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The State Ethics Commission intends to soon make public its draft recommendations spelling out how the state ethics code applies — or should be applied — to legislators’ use of their annual allowances for “incidental expenses” related to their legislative duties.

These expenditures have traditionally been hidden well behind the scenes,  but have come under new scrutiny since Civil Beat published a review last October of records detailing how the funds are actually being spent.

Les Kondo, the commission’s executive director, said the staff recommendations could be released by the end of this week, and will be considered by the commission at its next monthly meeting.

“We are going to send the draft recommendations to the legislative leadership, and make the draft publicly available on our website, with enough time for the Legislature and others to provide some thoughtful input for the commission,” Kondo said.

“Our hope is that we would get the Legislature to provide their thoughts, but that’s up to them,” he said.

Kondo told commissioners at their May meeting that the Legislature has not responded to a request for the same documents provided earlier to Civil Beat and other news outlets.

The commission’s executive director confirmed this week he is still waiting.

Although the commission hasn’t gotten a reply from legislative leaders, they did field complaints from certain legislators, both in the House and Senate, about how other legislators have used their allowances, he said.

“What we have requested is public information,” Kondo said. But legislative leaders have taken the position that the Legislature has “sole authority” over how the money is spent, presumably because the expense allowance was authorized by a 1968 amendment to the part of the state constitution that defines legislative powers.

“They believe it is not within the ethics commission’s jurisdiction,” Kondo said.

However, he pointed to a 1993 advisory opinion by the commission that dealt directly with the legislative allowance.

In that case, the commission determined that certain ethics provisions did apply.

found the “fair treatment” provision of the ethics code would likely apply if the legislative allowance were misused.

This part of the ethics law “forbids a state legislator from using his position as a legislator in order to bestow an unwarranted privilege or advantage upon himself or anyone else,” the opinion stated. “For example, a legislator clearly could not use the allowance to subsidize his personal income. This would amount to a misuse of position in violation” of the law.

The commission concluded that any non-perishable items purchased using a legislative allowance — including furniture, software, books, and computer equipment — is state property and must be turned back to the Legislature when a member of the House or Senate leaves office.

That opinion, issued more than two decades ago, appears to provide the commission some confidence that the ethics code does apply to the legislative allowance.

Meanwhile, though, legislators can be relied on to be sensitive about maintaining both their independence and their perks, and they are not in any mood to welcome the commission’s attempts to enforce increasingly restrictive interpretations of the ethics laws that amount to reappraisals of accepted past practices.

This year, each legislator can draw about $12,000 to cover job-related expenses.

The ethics commission has already gone several rounds with legislators over the past three years, shooting down the past practice of accepting pricy event tickets from lobbyists, even if the event is put on by a charitable organization,  and telling lawmakers they can’t accept free admission to events valued at more than $25 without a valid public purpose.

The commission also raised legislative hackles by insisting on hunting down copies of an expensive package of movie DVDs received as gifts by legislators and staff from a movie production company that was lobbying for additional state subsidies. The commission ruled the gifts violated the ethics law, but when some copies remained unaccounted for, the commission pressed for them to be produced. Legislators, again, were definitely not happy.

It’s all part of the backdrop to this current clash

We’re Talking Real Money

The state constitution was first amended to provide for a legislative expense allowance back in 1968. The initial allowance was just $750. Delegates to the 1968 constitutional convention made clear that this allowance was not a hidden salary increase, and could be used only for expenses that were “reasonably related” to official duties.

At that time, legislators were not required to report or account for how they used the funds, and each legislator had the last word in determining whether any particular expenditure was appropriate.

Things have changed a lot since then. The amount available to each legislator has risen substantially, and now we’re talking real money. The allowance doubled to $1,500 per year in 1975, then went to $2,500 in 1981, and jumped to $5,000 in 1987.

The allowance is now pegged to legislative salaries, and any boost in salaries — based on recommendations by a salary commission — kicks up the allowance as well.

This year, each legislator can draw about $12,000 to cover job-related expenses. That amounts to more than 20 percent of legislative salaries, not an insubstantial sum.

The ethics law kicks in, as Kondo and the commission staff see it, because some of the things that have been paid for with the allowances appear to be personal in nature, rather than being reasonably tied to legislative duties.

Using public funds to pay personal expenses would, in the view of commission staff, violate the ethics code. Some meals, gifts, dry cleaning, and similar expenses have apparently been flagged for further review.

In addition, the commission appears concerned with possible “double dipping” that can happen when legislators have multiple sources of funds available to them.

Different Definitions

House rules allow use of allowances for “expenses for meals, automobile mileage (beyond the mileage that the legislator necessarily incurs going to and from work), increases in home telephone bills, postage and mailings, and other miscellaneous expenditures.”

The Senate, on the other hand, says allowances can be used for “all expenditures incurred in connection with carrying out of official duties or in connection with representational activities the nature of which will assist the legislator in: (i) developing the legislator’s accessibility to, and communication with, the community and constituents concerning subjects of legislation and community concerns; (ii) educating the community and constituents on matters relating to the legislature, legislative process, and subjects of legislation; and (iii) carrying out the public’s expectations of a legislator’s role to the community and constituents.”

It isn’t clear, from the rules at least, whether there is any independent review to determine whether legislators’ expenditures properly fall within the respective definitions, or whether requests are simply assumed to be proper unless complaints are received.

Unlike the early years, though, both the House and Senate now require each expenditure to be documented and justified, in writing. Legislators must submit a “Claim for Disbursement from Legislative Allowance Fund” form in order to draw on the allowances, whether for a cash advance or a reimbursement for a prior expenditure.

Whether the descriptions of expenditures included in these applications for disbursements are sufficient to determine whether a particular expense is “reasonably related” to official duties is another open question at this point. It’s one of the issues the ethics commission hoped it could resolve by reviewing legislative records.

The commission’s draft recommendations should make for interesting reading. Its solicitation of public comments provides an opportunity to have a say.

And, since it’s election season, you might want to ask your legislator for their reaction to the recommendations. This is the time to let them know that ethics oversight of legislative allowances is important.