80 Op. Att'y Gen. 201 (1992)
 
80 OAG 201  202 203  204  205

OPINION NO. OAG 8-92,

Wisconsin Attorney General Opinions

20 March 1992

Ethics, State Board Of;
Public Officials;

The ethics law does not prohibit a state
public official from purchasing items
and services that are made available
to the official because he or she
holds public office.

If the opportunity to purchase the item
or service itself has substantial value,
the ethics code prohibits the purchase
of the item or service.

R. ROTH JUDD,
Executive Director Ethics Board

On behalf of the Ethics Board you ask whether
a state public official may purchase items
and services from an organization which the
organization is making available to the
official because of the official's
holding a state office.

I conclude that a state public official may
purchase items and services from an
organization, other than a lobbying
principal, if the opportunity to
purchase the items or services
is not itself something of
substantial value.

Section 19.45(2), Stats., prohibits a state
public official from using his or her public
position to obtain financial gain or anything
of substantial value for his or her private
benefit or the benefit of his or her
immediate family or an organization
with which he or she is associated.

Section 19.45(3m) states:

    "No state public official may accept or
     retain any transportation, lodging,
     meals, food or beverage, or
     reimbursement therefor,
     except in accordance with
     Section 19.56(3)."

Section 19.56(3) provides specific
exceptions to the law.

For purposes of this discussion, I am
assuming that none of the exceptions
 in section 19.56(3) apply.

The first issue presented is whether section
19.45(3m) prohibits
a state public official from purchasing any
food, drink, transportation or lodging that
is made available to the official because of
the official holding a public office.

On its face, section 19.45(3m) would prohibit
a state public official from attending, for
example, a meeting with lunch at a company's
executive dining room, a chamber of commerce
dinner or a trade association golf outing
even if the state public official paid the
full cost of the lunch, dinner or golf
outing.

 
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Under section 19.56(3)(a), however, a state
public official may accept reimbursement of
actual and reasonable expenses for
participating in a meeting.

Moreover, section 19.56(3)(b) provides that
an official may receive and retain anything
of value if the activity or occasion for
which it is given is unrelated to the
official's public office.

Indeed, under section 13.625(7) a state
public official may even accept reimbursement
from a lobbying organization for attending a
meeting.

Interpreting section 19.45(3m) as prohibiting
a public official from paying fair market
value for an item unless expressly permitted
by section 19.56(3) would lead to the
anomalous conclusion that the Legislature was
permitting a public official to accept
reimbursement for certain expenses under
section 19.56(3) when a public official
attended a meeting, but would not even allow
a state public official to purchase the same
items if the public official was simply
meeting constituents over lunch but not
engaging in a "meeting,"

I conclude that the statute must be
interpreted as prohibiting the acceptance
of the listed items only when those
items are offered as gifts.

As you note, the ethics law, Chapter 19,
subchapter III, does not define
the word "accept."

The word is certainly broad enough to
apply to both receiving items as gifts
as well as to purchasing items.

The lobby law, chapter 13, subchapter III,
uses the same term but the concomitant
prohibition in the lobby law is a prohibition
against "furnishing," a term that includes
both giving and selling.

The legislative history of section 19.45(3m)
indicates that the word "accept" was intended
to apply only to receiving gifts.

You state that the purpose of the sponsors of
1989 Wisconsin Act 338, which resulted in
section 19.45(3m), was to end the practice of
legislators accepting food and drink at
legislative receptions sponsored by
organizations which had an interest in
matters before the Legislature.

Certainly a blanket prohibition against
accepting or paying for that hospitality
would serve that legislative purpose.

 
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The more reasonable interpretation, however,
is that the Legislature intended to stop the
practice of public officials accepting free
food and drink but did not intend to prohibit
the state officials from attending these
functions if the state public official paid
for his or her own food and drink.

Section 19.56(1) encourages public officials
to meet with groups to discuss matters
before the Legislature.
 

It would make no sense to encourage officials
to attend those functions but prohibit
them from purchasing refreshments
at the functions.

This interpretation is consistent with the
balance of the ethics law which, in contrast
to the lobby law, focuses on prohibiting
officials from using their public offices
to obtain benefits, and achieves a
reasonable construction of the
statute which effectuates
the statute's purpose.

State ex rel. Melentowich v. Klink,
108 Wis.2d 374,
321 N.W.2d 272 (1982).

Allowing a public official to purchase items
is consistent with the statute's language and
consistent with the public policy evidenced
in the balance of the ethics code, especially
the policy reflected in section 19.56(3)
which encourages public officials to attend
meetings of organizations and allows those
organizations to reimburse public officials
for that attendance.

The question remains whether section 19.45(2)
prohibits an official from purchasing an item
at full value if the item is not generally
accessible to the public, when the access
itself may have substantial value.

For example, in an opinion issued March 29,
1989, EB 438, the Ethics Board recognized
that an invitation to a private club or a
private suite at a sports arena can itself
have value beyond the cost of the meal
or the price of entrance to the arena.

The ethics code itself defines "anything of
value" as including "favors" and "services."

Section 19.42(1), Stats. You state that the
board has taken the position that if a
facility is not generally available to
the public then the cost of membership at,
or the purchase or lease price of, the
facility must be viewed as part of the total
value of attendance at the facility.

 
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I agree.

I also agree that whether this value is
substantial is question of fact that
must be resolved after looking
at all the relevant evidence.

The ethics code is violated if the access
itself is something of substantial value
that is if, e.g, the access to the private
suite or the private club is itself something
of substantial value over and above the cost
of the ticket or the meal.
 

JED:AL
 
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