Colorado LegiSource

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

Month: April 2017

  • Reducing Conflicts Over Conflicts (of Interest)

    by Bob Lackner

    As with many legislatures, the Colorado General Assembly prides itself on being a “citizen legislature,” which means it is comprised of citizens who take leave from their normal jobs and other duties every January to come to the State Capitol for 120 days to legislate for the people of the state. Not only is it presumed that legislators will continue to serve as teachers, farmers, ranchers, realtors, attorneys, and the like while serving in office, but this ability to bring the perspective, skill sets, and knowledge derived from working in these other fields to the job of being a legislator is seen as advantageous to representative democracy and desirable in a person who wants to serve as a legislator.

    However, the necessity of serving “competing masters” means a certain amount of tension between legislators’ private lives and public responsibilities is built into the DNA of our citizen legislature. The law does not require that a member of the Colorado General Assembly sell all assets, renounce all worldly employment, and commit to a monastic existence when serving in the legislature (although it may seem that way to many legislators).  But the law does expect and require that when a legislator’s independence and objectivity may be compromised, the legislator will put the public interest first.

    The term “conflict of interest” generally means a legislator has a personal interest in some aspect of official action (most often a vote on a bill) sufficient to influence the objective exercise of his or her public responsibilities. Stated differently, the legislator’s personal interest pulls him or her in one direction while the public interest pulls the legislator in another direction. In this context, as codified in statute and legislative rule, “personal interest” generally refers to a financial interest in a bill or other measure. The legislator’s obligations as a public servant are supposed to trump any personal or financial interest he or she may have in a public matter.

    How does a legislator know if he or she has a conflict of interest? The key to answering this question is to determine whether the situation at hand is likely to interfere or appear to interfere with the independent judgment the legislator is supposed to demonstrate as a public servant undertaking his or her official duties. One test is the so-called trust test. Specifically, would the public trust the legislator’s judgment if they knew the legislator was in this situation?

    The Code of Ethics within the statutory standards of conduct—and specifically the ethical principles for members of the General Assembly—provide three criteria for a legislator to consider in determining whether he or she has a personal or private interest in a matter before the General Assembly:

    1. Whether the interest impedes the legislator’s independence of judgment;
    2. The effect of the legislator’s participation on public confidence in the integrity of the General Assembly; and
    3. Whether the legislator’s participation is likely to have a significant effect on the outcome of the vote.

    The ethical principles also declare that a conflict of interest situation does not arise from legislation that affects the entire membership of a class. This exception is very important and regularly applied in assessing potential conflict of interest situations. This so-called “class exception” allows teachers to vote on education bills, attorneys to vote on tort reform bills, farmers and ranchers to vote on water bills, and so forth. There is no magic number to determine whether a class is present.

    Members of the General Assembly are also subject to Joint Rule 42. Similar to the class exception, this rule requires the legislator to decide whether the passage of a bill will benefit the legislator personally in a way not shared by others in the legislator’s profession, occupation, industry, or region. If it will, then the legislator probably has a personal or private interest in the matter necessitating disclosure and abstention.

    What if a legislator concludes that he or she does have a personal or private (i.e., financial) interest in legislation? Under the state constitution and the House and Senate rules (HR 21 (c) and SR 17 (c), respectively), the legislator must disclose the fact and abstain from voting on the bill. What should a legislator do if he or she has a conflict? A legislator who thinks he or she may be in a conflict of interest situation, or too close for comfort, should follow one or more of the following courses of action:

      1. Disclose the nature of the personal interest in the bill and abstain from voting. If there is a real conflict—i.e., a personal or private interest in the bill—under the law, the legislator is absolutely required to disclose the conflict and abstain from voting on the matter. But remember, constituents send legislators to the legislature to represent their interests and vote, especially on tough questions. Don’t allow abstention to become a way to evade tough votes.
      2. Talk the matter over with more experienced colleagues, especially in party legislative leadership. Sometimes it takes a third person’s perspective to really understand a difficult ethical situation.
      3. Be conscious of the appearance of impropriety. Although maintaining a proper appearance may not be strictly required, legislators need to be conscious of how their actions will affect their personal reputations and the reputation of the General Assembly.
      4. Seek the advice of legal counsel, whether from the OLLS or a privately retained attorney.
      5. Consider seeking an advisory opinion from the Board of Ethics of the General Assembly.
      6. Consider reducing involvement on a particular matter. Although a legislator may vote on a bill, there may be appearance concerns with being a prime sponsor of the bill or otherwise serving as the “public face” of the bill.
      7. Finally, be prepared to defend a decision. More often than not, the public will respect an ethical decision honestly and thoughtfully arrived at if the legislator can clearly and credibly explain the basis for the decision.*

    The Office of Legislative Legal Services regularly consults with members of the General Assembly on how to avoid conflict of interest situations. If you are a legislator, we are happy to help you work through any conflict of interest situation in which you may be involved, especially before it becomes a problem. Please come see us!

    *Item 7 in the list of recommended actions was originally published in the July/August 2004 State Legislatures Magazine in an article entitled “How to deal with Conflicts of Interest”, by Peggy Kerns.

  • Does My Bill Really Enact a Compact?

    By Thomas Morris

    Drafters are often given a draft bill that purports to be a compact — sometimes called an interstate compact. However, in at least some instances, it is not a compact — it is a model law that the proponents wish to invest with the gravitas of a compact. They are very different things that need to be treated very differently.

    Compacts

    The states’ ability to bind themselves to a compact is governed by Article I, Section 10 of the United States Constitution:

    No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. (emphasis added)

    A good example of a compact is the Colorado River Compact, which is codified in article 61 of title 37, C.R.S. This compact was entered into by the states of Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming and was approved by Congress. It apportions the water of the Colorado River among the seven states. The statute codifying the compact quotes the compact in its entirety, including the provision indicating that it becomes effective only after at least six of the compacting states’ legislatures approve it and the listing of the signatures of the compacting states’ authorized representatives.

    A fully executed compact is, simultaneously, three things (usually):

    1. A contract between at least two states, typically negotiated by designees of the governors or other official representatives of the compacting states (not a private organization). If a compact is violated, the compacting states’ exclusive litigation remedy is to sue each other directly in the United States Supreme Court. Individuals have no standing to enforce a compact unless the compact explicitly or impliedly provides a private right of action.
    2. A state law enacted by the contracting states’ legislatures. Because a compact is a contract, and a contract cannot be unilaterally modified by any of the contracting parties, if the bill is actually a compact, it needs to be enacted without any unauthorized changes. Look at, e.g., most of the parts in article 60 of title 24, C.R.S., where most compacts (other than with regard to water) are codified. Typically there is a C.R.S. section that states a short title (“‘This part 16 is known as the Interstate Corrections Compact’”) and another C.R.S. section that reproduces the compact as is—warts and all. There should be either a direction to the governor or a designee to enter into the compact or a portion of the compact that includes the signatures of, or other acknowledgement of execution by, the compacting states. However, sometimes a compact will specify that it becomes effective if it is enacted in “substantially” identical form by the compacting states’ legislatures. This allows the General Assembly to amend the compact, but it is unclear when the “substantially identical” standard would be violated.
    3. A federal law. A compact that increases the power of states at the expense of the federal government cannot take effect under the federal constitution unless Congress approves it. This element is not required if the compact does not increase the states’ power by encroaching on federal authority, as determined by the United States Supreme Court in the case of Virginia v. Tennessee, 148 U.S. 503.

    A prominent example of a compact between states that Congress did not approve is the 1861 Constitution of the Confederate States of America. With this example, one can see why the Founders were concerned about the states entering into at least some types of agreements among themselves.

    Model Laws and Uniform Laws

    In contrast, at least some of the documents given to drafters that purport to be compacts are really just model laws. There has been no contract between the states nor any plan to enter into one. The proponents are organizations or individuals that would benefit from having similar laws in various states, not the states themselves. The laws are enforceable by parties other than the enacting states. The laws are enacted only in more or less similar form. And there has been no approval by Congress nor any plan to get it.

    Compacts are distinct from both uniform acts, which have been proposed by the Uniform Law Commission and approved by the American Bar Association, and model laws, which are produced by non-governmental bodies of legal experts. While some of the legal results are the same – state law is identical or virtually so in more than one state – the subject matter of the two types of laws (model and uniform laws versus compacts) fundamentally differs and the process of formulating and enacting the two types of laws is usually also quite distinct.

    So it is incumbent on the drafter to figure out, precisely, what he or she has been given before the bill can be finalized. If it’s truly intended to be a compact, even if the other two elements – contract and congressional approval – are not yet in place, it should generally be codified as a new part in article 60 of title 24. And unless it specifies that it can be amended, so long as it is enacted in substantially the same form by all the compacting states, the document should not be altered in any way, including by amendment. If this is the case, the drafter and contact people should make that very clear to the bill sponsor and any other legislator who may try to amend it.

    If the document is really just a model law, it should not be codified as a part in article 60 of title 24, and the bill sponsor or any other legislator may make any changes they choose. But please don’t call it a compact!

  • The Rise and Fall of 1,100 Cubic Feet of Old Files

    by Debbie Haskins

    A few years ago, the Office of Legislative Legal Services (OLLS) came to the startling conclusion that we might be the unlucky stars in a disturbing episode of “Hoarders.” We had boxes of files piled up and overflowing the OLLS’ territory in the Capitol sub-basement. We required employees to go downstairs in pairs to ensure no one was lost in an avalanche.

    What were these files? Where did they come from? And how did we end up with so many?

    Legislators might not realize it, but every time a legislator asks an attorney in the Office of Legislative Legal Services (OLLS) to draft a bill or write an amendment, the attorney creates a drafting file for that legislator. These drafting files include background documents, research materials, and drafts of bills, resolutions, and amendments, some of which are never introduced. The bulk of the materials in the OLLS drafting files are bill drafts and redrafts, including handwritten notes by the OLLS editors and attorneys about proofreading corrections, word choice, and grammar.

    In 1993, the Executive Committee (the leadership of the General Assembly) adopted a records retention policy that required the OLLS to keep the legislators’ drafting files indefinitely. In 1993, the General Assembly also amended section 24-72-202 (6.5)(b), C.R.S., of the Colorado Open Records Act (CORA) and section 2-3-505 (2)(b), C.R.S., to define the OLLS drafting files as confidential “work product,” which means the OLLS will not allow a member of the public access to a drafting file unless the legislator on whose behalf the file was created gives express permission.

    So, starting in 1993, the OLLS asked legislators when they left the General Assembly to sign a form telling us what the OLLS should do if a member of the public asked to see their drafting files. Using the form, legislators could waive the work-product privilege for all of the drafting files created by the OLLS in their name or they could refuse to give permission for members of the public to look at any of their drafting files. Since most legislators did not know what was in their drafting files because they didn’t create the files, legislators often did not know how to respond to the waiver form. Many simply never filled out the form. And the reality was that the OLLS actually never received requests under CORA to see the drafting files.

    Meanwhile, the drafting files began to accumulate. Due to a lack of space in the Capitol sub-basement where the OLLS stores extra files and due to the conditions in the sub-basement, which are less than ideal (think dust, water leaks, and beetles), the OLLS started transferring older drafting files to State Archives. Recently, we discovered that State Archives had over 1,100 cubic feet of OLLS drafting files, including some dating back to the 1930s. If you stacked those boxes of drafting files end to end, that’s the equivalent of three and a third football fields or almost three and a half times the height of the Colorado State Capitol building!

    Also, questions began popping up concerning implementation of the records retention policy.  For instance, what if a legislator died? Could someone else waive the work-product privilege? What if a former legislator moved and we couldn’t find her? Should the drafting files be preserved as evidence of legislative intent? Did these drafting files have any historical value? Why were we keeping files in perpetuity when they were seldom opened and couldn’t be shared without permission from the legislator?

    Faced with all of these questions, the OLLS did what any good legislative service agency would do – we asked our legislative oversight committee to do a study!

    After two years of research and investigation, a committee field trip to the sub-basement to see the dust, bugs, water leaks, and lack of space for the OLLS drafting files, and an examination of their own drafting files, the members of the Committee on Legal Services (COLS) concluded that the drafting files did not need to be kept forever on shelves in the sub-basement or in State Archives.

    (l to r) Senators Kagan, Scott, and Scheffel check out the storage conditions for legislator drafting files on a fieldtrip to the subbasement last fall. (photo courtesy of Jeff Roberts, Executive Director, Colorado Freedom of Information Coalition)

    The COLS determined the following:

    • A privilege held by a deceased legislator cannot be waived by someone else since the privilege dies with the legislator;
    • The practice of asking legislators to make blanket waivers of the work-product privilege protecting drafting files that they did not create does not make sense and should be discontinued;
    • The drafting files do not need to be preserved as evidence of legislative intent because the contents only reflect draft legislation before introduction, only apply to one legislator, and do not represent what a legislative committee or the legislative body intended when it passed a bill; and
    • There is minimal long-term historical value to the drafting files. In fact, one legislator quipped that we should destroy the old files in a bonfire à la The Bonfire of the Vanities.

    Ultimately, the COLS recommended to the Executive Committee that the OLLS drafting files should be kept for eight years and files older than eight years, including those at State Archives, should be destroyed—not by fire but by shredding. The Executive Committee voted unanimously on March 3, 2017, to revise the Retention of Records Policy for Records of the OLLS as recommended by the COLS.

    Why did the COLS select eight years for the retention time?

    • It mirrors the length of term limits for individual legislators; and
    • That’s the approximate amount of room the OLLS has in the sub-basement for storage.

    As a result of the new policy:

    • The OLLS will work with State Archives in the 2017 interim to shred the 1,100 cubic feet of old drafting files currently saved at State Archives;
    • The OLLS will shred drafting files after they have been stored for eight years;
    • The OLLS will stop asking legislators for blanket waivers of work-product privilege for their drafting files; and
    • The OLLS will handle requests by the public to access an existing drafting file on a case-by-case basis, leaving it up to the legislator to determine whether to waive the work-product privilege.

    And that…as Paul Harvey used to say on the radio…is the rest of the story.

  • Who Owns the Law? The Colorado Perspective on Copyright and State Statutes

    By Jennifer Gilroy and Abby Chestnut[1]

    Here is a civically inspired thought for you: As a citizen of the United States, you own the law. The law is not subject to copyright protection, so it finds its home in the public domain. However, questions may arise about whether the original works, such as case annotations and editor’s notes, that often accompany the law when it is published are subject to copyright protection or are also owned by the people.

    The U.S. Constitution charges Congress with promoting the “progress of science and useful arts” by developing copyright law, and Congress has done so by allowing original, individual expressions that have a “modicum of creativity” to receive copyright protection. If like most people, you’re unsure of what a “modicum” is, a synonym is “shred”. The laws passed by a legislative body, as representatives of the people, are not creative, individual expressions that are entitled to be protected by copyright.  However, as a general rule, a “modicum of creativity” is an extraordinarily low standard and, therefore, copyright protection attaches to most original works.

    And herein lies the rub with copyright and statute publication. While the text of the law itself is not copyrightable, most parts of the federal and state codes are accompanied by “ancillary works” such as editor’s notes, source notes, and, most substantively, annotations that summarize appellate court cases interpreting the statutes. These ancillary publications may, in fact, possess a “modicum of creativity” and, depending on how they are written and published, may be copyrightable.

    Even when material is subject to a valid copyright, someone may use that material if it is a “fair use” under the law. Courts will consider four factors to determine whether a use was, in fact, “fair” and not an infringement on the copyright:

    1. The purpose and character of the use—it’s more likely to be a “fair use” if it is being used for a nonprofit educational purpose rather than a commercial purpose or if the use is a “transformative” work that adds something new with a further purpose or different character, like a parody;
    2. The nature of the copyrighted work—it’s more likely to be a “fair use” if it is factual material rather than a creative work;
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. The effect of the use on the value of or potential market for the copyrighted work.

    If the ancillary works accompanying the statutes are copyrighted and later reproduced when people copy and use the annotated statutes without permission, there is an issue as to whether that use would be “fair.”

    Colorado has neatly side-stepped this sticky issue.  Consistent with court findings and scholarly opinions, the Colorado General Assembly views the Colorado Revised Statutes—including their arrangement, headnotes, and numbering systems—as part of the public domain and does not attempt to copyright them. However, Colorado law authorizes the Committee on Legal Services, or its designee, to copyright—not the statutes—but the original publications and editorial work that accompany the Colorado Revised Statutes. (See section 2-5-115, Colorado Revised Statutes) Unlike most states, the Colorado legislature’s nonpartisan staff in the Office of Legislative Legal Services drafts the ancillary publications related to the statutes, including source (history) notes, editor’s notes, cross references, various indices, and case annotations, all of which are published together with the statutes, both in print and online.

    Pursuant to its statutory authority, the Committee on Legal Services historically registered a copyright in these publications. But in 2016 the Committee suspended the practice, citing to the fact that, unlike other states where editorial work and case annotations are the product of a work-for-hire private contractor, in Colorado the publications are a product of state-paid legislative staff and are made freely available on the Colorado General Assembly’s public access website.  The Colorado General Assembly, through its Committee on Legal Services, contracts with LexisNexis to format, bind, and distribute the Colorado Revised Statutes books. But to ensure broad public access to the state’s laws, the Committee’s publications contract with LexisNexis also requires LexisNexis to host a fully annotated version of the Colorado Revised Statutes in searchable format on the internet without cost to the state or the public. This invaluable resource is directly accessible by the public through the legislature’s website.

    In hosting this online resource, LexisNexis provides a website that is searchable and offers several value-added features useful to the legal researcher. And while certain terms and conditions on the site are designed to protect its technology, services, software, graphics, logo, and value-added design features, LexisNexis does not claim a copyright in the law itself or in the additional ancillary publications described in this article.

    However, not all states prepare and publish their statutory code in the same way Colorado does; in fact, many do not. For example, Georgia contracts with LexisNexis to publish its Official Code of Georgia Annotated (O.C.G.A.) and to perform certain editorial work and write the accompanying annotations. LexisNexis registers a copyright in the code’s annotations, which Georgia then holds. While the state makes the statutes themselves publicly available online, it makes the official code with annotations available only for sale.

    In 2013, an entity purchased Georgia’s official code, scanned it, and posted it in its entirety online. Georgia subsequently sued the entity in the United States District Court for infringement of its copyright. Georgia agreed that the text of Georgia’s law itself belongs to the public. But Georgia argued that the copyright in the original, creative works accompanying the statutes (such as the annotations) are protected by a valid copyright and that copying and distributing the entire annotated code online does not constitute a fair use under copyright law. The defendant argued that the annotations do not possess the “modicum of creativity” necessary for a valid copyright, and even if they do, the use was fair.

    Just this month, the court issued its ruling on motions for summary judgment in the case of Code Revision Commission v. Public.resource.org, Inc.  In denying the defendant’s motion and granting Georgia’s motion for partial summary judgment, the court observed that the selection, writing, editing, and creativity of the annotations requires skill, evaluative analysis, and a tremendous amount of work. The court, therefore, determined that these efforts confirm that the annotations are original works entitled to broad copyright protection. The court further found that the defendant had failed to meet its burden of proving that posting a verbatim replication of the O.C.G.A. online was a fair use.

    The challenge in Georgia was not the first case of this type and will probably not be the last. While we can say with certainty that the text of the law itself is not copyrightable, the issues surrounding the copyrighting of materials that accompany the law may continue to find their way to court. For now, however, Colorado will not be caught in the thicket of these thorny copyright issues.

    [1] Abby Chestnut is a third-year law student at George Mason School of Law who has permanently relocated to Denver where she is completing her studies at the University of Denver Sturm College of Law.  Mrs. Chestnut is participating in an internship this semester at the Office of Legislative Legal Services.  She anticipates receiving her juris doctor degree in May.