Colorado’s voter-passed Amendment 41 put the clamp down on most gifts to government officials and employees a decade ago — but not in the state’s largest cities, which have set or kept less-restrictive local ethics rules.

Now, the state’s ethics commission has delivered a shot across the bow of Denver, Aurora, Colorado Springs and dozens of other home-rule cities, signaling that such independence may be in jeopardy.

In a position statement approved by the Colorado Independent Ethics Commission the week before Christmas, the five-member board unanimously put home-rule cities and counties on notice: It will consider hearing ethics complaints against their officials and employees if it judges their local ethics codes to be less restrictive than Amendment 41, which famously set a $50 gift limit (now $59) and banned even free drinks from lobbyists.

That posture could affect Denver and more than 70 other home-rule cities and towns that were established by charters and have local ethics rules that they view as sufficient to opt out of Amendment 41.

Many of those lack similarly firm catch-all gift bans and set higher maximum values on allowed meals, event tickets and other things considered gifts — or don’t set dollar limits at all.

“In this instance the Commission finds that there is a state interest in setting and maintaining ethical standards within the state of Colorado,” says the commission’s five-page position statement. “Amendment 41 was a citizen-initiated amendment to the Colorado Constitution passed by over 62 percent of Colorado voters. Ethics are a matter of statewide concern and, therefore, Article XXIX (of the state constitution) is not superseded by local charters or ordinances.”

The commission approved the final statement Dec. 19 after hearing an earful of protests from cities and counties. It began considering such a position about a year ago.

Those protesters included city attorneys from Denver, Aurora and Colorado Springs, along with the Colorado Municipal League, which portrays the final position both as a misreading of Amendment 41’s opt-out provision for home-rule counties and municipalities — and as an infringement of local control.

“For us, this not a debate about ethics. It’s a debate over jurisdiction,” said Sam Mamet, the executive director of the Colorado Municipal League. “I’m personally disappointed with their action. I felt … we were not listened to as closely as I would have hoped.”

But the opposition also included voices that might seem surprising: Colorado Ethics Watch and Colorado Common Cause, the latter of which was among Amendment 41’s prime supporters in 2006, along with now-U.S. Rep. Jared Polis, a Democrat from Boulder.

Those groups agreed that the commission was poised to rely on a misreading of the opt-out provision, which they viewed as allowing local governments with home-rule powers to escape Amendment 41 as long as their local laws covered the same ground — even if their rules were weaker.

Indeed, a Common Cause attorney said as much during a ballot hearing in 2006, before the statewide vote on Amendment 41.

“Based on our reading of the constitutional opt-out provision, the final position statement issued by the IEC still requires too much from home-rule cities and counties in order to opt-out of (Amendment 41) and IEC jurisdiction, because it sets the state gift rule and specific enforcement penalties as a floor that local ethics codes cannot drop below,” Peg Perl, Ethics Watch’s senior counsel, said in an e-mail last week.

Both groups told the commission that local laws would be sufficient as long as they imposed gift restrictions of some kind and created an enforcement board.

City attorneys sitting tight

Before the state ethics commission approved its position statement, it dropped from an earlier draft some of the proposed standards it would use to analyze local ethics codes. Its final statement sets out eight criteria for local rules to fulfill, including a strong penalty provision, essentially requiring that they be at least as restrictive as Amendment 41. The burden would be on a city or county to argue that a higher gift limit or more exceptions still can be consistent with the spirit of the constitutional measure.

For now, city attorneys across the state are sitting tight, while the Colorado Municipal League looks at potential legal options.

They may have little to challenge in court until the ethics commission decides to accept a complaint against a local official covered by a local ethics code — like, say, Denver Mayor Michael Hancock.

Hancock’s 2015 gift disclosure, the most recent on file, shows he accepted suite tickets worth $300 from an Xcel Energy executive to see Stevie Wonder perform and multiple tickets from the Baseball Stadium District for a suite at Coors Field to see the Colorado Rockies play, worth $4,246.

Both are allowed by Denver’s Code of Ethics but potentially could be challenged as violating Amendment 41.

Denver and Colorado Springs have their own ethics codes, with Denver’s predating Amendment 41. The Aurora City Council, though, was among cities that rushed just before the 2006 election to pass a resolution that adopted the content of the state’s then-current ethics law, which lacked firm gift limits, as their ethics rules.

The Denver City Council has been considering changes to its ethics code, but Amendment 41 hasn’t featured much in the discussion. The changes include more restrictive limits on the gifts allowed from donors with a city interest who stand to benefit from direct official decision-making. Though the Denver code bans other gifts from such donors, the change would allow officials and employees to accept a maximum $300 in tickets and four meals per year from each person or business in that category.

Denver’s existing rules still allow wide-ranging acceptance of gifts from donors without a city interest.

Colorado Springs’ ethics code contains a $50 gift limit, which matches the one in Amendment 41 (before inflation adjustments that apply to both). But that city’s exceptions to its gift limit, along with other ethics provisions, still might be seen as too permissive, Ethics Watch has pointed out.

Commission’s interpretation disputed

The good-government groups agreed with the commission that some home-rule cities and counties had ethics rules that fell woefully short and might not meet Amendment 41’s opt-out standard.

But like the protesting cities, Common Cause and Ethics Watch disputed the commission’s interpretation of Amendment 41’s opt-out provision.

That section says first that any local government can enact more stringent rules than Amendment 41. Then, a second sentence says, the voter-passed law “shall not apply to home rule counties or home rule municipalities that have adopted charters, ordinances or resolutions that address the matters covered by this article.”

The commission’s position is that the first sentence, which applies to any city or county regardless of home-rule status, still applies to any local ethics law used as a basis to opt out by cities or counties with home-rule powers.

That interpretation has it backward and makes the second sentence meaningless, some observers say.

“This is like telling somebody that they are free to ignore a requirement that all cars be painted black, so long as they first paint their car black,” an attorney for the Municipal League wrote in August.

“I mean, it’s wrong,” said Jason Dunn, a lawyer who helped implement Amendment 41 as a former deputy attorney general. Now chair of the political law group at Denver firm Brownstein Hyatt Farber Schreck, he compared the issue to how state law treats local campaign finance laws for local elections.

“I think a court would rule that once a home-rule jurisdiction touches the ethics space, they own it,” he said, “and their ethics provisions would supersede any provisions of Amendment 41.”

The commission came to the opposite view after months of deliberation, said its executive director, Dino Ioannides.

“Not all of the commission members started from the same vantage point,” he said. “They really tried to do the best they could with what was really a very interesting area of the law.”

So what started this?

The issue long has been on the commission’s radar, Ioannides said, but it dug in after receiving a request for an advisory opinion in November 2015 from the secretary of state’s office. That request asked a question that stemmed from the dual positions of Angela Lawson, a program manager in the secretary of state’s office who had been elected to the Aurora City Council:

Would Amendment 41 prohibit Lawson, as a state employee, from accepting meals and travel-related expenses in her role as a council member that are allowed by Aurora’s ethics rules?

The commission hasn’t yet sorted out its advice for Lawson. But with its general position on home-rule laws now established, the commission has set the Lawson matter for more discussion at its next meeting, on Jan. 23.