Trip To Philly Raises A Morass Of Post-41 Questions

At least 10 of Colorado’s 100 lawmakers recently traveled to Philadelphia to participate in a five-day free-marketeer convention featuring speakers ranging from George W. Bush to Newt Gingrich to Miss America, where they participated in focus groups to strategize new laws affecting citizens in this state and across the country on topics ranging from ozone regulations to charter schools to sexual predators.

Their trip in late July to the annual American Legislative Exchange Council (ALEC) conference — which is sponsored largely by corporate and special interest groups, including drug, insurance and tobacco companies and where lawmakers pick up ideas for “model legislation” to bring back home — raises new questions over whether eliminating these sorts of junkets was precisely what voters thought they were doing when they passed Amendment 41, Colorado’s ethics in government law.

The lawmakers’ trip to the City of Brotherly Love also underscores the continuing mess that has enveloped Colorado’s Amendment 41 since its passage last year.

Keep reading.Many of the details of this year’s trip to the ALEC conference remain a mystery, for one reason: His name is state Sen. Ron May.

May, a Republican from Colorado Springs, is the state chairman for the Washington-based organization, and, during research for this story was repeatedly described as point person to talk to for all matters ALEC in Colorado. (Click here to read an accompanying story about the ALEC organization and how it works.)

May did not return numerous telephone and e-mail messages seeking information about this year’s trip — including who paid for the delegation of Colorado lawmakers to travel to the conference and what specific ALEC-seeded legislation is planned in Colorado for next year.

In addition, it is unclear whether the lawmakers’ trips were funded at least in part by special interest money raised via what sources described as a yearly “ALEC Fund” push by lawmakers seeking corporate donations.

Several lobbyists, who spoke only on condition of anonymity, indicated that they are asked to contribute yearly, or at least are aware of efforts by lawmakers to seek contributions from special interest groups to the so-called “ALEC Fund” to help offset travel costs. One highly placed source, who spoke only on condition of anonymity, said that, in the past, the conference featured a “State Night” — where lawmakers and lobbyists dine courtesy of special interest dollars. It is unclear what the protocol was this year.

Kirk Mlinek, director of the Colorado Legislative Council, said that the details for conference planning are handled directly by the majority and minority leaders in the Senate and House of Representatives.

House Speaker Andrew Romanoff said no Democratic representatives were approved to attend the ALEC conference this year — though funds were approved to send several to two other annual conferences that are geared toward state lawmakers.

Republican leaders in the House of Representatives identified lawmakers who attended this year’s conference, which took place July 25-29. They include: Cory Gardner (R-Yuma); Bob Gardner (R-Colorado Springs); Glenn Vaad (R-Mead); Ken Summers ((R-Lakewood); Kent Lambert (R-Colorado Springs); Bill Cadman (R-Colorado Springs); Jim Kerr (R-Littleton); and Mike May (R-Parker).

However, it is unclear exactly which Colorado state senators  – Republican or Democratic — took the trip. Renee White, the manager of the Senate Minority Office, said her office doesn’t keep a list of the lawmakers who traveled to the convention. Instead, she referred all questions related to ALEC to Sen. May, who she said handles all of the details of the annual trips.

Jorge Amselle, a spokesman for ALEC, also referred all questions about how Colorado lawmakers paid to travel to Philadelphia to May, a two-term senator who also spent eight years in the House of Representatives. The senator, who maintains a relatively low public profile, is term-limited from office next year.

“Every state has different ethics laws, so it’s up to the state chair to inform the members to make sure they are in compliance with those ethics laws,” Amselle said. “It’s up to individual members to make sure they’re in compliance.”

Amselle said that part of May’s role, as the state chairman, is to raise money to help pay for the trips to ALEC. When asked whether the organization itself has a foundation or other mechanism in place to offset expenses for members, Amselle again referred questions to May.

“He’s the one who knows the details — it’s all done through the state chairman and he’s the best person to talk to about it,” he said.

Amselle also declined to identify current members of ALEC from Colorado — again referring all questions to May.

In addition to roundtrip airfare, costs for the five-day convention this year, which was held at the Philadelphia Marriott Downtown, included hotel rooms at $207 a night for a single, plus meals. Registration for lawmakers ranged from $325 to $700, based on whether they were ALEC members or not, and whether they registered early or onsite.

On its face, such trips raise questions over whether lawmakers are restricted from such travel in the wake of last year’s voter-approved call for a more rigorous approach to ethics in government in Colorado.

Among other restrictions, Amendment 41 prohibits “a public officer, member of the general assembly, local government official, or government employee from soliciting or accepting certain monetary or in-kind gifts.” The law also prohibits “a professional lobbyist from giving anything of value to a public officer, member of the general assembly, local government official, government employee, or such person’s immediate family member.”

However — and this is where things get sticky — a number of issues are at play involving oversight of forcing Colorado lawmakers to adhere to the spirit of 41. The law itself, by all accounts poorly drafted, is in a state of purgatory, for the following reasons:

At the end of May a Denver District Court judge issued a temporary injunction in a lawsuit challenging the constitutionality of Amendment 41. Some have interpreted that as meaning the ethics law is on hold until the lawsuit has been decided.

Others view it differently. The day after the temporary injunction was handed down, Gov. Bill Ritter and Attorney General John Suthers sent out a stern letter to state employees and lawmakers strongly recommending they abide by the provisions of 41 until the dust settles. In part, the letter read:

“[The] court ruling does not, in any way, roll back the existing code of ethics and other statutory provisions governing the conduct of public officials and government employees.  For example, existing Colorado law prohibits government employees from accepting gifts that would improperly influence a public official or government employee to depart from an impartial discharge of his or her duties …

“Last November, when the voters passed Amendment 41 by a wide margin, they sent a clear message that they want their public officials and government employees to meet an even higher ethical standard.  The touchstone of Amendment 41 was that public officials and government employees must not violate the public trust for private gain.  We encourage each of you to honor the will of the voters by abiding by the spirit of Amendment 41 in performing your jobs.”

And then there is the opinion, issued the day after Amendment 41 was passed last November by the state legislative legal services office, advising on the intricacies of the new law. One section of the memo delves extensively into whether lawmakers are prohibited from going to legislative conferences — including ALEC.

Bottom line: representatives from the legal services office reported they were “uncertain” whether legislators and their staff can — or cannot — attend conferences like the trip they just took to Philadelphia. The hang-up was on the wording: Can ALEC legally be considered a “person, or a “joint government agency?” Amendment 41 doesn’t say.

The legal opinion concludes: Since Amendment 41 didn’t expressly address these types of entities, “it is possible that the General Assembly may enact legislation to address and clarify the application of the measure to them.”

“In addition,” according to the legal opinion, “the independent ethics commission established in the measure may also issue an opinion addressing the issue, as might a court.”

“Until that time, however, it is incumbent upon a legislator or legislative staff person considering attendance at or participation in a program, conference or other event sponsored by a joint governmental agency … to determine whether the state’s dues and the amount of the registration fee, if any, cover the entire cost of the program, conference or event or whether the cost of the event exceeds that consideration. In the latter case, the attendee may seek an invoice from the sponsoring agency and pay the balance, in order to remain in compliance with the terms of the measure.”

In other words, the ethics commission — which was ordered under 41 — will be able to determine whether it’s OK for lawmakers to travel to ALEC and other conventions.

The only problem is, the ethics commission is not yet operational in Colorado. Though the commission could have begun meeting on July 1, three of the five-member board members have yet to be appointed. And, to add more confusion, the lawsuit, which is challenging the constitutionality of Amendment 41, is far from decided.

The purgatory of the situation is not lost on Mike Feeley, a Denver attorney, former state senator and a lobbyist himself who helped craft the post-41 legislation earlier this year.

“Amendment 41 always put the burden on the elected official, and now every elected official is on their own, with little guidance and little understanding,” Feeley said.

Cara DeGette is a senior fellow at Colorado Confidential, and a columnist and contributing editor at the Colorado Springs Independent. E-mail her at cdegette@coloradoconfidential.com

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