Year: 2016

Statutory Revision Committee to Introduce 15 Bills
by Kate Meyer

In August, Legisource told you about the Statutory Revision Committee (SRC), a recently rebooted entity that examines the Colorado Revised Statutes to develop legislation that will modify or eliminate antiquated, redundant, or contradictory rules of law and to bring the statutes of this state into harmony with modern conditions. Since that article was published, the SRC has been hard at work, meeting three times and ultimately approving 15 bills for introduction in the 2017 legislative session.

Committee process. Bill ideas can originate from any number of sources: Committee members or other legislators; legislative staff; jurists, attorneys, and other legal professionals; executive agencies; lobbyists; the public; etc. In its first meeting, the SRC adopted the following basic process for considering potential bills:

(Click image to enlarge)

The process starts when the SRC’s staff from the Office of Legislative Legal Services receives or creates a bill proposal and initially decides whether the proposal fits within the committee’s charge. Persons may submit bill proposals identifying possible defects or anachronisms in the law or possible antiquated, redundant, or contradictory laws by contacting a committee member or sending an e-mail to SRC staff at StatutoryRevision.ga@coleg.gov

If staff finds that a bill proposal fits within the committee’s charge, they schedule it for committee discussion. The SRC’s process affords interested persons two opportunities to comment publicly on potential legislation:
- First the public may testify at an initial meeting when the SRC receives a memorandum describing the genesis, scope, and intent of the proposed bill. The SRC then votes whether to have a draft bill prepared.
- Second, for proposals for which the staff writes drafts, the public may testify at a subsequent meeting when the SRC votes whether to recommend bills for introduction. An affirmative vote from at least five members of the SRC is required for a bill to be introduced, ensuring that every bill has bipartisan support.
The staff includes memoranda and bill drafts with the SRC agendas, which are posted on the SRC’s website one week in advance of a meeting date. And of course, the chance to weigh in on bills doesn’t end with the committee. Each introduced bill is debated and vetted through normal how-a-bill-becomes-a-law legislative procedures.

Bills approved in 2016. Every bill recommended for introduction from the 2016 SRC proceedings received unanimous committee approval. The breadth of bill subjects typifies the SRC’s ability to consider a wide range of topics, including:
- Repealing obsolete congressional and state legislative district laws;
- Aligning statutory reporting requirements with section 24-1-136 (11), C.R.S.;
- Updating certain outdated references to standards promulgated by the American National Standards Institute;
- Removing “ghost statutes” inadvertently left on the books in 2016; and
- Implementing recommendations received from the Department of Education and the Office of the State Auditor to modernize and correct various statutes related to those entities.
To read the full text of the approved bills, please see the SRC’s 2016 Annual Report and the upcoming supplement on the SRC’s website.

Looking ahead. Although the SRC expects to conduct the majority of its work during legislative interims, the committee will meet early in the 2017 session (date TBD) to select a new chairperson and vice-chairperson; to continue analyzing bill drafts that reconcile reporting requirements with section 24-1-136 (11), C.R.S.; and to consider a fix to the “Uniform Trust Decanting Act.”

Among the topics the SRC will discuss in the 2017 interim is a comprehensive bill to modernize, without substantively changing, the transfer terminology used in the Colorado Revised Statutes relating to the organization of state governmental agencies under the “Administrative Organization Act of 1968.”

Additional information. To learn more about the SRC, please contact a committee member or send an e-mail to SRC staff at StatutoryRevision.ga@coleg.gov. You may also check out a brief video detailing the SRC posted on the Colorado Channel’s website.
December 29, 2016
United States Supreme Court Effectively Upholds Colorado Internet Sales Tax Law
by Esther van Mourik

When you buy a present for your friend at a store in Colorado, the retailer collects the sales tax on that purchase and remits that amount to the Colorado Department of Revenue. If you buy the same item online from a retailer that does not have a brick and mortar store in the state, you are personally responsible for paying the same amount of tax (now called a use tax instead of a sales tax) to the Department of Revenue. Generally speaking this is because of the United States Supreme Court’s interpretation of the United States Constitution: To protect interstate commerce, a state can’t require retailers that don’t have a brick and mortar presence in the state to collect sales tax on its behalf. Instead, the responsibility for getting the tax money to the state falls to individual purchasers.

Because many people aren’t aware of the responsibility to pay the use tax, Colorado is missing out on a lot of tax revenue. And because the economy is rapidly changing so that more people are buying presents (and other “tangible personal property”) online from retailers without brick and mortar stores in the state, the lost revenue effect is even greater. Estimates indicate that the state’s annual lost revenue due to online sales exceeds $150 million.

In 2010, the General Assembly passed House Bill 10-1193, the so-called “Amazon law,” a reporting requirements statute that compels retailers who are not collecting sales tax to report a number of things to both the Department of Revenue and their Colorado customers. The law was immediately challenged in court and has been in litigation for the past six years. A state court also enjoined the enforcement of the new law while it was being litigated in federal court.

On February 22, 2016, the 10th Circuit Court of Appeals issued an opinion upholding the constitutionality of House Bill 10-1193. On Friday, December 9, 2016, the United States Supreme Court declined to hear an appeal of the Court of Appeals decision. By declining to hear the appeal, the Supreme Court effectively affirmed the constitutionality of the law. This means that the Department of Revenue can start enforcing the requirements in House Bill 10-1193. Many news agencies have reported on this decision. You can read some of those articles here, here, here, and here.

House Bill 10-1193 requires retailers who do not collect Colorado sales tax to do three things:
1. Notify Colorado purchasers that sales or use tax is due on certain purchases made from the retailer and that Colorado requires the purchaser to file a sales or use tax return;
2. Send notice to all Colorado purchasers by January 31 of each year showing certain information that the Department of Revenue will require by rule, including the total amount the purchaser paid for Colorado purchases in the previous calendar year. The notice must include, if available, the purchase dates, the purchase amounts, and the category of each purchase, including, if the retailer knows, whether the purchase is exempt or not exempt from taxation. This notice must also state that Colorado requires the purchaser to file a sales or use tax return and pay the sales or use taxes on certain Colorado purchases that the purchaser made from the retailer.
3. File an annual statement with the Department of Revenue by March 1 of each year for each Colorado purchaser that shows the total amount the purchaser paid for Colorado purchases in the last calendar year.
If the retailers who do not collect Colorado sales tax fail to do the three things listed above, those retailers are subject to fines for each failure. The Department of Revenue is trying to determine when the law will take effect. Hampering that decision is the fact that the state court injunction is still in place and must be vacated before the Department of Revenue can enforce the law. Many articles in the media that discussed House Bill 10-1193 appeared to argue that the law was intended to compel retailers who do not collect sales tax to voluntarily start collecting. While that intention is not clearly established in the law, it remains to be seen how retailers will respond when the law takes effect.

There are efforts by other states, particularly in South Dakota, to require retailers that do not collect tax on internet sales to start collecting. Legislation of this type is a direct challenge to the United States Supreme Court’s constitutional interpretation that states cannot require out-of-state retailers to collect sales tax. So while the United States Supreme Court’s decision not to hear the Colorado case represents movement on this issue of online sales taxation, many questions remain to be answered. Stay tuned!
December 15, 2016

A New Citation Format for the Colorado Revised Statutes

by Tom Morris

While trying to read a statute to unravel its meaning, have you ever felt dismayed or sidetracked when you came across a phrase such as this: “as specified in sub-subparagraph (D) of subparagraph (III) of paragraph (g) of subsection (4) of this section”? That’s a lot of words—what is a “sub-subparagraph”, anyway?—and understanding them is made even more difficult due to the fact that they’re presented in reverse order from how most of us probably think. It’s as if, to describe how much money was being appropriated, we said “19 cents, 235 dollars, 452 thousand dollars, and 2 million dollars” instead of “2,452,235.19 dollars”. Surely, a better format for statutory references is possible.

Well, the Office of Legislative Legal Services has decided that a better format is possible, and, in drafting bills for the 2017 regular session, we have already started using it.

First, it’s important to understand the scope of the changes. When a statute refers to a portion of a different statute, that’s called an “external” reference, and we don’t use the format described above. Instead, if you’re in a statute other than section 24-30-122, the reference would previously have been something like “section 24-30-122 (4)(g)(III)(D), C.R.S.”. The main difference in external references going forward is that we’re dropping the “C.R.S.” (the abbreviation for “Colorado Revised Statutes”). We figure that, if you’re reading title 8, you know when you see a reference to section 24-1-104, it’s referring to a section in another title of the Colorado statutes and that we’re not straying down the freeway and into another state’s statutes.

Second, we used to include the number of a title or article only when the reference was located in a title or article other than the one being referenced, but we would always include the part number regardless of whether the reference was in or out of that part. We will now treat titles and articles as we currently treat parts: We’ll always include the article and title number (so references to “this article” in statute now become “this article 12,” for example).

The most significant changes we’re making relate to “internal” references. For example, if the reference is located in section 24-30-122 and the reference is to a portion of that same section, that’s an internal reference. Instead of listing the various types of C.R.S. subdivisions (sub-subparagraph, subparagraph, paragraph, and subsection) in reverse order, we’ll use a format similar to that used for external references. So if you’re in section 24-30-122, the reference will usually be “subsection (4)(g)(III)(D) of this section”.

There are a few things to note about this new format. First, we’re no longer going to refer to sub-subparagraphs, subparagraphs, or paragraphs; every internal reference to a C.R.S. subdivision will be to a “subsection”. Second, for both external and internal references, we will no longer put a space between the parentheses—so it will be “(2)(a)” rather than “(2) (a)”. Third, if the internal reference is to the same subdivision where the internal reference is located, we will include the complete string of higher-level subdivisions in the reference. For example, we used to write “this paragraph (d)”, but now we’ll write “this subsection (3)(d)”. Finally, every internal reference to a different subdivision will end with “of this section”. We used to write “paragraph (a) of this subsection (1)”, but now we’ll write “subsection (1)(a) of this section”.

Here’s a table that summarizes our old and new citation formats for internal references:

Format Before 2017	Format Beginning in 2017
this paragraph (d)	this subsection (3)(d)
this sub-subparagraph (C)	this subsection (1)(e)(II)(C)
paragraph (a) of this subsection (1)	subsection (1)(a) of this section
subparagraph (III) of paragraph (b) of this subsection (4)	subsection (4)(b)(III) of this section
sub-subparagraph (A) of subparagraph (IV) of paragraph (c) of subsection (2) of this section	subsection (2)(c)(IV)(A) of this section

Finally, we will make these changes only prospectively and only in those sections of statute that are included in bills; we will not update the citation format for the entire C.R.S. through the publications process. All new citations will follow the new format. The bill drafters, subject to the sponsors’ preferences, will update existing references in the same way that other grammatical or terminology updates to existing statutes are made.

So there will be some inconsistency in the C.R.S. in how our statutory references are phrased for quite some time. But we’ve concluded that using a citation format that is as specific and accurate as our current system—and that uses less terminology and is more concise, easier to understand, and more internally consistent—is an easy choice. We hope that you’ll agree!

December 8, 2016

Revisor of Statutes Ensures Access to Colorado’s Laws

by Julie Pelegrin

As we explained a couple of weeks ago, the Office of Legislative Legal Services is responsible not only for writing bills and amendments, but also for publishing the statutes. But these functions—drafting and publishing—have not always been housed in the same office or even in the same branch of government.

The history of publishing statutes in Colorado is long and complicated. Starting in 1861, the Territorial Legislature published the session laws after each biennial legislative session, which contained all of the bills the Legislature passed. Until 1868, if someone wanted to amend a bill that passed in an earlier session, he had to amend the bill as it appeared in the session laws.

The first consolidation of the state’s laws occurred before Colorado became a state. In 1868, the Territorial Legislature authorized consolidation of the general statutes, all of the laws enacted since 1861 with any amendments to those laws, arranged into 90 chapters, alphabetic by topic. The Territorial Legislature then adopted this consolidation, making it the “positive law” of the state, which means that a person could cite to the section of consolidated statute, rather than having to cite to the act as it was published and later amended in session laws.[i]

The General Assembly voted to reconsolidate and republish the laws at various times: The General Laws of 1877; the General Statutes of 1883; Mills’ Annotated Statutes of 1891; the Revised Statutes of 1908; the Compiled Laws of 1921; and the Colorado Statutes Annotated of 1935. Each of these, except the Mills’ Annotated Statutes, was created with the General Assembly’s official authorization, but there was not a specific official or office that was consistently responsible for codifying and republishing Colorado’s laws on a regular basis.

Until 1951.

That year, the General Assembly adopted House Bill No. 201. Like earlier acts, this act provided for revising and codifying the laws of the state, but with this act, the General Assembly for the first time took a longer view. It created the Committee on Statute Revision within the Judicial Department, chaired by the Chief Justice of the Colorado Supreme Court. The committee consisted of the Attorney General, two Senators, and two Representatives.

The act also created the position of Revisor of Statutes. The act directed the Committee to appoint an attorney to this position and to oversee his work. The Revisor could hire attorney associates and clerical staff to assist him in collating, compiling, editing, and preparing the statutes; publishing the statutes and other important documents like the state and federal constitutions; and creating source notes, annotations, an index, and comparative tables of prior compilations. All of this work was to be completed and submitted to the General Assembly by the 1953 legislative session.

H.B. No. 201 also directed the Revisor, at the end of each legislative session after 1953, to annotate, arrange, and prepare pocket parts or supplements for the 1953 revision of the statutes. The Office of the Revisor of Statutes was now a continuing enterprise, responsible for maintaining the accuracy of the published statutes on an annual basis. The General Assembly also directed the Revisor to assist the Legislative Reference Bureau (in the Attorney General’s Office) in drafting bills and amendments and engrossing and enrolling bills.

Finally, a permanent process existed to ensure the published statutes kept up to date. But in 1958, 1959, and 1960, the office fell behind in publishing the pocket parts. So, in 1961, the General Assembly directed the Revisor of Statutes to publish a new recodification, incorporating all of the changes since 1953 into a single set of volumes: the Colorado Revised Statutes 1963. At this time, the Revisor was still working out of the judicial branch.

In the mid-1960’s, the General Assembly undertook a study of the organization of Colorado’s state government. In 1968, it passed Senate Bill No. 1, concerning the administrative reorganization of state government, which completely reorganized the executive branch of government, and moved the Legislative Drafting Office (LDO) from the Attorney General’s Office to the legislative branch. Then, in 1969, the General Assembly passed Senate Bill No. 396, which created the Office of Revisor of Statutes (ORS) in the legislative branch. Both the LDO and the ORS were under the direction of the Committee on Legal Services.

Finally, in 1988, the General Assembly passed House Bill No. 1329, which combined the LDO and the ORS into the Office of Legislative Legal Services (OLLS). In combining the offices, the General Assembly named the Director of the OLLS the ex officio Revisor of Statutes, although the Director was authorized to appoint another attorney to serve as the Revisor. This has been the Director’s practice since 1988. The current Revisor of Statutes, Jennifer Gilroy, was appointed March 26, 2004, and is the first woman to serve in this capacity.

The Revisor’s duties have not changed significantly over time. Under the direction of the Committee on Legal Services, the Revisor must compile, edit, arrange, and prepare for publication the Colorado statutes, the state and federal constitutions, other significant documents, an index of the statutes, and tables comparing the current statutes with previous compilations. Each section of the statutes must have a source note, which provides the history of the section, and annotations of any cases interpreting the section. In publishing the statutes each year, the Revisor, with assistance from legislative editors and attorneys in the OLLS, can correct errors in grammar and punctuation, and may identify other errors or inconsistencies that may be fixed in a revisor’s bill introduced in the next legislative session.

The most important recent changes to the published statutes are a result of technology. In addition to publishing the entire set of statutes each year, the Revisor oversees the electronic publication of and access to the Colorado Revised Statutes on the internet, on disc, and through e-books.

The last time the General Assembly recodified and reorganized the entire Colorado Revised Statutes was in 1973. With that recodification, it adopted a numbering convention that provides a great deal of flexibility and room for expansion in the statutes. In the last legislative session, the General Assembly recreated the Statutory Revision Committee to address defects and anachronisms in the law. These provisions make another complete recodification of the statutes less likely.

________

[i] See “Colorado Statutes: Past, Present, and Future” J. Myron Jacobstein, 33 Rocky Mountain Law Review, pg 36 (1960-61).

November 17, 2016
Legislature Passes the Laws – But Executive Branch Used to Write Them

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. S.B. 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 S.B. 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.

S.B. 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 S.B. 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.”

November 3, 2016
Art at the Capitol: By and For Coloradans

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.’s 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.

“The Ancient One” by Jao van de Lagemaat // Bristlecone pine in the Mt. Goliath grove on Mt. Evans

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.

If you’re in the Capitol in the next three months, be sure to stroll through the basement rotunda to view, “The Clear Creek Watershed through the Photographer’s Eye”, the newest local artist exhibit on display. A testament to the rare natural beauty of our home state, the high-quality images in this exhibit were chosen from entries in the Clear Creek Land Conservancy Annual Photography Contest, a competition calling for photographs taken in Colorado’s Clear Creek drainage basin that highlight the awe-inspiring natural areas running from the mouth of Clear Creek Canyon in Golden to the start of Clear Creek at the Continental Divide.

For more information on Creative Capitol’s prior exhibits, click here.

October 27, 2016
Bribery (Don’t Do It!)
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), C.R.S., 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), C.R.S.)

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), C.R.S.)

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 States, 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 this 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.
September 29, 2016
Why submit bill requests now?
by Patti Dahlberg

Although the Colorado General Assembly is only in session from January to May each year, General Assembly members know that being a legislator requires year-round attention to legislative responsibilities. The first bill request deadline is still almost three months away (Thursday, December 1), but there are significant benefits to starting the bill drafting process as early as possible during the interim. (See Ask OLLS posting “The start of the legislative session is over 4 months away. Why should I bother to get my bill requests in now?”)

Submitting bill requests early allows legislators, legislative staff, and stakeholders more time to research, consider, develop, and draft bills. And there are other benefits for legislators who can invest a little more time on bill drafting earlier in the fall.

Time Management:
There’s no way around it – bill request deadlines require legislators and staff to complete the bulk of the bill drafting before the convening date of the next session. A legislator can wait until the deadline to submit his or her bill requests and spend the four to five weeks immediately before session – including the holidays – in heavy drafting mode or try to shift a portion of the pre-session drafting demands to earlier in the interim and:
- Reduce the time demands of drafting in December and January, allowing more time to prepare for session, meet with constituents and stakeholders, and tie up other personal matters before the session starts.
- Save big on time and enjoy bill request flexibility by having a solid draft of a bill completed by November. (There is no need to finalize a bill until closer to the desired introduction date.)
- Have the luxury of focusing on one or two bill requests at a time. Once a bill draft is close to being finished, the request can be set aside and the legislator and drafter can start work on another bill. This way, a legislator isn’t just trading a busy December for a busy September or October, but instead leveling the time demands of bill drafting over four to five months.
- Allow legislative staff more time to assist in developing and drafting the legislation. Staff is more readily available to attend meetings, consult on drafting language, and, if needed, provide in-depth research before December.
A lot can change between now and January and it may seem that drafting in September and October could be a waste of time. After all, a legislator may need to significantly change, update, or even withdraw a bill draft before introduction. But that’s okay, because it’s usually easier and faster to revise or rewrite an existing bill draft than to create it from scratch at the last minute. Even if a legislator finds that he or she must withdraw a bill request, he or she doesn’t lose the benefits of early drafting efforts.

Decision-making:
- Early interim bill drafting allows a legislator and the bill’s stakeholders more time to make informed decisions about the bill’s content. Early interim drafting may require legislators to set some internal production deadlines to keep the bill draft moving along, especially when working with larger groups of stakeholders and constituents.
- With a bill draft in hand, even if it’s only an initial draft, a legislator is better equipped to know whether to introduce the bill, who to approach for second house sponsorship, and where the bill fits best in his or her bill introduction order.
- Often it is impossible to determine if a bill request is identical or substantially similar to another legislator’s bill request until draft language is available. By having drafts completed earlier in the interim, staff can more easily identify duplicate bills and the legislator can decide whether to proceed or replace the request sooner. (See Ask OLLS posting “What happens if I make the same bill request as another legislator?”)
- If a legislator has his or her bill drafted in the fall, he or she may authorize a fiscal analyst to provide an early estimate of how much the bill may cost. Knowing how expensive a bill may be before it’s introduced enables the legislator to consider changes before the bill is introduced and becomes public.
- The ability to review drafts of bills before the December 1 deadline is one of the best reasons to use more of the interim to develop and draft bills. If a legislator must decide whether to withdraw and replace one or more bill requests, then it’s best to make that decision before the first bill request deadline when the rules allow greater flexibility in making and replacing bills.
September 15, 2016
VA Governor’s Bribery Conviction Turns on a Definition of Official Action

by Bob Lackner

During his four-year term in office, the former Governor of Virginia tried to assist a constituent who had bestowed extensive loans and gifts on the official, his wife, and their family. At what point does such assistance qualify as an “official act” necessary to sustain a conviction for violating federal law prohibiting bribery? This was the issue before the United States Supreme Court in the case of McDonnell v. United States, 579 U.S. ___ (2016).

Background/Issues
In November 2009, Robert McDonnell was elected Governor of Virginia. While in office, McDonnell and his wife Maureen and other family members received $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams. Williams was chief executive officer of Star Scientific, a Virginia-based company that had developed and marketed a nutritional supplement named Anatabloc that was made from a compound found in tobacco. Star Scientific hoped to obtain federal approval of Anatabloc as an anti-inflammatory drug. An important step in that approval was initiating independent research studies on Anatabloc’s health benefits. Williams sought McDonnell’s assistance in obtaining these studies from Virginia’s public universities.

The gifts and loans that Williams gave to the Governor and his family included $20,000 worth of designer clothing for Mrs. McDonnell, personal loans totaling $70,000, a $15,000 gift towards their daughter’s wedding, a Rolex watch for the Governor, and a $10,000 wedding gift to one of their daughters.

In 2014, the federal government indicted Robert and Maureen McDonnell (by then out-of-office) on various bribery charges. To convict the McDonnells of bribery, the government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts from Williams. After a trial, the jury convicted McDonnell of accepting bribes from Williams. Mrs. McDonnell was also convicted of most of the similar criminal charges against her.

Governor McDonnell appealed his conviction to the United States Fourth Circuit Court of Appeals. He challenged the definition of “official action” in the jury instructions used at his trial on the ground that it deemed “virtually all of a public servant’s activities ‘official’, no matter how minor or innocuous.” The Fourth Circuit affirmed the conviction. McDonnell appealed to the United States Supreme Court.

The Supreme Court’s Analysis
The issue before the Supreme Court was the proper interpretation of the term “official act” as used in the federal bribery statute, 18 USC §201. That statute makes it a federal crime for “a public official…directly or indirectly, corruptly” to demand, accept, or agree to accept “anything of value” in return for being “influenced in the performance of any official act.” An “official act” is defined as

any decision, or action on any question, matter, cause, suit, proceeding or controversy, which at any time may be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit. [Sec. 201 (a) (3).]

The government argued that the term “official act” encompasses nearly any activity by a public official. The term specifically includes, therefore, arranging meetings, hosting events, and merely contacting other government officials concerning any subject, including a broad public policy issue such as Virginia economic development. The Governor had undertaken these acts on behalf of Williams.

By contrast, the thrust of Governor McDonnell’s appeal was that the statutory context compels a more circumscribed reading of the statutory text, limiting “official acts” to those acts that “direct[] a particular resolution of a specific government decision” or that pressure another official to do so. Taking into account the statutory text, its precedents, and constitutional concerns raised by Governor McDonnell, the Supreme Court unanimously rejected the government’s reading of the federal bribery statute and, in an opinion authored by Chief Justice Roberts, adopted a more restricted interpretation of “official act.”

The Court held that an “official act” is a decision or action on a “question, matter, cause, suit, proceeding, or controversy.” The “question or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question or controversy” or agree to do so. That decision or action may include using his or her official position to exert pressure on another official to perform an “official act,” or to advise another official knowing or intending that the advice will form the basis for an “official act” by another official. Setting up a meeting, calling another public official, or organizing an event (or agreeing to do so)—without more—does not fit the definition of “official act.”

In addition, the Supreme Court expressed concern that the government’s expansive interpretation of “official act” would raise significant constitutional concerns. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on those constituents’ concerns. The Court found that the Government’s position would likely pose a chilling effect on the interactions of public officials with the people they serve and thus damage the ability of public officials to effectively perform their duties. The Court expressed a related concern that, under the government’s interpretation, the term “official act” is not defined with “sufficient definitiveness that ordinary people can understand what conduct is prohibited” or in a manner that does not encourage arbitrary and discriminatory enforcement.

The Supreme Court agreed with McDonnell’s contention that his convictions must be vacated because the jury was improperly instructed on the meaning of “official act” as used in the governing statute. Because the jury was not correctly instructed on the meaning of this term, it may have convicted McDonnell for conduct that is actually lawful. These errors were not harmless. The Court noted that a more limited interpretation of the term “official act” would leave ample room for prosecuting corruption while comporting with the statutory text and its precedents in this area.
Governor McDonnell’s conviction spurred some reforms to Virginia’s ethics laws in the next legislative session. Among the changes was the creation of a $100 annual limit on gifts lawmakers can accept from lobbyists, their clients, or others seeking to do business with the state.

As with the Governor of Virginia, a Colorado public official could engage in conduct that results in a bribery conviction under federal law, and the McDonnell case would apply. Also, in Colorado the statutory standards of conduct forbid a member of the General Assembly from accepting a gift primarily given to reward the legislator for official action he or she has taken. See section 24-18-104 (1)(b)(II), C.R.S. The Colorado courts could apply the McDonnell case to augment the meaning of the key term “official action” as used in Colorado’s statutory standards of conduct in weighing the appropriateness by a legislator of accepting gifts.

September 8, 2016
Colorado LegiSource: Happily Blogging Since September 1, 2011!
Five years ago today, Colorado LegiSource made its debut as the only known blog written by nonpartisan legislative staff for their legislators and the public. In the years since, we have posted at least one article almost weekly (okay – there have been a few weeks during the legislative sessions that we just couldn’t pull an article together). At this point we have about 172 subscribers and 819 twitter followers. For the last year, we averaged 1,937 views a month and for our entire five-year lifetime, we’ve racked up a total of 78,774 views. We may not have made eBiz’s top 15 most popular blogs list, but we’ve done okay!

We have also achieved some recognition along the way. In August 2015, the Colorado LegiSource received an NCSL Notable Documents Award. The Legislative Research Librarians staff section presents these awards annually to recognize excellence in documents that explore topics of interest to legislators and staff and present substantive material in an outstanding format. Also in 2015, the LegiSource article on “Educator Effectiveness and Senate Bill 10-191” was cited in an article on employment law issues published in the October edition of the Colorado Lawyer, a Colorado Bar Association publication.

That first day we were anxious to get started. We posted three articles: “The Director’s Welcome,” by Dan Cartin; “The Legislature’s Role in the Review of Administrative Rules,” by Chuck Brackney; and “Bill Requests – Making and keeping the five allowed by rule,” by Patti Dahlberg.

Our top five most viewed articles present an interesting mix.

The most popular article in the last five years – with 14,893 views – is “Does Colorado Have a ‘Stand Your Ground’ Law?” In this article, Richard Sweetman explained that Colorado does not actually have a “stand your ground law” but it does have a “make my day law.” The difference? Both allow a person to use deadly force to protect himself or herself in certain situations, but Colorado’s law is generally limited to protecting against home invasions and does not include some of the presumptions that are common in “stand your ground” laws. You should read the article.

The top five list also includes:

“When Can a Local Government Override State Law? Home Rule Cities in Colorado,” also by Richard Sweetman, in second place with 7,283 views;

“A New Look for the Colorado Revised Statutes On-Line,” by Revisor of Statutes Jennifer Gilroy, in third place with 1,676 views;

“What is the difference between the session laws and the statutes?“, posted in “Ask OLLS”, in fourth place with 1,331 views; and

“Powers, Duties, and Functions of Executive Branch Agencies (Type 1, type 2, and type 3 transfers),” by Rebecca Hausmann, rounding out the top five with 1,243 views.

In the first article we published, Dan Cartin, director of the OLLS, described the LegiSource’s purposes as both informational and educational, applying the experience and expertise of the OLLS staff to help legislators and the public understand the issues in many areas, including:
- Specific subject matter areas, such as water policy and education;
- Legislative procedure and process, such as committee rules and requesting and sponsoring bills;
- Recent judicial decisions, such as the Colorado Supreme Court’s school finance decision and opinions of the United States Supreme Court;
- Legislators’ rights and responsibilities, such as “Colorado Open Records Act” responsibilities and what to do if you are subpoenaed; and
- The Colorado constitution, such as the single subject requirement and the GAVEL amendment.
To this list, we’ve added fun and informative articles about the history of Colorado’s state government and of the state capitol.

We hope we’ve lived up to our purpose in the last five years; we hope that our readers have gained as much knowledge, understanding, and enjoyment in the reading as we have in the writing.

Happy Birthday, Colorado LegiSource – here’s to the next five years!
September 1, 2016