Feb 202007
Authors: James Holt

In what seemed to be a worthy effort, voters approved a measure in November meant to thwart the influence special interest groups and lobbyists have on public policy.

But in the wake of the approved legislation, officials find themselves scrambling to clarify the law, leaving some students in financial limbo.

Amendment 41 was touted for its promise to keep government officials accountable, but it could have negative implications for students on scholarships.

The Boettcher Foundation, a prominent scholarship-granting organization, and three of its scholars filed a lawsuit against the state earlier this month, after some officials interpreted that the government ethics law could yank scholarships from students who either work for the state or have parents who work for the state.

The Denver District Court ruled in favor of the foundation, giving it exemption. And The Daniels Fund, another scholarship organization, received a similar ruling last week.

“We were fortunate,” Tim Schultz, president of the Boettcher Foundation, told the Collegian earlier this month. “We hope the actions taken today help other organizations.”

Andrew Angely, a senior economics major who works at the information desk in the Lory Student Center – which is considered state employment – is a Boettcher scholarship recipient. Angely has eyed the events surrounding the amendment warily.

“It was kind of a bad social implication,” Angely said. “But I think everyone down at the capital realized that and was pretty active in trying to fix it.”

But there has been no all-encompassing exemption for other scholarship organizations and recipients.

Lost in translation

The amendment places a prohibition on government workers and their families from accepting gifts worth more than $50 from any person, public or private. Violators risk being fined double the amount of the gift.

The gift prohibition extends not only to legislators, but also to any and all government employees and their family — which as it is written in the measure includes employees of “a public institution of higher education.”

Bill Chaloupka, chair of the CSU political science department, said the amendment suggests public support for such a prohibition but added that the public may not have had a clear idea of what the amendment would do.

“Before the election, there was very little news about it; very little opposition,” Chaloupka said. “If you voted on it today, the results would be different.”

Only a month and a half since the law’s inception, unintended consequences have surfaced.

“Since the election, there have been complaints that the amendment would have undue consequences,” Chaloupka said. “I don’t know what the cause of it was. The whole issue was wrapped up in some pretty political conflicts.”

According to Common Cause, a self-proclaimed non-partisan organization involved in the writing of the amendment, Colorado lobbyists spent more than $1.6 million on public officials in the form of gifts, trips, meals, event tickets and other expenses in 2005.

The Colorado branch of Common Cause drafted the amendment to establish what they call “an ethics framework for Colorado.”

But the writing of the amendment failed to exclude scholarships from the slew of gifts outlined as unethical contributions.

“The amendment was very poorly worded,” said Nate Strauch, communication director for the State Attorney General.

And according to Speaker of the House Andrew Romanoff, when the legal staff was presented with the amendment, they sent it back with more questions than answers.

“It is a bit ambiguous at best,” Romanoff told the Collegian last week. “Kind of a mess actually.”

According to the amendment, both the party giving the gift and the recipient would be held responsible.

In response to reports that some government workers were considering leaving their jobs for fear of limiting their child’s college opportunities, the offices of the governor and the attorney general sent a letter to all state and local government, saying:

“. when the voters approved Amendment 41, it was not their intent to limit the opportunities of the children of government employees to compete for scholarships on equal footing with children of non-government employees.”

Romanoff says while some parts of the law delineate an intent to apply only to government employees who breach “the public trust for private gain,” other sections are riddled with ambiguity.

A broad interpretation of section three, Romanoff said, not only could prevent some students from accepting scholarships, but also some professors from accepting Nobel Prizes and some farmers from accepting disaster relief aid.

Who’s exempt?

So why are some scholarship organizations considered exempt and others not? The answer to that question, Romanoff said, depends on the requisites that accompany the individual scholarship.

The Boettcher Foundation won exemption because they require their students to maintain a minimum GPA in return for their scholarships. The Foundation argued that because their scholarships were not purely unconditional “gifts,” Amendment 41 did not apply.

Romanoff added that this argument would not apply to scholarships simply awarded to recipients without any stipulations.

“While the Boettcher Foundation case does not resolve all the outstanding questions regarding the impact that Amendment 41 could have on students and their families, it is an important first step,” the letter from the governor and attorney general’s offices said.

And Chaloupka says it’s an important precedent set by the state.

“If one group gets a ruling, it usually will apply to other groups in a similar situation,” he said.

But scholarship recipients are still hanging in the balance.

Fixing the funding

Denver attorney Mark Grueskin, one of the lawyers working to fix the problems inherent in the law, says students and their families shouldn’t panic just yet.

“Amendment 41 as drafted would not affect a majority of scholarships,” he said. “.for whatever reason, a number of people have bought that line and presumed legislation could do nothing.”

The main problem, Grueskin says, is that the intent to prohibit public officials from being influenced by gifts – those “violating public trust” – wasn’t restated in every section of the bill.

Romanoff identified two camps of perspective regarding Amendment 41. One camp, he says, believes the confusion is the voters’ fault and nothing can be done until the 2008 election season.

The other camp, mostly proponents of the amendment, believes legislation should proceed in clarifying the amendment as it has done in the past.

“I’m trying to find some middle ground,” Romanoff said.

Legislators are currently pursuing a two-part strategy. The first is to pass a bill – House Bill 1304 – aimed at correcting some of the “more absurd results” of the amendment.

Legislators’ second move is to ask the Colorado Supreme Court if legislation even has the power to pass such a bill, which has been widely disputed by political scientists and legislators alike.

“That’s what’s at issue,” said CSU political science professor John Straayer Monday. “How far can legislators go?”

Straayer says the legislators are limited in their ability to change to the unintended consequences of the law.

“Courts will look into plain language first, but also give some weight to the intent,” Romanoff said.

The Supreme Court could deny legislators or not respond at all, but there is no harm in asking, he added.

“Even if this strategy works, I think it will be a stop-gap measure,” Romanoff said. “The amendment needs to be changed by voters.”

One obstacle facing legislators is that section nine of the law prohibits any attempt to “limit or restrict” the amendment’s provisions. Writing a statute that gives scholarship organizations exemption could be seen as a violation of this part of the amendment.

Another problem – the state constitution mandates that fiscal matters only be placed on the ballot in odd-numbered years.

“We have to wait until 2008,” Romanoff said.

If legislators are not granted the power to clarify the amendment, scholarship organizations would have to appeal individually – like the Boettcher Foundation and the Daniels Fund – or groups of plaintiffs will have to make a broader challenge against the amendment itself.

The final result of these legislative efforts to clarify Amendment 41 is still painfully uncertain. Some students could potentially lose their scholarships before the 2008 ballot. And students and families willing to risk being fined could still be blocked if their scholarship organizations are unwilling to risk the same fine.

Unfortunately, Romanoff says, Colorado currently has one of the easiest constitutions to amend, which he says is likely to blame for the Amendment 41 predicament and the consequent political ping-pong game of which some students have themselves in the middle.

“We don’t know if we have the power to fix this,” Romanoff said.

Staff writer James Holt can be reached at news@collegian.com.

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