Senate Minority Office

Analysis of proposed Amendment 41 enacting language

• Junkets: In at least two places, the proposed legislation allows for junkets.
• Amendment 41 prohibits a member being given money or forgiven of indebtedness from any person unless the person receives “lawful consideration” in turn. The proposed language defines “lawful consideration” as “any monetary or non-monetary item or service of value… including but not limited to the expenditure of time on job-related meetings, conferences, and conventions, necessary or appropriate to advance the professional skills or knowledge of a covered person”. This specifically allows a member to spend time at an ALEC conference – or any other junket – and call it “lawful consideration” in exchange for covering expenses and travel to the conference.
• Amendment 41 prohibits officials from pursuing “private gain” and “personal financial gain.” The proposed language defines that as not including “payment for costs associated with attendance at a reception, conference, convention, event, fact-finding project, or meeting, including admission, meals, travel, and lodging, when such attendance is reasonably related to a covered person's public position or advances a covered person's professional experience, skills, or knowledge”.

• Public Sector Lobbying: The proposed language exempts public-sector lobbying jobs from the two-year cooling-off period in at least two ways. The exemptions aren’t just for department heads and other public officials who have business before the legislature, but also for the legislative liaisons – actual lobbying jobs.
• Under Amendment 41, members are not allowed to “Personally represent another person or entity for compensation” for two years after “vacation of office.” The proposed legislation defines “Personally represent for compensation” as “employment as a professional lobbyist by a non-governmental entity”, thereby exempting government lobbying gigs from the cooling-off period.
• Second, in the proposed legislation “vacation of office” is defined as leaving government service for non-government employment. This also exempts government lobbying gigs from the cooling-off period.

• Blowing holes in the gift ban: The proposed language places a very severe restriction on who the gift ban actually applies to, erasing the effectiveness of the gift ban.
• The proposed legislation defines “private gain” and “personal financial gain” – the things that are banned by the gift ban – as being something “provided by a person seeking to influence one or more discretionary act”. I.e., it’s only banned if the person giving the gift is intending to influence the official actions of the person receiving the gift.
• This is outrageous – it clearly replaces the blanket gift ban with a ban only on gifts that are given by people with intent to bribe. And, presumably, the Independent Ethics Committee is the only arbiter of just what the gift-giver’s intentions are.
• Further, the definition of “private gain” and “personal financial gain” is given several enumerated exemptions, most notably:
• Compensation for the costs of attending conferences (i.e. junkets)
• Gifts from the family members of lobbyists to the family members of officials
• Donations to an “organization of covered persons where such funds are spent on conferences, conventions, meetings, or comparable events attended by the members of such organization or members of the public” – potentially allowing lobbyists to pick up the tab for caucus lunches or lunches held by any “organization” of members.

• Failure to address important questions:
• The biggest, most important question about the implementation of Amendment 41 has not been addressed: whether the individual members of the Ethics Committee each have subpoena power, or just the commission collectively.