Colorado LegiSource

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

Month: September 2017

  • Legislative Council Provides Crucial Oversight and Guidance to the General Assembly

    By Darren Thornberry

    Editor’s Note: Currently, there are four statutory committees whose duties include overseeing the operations of four of the legislative staff agencies. It appears that the General Assembly created each of these committees with the goal of increasing the effectiveness of the General Assembly, improving its ability to pass well-considered legislation, and improving its ability to provide independent oversight of the use of public money.

    Over the next four weeks, we will look at each of these committees – the Legislative Council, the Audit Committee, the Committee on Legal Services, and the Joint Budget Committee – why they were created, how they operate, and their current duties.

    The Colorado General Assembly’s Legislative Council is one of its most vital committees, at times mistaken for the state’s hard-working Legislative Council staff for which it provides oversight. The public might be more familiar with interim study committees, which often receive testimony from Colorado citizens on a variety of subjects, but the Legislative Council committee also takes up a number of important tasks.

    Colorado’s Legislative Council was statutorily created in the 1953 legislative session. At the time, legislatures usually met for much shorter sessions than they do today, which caused some legislators to feel that the body wasn’t functioning as well as it should or that its role was being usurped by governors while they were not in session. Echoing the sentiment of other state legislatures of the time, Colorado’s Legislative Council was seen as a means to help legislators address problems that would otherwise not be seeing legislative solutions. The Council was designed to meet during the legislative interim to study issues of interest and provide policy recommendations to the General Assembly.

    When it created the Legislative Council, the General Assembly immediately realized that it would need staff support. The first Legislative Council staff director came and went so fast that his name has all but been erased, but the second director, Shelby Harper, started in November 1953. With a single assistant and a $12,000 appropriation, the work of serving legislators began. Harper moved on to another career pursuit in the winter of 1957 and was succeeded by Lyle Kyle, who served as director until 1985. In the 1967 legislative session, the Legislative Council staff was comprised of enough people to staff, for the first time, the three busiest committees in each house: Judiciary, State Affairs, and Business Affairs.

    One of four statutory legislative committees that oversee legislative staff agencies, the Council is a joint standing committee, created in section 2-3-301 of the Colorado Revised Statutes. Section 2-3-301 (1), C.R.S., reads in part:

    There is hereby created a legislative council, referred to in this part 3 as the ‘council’, which consists of an executive committee, six senators with majority party members appointed by the president of the senate and minority party members appointed by the minority leader of the senate, with the approval of a majority vote of the members elected to the senate, and six representatives with majority party members appointed by the speaker of the house of representatives and minority party members appointed by the minority leader of the house of representatives, with the approval of a majority vote of the members elected to the house of representatives.

    Today, within the Legislative Council, the Executive Committee consists of the President, Majority Leader, and Minority Leader of the Senate and the Speaker, Majority Leader, and Minority Leader of the House of Representatives. The Speaker of the House of Representatives and the President of the Senate alternately serve one-year terms as the chair and vice-chair of the Executive Committee. In 2017, President Kevin Grantham has served as chair. In 2018, Speaker Crisanta Duran will assume the chairmanship.

    The remaining members of the Council are appointed no later than 10 days after the first regular session of each General Assembly convenes. Membership on the Council terminates with the appointment of a member’s successor or upon the termination of a member’s term of office in the General Assembly, whichever occurs first. A member may be appointed to succeed himself or herself.

    In 2016, Senate Bill 16-156 changed the authority of the President, the Speaker, and the minority leaders to make temporary appointments. Now, any of these appointing authorities may temporarily appoint a member to replace a current committee member without the approval of a majority of the members elected to the applicable body.

    What Does the Committee Do?
    The Legislative Council meets quarterly (twice during session), to review and approve the Legislative Council staff budget and to review letters or bills that request creation of new interim study committees. The Council’s other important duties (2-3-303 C.R.S.) are to:

    • Approve bills recommended by interim legislative council committees or other committees created by statute or resolution, which operate during the interim, no later than October 15 in odd-numbered years and November 15 in even-numbered years;
    • Approve the Colorado Blue Book, which provides information on statewide measures and on the judges who are on the ballot for retention during an election;
    • At times, review modifications to state implementation plans relating to air quality;
    • Collect information concerning the government and general welfare of the state;
    • Consider important issues of public policy and questions of statewide interest;
    • Prepare for presentation to the members and various sessions of the general assembly such reports, bills, or otherwise, as the welfare of the state may require; and
    • Examine the effects of constitutional provisions and statutes and recommend desirable alterations.

    The Executive Committee of the Legislative Council meets separately, and its duties include oversight of the legislative service agencies and their directors, establishment of policies regarding legislative management and legislative procedures, and introduction of an annual legislative appropriation bill. The Executive Committee is responsible for approving the Legislative Council staff budget reviewed by the Legislative Council, along with the budget requests of the House and Senate and other legislative staff agencies. The Executive Committee also exercises legislative management functions when the General Assembly is not in session and may set the date for the convening of the next regular session of the General Assembly.

    The Legislative Council is scheduled to meet at 10 a.m. on November 15 in Committee Room 271 at the Colorado State Capitol to review interim committee legislation. At the time of this posting, the agenda has not been released.

  • What’s so Special about a Special Session?

    by Julie Pelegrin

    Editor’s note: This article was originally posted on May 10, 2012, and has been updated with information pertaining to the upcoming special session commencing October 2, 2017.

    The Governor recently issued an executive order calling the General Assembly into a legislative special session.  At this point, many legislators and other people may be wondering what, exactly, is a special session and how does it work?

    The most obvious things that are different about a special legislative session are: 1) The General Assembly is in session even though the regular, 120-day legislative session has ended, and they can remain in session as long as they choose to do so; and 2) The General Assembly is limited to addressing only certain subjects while meeting in special session.

    Governor’s Authority: Section 9 of Article IV of the constitution authorizes the Governor to convene the General Assembly “on extraordinary occasions” by a proclamation, known as “the call,” that specifies the purposes for which the General Assembly is to convene. The only business the General Assembly may transact during the special session is the business the Governor specifically identifies in the call. The Governor decides what is an extraordinary occasion and sets the agenda of issues that the General Assembly may consider. The Governor’s call also sets the date and time at which the special session must begin.

    The Governor’s recent call directs the General Assembly to convene in special session at 10:00 a.m. on October 2, 2017. The only item identified by the Governor that the General Assembly may consider when they convene is clarification of statutory provisions enacted in Senate Bill 17-267 to “codify that retail marijuana sales are subject to sales taxes levied by certain special districts and other limited purpose governmental entities.”

    Agenda Items: The Governor sets the agenda items, but the Colorado Supreme Court has held that he cannot prescribe the specific form of legislation; he cannot describe the agenda items so narrowly that the General Assembly is forced, in the words of the Court, “to do the bidding of the governor, or not act at all.” (640 P.2d 1151 (Colo. 1982)). The General Assembly decides whether to enact legislation to address the agenda items and, if enacted, how the legislation will address the agenda items.

    It is the advice of the office that the question of whether a bill or resolution fits within the agenda items is a substantive, not a procedural, question and cannot be decided by a ruling of the chair of a committee or by a ruling of the President of the Senate or the Speaker of the House of Representatives. Similar to deciding whether a bill is constitutional, the Senate and the House of Representatives decide whether a bill fits within the agenda items when they vote on the bill or resolution.

    Timing:  While the General Assembly must convene on the date and time specified in the call, the General Assembly need not pass, nor even consider, any legislation while in special session, and the General Assembly decides how long the session will last. The Governor may not set a date by which the General Assembly must adjourn.

    General Assembly’s Authority: During a special session, the General Assembly retains its full plenary authority, other than being limited to considering only the agenda items. The General Assembly may convene and, after establishing the presence of a quorum, immediately adjourn. The General Assembly may consider but refuse to pass any legislation during a special session, or it may pass one or more bills that address one or more of the agenda items on the Governor’s call. The Governor has no authority to either force the General Assembly to stay in session or force the General Assembly to adjourn.

    Rules and Procedure: Although the agenda is limited, a special session operates under the same constitutional requirements and legislative rules, other than the deadline schedule, that apply during a regular session. Each bill must have a single subject; each introduced bill must be assigned to a committee and receive consideration and a vote on the merits; and the vote on second reading and the vote on third reading must occur on different calendar days, so it still takes at least three days to pass a bill. All of the legislative rules with regard to committees and the operations of the Senate and the House that apply in a regular legislative session also apply in a special legislation session.

    If you have additional questions about how the General Assembly operates during a special session, please consult the special session FAQ memo available on the Office of Legislative Legal Services website.

  • Maximum Reserve

    by Ed DeCecco

    Sadly, “Maximum Reserve” is not the name of the next Jerry Bruckheimer summer blockbuster. Nor is it even an oft used term. By last count, it appears in a measly .0000003% of sampled books. That makes your odds of randomly picking up a book with this phrase about the same as winning the lottery.  Unless, that is, your book shelf possesses three feet of handsome red volumes, known as the Colorado Revised Statutes. Then this is indeed your lucky day because “maximum reserve” is a defined term in section 24-75-402, C.R.S., and is at the heart of the statutory limit on the uncommitted reserves in a cash fund.

    The “maximum reserve”[1] is defined as “sixteen and five-tenths percent of the amount expended from a cash fund during the fiscal year” and is used to create a limit on the uncommitted reserves in a cash fund at the end of a fiscal year. So, if a state agency spends $1,000,000 from a cash fund during a fiscal year, then the maximum amount that can be left in the cash fund at the end of the year is $165,000, which is roughly equal to two months of its spending.

    Except if it is not. Sometimes an alternative limit is appropriate. To address this, the General Assembly created the cleverly named “alternative maximum reserve,”—side note: also a good name for the movie sequel—which is a maximum reserve balance established in the constitution, by law, or Joint Budget Committee (JBC) waiver (more on that later) that is different from 16.5% of the amount expended. For example, the General Assembly could establish an alternative maximum reserve of 25% of the amount expended or even a specific dollar amount.

    If a state agency exceeds the applicable reserve limit for a fiscal year, then it is required to reduce the fees the agency collects in the next year so that it won’t do so again. The agency may subsequently raise a fee, but only if doing so won’t cause it to have excess uncommitted reserves. And if there are excess uncommitted reserves for three or more years, then the agency must deliver a hostage to the State Controller’s office until it complies. (Sorry, I’ve been binge watching Game of Thrones.) The real penalty is that the State Controller will restrict the amount of money available to be spent from the cash fund.

    Now, a statutory requirement without exceptions is like an Elvis impersonator without a sequin jumpsuit, and the limitations on uncommitted reserves are replete with them. The limit only applies to a “cash fund,” which in this context means “any fund that is established in law for a specific program or purpose and that includes moneys from fees,” but excluding the state general fund, any federal fund, and a fund used by a state institution of higher education. So, you’ll be happy to know that the state is free to have a general fund surplus that exceeds the maximum reserve.

    In addition, a cash fund is a depository for “fees,” which, for purposes of the maximum reserve, are any money collected or received by an entity but excluding, among other things:

    • Revenue that is not state fiscal year spending;
    • Fines or other criminal penalties;
    • Money transferred from the state general fund;
    • Non-discretionary charges or assessments;
    • Interest and income; and
    • Gifts or donations. (Everybody loves gifts. C’mon, who would want a cap on those?)

    So if a cash fund consists entirely of non-fee revenue, then the maximum reserve does not apply, and if a cash fund is a mix of fee and non-fee revenue, then the non-fee revenue is proportionally excluded from the uncommitted reserves.

    But wait! That’s not all! The limit on uncommitted reserves also doesn’t apply to cash funds established to fund capital construction, cash funds with uncommitted reserves that are less than $200,000, cash funds only used for a program that is less than two years old, and a bunch of cash funds that are expressly excluded from the limit.

    Finally, a state agency can solicit the JBC for a waiver from the maximum reserve based on specific circumstances. The JBC can, for up to three years, grant an exemption or establish an alternative maximum reserve for the agency. Given that state agencies sometimes have perfectly good reasons to exceed the maximum reserve, this seems like an efficient alternative to enacting legislation to specifically exempt a single cash fund. And fewer bills to be drafted means fewer bill drafters…hey, wait a minute!

    Admittedly, there are numerous exceptions. But considering that there are scads of cash funds,[2] it still has a broad application. Plus, these exceptions can be better understood when viewed in light of the avowed purpose of the limit on uncommitted reserves. Because fees contribute to the TABOR fiscal year spending limit, it is necessary to keep them in check by establishing a reasonable reserve derived from fee revenue.

    And don’t think that the limit on uncommitted reserves was created and then immediately forgotten—like this legislative staff blog article, for example. The State Controller is required to annually prepare a report to be delivered to the JBC and the Office of State Planning and Budgeting identifying the uncommitted reserves for each state cash fund, and the State Auditor is required to audit the report.

    Well, that’s probably about all you want to read about limits on uncommitted reserves for cash funds, and I need to start work on my screenplays for the “Maximum Reserve!” movie franchise, so I bid you adieu.

     

    [1] The “maximum reserve” was formerly known as the “target reserve,” which gave the misimpression that state agencies should aspire to have that amount in reserve at the end of each year. Thanks to Alfredo Kemm, Joint Budget Committee Staff, for suggesting the sensible rebranding.

    [2] Perhaps, too many? See “A Legislator’s Guide to Creating Cash Funds.”

  • U.S. Supreme Court Holds Prohibition on Disparaging Trademarks Unconstitutional

    by Jery Payne

    A while back I wrote about event signs, license plates, and government speech. That post covered Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which the U.S. Supreme Court held that Texas could deny an application for special license plates because it didn’t like the message expressed on the plates. This bit of content discrimination did not fall afoul of the Free Speech Clause of the First Amendment because the Court decided that the content of special license plates is government speech.

    Now the Court has ruled on another case where the federal government discriminated based on content. In this case involving trademark registration, the government relied heavily on the Walker case, arguing this bit of content discrimination is also government speech. But the Court struck down the law anyway.

    Although people are calling it the “Slants case,” the actual case name is “Matal v. Tam.” The Slants are a pop-rock band whose members are of East Asian descent, so the band chose the name to “reclaim” and “take ownership” of stereotypes about people of East Asian ethnicity. The band filed for trademark registration of the band name, “Slants.”

    By Gage Skidmore, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=54532298

    Federal law, however, forbids the registration of a trademark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute….” The term “slants” has been used as a disparaging term for East Asians, so the trademark examiner refused to register the trademark.

    The band took the examiner to court. The case wended its way to the Supreme Court, where the government defended the statute based on the Walker decision. They argued that trademark registration is government speech. And you can see why because the two cases have a lot in common. The messages in both cases are:

    (1) Benefiting from a government program;

    (2) Intended for private use, which often means for commercial use;

    (3) Placed on privately owned property; and

    (4) Originating from private citizens.

    Despite coming from private citizens, the court held in Walker that the messages on special license plates are government speech. But when you take seriously the notion that these messages come from the government, the messages conveyed are often contradictory and frequently weird or even nonsensical. The license plates in the Walker case included the state of Texas celebrating Oklahoma football, advising that you can “get it sold” with RE/MAX, or saying “I’d rather be golfing.” Can a state government golf?

    The Court pointed out in the Matal case that considering trademarks government speech is just as weird:

    [W]hat does the Government have in mind when it advises Americans to “make.believe” (Sony), “Think different” (Apple), or “Have it your way” (Burger King)?

    The Matal case, like the Walker case, involves speech that comes from a private citizen but seeks to benefit from a government program. In other words, the facts of both cases exist in a gray area between what is clearly government speech that doesn’t fall under the Free Speech Clause and what is clearly private speech that does fall under the Free Speech Clause. In the Matal case, the Court explained the difference:

    This brings us to the case on which the Government relies most heavily, Walker, which likely marks the outer bounds of the government-speech doctrine. Holding that the messages on Texas specialty license plates are government speech, the Walker Court cited three[1] factors … First, license plates have long been used by the States to convey state messages. … Second, license plates ‘are often closely identified in the public mind’ with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of ‘government ID.’ … [N]one of these factors are present in this case.

    So the Court decided that (1) Walker “likely marks the outer bounds of the government-speech doctrine,” (2) the mere fact that a message may benefit from a government program does not make it government speech, and (3) the messages must be closely identified with the state “in the public mind” to constitute government speech. Trademarks are meant to identify businesses, and most people think of a business, not a government, when they see a trademark; there isn’t the same likelihood that people will think the government is sending the message.

    In deciding these cases, the Court shrunk the area of uncertainty between government speech and private speech. The license-plate case had the potential to take a large bite out of First Amendment protections. Copyright law also provides a government benefit to private speech, and the government relied heavily on this idea in the Matal case. Copyright applies to virtually all books, magazines, and blogs. If the Court had determined that simply granting a benefit gives the government the ability to regulate content, then the government could regulate the content of most writings. But instead, the Court made it clear that merely bestowing a government benefit on a “speaker” does not give the government the ability to regulate the content of the speech.

    [1] The third factor isn’t relevant to this article.