Colorado LegiSource

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

Month: April 2015

  • The Race is On to the End of the Session: Automatic Rule Changes Pick Up the Pace

    By Julie Pelegrin

    One week from today, legislators, legislative staff, lobbyists, and capitol reporters can all hit the snooze button and roll over for another hour of sleep. But between now and then, there are several amendments to finish lineread, bills to consider, and differences to resolve. To help ensure that both houses can complete their work by midnight on May 6, the legislative rules automatically speed up or suspend certain procedural requirements in the last few days of the session.

    Last 5 Days of Session:

    • Joint Rule 7: One day after a bill is assigned to a conference committee, a majority of either house may demand a conference committee report, and the committee must deliver the report before the close of the legislative day during which the demand is made. If a bill has been assigned to a conference committee at any time during the session and the committee hasn’t turned in a report, the committee must report the bill out within these last five days of session.

    Last 3 Days of Session:

    • House Rule 25 (j) (3); Senate Rule 22 (f): Each House and Senate committee chairperson must submit committee reports to the House or Senate front desk as soon as possible after the committee acts on a bill. No more waiting for two or three or five days to turn in the report.
    • House Rule 36 (d); Senate Rule 26 (a): The House and the Senate can consider the amendments made in the second house without waiting for each legislator in the first house to receive a copy of the rerevised bill and for the notice of consideration to be printed in the calendar.
    • House Rule 36 (d); Senate Rule 26 (b): Legislators can vote on conference committee reports as soon as the reports are turned in to their respective front desks—even if the report has not been distributed to the members and has not been calendared for consideration. The usual practice, however, is to try to distribute copies of conference committee reports to legislators before the vote.
    • Senate Rule 18 (d): Throughout most of the session, a Senator may give notice of reconsideration, and the Secretary of the Senate will hold the bill for which the notice was given for up to two days of actual session. During the last three days of session, however, this rule is suspended, and a Senator cannot hold up a bill by giving notice to reconsider.
    • House Rule 33 (b.5): Usually, the House rules only allow technical amendments on third reading; offering a substantial amendment on third reading may result in the bill being referred back to second reading. During the last three days of session, however, a Representative may offer a substantial amendment to a bill on third reading.

    Last 2 Days of Session:

    • House Rule 35 (b) and (e): A motion to reconsider usually requires a 2/3 vote to pass. In the last two days of session, however, a motion to reconsider – in a House committee or in the full House – requires only a majority vote.

    Before the 117th legislative day, the Speaker of the House or the President of the Senate may announce that the House or the Senate, respectively, is in the last three days of the legislative session. This does not mean that either the House or the Senate will adjourn sine die before the 120th legislative day, but it does trigger the rule changes that apply in the last three and last two days of session.

    Digest of Bills

    With these expedited procedures, bills will probably be moving quickly. If you find yourself wondering which bills passed and what they do, you’ll want to check the digest of bills. The Office of Legislative Legal Services (OLLS) annually publishes the digest, which contains a summary of each bill enacted during the legislative session, organized by subject matter. The OLLS will publish a preliminary digest by May 6 that will include all of the bills that have passed and been signed by the Governor or allowed to become law by that date. The OLLS will publish the final digest once the 30-day period for Governor action is passed. Copies of the final digest will be available in Room 091 in the Capitol basement and posted on the OLLS website.

  • Colorado Supreme Court May Decide Constitutionality of Negative Factor

    By Julie Pelegrin

    Less than two years after the Supreme Court held in State v. Lobato that Colorado’s public school financing system complies with the constitutional requirement to provide a “thorough and uniform” system of public education, parents and school districts are again suing to increase the amount of state money appropriated for public schools. The new lawsuit – Dwyer v. State of Colorado – focuses on the negative factor and whether it violates the constitutional requirement to increase the amount of statewide base per pupil funding by inflation each year. To better understand the plaintiffs’ claim, we’ll start with some background on how the state funds its public schools.

    Calculation of Total Program Funding and Amendment 23
    calculator moneyUnder the “Public School Finance Act of 1994,” the department of education annually calculates the amount of operating money – called “total program funding” – that each school district receives. The calculation starts with the statewide base per pupil funding amount, which the General Assembly sets each year in statute. The department multiplies this amount by factors that account for each school district’s size and cost of living.  This sum is the school district’s “per pupil funding.” The department multiplies the school district’s per pupil funding by the number of pupils enrolled in the district then adds certain amounts for the at-risk pupils, multi-district on-line pupils, and ASCENT program pupils that the school district enrolls. Before the 2010-11 fiscal year, this final sum was a school district’s total program funding.

    Total program funding is paid with a combination of school district tax revenues and state money. The department of education figures how much a school district will receive in local property tax and specific ownership tax revenues each year. The department subtracts this amount from the school district’s total program, and the amount that’s left is paid using state money. This amount is called the “state share” of total program funding.

    In 2000, the voters of Colorado passed a citizens’ initiative – Amendment 23 – that requires the General Assembly to increase the amount of statewide base per pupil funding by inflation plus one percent every year for fiscal years 2001-02 through 2010-11 and by inflation every fiscal year thereafter. As explained earlier, statewide base per pupil funding is important because it’s the basis for calculating how much each school district receives in total program funding each year.

    Creation of the Negative Factor
    In 2010, the nationwide recession caused a significant decrease in the state’s revenues, and there was not enough money available to pay each school district’s state share of total program funding and all of the other costs of state government. The General Assembly amended the School Finance Act to create what is known as the “negative factor.” This factor is a percentage reduction in each school district’s total program funding to ensure that the state’s revenues are sufficient to pay the state’s share of total program funding for school districts and school housethe other expenses of state government.

    Each year since 2000, the General Assembly has increased the amount of statewide base per pupil funding by at least the amount required in Amendment 23. However, because of the negative factor, the General Assembly in the 2014-15 fiscal year appropriated about $894.2 million less than it would have otherwise appropriated to fund the state share of total program funding.

    Constitutional Challenge to the Negative Factor
    Last June, a group that includes parents of students enrolled in public schools, educational organizations, and school districts – we’ll refer to them generally as “the parents” – filed suit against the State of Colorado, Education Commissioner Robert Hammond, and Governor John Hickenlooper – we’ll refer to them as “the state” – claiming that the statute that creates the negative factor is unconstitutional. The parents claim that the voters who approved Amendment 23 understood that it required total program funding levels to increase each year, regardless of other state funding or revenue needs. They argue that the negative factor actually is applied to and reduces the statewide base per pupil funding and that it therefore violates the requirements of Amendment 23.

    Last August, the state filed a motion to dismiss the lawsuit. The state argued that the General Assembly has fully complied with the plain language of Amendment 23, which requires annual increases to statewide base per pupil funding, but does not require increases in total program funding for school districts.

    The trial court issued an order in November of 2014 denying the state’s motion to dismiss. The trial court found that, since Amendment 23 prescribes minimum increases in the state funding for public education, the parents alleged sufficient facts by asserting that the negative factor reduces funding for school districts below the level that Amendment 23 requires.

    Supreme Court Proceedings
    Last January, the state asked the Colorado Supreme Court to exercise its original jurisdiction and issue a rule that the General Assembly’s actions to annually increase the statewide base per pupil funding amount comply with the requirements of Amendment 23, regardless of the negative factor. The Supreme Court directed the parents to file written answers as to why the Court should not grant the state’s request for a rule.

    The parents have filed their answer, which makes generally the same arguments as the complaint – that the negative factor actually operates to reduce the statewide base per pupil funding and therefore violates Amendment 23. The parents also argue that, when Amendment 23 passed, the voters understood the language of Amendment 23 to be increasing per pupil expenditures.

    The state has also filed its reply, which makes generally the same arguments as the motion to dismiss the lawsuit – that the language of Amendment 23 is plain and unambiguous and it requires only increases in the statewide base per pupil funding amount; it does not address the General Assembly’s authority to change or add any factors within the formula. The state argues that the General Assembly has increased the statewide base per pupil funding amount each year since Amendment 23 passed, and the negative factor has never reduced a school district’s per pupil funding amount below the statewide base.

    So now, we wait for the Supreme Court to decide. If the Supreme Court decides to exercise its original jurisdiction and rules in the state’s favor, that would essentially decide the case. However, if the Supreme Court does not exercise its original jurisdiction, or if it rules in favor of the parents, the case may return to the district court for a full trial. Could be a long summer….

  • What’s So Important About a 10-day bill? How About a 30-day bill?

    By Kathy Zambrano

    As the General Assembly moves toward the end of the regular legislative session, you may hear the terms “10-day bill” and “30-day bill” bouncing around the capitol hallways. What’s the meaning of these terms? And why does the General Assembly care?

    Section 11 of article IV of the state constitution specifies that every bill passed by the General Assembly must be presented to the Governor before it can become law. If the Governor approves of the bill, he or she signs it and returns it to the legislative house of origin with a letter detailing the date on and time at which he or she signed it. If the Governor vetoes a bill, it is returned to the house of origin along with an explanation of the Governor’s objections, which are then printed in the journal of the House of Representatives or the Senate, whichever is the house of origin.

    number 10If there are 10 days or more left in the legislative session when the Governor receives the bill, the Governor must act within 10 days after receiving the bill or it becomes law without the Governor’s signature. If there are fewer than 10 days left in the session or the General Assembly has already adjourned when the Governor receives the bill, the Governor has 30 days after the date of adjournment in which to approve the bill, allow the bill to become law, or veto the bill and file it with the Secretary of State.

    If the General Assembly is still in session when the Governor vetoes a bill, the bill is calendared for “consideration of Governor’s veto” in the house of origin. Two-thirds of the members in both the House of Representatives and the Senate must vote affirmatively in order to override the veto.

    So, a 10-day bill is a bill that the Governor must act on before the end of the legislative session. And, if the Governor vetoes a 10-day bill, the General Assembly may override the veto. With a 30-day bill, the Governor can wait until after the session is over to act on the bill. If the Governor decides to veto a 30-day bill, the General Assembly cannot override the veto.

    To comply with the constitution, the House of Representatives, the Senate, and the Governor’s office enter into a formal memorandum of understanding regarding the details for delivering and returning bills, computing the ten-day and thirty-day periods for action by the Governor, and calculating the date when bills become law without the Governor’s signature.

    Delivery and return of bills. The House, the Senate, and the Governor’s office agree to maintain regular weekday business hours of 8:00 a.m. to 5:00 p.m. During these hours, staff must be available to accept any documents, bills, or other communications from the Governor or the House or Senate. The parties agree to provide advance notice of any unusual circumstances relating to the delivery or return of bills. The delivery or return of bills is typically made within the regular business hours of the office unless other special arrangements are agreed to in advance.

    When the Governor signs or vetoes a bill or allows a bill to become law without his or her signature, the Governor’s office delivers a letter from the Governor to the house of origin as soon as possible on the same day the bill is signed or vetoed or allowed to become law or, if the bill is signed or vetoed after business hours, the Governor’s office will deliver the letter the next morning that the house of origin is in session.

    Computing 10-day and 30-day periods. In counting the 10-day period for action on a bill, the day that delivery is actually made is not counted. For example, if a bill is delivered to the Governor on a Monday, the first day of thecounting days 10-day clock for the Governor’s action is Tuesday. Since Saturdays, Sundays, and holidays are considered legislative days, they are counted in calculating the 10-day period.

    However, if the 10th day falls on a Saturday, Sunday, or holiday, the day on which the bill must be returned to the General Assembly is extended to the next day that is not a Saturday, Sunday, or holiday. For example, if the House or Senate delivered a bill on Wednesday, February 11, 2015, the 10th day would fall on Saturday, February 21, 2015. The Governor need not return the bill on Saturday or Sunday because the 10th day would be extended to Monday, February 23, 2015. If the Governor did not sign or veto the bill, it would become law at 12:01 a.m. on Tuesday, February 24, 2015. Similarly, if the House or Senate delivers a bill on a Wednesday and the 10th day is extended from Saturday to a Monday, but the Monday is also a holiday, the return date will be further extended to Tuesday.

    This seems pretty straight forward, but if the General Assembly or the house to which a bill is to be returned is in session and conducting business on a Saturday, Sunday, or holiday, and the 10th day falls on that day (for example, President’s Day), then the Governor must return the bill on that day. For example, if the Senate delivers a bill on Wednesday, March 4, 2015, the 10th day is Saturday, March 14, 2015. If the House was adjourned for the weekend but the Senate was in session and conducting business on Saturday, March 14, 2015, the Senate bill must be returned by that date. If a bill is delivered on Wednesday, February 4, 2015, the 10th day is Saturday, February 14, 2015. The 10th day would therefore extend to Monday, February 16, 2015. While February 16, 2015, is a holiday (Presidents’ Day), if the General Assembly or the house to which a bill is to be returned is in session on the Monday holiday, then the Governor must return the bill by that date.

    If the Governor does not sign or veto a bill but allows it to become law without his or her signature, it becomes law at 12:01 a.m. on the day following the end of the 10-day period. For example, a bill delivered to the Governor on Monday, February 2, 2015, would have to be acted on and returned to the house of introduction by the 10th day following delivery, Thursday, February 12, 2015. If no action is taken, it would become law without the Governor’s signature on the 11th day following delivery, Friday, February 13, 2015, at 12:01 a.m. A bill delivered to the Governor on Tuesday, February 3, 2015, would become law without the Governor’s signature on Saturday, February 14, 2015, at 12:01 a.m.

    If the General Assembly prevents the return of a bill during the 10-day period by adjourning sine die, the Governor has an additional 30 consecutive days after adjournment within which he or she may sign or veto a bill number 30and file it with his or her objections with the office of the Secretary of State. The Governor must also act within this 30-day period on all bills enacted during the session and delivered after adjournment. If the Governor neither signs nor vetoes a bill but files it with the Secretary of State within the 30-day period, then it becomes law without the Governor’s signature. The 30-day period begins to run on the day following the day that the General Assembly adjourns sine die. The same rules apply in counting the 30-day period as apply in counting the 10-day period. For example, if the House or Senate delivers a bill to the Governor on Monday, April 27, 2015, the Governor may elect to take no action before adjournment and have an additional 30 days to act. The 10th day is Thursday, May 7, 2015. If no action is taken before the expiration of the 30-day period on Friday, June 5, 2015, the bill will become law on Saturday, June 6, 2015, at 12:01 a.m.

    Important dates to know in April:

    • For purposes of the 2015 Legislative Session, the 10-day clock expires April 24, 2015, assuming that neither house of the General Assembly works the weekend of April 25 and 26.
    • All bills delivered to the Governor beginning Monday, April 27, 2015, are considered 30-day bills since the General Assembly must adjourn sine die, Wednesday, May 6, and the 10-day clock will expire Thursday, May 7.

  • April 15 is Tax Day….But It’s Also Gift Reporting Day! Are You Ready?

    by Jennifer Gilroy

    The deadline. We all know that April 15th is the last day to file tax returns, but did you remember that it’s also the day you have to file your quarterly gifts and honoraria disclosure statement with the Secretary of State’s office? Section 24-6-203, C.R.S., requires every incumbent in, or candidate elected to, public office (that includes legislators) to file a report with the Secretary of State’s office every January 15, April 15, July 15, and October 15 gift boxdisclosing all of the gifts and honoraria received in connection with his or her public service since the last reporting date.

    Well, actually, as an incumbent or newly elected official you don’t have to report everything you’ve received in connection with your public service. There are exceptions. But it’s really confusing to figure out just exactly what you must report. And then, to complicate matters further, the laws identifying the gifts you are permitted and not permitted to accept are completely separate and distinct from the law describing the gifts you must report each quarter. As tempting as it is, don’t allow yourself to be tripped up by thinking they are the same. They are not.

    The details. Let’s break it down. Once you’ve been sworn in to office, you must submit a report to the Secretary of State’s office each quarter (on their form) disclosing certain gifts and honoraria that you have received in connection with your public service. The law provides a list of items you must report and a list of items that you don’t have to report, but you may choose to report. Of course if, since the last reporting date, you have not received any gifts, honorarium payments, or other items that the statute requires you to disclose then you do not have to file a report at all.

     

    report

     

     

    • Honoraria – payments you’ve received for giving a speech or making an appearance or authoring a publication.
    • Travel and lodging – payments or reimbursements you’ve received for expenses you’ve incurred for travel  and lodging to attend a convention, fact-finding mission or trip, or other meeting that you are permitted to accept under Amendment 41, unless the payment or reimbursement of the expenses is made from public funds of a state or local government or from an association of public officials or public entities whose membership includes the reporting individual’s office or governmental entity (in which case you may report, but you are not required to). You must also report payments or reimbursements for those same types of travel and lodging expenses if they are paid for by a “joint governmental agency” to which the state pays dues, such as the National Conference of State Legislatures, the Council of State Governments, or the Energy Council.
    • Meals – a gift of a meal at a fund-raising event of a political party.

     

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    • Campaign contributions – campaign contributions you’ve received that you’ve already reported under the Fair Campaign Practices Act.
    • Unsolicited tokens or awards – unsolicited items of trivial value and unsolicited tokens or awards of appreciation.
    • Travel and lodging – As stated earlier, if a state or local government or an association of public officials or public entities whose membership includes the reporting individual’s office or governmental entity pays, or reimburses you, for expenses you’ve incurred for travel and lodging to attend a convention, fact-finding mission or trip, or other meeting that you are permitted to accept under Amendment 41, you do not have to report the payment or reimbursement.
    • Salary – payment of salary from employment, including other government employment, that is in addition to what you earn as a member of the General Assembly (although you should be disclosing the source(s) of that income on another report you must file with the Secretary of State’s office pursuant to §24-6-202, C.R.S.
    • Amendment-41-permitted gifts – any other gifts or things of value that you are permitted to solicit, accept, or receive pursuant to Amendment 41.

     

    The crime. Clear as mud? It is a confusing area of law. And yet any person who willfully files a false or incomplete gifts and honoraria report is guilty of a misdemeanor and, if convicted, may be subject to a fine of up to $1,000. So you should take some time and be thoughtful about what you need to report. The same section of law requires those who provide you with an item that you must report to furnish you with a written statement of the dollar value of the item. But this doesn’t always happen, so don’t rely on it. Just because the donor of a gift didn’t give you a statement of value, it doesn’t mean you don’t have to report the item.

    The form and resources. The form you must use to report gifts and honoraria is available on the Secretary of State’s webpage. The Majority and Minority offices in both chambers also have hard copies of the form if you prefer.

    Questions about the gifts and honoraria reporting requirements should be directed to the Secretary of State’s office at (303) 894-2200. And you may always contact the OLLS with any questions you have related to gifts and honoraria reporting or consult our indispensable “Ethics Flash Card”, on the back of which you’ll find a summary of the reporting requirements entitled, “Do I Need to Report this Gift to the SOS?”.

    Don’t forget, the deadline is April 15th!

  • GAVEL Requirements: Thou Shalt Consider & Vote

    by Jery Payne

    Last week we discussed what a supermotion is and what a GAVEL motion is. If you missed it, you might want to check it out. It’s not necessary to read that article, but it may be helpful.

    Whether by supermotion or not, GAVEL allows a bill to skip ahead in the normal process. But depending on how this is done, it can mean the process fails to meet a constitutional requirement.

    Ironically, the constitutional requirement also comes from the GAVEL amendments to the Colorado Constitution, Section 20 of article V: “Every measure referred to a committee of reference of either house shall be considered by the committee upon its merits, and no rule of either house shall deny the opportunity for consideration and vote by a committee of reference….” This language was litigated in the case of Grossman v. Dean.

    The court of appeals held that this provision creates “a legally protected right for each legislator to have a committee of reference consider and vote on a bill on its merits.” So each bill must be both considered and voted on.

    committee hearing 4-2Now, I’ll bet some of you are thinking: “What does ‘considered’ mean?”

    Does it require a hearing? Probably, but that only begs the question of what has to happen in the hearing.

    Does it mean a vote? Yes, but in Grossman v. Dean, the court held that a mere vote isn’t enough. Section 20 of article V specifically mentions both (1) consideration and (2) a vote. So the court held that merely voting isn’t enough.

    Does it mean discussion, debate, or testimony? The committee probably has to do at least one of them, but it probably doesn’t have to do all three. Each would fulfill the consideration requirement, but any one is not necessary:

    [T]he intent of GAVEL in requiring “consideration” was that legislators be precluded from completely prohibiting interactive committee consideration of the merits of a bill, which interaction normally includes some level of discussion, debate, or testimony. … The amendment … leaves the General Assembly to determine, on a case-by-case basis, the level of discussion, debate, or testimony that is required.

    So GAVEL requires at least a bit of discussion, testimony, or debate. But the details are left to the General Assembly. House Rule 25 (j) (1) (E.2) delegates this discretion to the committee chair. So unless a statute or legislative rule says otherwise, the committee chair makes these decisions.