Date: 09/07/2006

Final
Amendment 41 - Ethics (Continued)

COMMITTEE ON LEGISLATIVE COUNCIL

Votes: View--> Action Taken:
Move a conceptual amendment to the final staff dra
Move a prepared amendment (Attachment J) that wou
Move Severed Section A of the Butcher mock-up amen
Move Severed Section B of the Butcher mock up amen
Move to amend Senator Windels mock up amendment (t
Move to amend the Butcher mock-up amendment (moved
Move to amend the Butcher mock up amendment (Attac
Move to amend the final staff draft, page 3, line
Move to amend the final staff draft, page 3, strik
Moved a prepared amendment that is a "mock up" of
Moved the prepared "Madden Amendment #2" that inse
No motion, delete this sheet		PASS
PASS
PASS
PASS
FAIL
PASS
PASS
PASS
PASS
TIE
PASS
TIE


A notebook containing the final staff draft of each ballot analysis, comments to the final draft from interested parties, a copy of the last draft mailed to interested parties, the contact list for each measure, and the text of each measure is appended as Attachment A.

10:01 AM -- Amendment 41 - Ethics (Continued)

Jenny Flanagan, Colorado Common Cause, introduced herself and explained her work with the coalition sponsoring Amendment 41. She expressed her concern that the changes proposed by the opponents to the blue book would be unfair and would not be accurate (these proposed changes are found in Attachment H).

10:04 AM

Martha Tierney, proponent of Amendment 41, responded to questions from the committee regarding concerns about dependent eligibility for gifts or scholarships. Ms. Tierney explained her belief that such gifts would not be unlawful under the proposal because it does not directly benefit the employee. The Senate President expressed concern that such gifts would still be subject to a subpoena request. Ms. Tierney emphasized that the purpose of the commission would be to make sure individuals are not using their office or responsibility for personal gain. Senator Teck noted his belief that the measure could create some unintended consequences and that the opponents' arguments seemed to more clearly reflect that possibility. Senator Gordon asked whether Denver's ethics commission has the same kind of subpoena power proposed in the measure. Ms. Tierney responded that many ethics commissions have subpoena power and that the legislature would be permitted to specify the circumstances under which a subpoena is appropriate in implementing legislation.

10:20 AM

Senator McElhany noted that the plain language of the measure gives subpoena power to the individual members of the commission, not the commission as a whole. Ms. Tierney indicated that she does not see a distinction between the two. The Speaker asked Ms. Tierney to walk through the proposed changes from the opponents and then the committee members would be permitted to ask questions of Ms. Tierney. Ms. Tierney continued her discussion. The Speaker opened the discussion for questions from the committee members. Committee discussion ensued concerning areas of the measure that the members expressed could be interpreted broadly and possibly create problems. Representative Butcher asked Ms. Tierney about the rationale of the proponents in creating the standards of evidence discussed in the measure.

11:08 AM

There was committee discussion and questions posed to Ms. Tierney regarding the provisions of the proposal. Ms. Flanagan made some additional comments and she and Ms. Tierney finished their testimony. The Speaker noted that the committee would likely not finish at noon as he had mentioned at the previous day's meeting.

11:13 AM

Scott Gessler, representing Nate Gorman, an opponent of the measure, introduced himself and made comments about the proposed analysis. He referenced the handout the opponents had submitted with their suggested changes (Attachment H). He described a scenario under which, in his opinion, a complaint could be brought against a government employee or representative. He offered his interpretation of the measure regarding the appropriateness of dependents receiving scholarships. He noted his belief that a scholarship would be a direct benefit and thus fall under the scope of the gift ban in the measure. He responded to questions from the committee asking his interpretation of how certain language would be applied by the courts.

11:53 AM

Bob Lackner and Jennifer Gilroy, Office of Legislative Legal Services, introduced themselves and responded to questions from the members of the committee regarding the language of the proposed constitutional amendment and possible interpretations of that language. Ms. Gilroy responded to the Speaker's question about the terms direct and indirect benefits and whether that definition was open to interpretation. She stated that a court could determine that a scholarship was a direct benefit as well as determine that it was an indirect benefit. She also discussed the possible interpretation of "special occasion" and "lawful consideration." Mr. Lackner noted that the legislature would have an opportunity to clarify language through statute that would provide meaning for terms such as "special occasion" that are not currently defined in the law. However, Ms. Gilroy added that there is some limitation to how far the legislature could go in such enacting language due to a restriction in the measure as it is currently drafted.

Representative May asked about the definition of a personal friend. Mr. Lackner said that such definition would either be made by the legislature through enacting legislation or by courts, thus creating a common law definition of the term.

12:06 PM

The Speaker announced a lunch break for one hour. The committee recessed.

01:12 PM

The committee returned from recess and Chris Ward, Legislative Council Staff, summarized the introductory bullets in the ballot analysis. The Speaker summarized the three types of gift bans addressed in Amendment 41. Mr. Ward responded to questions regarding language in the analysis and the effect of the gift ban in Section 3 related to nonprofit organizations (page 4, lines 4-10). Committee discussion followed about the adequacy of the bullets to address the full range of gifts banned by the proposal. Representative Hoppe noted that the first bullet does not identify that the ban applies to gifts in a calendar year (page 3, line 21).

BILL:Amendment 41 Continued
TIME: 01:28:32 PM
MOVED:Butcher
MOTION:Moved a prepared amendment that is a "mock up" of the ballot analysis (see Attachment I).

The paragraph beginning on Page 1, lines 22 through 29 of the mock up was amended by an amendment moved by Senator Windels and Representative Butcher (see roll call vote from 1:44 PM). Amendments to this paragraph were later lost on a separate vote of 9-7 (see the roll call sheet from 2:12 PM concerning Severed Section A).

Representative Butcher and Senator Groff withdrew the amendment to the paragraph on Page 2, lines 15 through 28 of the mock up.

The amendment to Page 3 of the mock up passed on separate vote of 12-4 (see roll call from 2:16 PM concerning Severed Section B).
SECONDED:Groff
VOTE
Butcher
Cadman
Cerbo
Garcia
Gordon
Groff
Harvey
Hoppe
Johnson
Excused
Madden
May M.
McElhany
Spence
Teck
Tupa
Windels
Fitz-Gerald
Romanoff
Not Final YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: AMENDMENT WAS SEVERED. SEE FOLLOWING VOTE SHEETS.
BILL:Amendment 41 Continued
TIME: 01:44:56 PM
MOVED:Windels
MOTION:Move to amend the Butcher mock up amendment (Attachment I), page 1, line 23, strike "EDUCATION PROVIDED BY PUBLIC AND PRIVATE ENTITIES", line 27, strike "ALSO" and substitute "MAY", line 28 add strike "PROHIBIT" and substitute "PROHIBITS", move the sentence on line 27 that begins with Amendment 41 to line 24 after the sentence ending with future employment, add to the end of the sentence on page 2, line 1 "OR THE APPROPRIATE GOVERNMENT ENTITY". This motion passed on a vote of 14-2.

It was later rejected on a separate vote (see the roll call sheet from 2:12 PM concerning Severed Section A).
SECONDED:Butcher
VOTE
Butcher
Yes
Cadman
Yes
Cerbo
Yes
Garcia
Yes
Gordon
Yes
Groff
Yes
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
Yes
Romanoff
No
Not Final YES: 14 NO: 2 EXC: 2 ABS: 0 FINAL ACTION: PASS

BILL:Amendment 41 Continued
TIME: 02:04:23 PM
MOVED:Teck
MOTION:Move to amend the Butcher mock-up amendment (moved at 1:28 PM), Page 3, line 21, after "AMENDMENT 41" strike "REQUIRES" insert "MAY RESULT IN REQUIRING". This motion passed on a vote of 14-2.
SECONDED:Madden
VOTE
Butcher
Yes
Cadman
Yes
Cerbo
Yes
Garcia
Yes
Gordon
Yes
Groff
Yes
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
Yes
Romanoff
No
Not Final YES: 14 NO: 2 EXC: 2 ABS: 0 FINAL ACTION: PASS

02:08 PM

Representative Garcia requested that the Butcher mock up amendment be severed into two amendments. The Speaker ruled the amendment is severable and created severed sections A and B. Severed Section A contains the changes made on page 1 and page 2, line 1 of the Amendment; Severed Section B contains the amendments on page 3.
BILL:Amendment 41 Continued
TIME: 02:12:28 PM
MOVED:Garcia
MOTION:Move Severed Section A of the Butcher mock-up amendment (moved at 1:28 PM), page 1, and Page 2, line 1. Not having received the required 12 votes to pass, the motion failed on a 9-7 roll call vote.
SECONDED:Butcher
VOTE
Butcher
Yes
Cadman
No
Cerbo
Yes
Garcia
No
Gordon
No
Groff
No
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
No
Romanoff
No
Not Final YES: 9 NO: 7 EXC: 2 ABS: 0 FINAL ACTION: FAILED
BILL:Amendment 41 Continued
TIME: 02:16:00 PM
MOVED:Teck
MOTION:Move Severed Section B of the Butcher mock up amendment that was moved at 1:28 PM. This motion amends the paragraph on Page 3 of the mock up, lines 16 through 23, as amended by the Teck and Madden amendment (see roll call from 2:04 PM). This motion to approve Severed Section B, as amended, passed on a vote of 12 - 4.
SECONDED:May
VOTE
Butcher
Yes
Cadman
Yes
Cerbo
Yes
Garcia
No
Gordon
No
Groff
Yes
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
Yes
Romanoff
No
Not Final YES: 12 NO: 4 EXC: 2 ABS: 0 FINAL ACTION: PASS

BILL:Amendment 41 Continued
TIME: 02:18:38 PM
MOVED:Windels
MOTION:Move a prepared amendment (Attachment J) that would strike the bullets on page 1, lines 2 through 9 with the following amendments by the prepared amendment sponsor:

Bullet 1, line 1, strike "ALL" after "PROHIBITS"; insert "AND CERTAIN" after "STATE,"; line 2, after "ACCEPTING" insert "IN ANY CALENDAR YEAR"; line 3, after "FAMILY MEMBER" insert "OR PERSONAL FRIEND";

Bullets 2, line 1, after "STATE," insert "CERTAIN";

Bullet 3, after "OFFICIAL," insert "STATE AND CERTAIN LOCAL".

The vote on this motion was taken at 2:53 PM. It passed on a vote of 13-3.
SECONDED:Butcher
VOTE
Butcher
Yes
Cadman
Yes
Cerbo
Yes
Garcia
Yes
Gordon
No
Groff
Yes
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
Yes
Romanoff
No
Not Final YES: 13 NO: 3 EXC: 2 ABS: 0 FINAL ACTION: PASS


BILL:Amendment 41 Continued
TIME: 02:42:21 PM
MOVED:Gordon
MOTION:Move to amend Senator Windels mock up amendment (that was moved at 2:18 PM). Amend Bullet 5, line 1, strike "INDIVIDUAL". Not having received the required 12 votes to pass, the motion failed on a 4-11 roll call vote.
SECONDED:Hoppe
VOTE
Butcher
No
Cadman
Excused
Cerbo
No
Garcia
No
Gordon
Yes
Groff
No
Harvey
No
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
No
McElhany
No
Spence
No
Teck
No
Tupa
Yes
Windels
No
Fitz-Gerald
No
Romanoff
Yes
Not Final YES: 4 NO: 11 EXC: 3 ABS: 0 FINAL ACTION: FAIL


BILL:Amendment 41 Continued
TIME: 02:55:30 PM
MOVED:Teck
MOTION:Move a conceptual amendment to the final staff draft, page 2, line 28, after "appointment.", insert the following sentence: "AMENDMENT 41 IS SILENT ON THE MECHANISM FOR HOLDING THE INDIVIDUAL MEMBERS OF THE INDEPENDENT ETHICS COMMISSION ACCOUNTABLE FOR MALFEASANCE WHEN ACTING IN THEIR OFFICIAL DUTIES." This motion passed on a vote of 12-3.
SECONDED:
VOTE
Butcher
Yes
Cadman
Excused
Cerbo
Yes
Garcia
Yes
Gordon
No
Groff
Yes
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
Yes
Romanoff
No
Not Final YES: 12 NO: 3 EXC: 3 ABS: 0 FINAL ACTION: PASS


BILL:Amendment 41 Continued
TIME: 03:02:02 PM
MOVED:Garcia
MOTION:Moved the prepared "Madden Amendment #2" that inserts two sentences on Page 3, line 12, after "basis" (see Attachment K) with changes to correct for spelling errors and the following change to line 5 of the Madden Amendment # 2, after "GOVERNMENT EMPLOYEES," insert "AND HIGHER EDUCATION FACULTY AND EMPLOYEES". The motion passed on a vote of 12-3.
SECONDED:Hoppe
VOTE
Butcher
Yes
Cadman
Excused
Cerbo
Yes
Garcia
Yes
Gordon
No
Groff
Yes
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
Yes
Romanoff
No
Not Final YES: 12 NO: 3 EXC: 3 ABS: 0 FINAL ACTION: PASS


BILL:Amendment 41 Continued
TIME: 03:17:31 PM
MOVED:Windels
MOTION:Move to amend the final staff draft, page 3, strike line 8, and substitute "ELECTED OFFICIALS ALREADY"; line 9, strike "accountable to voters. They". The motion passed on a vote of 14-2.
SECONDED:Garcia
VOTE
Butcher
Yes
Cadman
Yes
Cerbo
Yes
Garcia
Yes
Gordon
Yes
Groff
Yes
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
Yes
Romanoff
No
Not Final YES: 14 NO: 2 EXC: 2 ABS: 0 FINAL ACTION: PASS


BILL:Amendment 41 Continued
TIME: 03:20:53 PM
MOVED:Hoppe
MOTION:Move to amend the final staff draft, page 3, line 8, insert the following sentence at the beginning of Argument 1 Against "THIS AMENDMENT DOES NOT BELONG IN COLORADO'S CONSTITUTION. IT MAY HAVE UNINTENDED AND UNDESIRABLE CONSEQUENCES.". The motion passed on a vote of 14-2.
SECONDED:May M.
VOTE
Butcher
Yes
Cadman
Yes
Cerbo
Yes
Garcia
Yes
Gordon
Yes
Groff
Yes
Harvey
Yes
Hoppe
Yes
Johnson
Excused
Madden
Excused
May M.
Yes
McElhany
Yes
Spence
Yes
Teck
Yes
Tupa
No
Windels
Yes
Fitz-Gerald
Yes
Romanoff
No
Not Final YES: 14 NO: 2 EXC: 2 ABS: 0 FINAL ACTION: PASS

03:27 PM

The committee had no further amendments and took a recess.