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Legisbrief a QUICK LOOK INTO IMPORTANT ISSUES of the DAY

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Legisbrief a QUICK LOOK INTO IMPORTANT ISSUES of the DAY LegisBrief A QUICK LOOK INTO IMPORTANT ISSUES OF THE DAY JAN 2019 | VOL. 27, NO. 2 State Laws and Regulations Regarding Blind Trusts ME AK VT NH WA MT ND MN WI MI NY MA RI ID WY SD IA IL IN OH PA NJ CT OR NV CO NE MO KY WV VA DC DE HI CA UT NM KS AR TN NC SC MD AZ OK LA MS AL GA TX FL Blind trust defined Blind trust recognized, but not defined Blind trust not recognized (offers no Did You Know? protection against conflict of interest) AS GU MP PR VI • No state requires Blind trust not mentioned at all public officials to use Source: NCSL, 2018 a blind trust while serving, but 12 states define blind trusts, which officials can use to avoid conflicts Preventing Conflicts of interest. • Expertise and of Interest with Blind Trusts occupations are typically considered BY NICHOLAS BIRDSONG when making legislative committee qualify lawmakers to craft good policy may come assignments, but from the private sector, but with experience often this may increase the Conflict of interest laws prohibit public officials comes financial ties. Should ethics rules prohibit risk of conflicts of and employees from exercising authority that some of the most qualified experts from working interest. substantially and directly affects a personal in government? financial interest. Despite variation in how states • Trusts aren’t just define conflicts of interest, all agree on the Blind trusts potentially cure conflicts of interest for ethics. Lottery basic idea that legislators with a conflict should by transferring assets into a financial instrument winners may use one type of “blind trust” disclose the nature of the interest and recuse controlled by an independent trustee, who may to stay anonymous. themselves from participating in the matter. sell or transfer interests without knowledge of the But how can a legislator work with sprawling beneficiary. The beneficiary becomes “blind” to business interests affected by equally sprawling the impact of official actions on private interests legislation or when unforeseen conflicts could held in trust, thereby creating a shield against lurk around every corner? Experiences that conflicts of interest. State Action - opinion from the Georgia secretary of state says as sets would still need to be disclosed, regardless of Although 12 states define blind trust by statue or Additional whether they are held in a blind trust. In Ohio, an Resources regulation, no state requires public officials to use Ethics Commission advisory opinion said, “There a blind trust while serving. The laws and rules exist is no provision in Ohio that recognizes or provides • NCSL 50 State Chart: to provide a tool to protect public officials from a for the creation of ‘blind trusts.’ Consequently, the Conflict of Interest conflict of interest or the appearance of a conflict. Ethics Law does not recognize a method by which Definitions If officials elect to place assets in a blind trust, they blind trusts, and their assets, can be disclosed in • NCSL 50 State Chart: must follow requirements that vary substantially a manner that is consistent with the purpose in Blind Trusts from state to state. Federalcreating a blind Action trust.” • NCSL 50 State Some rules require trustees to be an institutional - Table: Voting Recusal fiduciary like a bank. An official’s family members Provisions and business associates are often precluded from The Ethics in Government Act of 1978 formal acting as trustee. However, some states specify no ized the federal approach to blind trusts. Before • NCSL State restrictions on who may manage a blind trust. that, the absence of statutory direction resulted in Legislatures - inconsistent or ineffective use of trusts. magazine, “When Definitions may require trust assets to be easily Should a Legislator transferrable without the beneficiary’s knowl Current law requires members of all branches of Use a Blind Trust?” edge. In Alaska, for example, a blind trust may government to file financial reports within 30 days not contain investments if their sale or transfer is of assuming a federal position. Along with other public record or if the ownership interest is “with required disclosures, filers must submit a copy permanency that makes transfer improbable or of any blind trust instrument and a list of assets impractical, including real estate, security interests transferred to the trust. Assets placed in trust in personal property, mortgages, and interests in remain potential conflicts until the trustee notifies closely held businesses.” the beneficiary that an asset is removed or valued under $1,000. Communications between trustee and beneficiary - may be limited to specified subject matters—such Federal ethics law defines a “qualified blind trust” as when a public official needs assets from the as a trust certified by an appropriate ethics author trust or information relating to tax returns—and ity in which a public official, public employee or conducted only in writing. Most states prohibit family member has a beneficial interest. A qualified beneficiaries from directing how funds may be trustee must be an independent, disinterested and invested, although some allow notifying a trustee non-familial financial institution or other fiduciary. that an asset placed in the trust should be sold to The trustee must have discretion in managing and- NCSL Contact prevent a conflict. controlling assets without notifying the beneficiary, Nicholas Birdsong free from sale or transfer restrictions unless ap 303-856-1451 While states may not define a blind trust, some proved by an appropriate ethics office. have statutes or regulations that recognize their use in limiting required disclosures or shielding Trustees and beneficiaries may communicate against conflicts of interest. Informal use of the only in writing and as expressly permitted. federal definition (described below) is common. Beneficiaries may request asset distributions, discuss general investment goals, notify trustees More than half the states lack any statutory or of subsequently applicable laws that prohibit regulatory mention of blind trusts. If using a blind - holding certain assets, or request the sale of an trust shields an official from knowledge about its initially placed asset that could create an appar assets, however, it could still protect officials from ent conflict. Trustees may communicate only to disclosure or recusal requirements under certain disclose summary trust information required for ethics rules. - tax purposes or to notify the beneficiary when an However, authoritative sources in two states other asset initially transferred to the trust is disposed wise silent on blind trusts disagreed. An advisory of or its value drops below $1,000. National Conference of State Legislatures | William T. Pound, Executive Director 7700 East First Place, Denver, Colorado 80230, 303-364-7700 | 444 North Capitol Street, N.W., Suite 515, Washington, D.C. 20001, 202-624-5400 www.ncsl.org | The information contained in this LegisBrief does not necessarily reflect NCSL policy..
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