He is Banned From Lobbying Under State Constitution
Face the State Staff Report
DENVER—A former Colorado legislator who recently resigned his position to serve as executive director for a troubled Colorado union may be violating the state’s constitution if he takes part in job functions he has described as his top priorities.
Mike Cerbo, previously a state Representative from Denver, announced this week that he has been picked to take the helm of the highly fractured Colorado AFL-CIO, an organization taken over by the national union last year after infighting compromised the union's overall objectives.
According to an October 2nd Denver Post report, Cerbo's priorities include “lobbying for job and pension security and health care.” Cerbo also confirmed lobbying as among his chief objectives in a September 14th Colorado Statesman report, which reported he’d “be doing a lot of lobbying” in the new position.
Under a constitutional amendment passed by Colorado voters in 2006, however, Cerbo is banned from acting as a "representative" in front of any member of the General Assembly. The controversial Amendment 41, championed by Democrat philanthropist and congressional candidate Jared Polis, prevents legislators from representing organizations for compensation before the governor or any member of the legislature for the two years after they vacate their seats. That prohibition is known as the "revolving door," aimed at preventing recently-resigned legislators from exerting undue influence over recently-separated colleagues.
Over the last several months, Amendment 41 has already been the source of multiple lawsuits. On May 31, Denver District Court Judge Christina Habas issued a ruling that prohibits the state from enforcing two key provisions dealing with restrictions on lobbyists and gifts to state employees. Habas's ruling, however, does not impact the "revolving door" provision.
"LOBBYING" OR "REPRESENTING"?
Jenny Flanagan, executive director of Colorado Common Cause, a liberal government-ethics special interest group and active supporter of Amendment 41, told Face the State she doesn't believe Cerbo would be acting as a lobbyist, despite media reports to the contrary.
"We have no reason to believe that he would be serving in the role of lobbyist. Many organizations have a lobbyist or legislative liaison as part of their office," Flanagan said.
It is unclear if the Colorado AFL-CIO plans to retain a separate liaison that would work at the capitol on the union's behalf. According to the Secretary of State's registry for professional lobbyists, the union is now represented by Denver attorney-lobbyist Mark Grueskin, who is also listed as a representative for eight other groups, mostly labor unions.
The AFL-CIO website lists only a political "strategist," "organizer," and "director," none of whom are listed as registered lobbyists for the organization.
Flanagan was ambivalent about whether Cerbo could legally attend legislative hearings on behalf of the AFL-CIO. "(The revolving door provision) pertains to lobbying and being up there and using your position or status as a means to push an agenda," she said. "That's where the line gets close. That's why we have a provision to create that space, which is appropriate...in a fact specific situation."
Under a straight reading of Amendment 41, Cerbo would be prohibited from using that "position or status" in contacting any state official, not just legislators.
AMENDMENT 41 ENFORCEMENT
Enforcing the Constitution's ban on lobbying within two years of a legislator's resignation could prove troublesome. Opponents to the ballot measure such as the First Amendment Council contend Amendment 41's provisions are "self-executing"; that is, they do not require specific legislative action to go into effect.
According to Flanagan, the ethics commission established under Senate Bill 210, signed into law this year, will provide guidance to individuals like Cerbo facing questions over what actions are permissible under the Constitution.
The Commission would be unable to relax rules to allow Cerbo to represent his union client at the capitol, however. The amendment's language only allows stricter restrictions established by law, and explicitly prohibits any law that "limits or restricts" its provisions.
Cerbo could seek an "advisory opinion" on the matter from the ethics commission. Face the State is unable to locate any such filing as of press time. Calls and e-mails from Face the State to Cerbo for comment went unanswered Thursday.
WILL CERBO HAVE TO SIT OUT DNC PARTIES NEXT SUMMER?
Uncertainty over Amendment 41 could create ethical and legal dilemmas for Cerbo as labor activists prepare for the Democratic National Convention coming to Denver in August 2008.
As Face the State has previously reported, national and state Democrats are already catering heavily to union priorities, with every major candidate for the Democrats’ presidential nomination pledging to support labor causes.
Under Amendment 41, Cerbo would be prohibited from attempting to persuade Gov. Bill Ritter or any state elected official on any labor-related issue. With national party conventions now known for their festive atmospheres, Cerbo could run into trouble at convention cocktail parties or other social gatherings.