ETHICS BROCHURE FOR LEGISLATORS
(LSO - March 1999)
Background: In 1998, the Wyoming Legislature passed the Ethics and
Disclosure Act, W.S. 9-13-101 through 9-13-109. (1998 Wyo. Session
Laws, Chapter 116). The answers in this brochure are intended to
guide the legislator in answering some of the common questions
which may arise under the act. However, LSO will not be able to
provide further advice beyond the information in this brochure.
Any official interpretation of Wyoming law must come from the
Attorney General's Office. The Legislative Service Office has
consulted with the Attorney General's Office regarding the issues
contained in this brochure. While the Attorney General's Office
agrees generally with the guidance contained in the brochure, the
Office cautions that individual situations may warrant a closer
review.
In 1999 the Legislature amended the Ethics Act, 1999 Wyo. Session
Laws, Chapter 140. All the amendments to the act pertained to the
exceptions to the definition of "gift". Also, an important
amendment to the act involved deleting the reference to the
criminal bribery statute (W.S. 6-5-101 et seq.). Previously, the
act excluded from the definition of "gift" anything excluded from
the definition of "pecuniary benefit" under the criminal bribery
law. That reference was deleted. The current exceptions to the
definition of "gift", as amended by the 1999 Legislature, are set
forth in paragraph 1.a. below.
It is important to note that the Ethics Act is different from the
Lobbyist Disclosure Act which was also passed in 1998 (1998 Wyo.
Session Laws, Chapter 112). The Lobbyist Disclosure Act is mainly
a reporting requirement placed upon lobbyists. Essentially any
registered lobbyist must file an annual report with the Secretary
of State containing a listing of the lobbyist's sources of funding
and each "loan gift, gratuity, special discount or hospitality paid
or given to or on behalf of any legislator, state elected official
or state employee which exceeds $50 in value." W.S. 28-7-201(d).
The report must also contain a listing of special events sponsored
by the lobbyist to which legislators are invited. However, if the
total expenditures by the lobbyist required to be reported under
the act do not exceed $500, no report is required. The Secretary
of State is charged with administering the act and has promulgated
rules and regulations under the act.
The Ethics and Disclosure Act (the act) basically prohibits a
legislator from receiving any gift which was given as a result of
the legislator's holding office. A brief analysis of the process
of determining whether the act prohibits the acceptance of
something is as follows:
1. Is the item a "gift"?
2. If so, does the item fit into any one of the exceptions to
a gift under the act?
3. If not, and the item is a gift, am I being given the gift
because of my status as a legislator?
4. If so, I am probably prohibited from receiving the item.
A more detailed analysis follows.
1. a. Am I allowed to accept a gift in my capacity as a
legislator?
Answer: The "crux" of the Ethics and Disclosure Act, W.S. 9-13-101
through 9-13-109, is found in W.S. 9-13-103(a) which states: "No
public official...shall use his office or position for his private
benefit." The statute goes on to define "private benefit" as the
receipt of a gift "which resulted from his holding that office".
"Gift" is defined in W.S. 9-13-102(a)(vi) as "anything of value to
the extent that consideration of equal or greater value is not
received". "Anything of value" is defined by W.S. 9-13-102(a)(i)
to include almost anything which is "pecuniary or compensatory in
value to a person."
The first question to ask is whether the thing being offered is in
fact a "gift". If nothing is being given in consideration for the
gift, then the receipt of the gift is probably prohibited by the
act, unless an exception to the definition of gift applies.
Exceptions to the definition of "gift" are listed in W.S. 9-13-102(a)(vi)
and include:
- printed information
- a gift which is not used and returned within 30 days
- a gift which is donated to charity (so long as the recipient does
not claim a deduction on his income tax)
- a gift or inheritance from the legislator's family, a personal
friend, or from someone based upon a social or private business
relationship
- a gift of nominal value given in recognition of a special
occasion such as marriage, illness or retirement
- a certificate, token or item, or plaque with a value of $250 or
less
- compensation, per diem or other payments to which the legislator
is entitled under law for the performance of services
- food and beverage.
The next question to ask is whether the gift is being given as a
result of the legislator's holding office. Nothing in the act
prohibits general gift-giving as a result of personal or social or
private business relationships. But if the gift is given on the
basis of the legislator's holding office, then the above analysis
should be considered. And if the gift does not fall within one of
the exceptions to the definition, then the gift should not be
accepted.
No mention is made in the act as to who bears the responsibility of
keeping track of the value of property given. The act imposes a
penalty upon "any person" who violates the act. W.S. 9-13-109.
Further, violation of the act constitutes sufficient cause for
removal from office. Therefore, it would seem prudent for a
legislator to keep track of any property given and by whom, even
though the donor may be required under other provisions such as the
Lobbyist Disclosure Act to report the donation and its value.
b. Am I allowed to accept the following examples of gifts
under the act in my capacity as a legislator?
i. A cup of coffee, lunch or a meal?
Answer: Yes. The act specifically excludes food and beverage
from the definition of "gift". W.S. 9-13-102(a)(vi)(E).
ii. Entertainment, recreation, tickets to a sporting
event, play or show?
Answer: So long as the entertainment, recreation, tickets, etc.
are less than $250 in value since the act excludes from the
definition of "gift" any "loan, gift, gratuity, special discount or
hospitality with a value of $250 or less". W.S. 9-13-102(a)(vi)(H).
iii. Travel, registration and lodging for a conference
or meeting in my capacity as a legislator?
Answer: Yes. Travel, registration and lodging are specifically
exempted from the definition of "gift". W.S. 9-13-102(a)(vi)(J).
2. a. Can I advocate for a member of my family to be appointed to
a state board or commission, or hired for a public position?
Answer: W.S. 9-13-104(a) states in part that "No public
official...shall advocate or cause the employment, appointment,
promotion, transfer or advancement of a family member to an office
or position of the state, a county, municipality or a school
district." The statute prohibits this activity.
b. Is an elected official's family member prohibited from
working in the office of the elected official?
Answer: The act prohibits a public official from supervising or
managing a family member who is in an office or position of the
state, county, municipality or school district. The Attorney
General has determined that the prohibition only applies to direct
supervision of the family member, and does not otherwise prohibit
the family member from working in the office of the elected
official. Attorney General Opinion No. 98-009.
3. Can I use my calling card issued by the state to make personal
calls?
Answer: W.S. 9-13-105 prohibits a public official from using
public funds, time, personnel, facilities, or equipment for his
private benefit or that of another unless the use is authorized by
law. Long-standing Management Council policy has dictated that the
phone card be only used for official legislative business. If the
card is used for a personal call, the legislator is asked to note
the call and reimburse the State for the cost of the call when the
bill is received.
4. a. How do I determine whether I have a personal or private
interest in a matter which prohibits me from voting on the matter?
Answer: The act prohibits a public official from making an
official decision or vote on an official decision if the official
has a personal or private interest in the matter. The act defines
personal or private interest as an interest which is direct and
immediate as opposed to speculative and remote, and is an interest
that provides the official a greater benefit or a lesser detriment
than it does for a large or substantial group or class of persons
who are similarly situated. The statute also states that in
determining whether the legislator has a personal or private
interest in a matter, the legislator shall recognize the importance
of his right to represent his constituency and shall abstain from
voting only in clear cases of a personal or private interest.
In the case of an issue which affects many persons including the
legislator such as a driver's license issue, or a sales tax issue,
the legislator should not have a conflict since the legislator is
in a large class of persons similarly situated and will be affected
by the law in the same manner as the large class of driver's
license-holders or sales taxpayers.
b. As a lessee of state lands, can I vote on issues affecting
state lands?
Answer: In the case of a legislator who is a lessee of state
lands, the analysis is the same as outlined above. Since state
land lessees are a large class of persons similarly situated under
the act, it would seem that a legislator may vote on an issue
regarding public lands even if the legislator is a lessee of state
lands since the vote or decision would in all likelihood affect all
state land lessees the same. An Attorney General Opinion has
reached the same conclusion: "Legislators holding [state land]
leases are members of a defined group, grazing or agricultural
leaseholders, and they incur no greater benefit and suffer no
greater detriment than other members of the group." Attorney
General Opinion No. 97-004.
This appears to be in compliance with House Rule 17-3(d) which
excludes from the definition of "personal or private interest" a
financial gain or loss received or incurred by a member if the gain
or loss shall also be received or incurred by a substantial class
of persons.
c. If I am employed by a public school district may I vote on
matters affecting public education?
Answer: The above analysis is also relevant here. Since the class
of persons affected by any legislation relevant to public education
is a large one, any impact upon the legislator should not be any
different than the impact upon the entire class of persons. The
Attorney General has also found it permissible for a legislator
employed by a public school district to participate in legislation
affecting the funding of the public education system. Attorney
General Opinion No. 97-004.
d. If I do have a conflict with potential legislation, should
I abstain from participating in the legislation?
Answer: The act prohibits a legislator from making "an official
decision or vote on an official decision" if the legislator has a
personal or private interest in the matter. W.S. 9-13-106(a). The
act does not prohibit the legislator from any and all
participation, but does prohibit an official decision or vote
thereon. So a legislator could still provide factual information
to the decision-making body such as a legislative committee
assigned to consider the potential legislation. However, the
legislator should abstain from any vote affecting the potential
legislation to avoid the appearance of impropriety.
5. In regards to the financial disclosure form I am required to
file each year, do I have to list specific dollar amounts?
Answer: W.S. 9-13-108 requires the state's five elected officials
and each member of the legislature to file a financial disclosure
statement each year. The form is to be filed by January 31
annually and must include a list of all offices, directorships and
salaried employment held by the official and a list describing the
sources of, but not the amount of, the member's income. So it is
clear that only the sources of income, not the amounts, must be
filed.
Wyoming Statutes
9-13-101. Short title.
This article shall be known and may be cited as the Ethics and
Disclosure Act.
9-13-102. Definitions.
(a) As used in this article:
(i) "Anything of value" means:
(A) A pecuniary item, including money or a bank bill or
note;
(B) A promissory note, bill of exchange, order, draft,
warrant, check or bond given for the payment of money;
(C) A contract, agreement, promise or other obligation
for an advance, conveyance, forgiveness of indebtedness, deposit,
distribution, loan, payment, gift, pledge or transfer of money;
(D) A stock, bond, note or other investment interest in
an entity;
(E) A right in action;
(F) A gift, tangible good, chattel or an interest in a
gift, tangible good or chattel;
(G) A work of art, antique or collectible;
(H) An automobile or other means of personal
transportation;
(J) Real property or an interest in real property,
including title to realty, a fee simple or partial interest,
present or future, contingent or vested within realty, a
leasehold interest or other beneficial interest in realty;
(K) An honorarium or compensation for services arising
out of the person's service as a public official, public member
or public employee;
(M) The sale or trade of anything of value:
(I) For reasonable consideration that would ordinarily
not be available to a member of the public; or
(II) With a rebate or at a discount in its price,
unless the rebate or discount is made in the ordinary course of
business to a member of the public, or any group or category
thereof, but without regard to that person's status as a public
official, public member or public employee.
(N) A promise or offer of employment;
(O) Any other thing of value that is pecuniary or
compensatory in value to a person.
(ii) "Anything of value" does not mean a campaign
contribution properly received and reported, if reportable, as
required under the Wyoming Election Code;
(iii) "Compensation" includes:
(A) An advance, conveyance, forgiveness of indebtedness,
deposit, distribution, loan, payment, gift, pledge or transfer of
money or anything of value; or
(B) A contract, agreement, promise or other obligation
for an advance, conveyance, forgiveness of indebtedness, deposit,
distribution, loan, payment, gift, pledge or transfer of money or
anything of value, for services rendered or to be rendered.
(iv) "Compensation" does not include:
(A) Reimbursement of expenses if the reimbursement does
not exceed the amount actually expended for the expenses, and if
the reimbursement is substantiated by an itemization of expenses;
or
(B) Per diem payments or mileage allowances paid by the
employing government entity in accordance with applicable law.
(v) "Family member" means an individual:
(A) Who is the spouse, parent, sibling, child,
grandparent or grandchild; or
(B) Is a member of the individual's household.
(vi) "Gift" means anything of value to the extent that
consideration of equal or greater value is not received, but
excludes the following:
(A) Printed informational, educational or promotional
material;
(B) A gift that:
(I) Is not used; and
(II) No later than thirty (30) days after receipt, is
returned to the donor or delivered to a charitable organization
and is not claimed as a charitable contribution for federal
income tax purposes.
(C) A gift, devise or inheritance from any of the
following, if the donor is not acting as the agent or
intermediary for someone other than a person covered by this
subparagraph:
(I) An individual's spouse;
(II) An individual's child, parent, grandparent,
brother, sister, parent-in-law, brother-in-law, sister-in-law,
nephew, niece, aunt, uncle or first cousin;
(III) The spouse of any individual listed in
subdivision (II) of this subparagraph;
(IV) Any person, including an organization, which has
a bona fide social or private business relationship with the
individual, where the circumstances demonstrate that the
motivation for the gift arises out of that relationship and not
from the recipient's holding of public office or employment. For
the purposes of this subdivision, relevant circumstances include
but are not limited to the source of funds used by the donor to
acquire the gift;
(V) Any person, including an organization, where the
gift does result from the person's holding an office or position,
but where the gift is of nominal value, is made voluntarily by
the donor and is made in recognition of a special occasion, such
as marriage, illness or retirement.
(D) A certificate, token or item, or plaque with a value
that does not exceed two hundred fifty dollars ($250.00);
(E) Food and beverage;
(F) Compensation, per diem or other payments or benefits
which the public official, public member or public employee
receives in the performance of services for the governmental
entity;
(G) Repealed by Laws 1999, ch. 140, sec. 2;
(H) Any loan, gift, gratuity, special discount or
hospitality with a value of two hundred fifty dollars or less; or
(J) Travel, registration and lodging for any conference
or meeting while attending in his official capacity as a public
official, public member or public employee.
(vii) "Local office" means the offices of county
commissioner, county treasurer, county assessor, county clerk,
county sheriff, county coroner, district attorney, county
attorney, mayor and member of the council of a municipality and
member of the board of trustees of a community college district
or a school district;
(viii) "Negotiating" or "negotiate for employment" means a
communication, directly or indirectly, with a prospective
employer to discuss rendering services for compensation to that
prospective employer;
(ix) "Negotiation for employment" means the period that
begins with a communication to a prospective employer to discuss
rendering services for compensation to the prospective employer;
(x) "Official responsibility or official capacity" means
the direct administrative or operating authority, whether
intermediate or final, and either exercisable alone or with
others, and either personally or through subordinates, to
approve, disapprove, or otherwise direct government action;
(xi) "Participation" includes decision, approval,
disapproval or vote;
(xii) "Public employee" means any of the following state
employees:
(A) The attorney general and the director of any
department of the executive branch appointed by the governor
under W.S. 9-2-1706, or the director of any legislative agency;
(B) The chief executive officer of any separate
operating agency under W.S. 9-2-1704(d), except those listed in
paragraphs (d)(vi) and (x) of that section;
(C) To the extent the incumbent in the position serves
at the pleasure of persons listed in subparagraphs (A) and (B) of
this section, administrators of department or agency divisions,
and deputy directors of departments;
(D) Commissioners of the public service commission and
members of the state board of equalization;
(E) Deputies and administrators of divisions within the
offices of state elected officials under W.S. 9-2-1704(a). The
positions, in the governor's office, of chief of staff, attorney
for intergovernmental affairs and chief of policy are included
within this subparagraph.
(xiii) "Public member" means a member appointed to a
part-time position on a state board, commission or council. A
public member does not lose this status by receiving
reimbursement of expenses or a per diem payment for services. The
term includes a member of the board of trustees of the University
of Wyoming and the community college commission. The term does
not include a public member of an advisory board, advisory
commission or advisory council;
(xiv) "Public official" means an individual elected to a
state or local office, or an individual who is appointed to fill
a vacancy in a state or local office, whether or not the
individual has yet assumed the office;
(xv) "State entity" means a state agency, office,
department, division, bureau, board, commission or council,
including the legislature, Wyoming community development
authority and Wyoming science, technology and energy authority.
The term does not include a court or an agency in the judicial
branch;
(xvi) "State office" means the state offices of governor,
treasurer, superintendent of public instruction, auditor,
secretary of state and member of the state legislature;
(xvii) "This act" means W.S. 9-13-101 through 9-13-109.
9-13-103. Use of title and prestige of public office.
(a) No public official, public member or public employee
shall use his office or position for his private benefit.
(b) As used in this section, "private benefit" means the
receipt by the public official, public member or public employee
of a gift which resulted from his holding that office.
9-13-104. Nepotism.
(a) No public official, public member or public employee
shall advocate or cause the employment, appointment, promotion,
transfer or advancement of a family member to an office or
position of the state, a county, municipality or a school
district. A public official, public member or public employee
shall not supervise or manage a family member who is in an office
or position of the state, a county, municipality or school
district.
(b) A public official, public member or public employee,
acting in his official capacity, shall not participate in his
official responsibility or capacity regarding a matter relating
to the employment or discipline of a family member.
9-13-105. Misuse of office.
(a) A public official, public member or public employee
shall not use public funds, time, personnel, facilities or
equipment for his private benefit or that of another unless the
use is authorized by law.
(b) A public official, public member or public employee
shall not use public funds, time, personnel, facilities or
equipment for political or campaign activity unless the use is:
(i) Authorized by law; or
(ii) Properly incidental to another activity required or
authorized by law and the public official, public employee or
public member allocates and reimburses the governmental entity
for any additional costs incurred for that portion of the
activity not required or authorized by law.
(c) A public official, public employee or public member
shall not disseminate to another person official information
which the public official, public employee or public member
obtains through or in connection with his position, unless the
information is available to the general public or unless the
dissemination is authorized by law.
9-13-106. Official decisions and votes.
(a) A public official, public member or public employee
shall not make an official decision or vote on an official
decision if the public official, public member or public employee
has a personal or private interest in the matter. In determining
whether he has a personal or private interest in a matter the
public official shall recognize the importance of his right to
represent his constituency and shall abstain from voting only in
clear cases of a personal or private interest as defined in this
subsection. A public official or public member shall not vote to
give money or any direct financial benefit to himself except for
tax reductions affecting the general public. For the purposes of
this section, a personal or private interest:
(i) Is, with respect to the public official, public
employee or public member, an interest which is direct and
immediate as opposed to speculative and remote; and
(ii) Is an interest that provides the public official,
public employee or public member, a greater benefit or a lesser
detriment than it does for a large or substantial group or class
of persons who are similarly situated.
(b) A public official, public member or public employee
described by subsection (a) of this section shall abstain from
voting on the decision and from making any official decision in
the matter. The public official's, public member's or public
employee's abstention from voting must be recorded in the
governmental entity's official records.
(c) This section shall not be construed to supersede W.S.
15-9-220, 16-6-118 or 16-9-203(f). Those provisions shall
control to the extent inconsistent with this section.
9-13-107. Actions taken while negotiating for employment.
A public official, public member or public employee may not vote
or take an official action in a matter affecting a person with
whom the public official, public member or public employee is
negotiating for prospective employment.
9-13-108. Disclosure required.
(a) Not later than January 31 annually, each of the state's
five (5) elected officials and each member of the Wyoming
legislature shall file a financial disclosure form with the
secretary of state. The form shall be signed by the elected
official or legislator filing it and under a certification that
it is accurate. The financial disclosure form shall contain the
following information current as of January 15 of that year:
(i) A list of all offices, directorships and salaried
employment held by the person filing the form in any business
enterprise, but excluding offices and directorships in a
nonprofit corporation where no compensation is received for
service;
(ii) A list generally describing the sources of, but not
the amount of, the member's income.
(b) Forms may be submitted by facsimile transmission under
the same terms and conditions specified for campaign reports
under W.S. 22-25-106. For the purposes of this section,
"salaried employment" means an employment relationship under
which the employee is compensated, at least in part, by payment
of a specified dollar amount for each month, or longer period, of
service.
(c) The disclosure form shall be as prescribed by the
secretary of state but in substantially the following form:
"State Elected Official Financial Disclosure Form
Name of Official:
Office held:
Business address:
Business phone number:
Home address:
Home phone number:
I. Offices, directorships and employment
a. Offices held in business enterprises (includes
partnerships)
Office Name and address of business enterprise
b. Directorships held in business enterprises
Name and address of business enterprise
c. Salaried employment
Job Title Name and address of business enterprise
II. Sources of income
a. Employment Name and address of Employer
b. Business interests Name and address of all
business entities but excluding interests if less
than ten percent (10%) of the entity is owned, or
sole proprietorship from which income is earned,
or describe generally
c. Investments Income earned
Yes No
i. Any security or
interest earnings ___ ___
ii. Real estate,
leases, royalties ___ ___
d. Other (Describe generally)".
9-13-109. Penalties.
(a) Any person who violates this act is guilty of a
misdemeanor punishable upon conviction by a fine of not more than
one thousand dollars ($1,000.00).
(b) Violation of any provision of this act constitutes
sufficient cause for termination of a public employee's
employment or for removal of a public official or public member
from his office or position.
(c) If any action is prohibited both by this act and any
provision of title 6, the provisions of this act shall not apply
and the provisions of title 6 shall apply.
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