by Chuck Brackney
Colorado’s constitution creates the three arms of state government we all know — the legislative, judicial, and executive branches. The legislative branch is the General Assembly, while the judicial branch encompasses all state courts. The executive branch is a bit more complicated.
At the top of the organizational chart for the executive branch are the governor and the lieutenant governor. The constitution says that the “supreme executive power of the state shall be vested in the governor.” The attorney general, secretary of state, and state treasurer are also members of the executive branch. The governor is in charge of overseeing all of the state’s principal departments, such as the Department of Public Health and Environment and the Department of Transportation. One arguable exception, however, is the Department of Education.
The state constitution creates the State Board of Education, the members of which must be elected as provided in statute. The constitution also empowers the State Board of Education to appoint the Commissioner of Education, who is the head of the Department of Education. Thus, while the Governor has some degree of oversight of the Department of Education, he does not appoint either the head of the department or the policy-making board for the department. The Department of Education is the only department in the executive branch that has this degree of autonomy.
The basis for the organization of the executive branch departments is Section 22 of Article IV of the state constitution, which was adopted by the voters in 1966. This constitutional change called for the reorganization of the executive branch into not more than 20 principal departments. It allows for the allocation of functions of these departments to divisions, sections, and other units that will allow for orderly administration.
In response, the General Assembly enacted the Administrative Organization Act of 1968 (Act), article 1 of title 24, C.R.S. This is where the principal departments of state government are created in statute. Only the General Assembly can create departments and allocate functions among the various departments; however, the executive director of each department may allocate the functions of his or her department among divisions, offices, and units within the department, unless these functions are already specifically organized within the department by statute.
An important component of the Act is the establishment of a system of “transfers.” These transfers determine the relationship between an agency and the principal department. There are three types of transfers established by the Act:
- A type 1 transfer denotes a relationship in which the subordinate division, board, or other agency exercises its powers, duties, and functions independently of the executive director of the department where the agency is located. The most important powers retained by a type 1 transfer agency – powers which may be exercised in whatever way the agency determines, without approval of the department’s executive director- are the promulgation of rules and the rendering of administrative findings, orders, and adjudications.
Many of the more important agencies in state government have been created via type 1 transfer. These include the Air Quality Control Commission, the Colorado Civil Rights Division, the Parks and Wildlife Board, and the State Personnel Board. Each of these entities has a great degree of latitude and independence from its principal department in the carrying out of its functions and duties.
- A type 2 transfer establishes that all powers, duties, and functions of the division, board, or other agency belong to the executive director of the principal department. Note that in both type 1 and type 2 transfers the executive director is vested with “budgeting, purchasing, and related management functions.”
Agencies created via a type 2 transfer include the Division of Boiler Inspection in the Department of Labor and Employment, the Office of the State Chemist in the Department of Public Health and Environment, and the Colorado Bureau of Investigation in the Department of Public Safety.
- A type 3 transfer involves the transfer of all agency functions to another agency and the abolition of the old agency. This type of transfer is rarely used. The powers and duties of the old State Department of Highways were transferred to the Department of Transportation in the early 1990s via a type 3 transfer.
Colorado currently has 19 principal departments, one shy of the constitution’s cap of 20. If the number of departments ever reaches 20, the creation of new department at that time would require the General Assembly to abolish an existing department.