by Julie Pelegrin

Newly elected legislators are often (pleasantly) surprised to find that they do not have to write their own bills. The Office of Legislative Legal Services – a nonpartisan legislative staff agency – provides expert legislative drafting services to help legislators put their policy ideas into statutory language. But this was not always the case. For over 90 years, Colorado’s legislation was written by employees of the executive branch.

From the first Legislative Assembly of the Colorado Territory in 1861 until 1917, it’s not clear who was writing the legislation. There is no mention of bill drafting services in the statutes or anywhere else that we can find. Presumably, every legislator wrote his or her own bills, although some may have sought help from private attorneys or the Attorney General. The first mention we find of a bill drafting office is in the 1917-18 biennial report of Colorado Attorney General (AG) Leslie E. Hubbard. He reports that he formed a division within the Attorney General’s office to assist legislators in writing bills. His motivation: To avoid the introduction of bills with “patent inaccuracies, conflicts and constitutional objections” and so reduce the amount of litigation against the state.

It appears this informal division of the AG’s office continued to operate until 1927. That year, the General Assembly officially created a legislative reference office (LRO) within the Attorney General’s office with the passage of S.B. No. 200. The LRO consisted of one attorney who served as director of the office and at least one stenographer. The Attorney General appointed the LRO director, with the consent of the Governor. Senate Bill No. 200 also authorized the Supreme Court Librarian to assign library employees to work with the LRO during the legislative session.

From the beginning, the employees of the LRO were nonpartisan – appointed without reference to party affiliation, solely on the ground of fitness. The director of the LRO had to be an attorney licensed to practice law for at least five years before appointment. And all bill requests were confidential; neither the director nor any employee of the LRO could reveal to anyone outside the office the contents or nature of a bill request without the requesting legislator’s consent. Also, the director and the LRO employees were prohibited from lobbying in favor of or against any type of legislation.

The LRO had several duties including: Maintaining bill files and information relating to bills; accumulating data and statistics concerning the practical operation of Colorado’s statutes and those of other states; studying the statutes to find ways to reduce the number and bulk of the statutes; and working with the legislative reference bureaus in other states.

Most importantly, at a legislator’s or the Governor’s request, the LRO was required to draft bills, resolutions, and amendments; advise the legislature or the Governor as to the constitutionality or probable effect of proposed legislation; prepare summaries of existing laws and compilations of laws in other states; and research proposed legislation.

Although employees of the executive branch were drafting legislation for the legislative branch, the separation-of-powers implications did not seem to cause any concern – at least not until 1968. That year, Senator Bill Armstrong and Representative Star Burton Caywood introduced and passed Senate Bill 1, concerning the administrative reorganization of state government. This was a massive bill, the product of at least two years of interim committee meetings and planning. The act significantly restructured state government, reducing the sprawling mass of executive branch agencies and offices to just 17 state executive departments.

Senate Bill 1 also moved the LRO out of the Attorney General’s office and into the legislative department, renaming it the Legislative Drafting Office (LDO). And the bill created the Legislative Drafting Committee, a bipartisan committee consisting of the three members of leadership in each house and one additional minority party member appointed from each house.

The new LDO had a director, appointed by the legislative drafting committee without regard to party affiliation, who had to be an attorney. The director could appoint additional attorneys and clerical personnel as necessary to staff the office. The duties of the new LDO were essentially the same as the old LRO, except the attorneys in the LDO could no longer advise the Governor as to whether to sign a bill.

In 1969, the General Assembly passed Senate Bill 396, which, among other things, renamed the legislative drafting committee the Committee on Legal Services and changed the membership to consist of eight legislators and the Attorney General – but it remained a bipartisan committee. The General Assembly removed the Attorney General from the committee in 1973 and expanded the membership to 10 legislators in 1985.

Finally, in 1988, the General Assembly passed House Bill 1329, which combined the LDO and the Office of the Revisor of Statutes into what we now know as the Office of Legislative Legal Services (OLLS). The duties of the OLLS did not change significantly from those exercised by the LDO, but, with the addition of the Office of the Revisor of Statutes, the OLLS is also responsible for revising, codifying, and publishing the statutes.

Several things about the OLLS have not changed as it has evolved from the executive branch into the legislative branch. Bill and amendment requests and communications between OLLS staff and legislators are all still confidential. The OLLS is still nonpartisan and is still charged with providing legal services. And, finally, the mission of the OLLS continues to be providing “the best technical advice and information … available to the General Assembly, agencies of state government, and the people of this state.”¹

1. Section 2-3-501, Colorado Revised Statutes. ↩︎

by Gwynne Middleton

If you’ve wandered the halls of the state Capitol basement recently, you’ve likely noticed visual art exhibits in the rotunda. Curious about these rotating art displays, I gumshoed my way to a conversation with Ruth Bruno, the liaison for Creative Colorado Industries, Inc.’s¹ Creative Capitol program, to learn more about its role in showcasing Colorado artists at the Capitol.

The brainchild of Colorado Creative Industries, Inc. (CCI), a division of the Colorado Office of Economic Development & International Trade, the Creative Capitol program started in 2008 to combat the dearth of new public art hung at the Capitol. Since Capitol public art projects are usually tied to the state’s Capitol Construction funds and 2008 was far from a banner year for the state’s budget, public art was not a top priority when it came to new Capitol Construction requests. With no new public art projects to manage, CCI started Creative Capitol to provide consistent access to art for Capitol visitors and staff. Funds for this program come from the CCI budget, avoiding a financial burden for the state during both fat and lean years.

When asked how the Capitol and the general public benefit from the Creative Capitol program, Bruno explained that anyone who visits the Capitol to partake in the historic architecture and permanent art installations gets the added benefit of enjoying current works created by Colorado artists. For Bruno, providing this pro bono loaned artwork in our Capitol shows that the state not only champions art and arts programming but arts and arts programming by and for Coloradans: “[S]howcasing and supporting Colorado artists is one of the key goals of [CCI]. Artists benefit from the exposure and by having a place to show their art, and CCI benefits because we can highlight the work we do to the general public and also to Capitol staff and legislators.” This promotion of talented Front Range, as well as rural and mountain, artists reflects the artistic diversity in the Centennial State and offers legislators and other public officials an insiders’ perspective on the state they know and love.

The Capitol staff’s response to these art exhibits has been overwhelmingly positive, with numerous requests for more art to improve the quality of their offices. Since 2014, Creative Capitol has been able to meet popular demand, expanding their venture beyond the Capitol basement rotunda, with works now hung in the Lieutenant Governor’s office and the Legislative Council offices, as well as in the nearby Legislative Services Building in the Joint Budget Committee Room on the third floor and in the Committee Hearing Rooms A and B on the first floor.

1. https://oedit.colorado.gov/colorado-creative-industries ↩︎

by Bob Lackner

Arguably, the worst offense a public official can be accused of is the crime of bribery — essentially offering, giving, receiving, or soliciting something of value for the purpose of influencing an official in the discharge of his or her public duties. The crime violates a basic notion inherent in a healthy democracy: That a public servant’s sole motivation is the promotion of the public interest — not the securing of private gain. Although it is fortunate that, in Colorado, accusations of bribery against public officials are rare, every public official should have a basic understanding of the nature of the crime to avoid even coming close to what would constitute criminal behavior.

The crime of bribery made its first appearance in Colorado law in the original state constitution, which went into effect on August 1, 1876. Section 40 of article V of the state constitution, the article that governs the Legislative Department, is entitled “Bribery and influence in general assembly”, and it states in relevant part:

If any member of the general assembly shall give his vote or influence for or against any measure or proposition pending in such general assembly, or offer, promise, or assent so to do, upon condition that any other member will give or will promise or assent to give his vote or influence in favor of or against any other measure or proposition pending or proposed to be introduced in such general assembly, or in consideration that any other member hath given his vote or influence for or against any other measure or proposition in such general assembly, he shall be deemed guilty of bribery; and any member of the general assembly, or person elected thereto, who shall be guilty of either of such offenses shall be expelled, and shall not be thereafter eligible to the same general assembly; and, on conviction therefor in the civil courts, shall be liable to such further penalty as may be prescribed by law.

Thus, as applied to a member of the General Assembly, this constitutional prohibition applies to the specific crime of “vote-trading,” whereby a legislator agrees to vote a certain way on the condition that another legislator votes in a particular way. (This practice is more informally referred to as “log-rolling.”) The inclusion of a prohibition on this practice in the section governing the legislative department reflects the deep distaste the framers of our state constitution had for the practice.

This is especially true given that section 40 does not forbid (or even address) what we now think of as bribery; that is, offering, giving, receiving, or soliciting something of value for the purpose of influencing an official in the discharge of his or her public duties. This more conventional form of bribery is addressed and prohibited in section 6 of article XII of the state constitution, which applies to civil officers and members of the General Assembly. In relevant part, this section prohibits those individuals from soliciting or receiving, directly or indirectly, anything of value for their votes, official influence, or actions. Like the aforementioned log-rolling provision, this provision has been part of the state constitution since its adoption in August of 1876.

Bribery is also among the many crimes addressed and prohibited in our state’s Criminal Code. Under section 18-8-302 (1)(b), Colorado Revised Statutes, which concerns “Bribery and Corrupt Influences,” a public servant (which includes a member of the General Assembly) commits bribery if he or she solicits or accepts any financial benefit upon any agreement or understanding that his or her vote, opinion, or other action as a public servant will be influenced. A person who offers or agrees to extend a benefit to a public servant with the intent to influence the public servant’s action in his or her official capacity commits the crime as well. (See section 18-8-302 (1) (a), Colorado Revised Statutes.)

Bribery is a class 3 felony, which means that a person convicted of the crime faces a prison sentence of four to 12 years. (See section 18-1.3-401 (1) (a) (V) (A), Colorado Revised Statutes.)

Other criminal offenses in the Colorado Criminal Code relating to bribery include:

• Compensation for official past behavior (when a public servant accepts any benefit as compensation for taking official action in favor of another);
• Trading in public office (accepting a benefit in exchange for appointing someone to public office);

• Directing a bidder or contractor to deal with a particular person in connection with obtaining goods or services in bidding on a contract; and
• Failing to disclose a conflict of interest when the public servant owns a substantial interest in a private entity participating in the transaction.

In McDonnell v. United States¹, 579 U.S. ___ (2016), the United States Supreme Court stated that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns…”. (For an in-depth discussion of the case, see this² recent Legisource post) Ethical and conscientious legislators know the appropriate actions to take on behalf of their constituents and others with interests in public policy. They are also aware of those actions that may subject the legislators to criminal prosecution for engaging in bribery or related offenses that harm the public trust at the heart of representative government.

1. https://www.scotusblog.com/cases/case-files/mcdonnell-v-united-states/ ↩︎
2. https://legisource.net/2016/09/08/va-governors-bribery-conviction-turns-on-a-definition-of-official-action/ ↩︎

by Darren Thornberry

Our state capitol is bursting with wonderful architectural nuance, and some of it is not readily apparent as one wanders the halls or the grounds. In fact, I discovered the pediment statuary above the House chamber windows, on the building’s west side, completely by accident. I was standing out there in a crowd of people, waiting for a fancy jet fly-by that was due to happen, and it just caught my eye. It’s fascinating to me how much detail is there, despite the sculptor’s understanding that very few people would ever have a clear view of it. Squinting to see the shapes and forms, I wondered what they represented.

Dr. Derek Everett, former capitol tour guide and author of “The Colorado State Capitol: History, Politics, Preservation,” provided the following information via email about the pediment and the accompanying photo.

“The pediment statuary was originally designed, as with every other element of the building from floor plans to banister posts, by architect Elijah E. Myers, who’d already won commissions for the capitols in Michigan and Texas. He produced an extensive, complicated description for his vision of an appropriate collection of statuary reflecting Colorado’s experience to the Board of Capitol Managers (BoCM), the body responsible for erecting the building. Here’s his vision from an undated letter, but likely written between 1886-88:

‘On the extreme right of the sketch is represented the prairie schooner drawn by oxen, representing emigrants coming to the new Territory, while in the roadway partly concealed behind the rocks is the skulking indians [sic] evidently bent on his deadly intent to prevent the advance of civilization. As the emigrants proceeds [sic] on their way he meets the happy greetings of plenty with the outstretched cornucopia. She conveys to him that here is a new home that by his industry and skill that the land will produce for him and his family his horses and cattle abundance, and in obedience to the law greets him with a hearty welcome to the settlement. The next figure is a representation of a statue recording the law of the people, representing legislation, with the open tablet in her hands conveys to him the rights and priviledges [sic] under the law he has granted to him in the protection of himself his family and his property.  The centre [sic] figure represents Justice the right hand resting on the book of law, at the left of this statue is the globe, representing the universality of law and benefits of civilization and law affords, the protection of property. On the left of the centre [sic] figure is represented the Mechanical arts. And still further to the left is a representation of the happy home.’

As you can imagine, the cost and complication of creating something so intricate, especially since it would be so crowded and small up in the pediment that few people would be able to appreciate it, dissuaded the BoCM from carrying it out. By 1889, Myers had left the project anyway, and the board made their own call. In September 1890, a few months after the cornerstone ceremony and at a point where little more than the first floor granite walls and the sandstone rotunda core were in place, the BoCM viewed a plaster model of the pioneer family pediment statuary based upon Myers’ work. They revised and simplified it dramatically, and worked with California sculptor Ludwig Oehlmann to make a new plaster model and ultimately carve the sculpture they approved.  It consists of a figure representing Columbia (an allegorical stand-in for the United States popular at the time) flanked by figures representing agriculture and mining/commerce. The simplified work was carved early in the 1890s and installed no later than 1892, by which time the granite walls of the building were complete.”

by Jery Payne

If anyone owe a debt for a loan, and a storm prostrates the grain, or the harvest fail, or the grain does not grow for lack of water; in that year he need not give his creditor any grain, he washes his debt-tablet in water and pays no rent for this year. – The Code of Hammurabi 

In about 1789, a group of people in Georgia and South Carolina formed a secret society called the Combined Society. They wanted to make money in land speculation. In the mid-1790s, they approached the governor of Georgia and many state legislators with cash and promises in hand. Georgia began as a penal colony, and they apparently hadn’t gotten it out of their system yet. The bribes worked.

The Georgia legislature passed the Yazoo Land Act of 1795, which authorized the governor to sell 35 million acres of land. The governor ended up selling most of what is now Mississippi to land speculators for $500,000. That comes out to about 1.5 cents per acre.

The voters of Georgia were not pleased, so they voted the scoundrels out of office. And the new legislature set about cleaning up the mess. They repealed the bill that allowed the sale. They also passed a bill voiding the original sale. They wanted the land back.

This made subsequent buyers a bit grumpy. One buyer, Robert Fletcher, sued the speculator, John Peck, from whom he had bought the property. The case worked its way up to the United States Supreme Court.

In Fletcher v. Peck, the Supreme Court held that the state law voiding the sale was unconstitutional. It was the first time the Court had ruled a state statute unconstitutional. The ruling was based on the obligation of contracts clause: “No State shall…pass any…Law impairing the Obligation of Contracts….”¹

The court ruled that this provision forbids a state from rescinding a sale that was legal—no matter how unscrupulous—when it was made.

In another case, Ogden v. Saunders², the court found that the constitutional drafters included the provision because:

The power of changing the relative situation of debtor and creditor, of interfering with contracts … had been used to such an excess by the state legislatures as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. The mischief had become so great, so alarming, as not only to impair commercial intercourse, and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith.

Although it makes sense to say that politicians shouldn’t try to get votes by promising to let us out of paying our debts, it eventually became clear that this provision can’t be taken at face value. It can’t apply to every contract because anything could be the subject of a contract. People have contracted for another person to commit murder. Taken literally, no legislative power is beyond its grasp.

I can guess what some of you are thinking: “No, it only stops legislatures from interfering with existing contracts. A contract that is made after a law is passed is still subject to the law.” Fair enough. This line of reasoning makes sense. It was the first distinction the courts found significant. To this day, the courts are more likely to overturn a law that affects existing contracts.

And yet, the words of the contracts clause don’t actually draw that distinction. Even with the courts confining this provision to retrospective effect, they realized that this reading was still too broad. What if a new pollutant has some serious side effect like turning everyone’s hair green? And what if a company had contracted to dispose of the pollutant in Colorado waters? Must the state stand aside and let all our hair turn green?

Here’s an actual case from 1987: Keystone Bituminous Coal Ass’n v. DeBenedictis³. A coal company had the rights to mine coal under a town. The state passed a statute saying coal mining operations had to leave enough coal to keep the towns above from falling down into a black pit. The coal company didn’t like the fact that this meant their investment would probably lose money. So they sued.

The coal company wasn’t heartless; they didn’t intend to actually destroy the town. They asked that the state be made to reimburse them. But what if the coal company had been heartless? Did the state have no power to prevent its towns from falling down black holes?

No. The court held in Keystone that “[I]t is well settled that the prohibition against impairing the obligation of contracts is not to be read literally.” The law was not held to be an impairment of contracts that ran afoul of the obligation of contracts provision, so the state did not have to reimburse the company.

Another 1980s case, Energy Reserves Group, Inc. v. Kansas City Power & Light Co.⁴, sets forth a test to harmonize the obligations-of-contracts clause with a state’s legislative power. To prevail, the person seeking relief must first show that there has been a substantial impairment of a contractual relationship. If the law constitutes a substantial impairment, then the state may justify the law by showing that the impairment serves a significant and legitimate public purpose. If such a purpose exists, then a court should analyze whether the legislation is reasonably and appropriately related to the purpose. If the court gets to the last test, they are going to be very deferential. If a reasonable person could think that the law affects the public purpose, they won’t second guess the law. So if the law isn’t goofy, the court will uphold it.

But, as in the case that began this post, the courts are going to be extra strict if a state seeks to get out of its own obligations.

1. Article 1, Section 10 of the United States Constitution. ↩︎
2. https://supreme.justia.com/cases/federal/us/25/213/ ↩︎
3. https://scholar.google.com/scholar_case?case=11190922532053603622&hl=en&as_sdt=6&as_vis=1&oi=scholarr ↩︎
4. https://supreme.justia.com/cases/federal/us/459/400/ ↩︎

by Julie Pelegrin

Unless you’re living under a rock on another planet, you’re well aware that this year is a big campaign year. Throughout the summer and next fall, people will be campaigning and voting on several candidates and ballot questions. Before the session ends, let’s review the restrictions on using state resources for political campaigns.

Use of State Resources

Let’s be clear: It is improper and unethical for a legislator or an employee of the General Assembly to use state equipment and state services such as offices, telephones, internet access accounts, copiers, fax machines, computers, postage, supplies, and staff time for campaign purposes. Using state equipment or services for these purposes potentially leads to both civil¹ and criminal² liability. This means state telephones, computers, copiers, etc., which are to be used primarily for business purposes at all times, should never be used for political purposes or activity. Questions about material being copied should be referred to the Chief Clerk of the House or the Secretary of the Senate, whichever is appropriate.

Political Activity v. Legislative Activity

In determining whether a legislator or staff can use state resources during legislative time for an activity, it’s important to distinguish between “political activity” and “legislative activity.”

Political activity means any form of campaigning or electioneering, including:

• Attending or arranging for political meetings;
• Transporting candidates or other persons who are engaged in campaigning or electioneering;
• Distributing campaign material, whether it’s literature, political guide cards, placards or signs;
• Soliciting or canvassing for campaign funds;
• Developing or distributing opinion polls or surveys that are not related to legislative business; or
• Any other form of political work.

Legislative activity means activities that relate exclusively to the legislator’s official duties:

• Introducing, debating, taking testimony, amending, and voting on legislation;
• Discussing state issues that may be the subject of legislation; and
• Other types of policymaking.

Based on this distinction, a legislator and a legislative employee cannot engage in political activities within the State Capitol or on legislative time. Nonpartisan legislative staff do not engage in political activity, other than voting, at any time. The partisan staff employed by the House of Representatives and the Senate cannot engage in political activities while in the State Capitol or during regular work hours.

Additionally, a legislator may use legislative staff and state resources during regular business hours within the Capitol building to arrange town hall meetings, so long as the meetings relate exclusively to the legislator’s official duties and legislative activities and the legislator and staff do not engage in election campaign activity relating to the election of a candidate or the support or defeat of a ballot measure at the meeting. It is important to ensure that a town hall meeting avoids even the appearance of being a campaign event; handing out campaign or other election materials at a town hall meeting is probably not a good idea.

Maintaining a Website

Another potentially grey area arises when a legislator uses legislative staff to help maintain the legislator’s website. If the legislator’s website predominantly consists of information relating to legislative activities, he or she may use legislative staff and state resources to maintain the website. However, the website may include some content that could be interpreted as being political or related to a campaign. If legislative staff is using state time and resources to maintain material on the website that is arguably political or campaign related, questions may arise with regard to these materials. In this case, the legislator should consider not using state resources to maintain the website.

Political Contributions

The General Assembly – including any persons employed by the General Assembly – cannot make a contribution in any form to a person’s campaign for public office. A contribution includes anything of value that is given to a candidate, directly or indirectly, to promote the candidate’s nomination, retention, recall, or election. This includes in-kind contributions in the form of services. Also, the General Assembly and its staff cannot expend public money or make any contributions to urge voters to vote for or against a ballot measure. The intent of these restrictions is to ensure that the General Assembly and its employees do not use public resources to persuade voters during an election.

Partisan employees of the House or the Senate can participate in candidates’ campaign activities or issue campaigns on their own time outside of the Capitol building. Under the Senate employee handbook, Senate employees who take time away from work for political and campaign-related activities cannot use annual, sick, or other personal leave and will not be paid by the Senate for time spent away from work engaging in these activities.

Mailings

A Senator cannot send out mailings at the state’s expense unless the item being mailed is in response to a constituent request or comment. Similarly, a Representative can send a mailing at the state’s expense only if it is generated in response to a request for information. Legislators must use their campaign funds for campaign mailings.

Deciding what is legislative and what is political is not clear in many cases. For more information on how state resources should and should not be used, you may want to read the OLLS memo: Use of House and Senate legislative staff, equipment, and resources³. Also, we encourage legislators to contact the OLLS with their specific questions concerning the appropriate use of legislative staff and state resources.

1. Article XXVIII, section 10, Colorado Constitution. ↩︎
2. Section 18-8-404, Colorado Revised Statutes. ↩︎
3. https://content.leg.colorado.gov/publications/use-house-and-senate-legislative-staff-equipment-and-resources ↩︎

by Sharon Eubanks

Citizens often turn to the courts to challenge the acts of the General Assembly and its members, which can lead to legislators being served with subpoenas commanding them to appear at a deposition, trial, or administrative proceeding to give testimony. Because responding to a subpoena can be time consuming and inconvenient and can implicate the interests of the General Assembly as a whole, legislators should be familiar with the range of options that are available if they are served with a subpoena.

Does the subpoena seek testimony regarding the legislator’s legislative duties?

When a legislator is served with a subpoena, he or she must generally appear at the time and place specified in the subpoena to give testimony unless the doctrine of legislative immunity provides an evidentiary privilege against testifying. Legislative immunity provides this evidentiary privilege only with respect to activities that fall within the sphere of legitimate legislative activity, such as:

• Taking actions during committee meetings and floor sessions;
• Taking actions during the course of committee investigations;
• Participating in impeachment proceedings; and
• Enacting and enforcing legislative rules.

In contrast, courts have found the following actions to be outside the sphere of legitimate legislative activity:

• Meeting with or influencing executive branch or local government employees or officials; and
• Engaging in committee activities that are outside the scope of the committee’s powers.

For further discussion of the doctrine of legislative immunity and activities that fall within the sphere of legislative activity, see this LegiSource article in a new window, A Look at the Limits of Legislative Immunity.

The Office of Legislative Legal Services (OLLS) can help a legislator determine whether a particular activity is likely to fall within the sphere of legitimate legislative activity. If the subpoena is seeking testimony regarding an activity that does not fall within the legislative sphere, the subpoena probably applies to the legislator as a private citizen and the legislator may be compelled to testify. In this case, the legislator should consider retaining private counsel if he or she wants to try to avoid testifying; the OLLS will not be able to provide further legal assistance.

Options when the subpoena seeks testimony with respect to legislative activities.

If a legislator is subpoenaed to testify regarding activities that fall within the sphere of legitimate legislative activity, the legislator has the option of deciding whether to testify and, if a legislator decides not to testify, the legislator may ask the Committee on Legal Services to retain legal representation to assist with the matter.

If the legislator does not wish to testify, the appropriate legal action is to file a motion to quash the subpoena. Alternatively, the OLLS has found that many private attorneys are unfamiliar with the doctrine of legislative immunity and will voluntarily withdraw a subpoena once informed of the doctrine.

Legislative immunity does not prohibit a legislator from testifying voluntarily, and the legislator must ultimately make the decision about whether to testify. However, before deciding to testify and while testifying, a legislator should consider the following issues:

• Testifying can be time consuming and can interfere with the legislator’s legislative duties;
• The best evidence of legislative intent or of what was said during a debate is the recording or transcript of the debate itself, and a legislator’s subsequent testimony as to legislative intent will likely be inadmissable; and
• The legislator should clearly state while testifying that he or she is testifying solely as an individual and that he or she is not representing the views of the General Assembly as a whole.

In sum, a legislator who is served with a subpoena can often avoid testifying and, before deciding to testify, should give serious consideration to the potential consequences of testifying and the possibility that his or her testimony may be given little weight or even ruled inadmissible. After being handed a subpoena, the first call that a legislator makes should be to the OLLS so the Office may help the legislator work through these issues.

by Sharon Eubanks and Julie Pelegrin

Every year, the Senate spends significant time confirming the Governor’s appointments to boards, commissions, and executive branch offices – a task that doesn’t clutter the calendar for the House of Representatives. This week, Governor Hickenlooper appointed Donna Lynne to fill the vacancy in the office of lieutenant governor that will arise when Lieutenant Governor Joe Garcia’s resignation takes effect later this month. Confirmation of this appointment doesn’t follow the ordinary course of business. By operation of the state constitution, Ms. Lynne must be confirmed by both the Senate and the House of Representatives.

Power to Appoint Balanced by Power to Confirm

Section 6 (1) of article IV of the Colorado constitution authorizes the Governor to nominate and “by and with the consent of the Senate” appoint all officers whose offices are established by the constitution or created by law and whose appointment or election is not provided for in another constitutional provision or statute. The Senate’s responsibility to review the Governor’s appointments is an excellent example of the separation of powers within the constitution. The Governor appoints the executive branch officers to administer the operations of state government, but those persons cannot officially take office until the legislative branch approves the appointments, although, if they are appointed during the interim, they can serve until confirmed – or not – during the legislative session. The legislative power to confirm checks the executive power to nominate and appoint.

Appointment of State Officers and Vacancies in Certain Constitutional Offices

The phrase used in section 6 (1) of article IV, “all officers whose offices are established by this constitution, or which may be created by law,” is interpreted as the power to appoint officers other than the elected statewide officials listed in section 1 of article IV. Using this power, the Governor regularly appoints individuals to hundreds of state offices, including heads of departments, other departmental officers, and members of the myriad boards and commissions in the executive branch – all of whom must be confirmed by the Senate.

Section 6 (2) of article IV specifically authorizes the Governor to fill any vacancy that may occur in the office of state treasurer, secretary of state, or attorney general. The Governor has exercised this power only on rare occasions. Since 1974, a Governor’s appointment to one of these constitutionally created state offices is also “by and with the consent of the Senate.”

To illustrate the number of gubernatorial appointments that the Senate must consider during a typical legislative session, according to records kept by the Secretary of the Senate, the Governor submitted 221 appointments during the 2013 session; 177 appointments during the 2014 session; 179 appointments during the 2015 session; and 205 appointments so far this session.

Senate Rules for Confirmations.

Senate Rule 36 sets forth the process the Senate uses for considering governor appointments. First, the Senate receives the appointment from the Governor and it is read in open session. At that point, the Senate President refers the appointment to at least one committee of reference. The committee schedules its consideration of the confirmation on the Senate calendar to allow the public to comment and submit information to the committee concerning the appointment. The committee then considers the appointment in an open meeting on the calendared date, but it doesn’t conduct a public hearing on the appointment unless a majority of the committee members present vote to do so.

The question often arises whether a committee of reference can “kill” or “postpone indefinitely” a governor’s appointment. Based on legislative custom and practice, a committee cannot “kill” a governor’s appointment. A committee can only recommend to the Senate that it should or should not confirm a governor’s appointment. Only the Senate as a body can, by vote, confirm or not confirm a Governor’s appointment.

In its report to the Senate, a committee of reference may recommend the Senate conduct an executive or “closed” session to consider a governor’s appointment. But the Senate will consider the appointment in open session unless a majority of the Senators vote to consider the appointment in executive session. And even if they discuss the appointment in an executive session, section 6 (3) of article IV of the state constitution requires the Senate to act on the appointment in open session and by a recorded roll call vote.

A committee may also recommend in its report that the appointment be placed on the consent calendar, subject to the decision of the Senate Majority Leader that the appointment is noncontroversial. Once the Senate receives a committee’s report, the appointment is placed on the regular or consent calendar for the 2nd day of actual session following receipt.

Vacancy Appointments for the Office of Lt. Governor

But it may be that none of this will apply to the appointment of the lieutenant governor. When a vacancy occurs in the office of the lieutenant governor, the constitution requires a confirmation process that includes the House. In 1974, the voters amended section 13 of article IV of the state constitution to say that, when there is a vacancy in the office of the lieutenant governor, the Governor will nominate a person who will take office “upon confirmation by a majority vote of both houses of the general assembly.” Since 1974, this confirmation process has been followed only once. Lieutenant Governor Mike Callihan resigned on May 10, 1994, the second-to-last day of the 1994 legislative session. The resignation took effect at noon that day. Shortly after the resignation took effect, to avoid having to call a special legislative session, Governor Roy Romer notified both the Senate and the House of Representatives that he had nominated Senator Sam Cassidy to fill the vacancy in the office of the lieutenant governor. The General Assembly then adopted a joint resolution that set out the procedures the Senate and the House would follow in considering the confirmation of that nomination. With this resolution, the House and the Senate agreed to the process routinely used by the Senate to confirm the Governor’s appointments. The resolution also provided that the House would consider the appointment first, and the Senate’s consideration would follow if the House confirmed the appointment. On May 11, 1994, a majority of the members of both the House and the Senate confirmed Senator Cassidy’s appointment as lieutenant governor.

by Sharon Eubanks

The definition of “reconsider” pretty much sums up what reconsideration is all about – “to consider again, especially with a view to change a decision or action.” In the legislative arena, “reconsideration” is the mechanism in the rules that enables a committee of reference or the House or the Senate to consider changing an action it has already taken.

A legislative body has a right to reconsider a vote on an action previously taken by the body, subject to certain limits. When a body reconsiders its vote, that original vote is canceled completely, as though it had never been taken, and the body immediately votes again upon the question reconsidered.

Closely related to reconsideration is giving notice of intent to reconsider, which provides notice of a member’s intent to reconsider, at some point in the future, a prior vote on an action. The effect of giving notice of intent to reconsider is to suspend all action on the subject of the motion until either the reconsideration is acted on or the time to act on the reconsideration has expired. However, giving notice of intent to reconsider does not necessarily mean that reconsideration will actually occur.

Senate Rule 18¹ and House Rule 35² govern reconsideration and notice of intent to reconsider in Colorado legislative proceedings on the floor and in committees of reference.

What can be reconsidered? Any action that the House or Senate takes when conducting business as a body and any action that a House or Senate committee of reference takes may be reconsidered by the acting body. But reconsideration is not allowed for an action that the House takes while sitting as the Committee of the Whole (COW).

The Senate does not have a similar rule expressly prohibiting reconsideration of an action of the COW, but there are some practical problems in applying the reconsideration rules when the Senate is sitting as the COW. For example, how would the chair determine if the person moving for reconsideration voted on the “prevailing side” (see explanation of who can request reconsideration, below) when votes in the COW are taken viva voce? However, at least once recently, a Senator made a motion to reconsider an action of the COW and the motion was considered without objection. Nonetheless, generally it has been Senate’s practice to not permit reconsideration during the COW.

Who can request reconsideration? In both the House and the Senate, only a member who voted on the prevailing side of an action, whether taken on the floor or in committee, may make a motion to reconsider that action. Sometimes a member will switch his or her vote at the last moment to the prevailing side to preserve the option of subsequently moving to reconsider the action.

Only a House member who has voted on the prevailing side of an action of the House may give notice of intent to reconsider that action. And, while only a Senator who voted on the prevailing side may give notice of intent to reconsider a committee action, any Senator, regardless of how he or she voted, may give notice of intent to reconsider an action of the Senate.

How does reconsideration occur? Reconsideration occurs after a member makes a motion to reconsider a House or Senate floor or committee action and the motion is approved. In the Senate, a majority of the members elected to the Senate or a majority of the members of a committee of reference, whichever body took the action at issue, must approve the motion to reconsider. In the House, two-thirds of the members elected to the House or two-thirds of the members of a House committee, as applicable, must approve a motion to reconsider unless a member makes the motion during the last two days of session. In that situation, only a majority of members must approve a motion to reconsider.

To prevent the abuse of motions to reconsider, if a motion to reconsider is lost or, upon reconsideration, the original action is affirmed, the same Senate action cannot be reconsidered a second time unless the motion is approved by unanimous consent of the Senate or a Senate committee, as appropriate. If a motion to reconsider is defeated or the original action is affirmed by the House or a House committee, no further motion to reconsider the same action is allowed.

Senate members of committees of reference may give notice of intent to reconsider. In this case, the measure affected by the notice must be held until the next regularly scheduled committee meeting. But giving notice to reconsider is out of order if holding the measure will cause it to miss a deadline for passage out of committee and the deadline isn’t extended. In contrast, members of House committees of reference cannot give notice of intent to reconsider a committee action.

When can reconsideration occur? A member must make a motion to reconsider an action of a House or Senate committee either at the meeting at which the action is taken or at the next meeting of the committee.

A Senator must make a motion to reconsider, or give notice of intent to reconsider, an action of the Senate on the same day that the action is taken or on either of the next two days of actual session. A Representative must make a motion to reconsider, or give notice of intent to reconsider, an action of the House before adjournment of the legislative day on which the action is taken. If notice is timely given, the House member then has until noon on the next day of actual session to make a motion to reconsider the action.

But, it’s important to remember that a body can reconsider an action only if the measure on which the action was taken is still before the body and the action is still capable of being changed. So, a committee member can’t make a motion to reconsider a committee action on a measure if the committee report has already been signed by the chair and delivered to the House or Senate front desk. And a member can’t move to reconsider a third reading vote if the measure has already been introduced in the second house or delivered to and acted upon by the Governor.

A Senator’s motion to reconsider the action taken on a measure already transmitted to the House, but not yet introduced, must be accompanied by a motion asking the House to return the measure to the Senate. If a House member makes a motion to reconsider, the chief clerk of the House is directed to request the return of the relevant measure if it has already been transmitted to the Senate or the Governor. But if the measure’s been introduced in the Senate or acted upon by the Governor, the measure can’t be returned to the House.

Why would someone request reconsideration? In many situations, a motion to reconsider is used when a member, for whatever reason, doesn’t vote the way he or she intended to vote or a member is absent during the recorded vote on a measure. With reconsideration, the original vote is wiped away and replaced with the second vote. When controversial issues and close votes are involved, a motion to immediately reconsider a vote can be used to lock in that vote since unanimous consent is required for a subsequent motion to reconsider after the first motion to reconsider is lost or, upon reconsideration, the original action is affirmed. On the flip side, giving notice of intent to reconsider a vote can be used as a delay tactic to slow a measure’s progress through the legislative process or to allow time to try to convince enough members to change their votes and thereby change the action taken. Once notice is given, all action on a measure is suspended and the Secretary of the Senate or the Chief Clerk of the House, as applicable, holds the measure until the time for reconsideration has expired. In the Senate, giving notice of intent to reconsider can be used to delay a floor action up to three days and a committee action until the conclusion of the next regularly scheduled committee meeting. Giving notice of intent to reconsider can delay an action taken by the House until noon on the next day of actual session after the action is taken.

1. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.18&catg=Senate&pg=2.0 ↩︎
2. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.35&catg=House&pg=4.0 ↩︎

by Kurt Woock

Expletives have nothing to do with four-letter words.¹ But, once you know what they are, you might utter a four-letter word when you see an expletive in print. Learning to recognize and avoid them will increase the clarity of your writing.

Expletives are often placed at the beginning of sentences and, based on that position, sound as if they have something to do with the subject. They don’t. The combination of words to watch out for is “there” or “it” followed by some variation of the verb “to be” (is, are, were, etc.). A few examples:

There is a new restaurant in my town.
It’s raining.
It is going to be a busy day.
There are 35 senate districts in Colorado.

In each of the examples above, find the subject. Of course, that’s a trick question. There is no subject. (See what I did there?) The words “there” and “it” are expletives; linguistic imposters that look like subjects and smell like subjects but, in fact, are just shadows of the real thing. They are empty shells, devoid of all meaning and offering nothing to the sentence. Try to diagram the sentences, if you’d like. Or, try to explain what the “there” refers to or what function “it” serves. If you try, you’ll just spin in circles. Now, look at modified versions of the sentences above. In each example, the expletive was replaced with a real subject.

My town added a new restaurant.
The rain just started.
Today is going to be busy.
Colorado has 35 senate districts.

These sentences offer more to the reader. The meaning is more direct. So why do expletives exist at all?

Expletives are shortcuts. They can help a speaker deliver information quickly. If the context surrounding the expletive is rich enough to inform the listener adequately, it’s hard to even spot them when they occur. Especially when the recipient of the message is a listening audience, expletives can smooth out awkward constructions: “There’s no place like home!” is much more appealing than “Home is a place unlike any other!”

But writing is a more deliberate form of communication. We take the time to write and edit and rewrite until we arrive at the best way of saying something. The situations in which using an expletive is the best way to communicate something in writing are much rarer than in speech. The truth is, using an expletive won’t send your sentence or paragraph tumbling down into an unrecognizable heap. Instead of seeing them as an outright problem, look for expletives as an indication that you can make that sentence stronger.

Searching the statutes, you’ll find thousands of expletives. Some are more avoidable than others. “There is hereby created…” probably isn’t going anywhere soon. But many could be easily reworded for the better. The following passages from the C.R.S. contain expletives (including examples with expletives in the middle of a sentence) followed by a simple rewrite that makes the passage more direct.

BEFORE: If the commissioner finds that there are sufficient assets of the insurer located in this state to justify the appointment of an ancillary receiver…
AFTER: If the commissioner finds that the insurer has sufficient assets located in this state to justify the appointment of an ancillary receiver…
BEFORE: There are people in Colorado communities who are experiencing mental health or substance abuse crises…
AFTER: People throughout Colorado communities are experiencing mental health or substance abuse crises…

The changes are simple and don’t threaten the sentence’s meaning. A sentence that begins with a subject instead of an expletive gives the reader a firmer toehold for the rest of the sentence. An internal expletive that is subbed out for something clearer prevents readers from stumbling and missing the point you’re trying to make.

The effect a single change might have in an isolated sentence might seem marginal, but, when clear language is used consistently, a reader’s ability to read a text quickly and accurately becomes much easier.

1. Four-letter words aren’t expletives at all, actually. Depending on the word, it would be either an obscenity (if it deals with a bodily part or function) or a profanity (if it deals with a diety). But that’s a different story altogether. ↩︎