Ethics Commission Advisory Opinion Raises Concerns for Officeholders

Most county officials have by now received a recent TAC Legal News alert or seen the messages Jim Allison, general counsel of the County Judges and Commissioners Association of Texas, sent out to certain listserves regarding an advisory opinion issued by the Texas Ethics Commission (Ethics Advisory Opinion No. 484). The opinion raises questions regarding whether elected officeholders, including elected county officials, may have their transportation, meals and lodging expenses paid for or reimbursed by a corporation or labor organization in return for addressing an audience or participating in a seminar when the reason they are asked to participate is their public positions or duties. The entire opinion may be viewed on the TAC Web site. The following language is a reprint of the summary as stated and contained in the four-page opinion:

Anytime an officeholder benefits from money spent by a corporation or labor organization, a fact question arises as to whether the corporation has given a thing of value to the officeholder for purposes of one of the laws under the Ethics Commission’s jurisdiction. Pursuant to Title 15 of the Election Code, an elected officeholder may not accept transportation, meals, and lodging from a corporation or labor organization in return for addressing an audience or participating in a seminar if the officeholder’s services are in connection with his or her duties or activities as an officeholder. This advisory opinion is intended to provide guidance for future activity and not intended to criminalize past activity.

As Allison noted in his listserve message, “This circular reasoning will surely lead to some absurd results. For example, if a (county elected official) is invited to address the annual chamber banquet and receive an award as Person of the Year, the (elected county official) may attend the event, address the audience and accept the award. However, both the chamber (a non-profit corporation) and the officeholder will commit a felony if the officeholder eats the meal.”

Allison also wrote that the Ethics Commission “apparently recognized that this opinion is a drastic departure from prior interpretations of the law” by including in its opinion that it is intended for guidance for future activity and not intended to criminalize past activity. But as he wryly noted, “that will provide little comfort to someone who is indicted for speaking at a local civic event and consuming a plate of barbeque.”

TAC, Allison, the Conference of Urban Counties, the Texas Municipal League and the Texas Association of School Boards are working together to address the absurdities of the opinion, and we will update county officials as matters develop. In the meantime:

Elected county officials should consult with their local district and/or county attorneys prior to accepting, or agreeing to accept, reimbursement payments for expenses such as transportation, meals and lodging.