Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Month: February 2015

New and Improved Appropriation Clause Coming Soon to a Bill Near You

By Ed DeCecco and Sharon Eubanks

A critical part of legislation that creates a new program or changes an existing one is the appropriation clause. Through this clause, the General Assembly exercises its plenary power of the purse and authorizes an agency to spend state money from an identified source for a particular purpose, usually for a limited time. Recently, the trend has been to include more details in the clauses, but their basic format has essentially been the same for over a century. During that time, the clauses have been interpreted and applied without much controversy.

Yet, after an internal review, the staff of the Office of Legislative Legal Services and the Joint Budget Committee believed that the appropriation clauses could be improved. The existing clauses, although functional, are difficult to understand. Specifically, the legislative staff thought the appropriation clauses should be rewritten to remove unnecessary language, which could be codified; to increase legal accuracy; and to improve readability. The changes, however, are not intended to affect the meaning of the appropriation clauses or how the State Controller allows a department to spend its money.

To ensure that the new format would not change the status quo, legislative staff vetted the clauses with the Executive Branch – the State Controller’s Office, the Office of State Planning and Budgeting, and all of the departments. Their feedback was very positive, and they did not identify any serious obstacles to adopting the proposed format, though legislative staff did incorporate several changes based on the departments’ suggestions. The legislative staff then presented the proposed new format for appropriation clauses to the Joint Budget Committee for approval. The Committee approved the use of the new format beginning with the 2015 legislative session.

Here is a typical, simple appropriation clause written in the new format:

SECTION _. Appropriation. For the 2015-16 state fiscal year, $73,972 is appropriated to the department of public health and environment for use by the prevention services division. This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.9 FTE. To implement this act, the division may use this appropriation for the suicide prevention program.

Rather than writing the appropriation clause as a single, lengthy sentence as was previously the case, this new format for an appropriation clause employs a three sentence structure. The first sentence describes the fiscal year, the amount of the appropriation, and the department, including the division that will use the appropriation. So, with a cursory review, a reader will know the essential information about the appropriation.

The second sentence identifies the source of the appropriation. If the source is a cash fund, the sentence will include the statutory citation for the fund, but that is unnecessary for the general fund. Also, rather than “appropriating” an FTE, it describes the associated FTE consistent with the definition of “FTE” in §24-75-112 (1) (d) (V), C.R.S., which applies to the Long Bill and complies with Colorado case law.

The third sentence specifically identifies how the department, or in this case the division, is permitted to use the appropriation. In many instances, this last sentence will include additional details about a program or a subdivision within the Long Bill so that the specified use corresponds to a Long Bill appropriation.

A key feature of the new format is what is excluded from the appropriation clause. Three phrases previously included in a clause – “In addition to any other appropriation”, “not otherwise appropriated”, and “or so much thereof as may be necessary” – are omitted from this new version. Instead these phrases are codified in Senate Bill 15-098, which the Governor signed into law on February 25, 2015. So the phrases will still apply to, but not clutter, each clause.

Legislative staff has created variations on this new standard format, including an appropriation clause that contains multiple purposes and a clause that directly syncs with an appropriation or series of appropriations made in the Long Bill. It is likely that a majority of appropriation clauses will be variations of the new three-sentence standard format or one of these other two clauses.

Without changing the meaning of appropriation clauses, legislative staff believes that appropriation clauses are now much easier to read. Hopefully you agree.

February 26, 2015
Not Even a Cup of Coffee: Gift Bans on Lobbyists Can Directly Affect Legislators!

by Jennifer Gilroy

You have been invited to a breakfast meeting at Panera’s at which a speaker will address the topic of student assessments, a topic of great interest to your constituents and one that you are interested in learning more about since you are aware of at least six bills introduced on the subject. As luck would have it, your calendar is actually open that morning.

Good learning topic: √ Check

Free time slot: √ Check

Amendment 41 compliant: √ Che…well…you stop to evaluate the invitation.

While you have not been asked to speak at this event so you’re not on the agenda, you believe you may still accept the invitation to the breakfast because you’ve been to Panera’s before and you’re pretty certain that you can keep your check under $53 so that you won’t be violating the constitution’s gift ban…Check! You tell your aide to RSVP and add it to your calendar.

Not so fast! Sure you can enjoy a nice breakfast and learn something useful all for under $53, but did you consider who is paying for your coffee and pastry at Panera’s? Yes, that’s another little wrinkle in Amendment 41 (Article XXIX of the Colorado Constitution) that can trip you up if you don’t ask the right questions. Most legislators and legislative staff know that they are subject to two gift bans under Amendment 41: One that prevents them from taking money from others, with certain expressed exceptions; and another that prevents them from accepting gifts or things of value exceeding a cumulative annual total of $53, with a few important exceptions. But if the “gift” (here a meal) has a value less than $53, what’s the problem? It’s not even necessary to look at the exceptions. Right? I mean, it’s just a cup of coffee after all.

Wrong. The problem in this case comes down to who’s paying for your breakfast. It may not have said so on the invitation, but if you asked, you would know that Glen McHandshake, lobbyist, is paying for the attendees’ meals. Why is that a problem? Because Amendment 41 actually establishes a third gift ban: Professional lobbyists cannot give (or arrange to give) a legislator or legislative staff (among other public officers and government employees) any gift or thing of value of any kind or nature…or amount! In fact, the constitution even says that a professional lobbyist cannot knowingly pay for any meal, beverage, or other item to be consumed, regardless of whether it’s offered in the course of the lobbyist’s business or in connection with a personal or social event. Not even a cup of coffee!

You probably noticed that this is a gift ban on the professional lobbyist, not on you as a member of the General Assembly. However, because professional lobbyists cannot give anything to a legislator or a legislative employee, it is recommended that you not accept anything from a professional lobbyist. That may seem like a very restrictive approach, but consider the posture of both Amendment 41 and the statutory Code of Ethics. The very first section of Amendment 41 reminds you that public officers, and legislators specifically, hold the respect and confidence of the people of the state of Colorado. This section further states that public officers should avoid conduct that is in violation of their public trust or that creates even a “justifiable impression” among members of the public that this trust is being violated.

In other words, even appearances can affect the public’s trust and confidence in the General Assembly and its members. The likely reason that the voters of Colorado decided that professional lobbyists should not give anything to legislators and other public officers and government employees was to avoid even the appearance that the lobbyist was buying favors or official action in exchange for the gift.

The statutory code of ethics also addresses this concept. It states right up front that the public trust is based on the confidence the electorate places in the integrity of the public officers and legislators it elects to office and in those who are otherwise employed as government employees. We all know that actions speak louder than words. Accepting a meal, or even a cup of coffee, from a professional lobbyist who is seeking your vote or other official action on a matter pending before the General Assembly may give the appearance to the public that the lobbyist is “buying,” or at least potentially attempting to influence, your vote or action. You can avoid that appearance altogether by attending the event and simply paying your own way.

The take-away message is this: While an invitation may look good in all respects, you need to take that extra step to ensure that you are in full compliance with the law. Always ask who is paying for the gift. But even if Mr. McHandshake is picking up the tab, it doesn’t mean you have to miss the event. Tell them you will attend, but you will pay for your own cup of coffee.

February 19, 2015
Bill Versions Mark the Path from Introduction to Final Passage

by Patti Dahlberg and Julie Pelegrin

In following legislation from introduction to the Governor’s desk, it’s important to know which version you’re working with. Once introduced, a bill may be amended at several stages of the process, and if you aren’t working with the most current version, you will be lost. Also, by paying attention to the stamps that accumulate on a bill as it moves through the legislative process, you will know when and where the bill’s been amended and how far it still has to go before becoming law.

The “version” of a bill indicates where it is in the legislative process. To become law, each bill must be passed, with exactly the same wording, by both chambers. The version of a bill (as indicated on the upper right side on the first page) changes as the bill progresses through each official stage: introduction, passage on second reading, and third reading final passage in the first house or “house of origin”; and introduction, second reading, and third reading final passage in the second house. Amendments that the House adopts are indicated using shaded text and amendments that the Senate adopts are indicated by double-underlined text.

The stamps (see examples to the right), starting in the lower left margin of the bill, are boxed tidbits of information indicating whether a chamber adopted amendments, at which stage of the process, and on what date. When the bill version names are replaced at each stage of the process, the stamps remain leaving a trail of history on the bill.

Bill versions reflect the stages of the legislative process:
(1) Introduced (or Printed) bill. This is the bill as introduced, before any amendments are made to it. This version of the bill is read into the record and assigned to a committee of reference for consideration in the house of origin.

(2) Preamended bill. This is an unofficial version of a bill that is released when a committee of reference amends the bill before referring it to another committee or to the committee of the whole. The preamended version shows how the bill reads with the adopted committee amendments. This amended bill version is “unofficial” because it has not yet been “officially” adopted by the full house of origin.

When a committee refers a bill to the Committee of the Whole the bill moves to the second reading stage of the legislative process. During second reading, the house of origin may adopt, amend, or reject the amendments made by the committee of reference. And the house of origin may adopt additional amendments before it finally passes or kills the bill.

(3) Engrossed bill. After the house of origin adopts the bill on second reading, the committee of reference report, as it passed on second reading, and any other amendments that passed on second reading are enrolled into the introduced version of the bill, and the new version is known as the “engrossed bill.” Note: If the house of origin does not amend the introduced version of a bill, the introduced version of the bill becomes the engrossed bill – same bill, but different version stamp.

(4) Reengrossed bill. Once the house of origin passes the bill on third and final reading, the bill goes through enrolling again if necessary to include any additional amendments adopted on third reading. After third reading, the bill becomes the “reengrossed bill” and it includes all of the amendments that the house of origin adopts. The reengrossed version of the bill is transmitted to the second house for introduction and committee assignment. The committee of reference in the second house works with the reengrossed version of the bill.

(5) Preamended bill. As in the first house, if the committee of reference in the second house adopts amendments to the reengrossed bill, the staff creates a preamended bill, which is an unofficial version of the bill.

At second reading, the second house considers all bills referred to it by the committees of reference; adopts, amends, or rejects the committee amendments; considers and possibly adopts additional amendments; and finally passes, or kills, each bill.

(6) Revised bill. After the second house adopts the bill on second reading, all of the amendments adopted on second reading are enrolled into the reengrossed version of the bill, and the new version is known as the “revised bill.” Note: If the second house does not amend the reengrossed version of the bill, the reengrossed version becomes the revised version of the bill.

(7) Rerevised bill. Once the second house passes the bill on third and final reading, the bill goes through enrolling again if necessary to include any additional amendments that the second house adopted on third reading. After third reading, the bill becomes the “rerevised bill,” and it includes all of the amendments that the second house adopts.

If the second house does not amend the bill, the bill is scheduled for enrollment and transmitted to the Governor for action. If the rerevised bill (final version in the second house) is different from the reengrossed bill (final version in the house of origin), it goes back to the house of origin. The house of origin must decide whether to concur in the second house’s amendments and readopt the bill, or reject the second house’s amendments and request a conference committee of the two houses to resolve the differences, or reject the second house’s amendments and adhere to its own reengrossed version of the bill. Once the two houses resolve the differences between them and adopt the same bill, the bill is scheduled for enrollment and transmitted to the Governor for action. If the houses cannot resolve their differences, the bill dies.

(8) Enrolled bill and Final Act. The final version of the bill as adopted by both houses is known as the “enrolled bill.” Both the Speaker of the House and the President of the Senate sign this version and it is transmitted to the Governor for action. The “final act” is the version that becomes law, either with or without the signature of Governor, unless the Governor vetoes it.

February 13, 2015
Limiting Legalese: The Importance of “Plain English” in the Colorado Revised Statutes

By Gwynne Middleton

Legislators and attorneys get a bad rap when it comes to legalese, that pejorative term relegated to needlessly convoluted jargon often found in legal documents. And rightfully so. Some of the worst offenders of overly complicated writing come from the legal profession. The Center for Plain Language even created an annual award called the WonderMark for the worst legal writing.

But most legal writers don’t set out to confuse their readers. In a litigious society, these writers are tasked with including as much detail as possible in documents to avoid unintended interpretations and future legal debate. Unfortunately, even the best intentions sometimes leave the reader wishing the writer had gone another round at the editing table.

In 1993, the Colorado General Assembly passed a law that requires drafters to write legislation that clearly and concisely communicates legislators’ intent. Known as the “plain language” law, section 2-2-801, C.R.S., expects bill drafters to avoid unnecessary jargon and to aim for “nontechnical language” that “in a clear and coherent manner uses words with common and everyday meaning which are understandable to the average reader.”

Colorado legislative drafters apply this plain language law to each bill they draft. The Office of Legislative Legal Services’s drafting manual includes at least 37 guidelines and numerous examples for how to implement the plain language statute. Below are just a few of the guidelines drafters use to create clean legal writing for legislators’ bills.

Use Active Voice.

In the active voice, the subject and verb relationship is straightforward: the subject is a “be-er” or a “do-er,” and the verb moves the sentence along. In the passive voice, the subject of the sentence is neither a “do-er” nor a “be-er” but is acted upon by some other agent or by something unnamed. For example:

Passive voice (actor absent): A notice shall be mailed to the parties within 15 days after issuance of an order.
Active voice (actor present): The commission shall mail a notice to the parties within 15 days after issuance of an order.
Passive voice: Prescribed forms may be furnished by the county clerk and recorder.
Active voice: The county clerk and recorder may furnish prescribed forms.

Avoid unnecessary jargon, including archaic terms and provisos.

Legal writing has been around for a long time, and though legislators and drafters have updated language to reflect their changing audiences, certain archaic terms, such as “herein” and “heretofore,” as well as provisos (words before a sentence or clause that state an exception to the preceding sentence or clause) pop up in otherwise clear prose and often cloud the meaning of the sentence. For example:

The Archaic Interloper: Any other incidental expenses for the trip not specified herein are the sole responsibility of each participant.
Suggestion: Each participant is solely responsible for any other incidental trip expenses not specified in this section.
The Pesky Proviso: An application for a parking permit shall be approved provided that the applicant has not been fined for more than ten parking violations.
Suggestion: The county clerk must approve an application for a parking permit if (so long as) the applicant has not been convicted of more than ten parking violations.

Avoid being verbose.

Cutting archaic terms and provisos improves sentence clarity because including them in legal writing often indicates a legal writer’s propensity for being verbose. But seasoned legal writers know that cutting the “heretofore” and “provided that” legalese is just the beginning of concise writing. They’ll need to eliminate any unnecessary words and keep sentences short when possible if they want to help their audience understand and retain important information. For example:

Verbose: In the case of Abigail v. Johnson (TC, 1988), the taxpayer was able to exclude from gross income embezzled funds that were repaid during the year the funds were embezzled but the taxpayer was not allowed to exclude embezzled funds to be repaid in a subsequent year.
Concise: Abigail v. Johnson (TC, 1988) allowed the taxpayer to exclude embezzled funds repaid during the same year but not those repaid in a later year.
Verbose: Louise can deduct the $10,000 for the cost of the pool at her new home as a medical expense.
Concise: Louise can deduct the $10,000 cost of the new home’s pool as a medical expense.

Ultimately, by rewording sentences to omit archaic terms and provisos and whittling away unnecessary words, drafters and legislators aim for precision in their language, curbing legalese to compose legislation that’s easier to interpret and implement.

February 5, 2015