Colorado LegiSource

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

Month: April 2016

  • Beware of Misusing State Resources During the Campaign Season

    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 civil and criminal 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 resources. Also, we encourage legislators to contact the OLLS with their specific questions concerning the appropriate use of legislative staff and state resources.

  • Waiving Statutes: When the Law May Not be the Law

    by Julie Pelegrin

    For the last 140 years, the General Assembly has been introducing, debating, amending, and passing legislation. The enacted laws may allow an official or a governing body, under certain circumstances, to waive a statutory time limit, penalty, or fee; and individuals can sometimes waive their statutory or constitutional rights. But, generally speaking, the statutes are the statutes and only the General Assembly can change them or make exceptions to them. Basic civics, right?

    Usually right. But there are two areas in which elected persons other than legislators can waive a statute.

    One is the Colorado Works Program, which provides assistance to needy families. Acting together, the Governor and the Department of Human Services, at the request of a county, can waive most of the statutory and regulatory requirements of the Colorado Works Program, so long as the waiver is designed to improve the county’s methods for helping people achieve self-sufficiency, meeting work participation rates and performance goals, or reducing dependency. But the Governor and the Department cannot waive statutes or rules that govern:

    • Statewide eligibility for assistance;
    • The amount of the basic cash assistance grant;
    • The county’s maintenance of effort requirement;
    • A federal law requirement; or
    • A participant’s right to appeal a county decision (though the statutes that set the appeal procedures may be waived).

    The other area is K-12 education. The State Board of Education can waive most of the education statutes and rules at the request of a school district, a charter school, or a district of innovation. The standards and procedures for the waivers vary depending on who is requesting the waiver.

    School District Waivers
    A school district board of education that seeks a waiver must first hold a public meeting to discuss the statutes it wants waived and pass a resolution stating its intent to apply for the waiver. The local board must consult with the school district accountability committee before the meeting. The local board may seek a waiver for the entire school district or only for certain schools of the district. Certain school districts must also get approval from a majority of the affected district or school accountability committee members, the affected licensed administrators, and the affected teachers before they can apply for a waiver.

    Next, the local board must submit its application to the State Board of Education. The application must explain how the school district will comply with the intent of the waived rules or statutes. If the State Board grants the waiver, the district must comply with this intent statement. In a public meeting, the State Board will grant the waiver request if it finds that waiving the statute or rule will enhance educational opportunity and quality within the school district and that the costs to the school district of complying with the statute or rule significantly limit educational opportunity within the school district. If granted, the waiver continues until the State Board revokes it in a public meeting, either at the local board’s request or because the State Board decides on its own that there is a good reason to revoke the waiver.

    Charter School Waivers
    A charter school can also ask the State Board to waive a statute or rule. There are certain statutes that the State Board has automatically waived for all charter schools. A charter school just needs to list in its charter application or contract the automatic waivers it will be using. If the charter school wants to request additional waivers, it must list those in the charter application or contract, along with its rationale for requesting the waiver and an explanation of how it will meet the intent of the waived statute or rule. Once the charter contract is finalized, the authorizing school district must submit the charter school’s waiver request to the State Board, which has 45 days to grant or deny the waiver. If it denies a waiver, the State Board must explain why it did so. The bases for granting or denying a waiver are not clear, but when deciding which statutes to automatically waive, the State Board must consider the overall impact and complexity of the statute and the potential consequences that waiving the statute may have on a charter school’s practices. A charter school waiver continues through the term of the charter contract, but the State Board periodically reviews it. The State Board may revoke the waiver if it decides the waiver is no longer necessary.

    District of Innovation Waivers
    The process for waiving statutes for a district of innovation is a hybrid of the school district and charter school procedures. First, a local board must approve an innovation plan submitted by one or more schools of the district or prepared by the school district itself. The innovation plan explains the innovations that the school wants to implement that will help it improve student performance and outcomes and lists any statutes or rules that need to be waived to implement the innovations. The plan must be supported by a majority of the affected administrators, teachers, and school accountability board members.

    If the local school board approves an innovation plan for a school or a group of schools, it submits the plan to the State Board and requests designation as a district of innovation. If the State Board grants the designation, it waives the statutes and rules listed in the innovation plan. The State Board must grant the designation unless it thinks the plan would actually decrease the level of academic achievement in the affected schools or the plan is not fiscally feasible. The waivers continue so long as the designation continues. There is no schedule by which the State Board reviews the designation, but the district of innovation reviews the performance of the affected schools every three years.

    Statutes that Cannot be Waived
    Certain statutes cannot be waived for anyone; some statutes can be waived for some, but not others. For example:

    • The State Board cannot waive the school finance statutes or the data reporting requirements for school performance reports for a school district, a charter school, or a district of innovation.
    • The State Board cannot waive the special education statutes or the requirements for fingerprinting and background checks of employees for a school district or a district of innovation – but it can waive them for a charter school.
    • The State board cannot waive the statutes concerning state assessments for a school district or a charter school – but it can waive them for a district of innovation.
    • The State Board cannot waive the accreditation and school performance statutes, the tobacco-free schools requirements, and the requirement to adopt a conduct and discipline code for a school district – but it can waive them for a charter school or a district of innovation.

  • To Testify or Not to Testify: Responding to a Subpoena

    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.

    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.

  • Do-overs in the Legislative Process

    by Julie Pelegrin

    A recent LegiSource article explained the rules for reconsideration that allow a committee of reference or the House or the Senate to reconsider the vote taken on a motion. But there are other routes a legislator may take to get a committee or the House or the Senate to take a second look at a bill or amendment.

    Amendments to the Committee of the Whole Report
    The most commonly used process for changing an action is an amendment to the committee of the whole report. Of course, this process only applies to actions taken on second reading in the House or the Senate.

    The second reading of bills is a two-step process. First, the House or the Senate passes a motion to sit as the committee of the whole. Considering bills as a committee that includes all of the Representatives or Senators allows the legislators to act under different rules than would apply if they were taking action formally as the House or the Senate. For example, while acting as the committee of the whole, debate cannot be limited, motions cannot be reconsidered, a decision of the chair of the committee of the whole cannot be challenged, and votes are not recorded.

    The committee of the whole adopts or rejects committee of reference reports and floor amendments to bills, generally debates the bills, and finally adopts, rejects, or refers each bill on a voice or standing vote. Once the committee of the whole has considered all of the bills on the calendar, or as many as it has time for, the majority leader moves that the committee of the whole “rise and report.”

    At this point, the House goes back to doing business as the House and the Senate goes back to doing business as the Senate, because they cannot complete the second reading process without a formal, recorded vote on the bills. This vote occurs when the House or the Senate votes on the committee of the whole report, which includes all of the amendments the committee adopted and all of the bills the committee considered. And, like any other committee report, the report of the committee of the whole can be amended.

    A legislator may offer an amendment to the committee of the whole report to change any action that the committee took – for example, to say that an amendment or bill that the committee passed, did not pass; or an amendment or bill that the committee rejected, did pass. All votes on amendments to the committee of the whole report are recorded. Once it has considered all amendments to the report, the House or the Senate finishes second reading by adopting or rejecting the entire committee of the whole report, as amended if any amendments passed.

    Under Senate Rule 25(f), a Senator can offer an amendment to the committee of the whole report to show that an amendment that was not offered in the committee of the whole did pass. Under the House rules, the committee must have actually considered an amendment for it to be the subject of an amendment to the committee of the whole report.

    Why would the House or the Senate adopt an amendment to the committee of the whole report to change something it just did? Since the votes taken in the committee of the whole are not recorded, a legislator may want an official count of the number of legislators voting for or against an amendment or a bill. Also, in the committee of the whole an amendment or bill passes with the approval of a majority of those present and voting. An amendment to the committee of the whole report and final adoption of the report requires the approval of a majority of those elected to the body: 33 in the House and 18 in the Senate.

    Referring bills from 2nd reading back to a committee of reference
    Sometimes, while debating a bill in the committee of the whole, a member will argue that a particular amendment under debate is so technical or substantive that it requires consideration by a committee of reference whose members have special expertise in the subject area. Or the committee of the whole may adopt an amendment that changes the fiscal impact of the bill. In this case, a legislator may move to refer the bill back to a committee of reference – usually the committee that originally considered the bill or the appropriations committee.

    Usually, a bill will be referred back to a committee before it is amended by the committee of the whole, but sometimes the committee of the whole will have already adopted the committee of reference report or other amendments. It is up to the legislators to decide whether the bill is referred back to the committee of reference unamended or as amended by the committee of the whole. In either case, the committee of reference may adopt a second committee of reference report that further amends the bill or changes the amendments adopted by the first committee of reference.

    Referring bills from 3rd reading back to 2nd reading or to a committee of reference in the House
    Under House rules, if a member tries to offer a substantive amendment to a bill on third reading, the proper motion is to refer the bill back to second reading for consideration of the substantive amendment. When the committee of the whole considers the bill this time, it will be considering the bill as introduced in the House with any amendments adopted on second reading enrolled into the bill – the engrossed version if it’s a House bill or the revised version if it’s a Senate bill. If the committee of the whole amends the bill on the second consideration, there will be a second engrossed or revised version of the bill.

    At the third reading stage, the House or Senate may also vote to refer the bill back to a committee of reference. In this case, the committee of reference will consider the engrossed or revised version and any amendments that the committee of reference adopts will be to the engrossed or revised version. The committee of reference may then move the bill to the committee of the whole for consideration on second reading – again. But the committee of reference cannot move the bill directly to third reading because Senate Rule 22 (f) and House Rule 25 (j) (3) only allow a committee of reference to refer a bill to another committee of reference or to the committee of the whole or to postpone the bill indefinitely.

  • Senate – and House – To Weigh In on Appointment of a New Lt. Gov

    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.

    Since the Governor’s appointment of Ms. Lynne just occurred earlier this week, the General Assembly has not yet taken any actions to establish the process by which it will consider this appointment.