for as long as possible. Any policy discussion, including any self-righteous, priggish assertion of “standing up for the will of the people,” is just a fig leaf over the nasty politics of the Congressional race.

    1. So, lets imagine you are correct and this is just a big tug-o-war between Fitzgerald and Polis.  Why are all the Republicans in the Legislature pulling on the rope too?  Wouldn’t it make more sense for them to sponsor something, find a few Democrats who don’t care about the Congressional Primary, and save the day?  I don’t hear anything about that happening, so there must be some policy mixed in with the politics somewhere. 

      1. I think Fitz-Gerald is caught between a rock and a hard place on this.  As a Democratic leader, she needs to take a stand, which she has.  Unfortunately, she’s up against Polis which makes that stand seem political.

        Personally, I don’t think the Republicans are going to jump into the fray on this. Let the Democrats figure it out, take the hits and deal with the consequences.  It is a taste of the Democrat’s own medicine (albeit from the national Democratic party, and not Colorado’s).

        Screwed up no matter how you look at it.

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