Where Ethics Provisions Should Appear and Not Appear

What happened recently in Colorado makes it clear that a state constitution is not the right place for ethics laws.

Last November, an amendment to the state constitution was approved by voters, prohibiting state and local officials from accepting any gift of over $50 from any 'person.' The state Attorney General ruled that this amendment would prevent the child of a government official from a receiving a scholarship, or a state university professor from accepting a Nobel Prize.

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A suit was filed, calling this provision overly broad, an invasion of personal property, and a violation of free speech. A court found for the plaintiffs, saying that their speech, association, and petitioning rights had been chilled, and blocking enforcement of the constitutional amendment. The state has appealed this decision, so the problem will go on for some time.

A similar problem arose in Connecticut, but it related not to a constitutional amendment, but to a law. An advisory opinion of the state ethics commission found that a scholarship is not a gift, because it is earned, and therefore not gratuitous. It found that denying a scholarship to a state official was not warranted based on statutory construction or on common sense.

This does seem to be the common sense solution. And it makes more sense to keep ethics laws out of a constitution, where interpretation is made in a very expensive, time-consuming way by courts, rather than quickly and inexpensively by an ethics commission. Also, a political figure such as an attorney general should not be involved in the interpretation of ethics provisions.

How about including ethics provisions in municipal charters? If there is an ethics commission to interpret such provisions, the above problem would not occur. However, it is much more difficult to amend ethics provisions in a charter, as a municipality learns more about how the language in its ethics provisions works in real-life situations. Therefore, it is better to have ethics provisions included in municipal ordinances.