Face The State Staff Report
Following a request from an anonymous University of Colorado professor, the state's Independent Ethics Commission released an advisory opinion Monday regarding reimbursement and Amendment 41 policies for public employees who also work as educators, contractors and lecturers.
The opinion (PDF) answers seven questions posed by a professor, ranging from when it is appropriate to accept a textbook with a retail value of more $50 to whether a university employee can be reimbursed by the federal government for testifying before a congressional committee.
The IEC concluded that a "professor or other university employee may be reimbursed by the federal government for the reasonable expenses of testifying before a congressional committee or attending a meeting with federal government officials." The commission said testifying before Congress is an "important civic act" for which the "individual testifying is making available his or her expertise."
As for accepting an expensive textbook, the commission found that regardless of whether the copy of the textbook was solicited, it is permissible for professors and university employees to accept it without violating Amendment 41, as long as they do not resell the book. "It is akin to test-driving a car; one must see it and evaluate it before making a purchase," wrote the IEC.
Amendment 41, which was passed by 62 percent of state voters in 2006, bans gifts of more than $50 to public officials, employees and their families, and prohibits any gift at all, including a lunch, from a lobbyist to a lawmaker. The controversial measure has been the source of confusion and frustration for political insiders. In 2007, a group of elected officials, government works and non-profits complained Amendment 41 limited their First Amendment rights. This led Denver Judge Christina Habas to issue a preliminary injunction against the enforcement of Amendment 41. In 2008, however, the injunction was overturned by the Colorado Supreme Court.
One question from the anonymous CU professor reads, "If the definition of 'gift' in Section 3(2) of Amendment 41 is limited to gifts intended to influence official action, are gifts to professors banned if the gift influences benign action (such as the adoption of a textbook) or benefits the university and its students or promotes public policy (such as good will lobbying)?"
While the advisory opinion does not specifically address whether the actions of university employees are included in the definition of "official action", the opinion does state that "the language of [Section 3(2)] does not limit the gift ban to gifts intended to influence official action."
According to John Holcomb, a University of Denver business professor who specializes in ethics, potential controversies could arise from the IEC's decision not to speifically exclude the behavior of professors in the definition of "official action."
"[A potential ethical conflict] would depend on the situation, and have to be fact specific as to whether or not the gift was intended to influence 'official action'," Holcomb told Face the State. "But the problem is with the definition of 'official action.' I would say gifts certainly could influence the behavior of a professor, such as taking an 'official action' to change the grade of a student."
Amendment 41 established the IEC and gave it the authority and responsibility to issue advisory opinions in response to specific questions regarding the amendment. Jane Feldman, the IEC's executive director, said the commission has made the decision to keep the identity of the requester a secret because she thinks people won’t ask for advisory opinions if their name is released. A liberal litigation shop, Colorado Ethics Watch, is currently suing the IEC in Denver District Court over this issue. A hearing is set for April 10.