Has anyone had the dubious pleasure of advising an elected official on Texas Ethics Commission Advisory Opinion No. 484, (http://www.ethics.state.tx.us/opinions/484.html), concerning when accepting transportation expenses and meals becomes a contribution? I've read the darned thing twice, and there appears to be no bright line. What did you tell your people? I'm thinking of just telling them to buy their own lunch and not have to worry about it!

I've analyzed the opinion several times, and the best advice I can come up with is this:

The key to any reimbursement becoming a potentially unlawful "officeholder contribution" from a corporation under Elec. Code secs. 253.003 and 253.094 is if it is "not reimbursable with public money." As the opinion notes, whether an expense is reimbursable with public money "depends on the facts and the applicable law in each case." So your concern that no bright line seems to be drawn is well founded.

Even so, Ethics Advisory Op. No. 368 (1997) may be somewhat helpful. In Op. 368, the Ethics Commission considered whether a judge could accept a legal seminar sponsor's offer to allow the judge's attendance at the seminar for free. The judge represented that, had the au gratis offer not been extended, the county would have paid the registration fee. Based on that assertion, the Ethics Commission concluded that the seminar was not an "officeholder contribution" to the judge because it "would be reimbursable with public funds," even though it wasn't actually reimbursed with public funds.

That reasoning suggests that your county auditor may be just as important in answering the question as you are. Generally, if an expense is one the county ordinarily would pick up (regardless of whether it actually does or whether it gets reimbursed for the expense), it will probably not implicate the "officeholder contribution" prohibitions of the Election Code. If that's not the case, there may be trouble.

I wish I could offer something more definitive.

That's why you're the man! That's just about how I saw it. I can really envision commissioners consulting with the auditor before their next appearance at Lion's Club! AND buy you're own darned lunch still seems like the best advice. Not many of our folks get all expense paid trips to exotic locales!

There seem to be a lot of unintended consequences to this particular opinion.

The 'forbidden' zone may have gotten larger, but the 'reportable' zone is also much larger. Lunch on the corporate dime is one thing. But what about the plate of cookies from an elected official's admiring constituent? [I can see it now: "Yes, Senator, you can eat the cookies Aunt Bea brought you. Just make sure you report them as a campaign/officeholder contribution." Really?]

If anyone sees/compiles a succinct, easy to understand, non-legalistic summary of the impact of this opinion, please share.

Ditto to A. Diamond.

That was NOT A Limbaugh "ditto".

I'm not sure there's a succinct piece of advice, other than this:

If you incur expenses relating to your duties (in any realistic sense), make sure they are paid by the county if you want to stay out of trouble (as that trouble is implicated in Op. 484).

With regard to cookies, unless Aunt Bea is Aunt Bea, L.L.C. or the like, there's probably not an issue, as Op. 484 concerns corporate officeholder contributions under the Election Code. But the problem is quite real if Aunt Bea is Aunt Bea, d/b/a/ Aunt Bea's Bail Bonds, Inc.

There is no corporate prohibition to taking Aunt Bea's cookies unless Aunt Bea is incorporated, agreed.

But the opinion under discussion, while using a corporate contribution scenario, also addresses what is and what is not a campaign/officeholder contribution. It has a very broad perspective on what that term means. If something is a campaign/officeholder contribution (as defined broadly in the opinion), it is either forbidden (such as from a corporation, for example) or reportable.

Are you convinced the cookies are not reportable under the logic of the opinion?

As usual, Ann, your logic is keen and insightful. The cookies, per the opinion, probably are reportable. They're just not criminal, so long as they get reported and Aunt Bea isn't corporate.

As has been discussed with an interested observer, this opinion goes into the "who asked for this, knowing full well what the answer would be?" file.

And so -- is the reported value the estimated retail cost of the flour, sugar, eggs, chocolate chips (hey, I like chocolate chips in my cookies!)?

Or is it the retail value of chocolate chip cookies? Chips Ahoy or gourmet cookie bakery prices?

Or something else?

Okay, before we get too far into the cookie futures market in Mayberry, I think I'll just tell my nervous commissioner there is no such thing as a penalty free lunch, and leave it at that.

That's probably sound advice.

Lunch or cookies must be provided "because of the officeholder's official position" to constitute an officeholder contribution within the contemplation of the opinion. Lunch with a buddy may not get you there. The problem, of course, is that the purpose is in the eye of the beholder. So, again, your advice is probably the best.