Colorado LegiSource

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

Year: 2017

  • OLLS Says Good-bye to Long-time Employee Debbie Haskins

    Sadly, the Office of Legislative Legal Services recently lost one of our own. Debbie Haskins passed away unexpectedly Saturday, October 7, from heart failure. Debbie served Colorado legislators for 34 years, practically her entire professional career. She took great pride and satisfaction in her service as nonpartisan legislative staff, helping literally hundreds of legislators achieve their legislative goals and serve the people of Colorado.

    On October 1, 1983, Debbie began her career with the Office as a legislative attorney drafting bills. She developed great expertise in the areas of human services, criminal law, tort reform, and Medicaid. She was our go-to person for LGBT rights issues, state government organization issues, procedures for executive agency rules, and various family and children’s issues.

    For a time during the ’90’s, Debbie was the supervising team leader for the group of attorneys and legislative editors drafting in the areas of criminal law, human services, public health, and civil law. And for the last seven years—in addition to drafting bills—she served as one of the office’s assistant directors, overseeing the rule review process, staffing the Committee on Legal Services, overseeing training for new employees and out-of-cycle training for new legislators, editing and maintaining the office’s drafting manual, and covering a myriad of other activities and details that helped keep our office running.

    Debbie was a trusted colleague. She had been with the office the longest of anyone currently working here, and her memory, experience, wisdom, and bulging filing cabinets were invaluable assets that she shared generously. More than that, she was a friend. She was always available to talk with you about rules, about drafting issues you were running into, or about other challenges you were encountering. She had a quick smile and an easy, infectious laugh, and she enjoyed being helpful.

    Debbie enjoyed being helpful outside the office as well. She was an active member of her church, serving on many committees and singing in the choir. And she was an indefatigable supporter of the Girl Scouts, serving as a troop leader, a chaperone on international trips, and a mentor for girls who were working on their Girl Scout Gold Award. For several years, she put in countless hours preparing for and helping host the annual Girl Scout Day at the Capitol.

    And Debbie wasn’t just helpful in Colorado. She was helpful across the country. There are many legislative staff across the country who had the pleasure of working with Debbie through her active involvement with the National Conference of State Legislatures (NCSL). In 2009-10, Debbie served as vice chair and in 2010-11 she served as chair of the Legal Services Staff Section (now known as the Research, Legal, Editorial, and Committee Staff (RELACS) association), an NCSL-sponsored organization of legislative staff throughout the United States. In addition, she served on several RELACS association committees, including serving several years on the program committee, helping to assure that RELACS provided the highest quality professional development possible at national NCSL meetings.

    Debbie was also well known for teaching many of those professional development programs, both in-person at national meetings and through webinars. Most recently, she participated on a panel discussing The Drafting Manual as a Tool for Statutory Interpretation presented at the RELACS professional development seminar in September. While perhaps not the most exciting topic to non-legislative staffers, our drafting manual was very important to Debbie since she had diligently edited and updated it for decades.

    For her work with NCSL, Debbie received the Legal Services Staff Section Chair Award in 2011. And in 2012 she received the Legislative Staff Achievement Award for her long and distinguished career with the Colorado General Assembly.

    Clearly, Debbie was a valued, respected, and beloved member of the Capitol Community, well known and greatly appreciated by legislators, lobbyists, and staff from all of the legislative staff agencies. We will deeply miss her positive presence in the months and years to come, but she leaves to us a model of hard work and dedication to nonpartisan service that we will do well to follow.

     

  • The Committee on Legal Services

    by Patti Dahlberg

    This week LegiSource continues its series on the statutory committees that oversee the legislative staff agencies. So far the series has looked at the Legislative Council and the Audit Committee. This week, we review the history and duties of the Committee on Legal Services.

    The Committee on Legal Services is one of four joint “standing” or year-round legislative committees of the Colorado General Assembly charged with the oversight of a legislative staff agency.  The Committee on Legal Services has oversight responsibilities regarding review of executive branch agency rules, legislation review, publication of the Colorado Revised Statutes, and the general operations of the Office of Legislative Legal Services. In addition, the Committee also introduces several key statutorily required bills related to its oversight responsibilities and key responsibilities regarding state government.

    The Office of Legislative Legal Services (OLLS) and the Committee on Legal Services (Committee) were created in 1968 in Senate Bill 1 – an act “Concerning the Administrative Reorganization of State Government.” Section 178 of the bill established a Legislative Drafting Office as part of the legislative department “in order to promote the careful consideration of bills before their presentation to the general assembly by making the best technical advice and information readily available to legislators . . .”.  Prior to this date, employees of the attorney general’s office in the executive branch drafted the bills. Although renamed, repealed, and reenacted, the OLLS and its purpose remains the same. [Section 2-3-501, Colorado Revised Statutes (C.R.S.)]

    The General Assembly created the Committee, originally called the Legislative Drafting Committee, to supervise and direct the operation of the newly created drafting office. Again, there was a new name, some new wording, but still the same purpose. See also, “Legislature Passes the Laws – But Executive Branch Used to Write Them” (November 3, 2016) and “Revisor of Statutes Ensures Access to Colorado’s Laws” (November 17, 2016).

    Committee basics. Pursuant to section 2-3-502, C.R.S., the Committee consists of 10 members of the Colorado General Assembly. Committee members include the chairs of the House and Senate Judiciary Committees, or their respective designees, four members appointed from the House of Representatives, and four members appointed from the Senate. There must be two members appointed from each major political party, and at least one member from each party in each chamber must be an attorney, if there is an attorney in that party and chamber. The Speaker of the House, the President of the Senate, and the minority leaders of each chamber, appoint the Committee members from their respective parties and chambers, subject to the approval of a majority of the members in each respective chamber,  within the first 10 days after a first regular session convenes. The Committee selects its own chair and vice-chair. The Committee may meet as often as necessary, but is required to meet at least twice in each calendar year.

    The Committee has the following statutory duties:

    • Supervision and direction of Office of Legislative Legal Services. Pursuant to section 2-3-502 (1), C.R.S., the Committee is to “supervise and direct operations of the Office of Legislative Legal Services.” One of six legislative staff agencies, the OLLS is the nonpartisan, in-house counsel for the Colorado General Assembly and drafts legislation and produces the statutes in addition to its other statutory duties. In its supervisory role, the Committee recommends to the Executive Committee the appointment of a director for the OLLS and approves the OLLS’s annual budget.
    • Overseeing the review of executive branch agency rules by the OLLS staff. Under section 24-4-103 (8)(c)(I), C.R.S., all rules adopted or amended by state agencies during a one-year period that begins November 1 and continues through the following October 31 automatically expire the following May 15 unless the General Assembly passes a specific bill to postpone this expiration date. A “rule” is a formal written statement of law that a state agency adopts to carry out statutory policies and administer programs. The General Assembly authorizes an agency to make rules and then reviews and, if necessary, invalidates any rules that are not within the agency’s statutory authority or that conflict with state law. The OLLS staff review each rule and bring any rule issue they cannot resolve with an agency to the Committee for a rule hearing. At the hearing, the Committee decides whether to recommend expiration or extension of the rule. The Committee annually sponsors the Rule Review Bill that contains the Committee’s rule recommendations. See also, “The Legislature’s Role in the Review of Administrative Rules” (September 1, 2011) and “Legislative Oversight of State Agency Rule-making” (September 4, 2014).
    • Overseeing Legislation Review. Pursuant to section 24-4-108 (7), C.R.S., the Committee has established procedures for the annual review of newly adopted legislation and its impact on agency rules. After the legislative session ends each year, the OLLS staff identifies legislation that affects rules or requires or permits agencies to adopt rules. The OLLS staff sends a letter to each principal department listing bills that affect that department’s rule-making authority. In addition, the OLLS staff is directed by section 24-4-103 (8)(e), C.R.S., to notify bill sponsors, co-sponsors, and committees of reference when the OLLS receives rules that implement newly enacted legislation. The OLLS staff sends these notices by e-mail.
    • Litigation involving the General Assembly or its members. Pursuant to section 2-3-1001, C.R.S., the Committee may retain legal counsel to represent the General Assembly as a whole, the House, the Senate, a legislative committee, an individual member of the General Assembly, or a legislative staff agency or employee of the General Assembly in all actions and legal proceedings that arise from the performance of  legislative duties.
    • Supervising the preparation, printing, and distribution of the Colorado Revised Statutes. The Revisor of Statutes must perform numerous duties related to revising and compiling the Colorado Revised Statutes and Session Laws, all under the supervision and direction of the Committee (sections 2-3-701 to 2-3-705, C.R.S.). Section 2-5-104, C.R.S., authorizes the Committee to introduce one or more Revisor’s Bills each year, which may address “amendments or repeals of obsolete, inoperative, imperfect, obscure, or doubtful laws as the Revisor of Statutes considers necessary to improve the clarity and certainty of the statutes.” The Committee also sponsors an annual bill to enact the legislation adopted at the previous legislative session as the statutory law of Colorado. The Committee must contract through a bidding process for the printing, binding, and packaging of softbound volumes of the Colorado Revised Statutes and Session Laws. In addition, as part of its publication responsibilities, the Committee is overseeing the implementation of the “Uniform Electronic Legal Material Act” (section 24-71.5-101, C.R.S., et. seq.) as it relates to the electronic publication of the statutes and other legal materials.

  • Audit Committee Created to Boost Oversight of Public Money

    by Julie Pelegrin

    This week LegiSource continues its series on the statutory committees that oversee the legislative staff agencies. Last week, the series looked at the Legislative Council. This week, we review the history and duties of the Audit Committee.

    By the 1960s, the Colorado General Assembly, like many other state legislatures, was starting to consider ways to increase the efficiency and effectiveness of state government. To that end, they created a legislative interim study committee that met each interim starting in 1961 and continuing through the early 1970s.  Each year, the committee took up different aspects of state government to study. By the end of the legislative interim, they published a report, which usually included findings and recommendations for constitutional and statutory changes.

    In the legislative interim of 1963, one of the study topics was the state auditing function. At that time, the State Auditor was a constitutional officer in the executive branch elected to a four-year term. The constitution prohibited both the state treasurer and the state auditor from running for consecutive terms, so it sometimes worked out that the same two persons would swap offices at each election. The State Auditor’s only constitutional duty in 1963 was to serve on the State Board of Equalization, which reviews valuations for property tax assessments and approves property tax manuals and appraisal procedures. The State Auditor’s two main statutory duties were conducting post-audits of all state agencies in Colorado and reviewing the audits made of local governments.

    At that time, state auditing occurred in three areas, all housed in the executive branch: Pre-auditing by the state controller’s office, post-auditing by the State Auditor, and internal auditing within each state agency. A post-audit consisted of determining whether:

    • Revenues were collected in compliance with the law;
    • Money was expended in accordance with legislative intent and sound financial practice;
    • The executive branch was carrying out only the activities authorized by the legislature; and
    • The assets of the state were safeguarded and used properly.

    The General Assembly received the findings and recommendations generated by the post-audits, but the post-audits were conducted by an executive branch official.

    By the 1960s, almost half of the states had adopted the position that the post-audit function should be housed in the legislative branch and conducted independent of the executive branch, because the legislative branch was considered to be the guardian of the public money.

    Based on their studies, the committee recommended that the General Assembly refer a constitutional amendment to the ballot to move the State Auditor and the functions of the State Auditor to the legislative branch “where the post-audit function properly belongs.” The recommended constitutional amendment created section 49 of article V of the Colorado Constitution, which authorizes the General Assembly to appoint a state auditor, without regard to political affiliation, who must be a certified public accountant. The State Auditor’s term would be five years, a person would be limited to serving no more than two consecutive terms, and the General Assembly would be able to remove the State Auditor from office for cause with the approval of 2/3 of the legislators in both houses.

    The committee also recommended that, regardless of whether the constitutional amendment was adopted, the General Assembly should create a joint legislative audit review committee to assist in carrying out the post-audit program in the state.

    In November of 1964, voters passed Senate Concurrent Resolution No. 3, adopting the committee’s recommended constitutional changes.[1] During the 1965 regular legislative session, the General Assembly adopted House Bill No. 1051. The bill enacted section 2-3-101, C.R.S., which created the Legislative Audit Committee consisting of eight members: Four appointed from each chamber, with two each appointed by the President and minority leader of the Senate and the Speaker and minority leader of the House of Representatives. All of the appointments must be approved by a majority vote of the legislators elected to the chamber from which the committee members are appointed, but an appointing authority may temporarily replace one of his or her appointments with a different legislator without the approval of the chamber.

    Legislative Audit Committee members are appointed every two years at the beginning of the first legislative session of each general assembly, and a legislator may be appointed to multiple terms on the committee so long as he or she remains in the General Assembly. The committee selects its chair and vice-chair from among the committee membership and sets its own rules of procedure. The committee may also appoint subcommittees to help it complete its duties, which may include legislators who are not members of the committee and other persons.

    The Legislative Audit Committee must meet at least quarterly each year and has the following major duties:

    • Examining the qualifications and abilities, without regard to political affiliation, of persons who apply for the position of State Auditor and, after consulting with the executive committee, nominating the most qualified person or persons for the General Assembly to select as State Auditor;
    • Reviewing the State Auditor’s activities and post-audit reports of all departments, state institutions of higher education, agencies of state government, and other public agencies including local governments and submitting its recommendations to the General Assembly, the Governor, and other interested officials;
    • Reviewing the performance audits that the State Auditor is required to conduct;
    • Reviewing the enterprise designations of the auxiliary facilities of the state institutions of higher education and the enterprise designation of the student loan division to ensure compliance with the statute and with the constitution and to determine whether any of the designations should be allowed to expire; and
    • After receiving a report involving retaliation against a state employee for disclosing information concerning waste of public funds or mismanagement of a state agency, directing the auditor to investigate and determine whether a fiscal audit, performance audit, or management study of the issue is necessary. Based on the investigation report, the committee will direct the State Auditor to immediately conduct a special audit or a management study or it may direct the State Auditor to wait until the regularly scheduled audit.

    You can access the committee’s schedule and agenda, as well as recently released audits, through the Legislative Audit Committee page on the General Assembly website. The committee’s next meeting is scheduled for October 30.

    [1] Section 49 of Article V of the Colorado constitution was amended in 1974 to allow a person to serve unlimited consecutive terms as State Auditor.

  • 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.

  • Teachers’ Loyalty Oaths and the Constitution

    by Julie Pelegrin

    Last week, we discovered that teachers and professors must take an oath to uphold the federal and state constitutions and to faithfully perform their duties. Originally, however, they also had to swear to “teach … respect for the flags of the United States and of the State of Colorado, reverence for law and order and undivided allegiance to the government of one country, the United States of America.”

    Several states adopted similar requirements generally starting in the 1920s and continuing into the 1950s. During this period, many people were concerned about the possibility of subversive elements within the government, including the public schools. By the 1960s, teachers and professors were concerned that taking these oaths violated their constitutional rights. So they started suing.

    One of the first cases was Baggett v. Bullitt out of Washington. In 1931, the state of Washington passed a law requiring teachers to take an oath that was almost verbatim the same as the oath adopted in 1921 in Colorado. In the early 1960s, a group of faculty, staff, and students at the University of Washington sued, claiming the oath was unconstitutionally vague. Generally, courts have held that a law that forbids or requires conduct in terms so vague that persons of common intelligence have to guess what it means is unconstitutional because it violates due process.

    The plaintiffs lost at the trial court level, so Baggett v. Bullitt ended up in front of the U.S. Supreme Court in 1964 where the Court held that the oath was too vague. The Court recognized that there are many activities that could be interpreted as violating a promise to promote respect for the flag, including refusing to salute for religious reasons.

    The Court also found that it would be difficult to predict what actions could be interpreted as violating a promise to “promote … undivided allegiance to the … United States of America.” The Court found that

    It would not be unreasonable for the serious-minded oath taker to conclude that he should dispense with lectures voicing far-reaching criticism of any old or new policy followed by the Government of the United States. He could find it questionable under this language to ally himself with any interest group dedicated to opposing any current public policy or law of the Federal Government, for if he did, he might well be accused of placing loyalty to the group above allegiance to the United States.

    Despite the Baggett decision, the Colorado statute remained on the books. Then in 1967, University of Colorado Professor Alan Gallagher refused to take the oath and sued the president of the university—Joseph Smiley— and the Board of Regents. Professor Gallagher claimed the oath violated his constitutional rights because it was vague and overly broad. The federal district court for Colorado agreed. They followed the Baggett decision and issued an injunction prohibiting CU from requiring its professors to take the statutory oath.

    But before the court ruled, the CU Board of Regents in February of 1967 had adopted a resolution requiring CU professors to take a different oath:

    I solemnly swear or affirm that I will support the Constitution of the State of Colorado and of the United States of America and the laws of the State of Colorado and of the United States.

    Professor Gallagher’s case did not challenge the Board of Regents’ new oath, and the court did not consider whether it was constitutional. So, the court’s injunction prohibited CU from requiring the statutory oath, but faculty still had to take the Regents’ oath.

    A few months later in the fall of 1967, a group of CU professors and employees, this time led by Professor Elizabeth Hosack, sued claiming the Regents’ oath was also unconstitutionally vague and that it violated their First Amendment rights to freedom of expression.

    The United States District Court for the District of Colorado found that the Regents’ oath was not unconstitutionally vague, but “plain, straight-forward, and unequivocal. A person taking it is not left in doubt as to his undertaking. The obligation assumed is one of simple recognition that ours is a government of laws and not of men.”

    The panel also found that the oath did not infringe on the professors’ and employees’ freedom of expression.

    Recognition of and respect for law in no way prevents the right to dissent and question repugnant laws. Nor does it limit the right to seek through lawful means the repeal or amendment of state or federal laws with which the oath taker is in disagreement. Support for the constitutions and laws of the nation and state does not call for blind subservience.

    This opinion came out in December of 1967, and in 1969 the General Assembly passed House Bill No. 1194, which changed the wording of the statutory oath to what we have today:

    I solemnly (swear) (affirm) that I will uphold the constitution of the United States and the constitution of the state of Colorado, and I will faithfully perform the duties of the position upon which I am about to enter.

    The statutory oath is similar to the Regents’ oath; the teacher or professor is promising to uphold the federal and state constitutions and to faithfully perform his or her duties. Further, there is no mention of respect for the flags, reverence for law and order, or undivided allegiance.

    In the fall of 1969, a group of Denver Public School teachers and professors from several Colorado universities and colleges sued in federal court to prevent implementation of the new oath. Again, they were claiming that the oath was unconstitutionally vague and deprived them of their First Amendment rights. And again, the federal district court disagreed, upholding the statute as constitutional.

    The three-judge panel followed the decision in the Hosack case, finding that there was nothing vague about promising to uphold the federal and state constitutions. The plaintiffs then claimed that the promise to faithfully perform their duties was too vague. The judges disagreed. “The state can reasonably ask teachers in state schools to subscribe to professional competence and dedication. This portion of the oath…imposes no restrictions on a teacher’s political expressions. It is certain that there is no right to be unfaithful in the performance of duties…. ”

    At the end of its decision, the panel of judges admitted that they were puzzled as to why the plaintiffs found the taking of an oath so “obnoxious.” While the court understood that the plaintiffs felt that they didn’t know what they were promising and had reservations about what the significance of the oath was, the court refused to find these reservations as a basis for holding the oath invalid. “The decision as to [the] worth or value [of the oath] is for the legislature, and we are not prepared to say that it does not serve a purpose any more than we could say that the constitution itself is valueless.”

    The loyalty oath for teachers and professors remains in the Colorado Revised Statutes. Presumably the General Assembly continues to find that it serves a purpose.

  • Teachers Required to Pledge Their Loyalty…Still

    Teachers Required to Pledge Their Loyalty…Still

    by Julie Pelegrin

    Since 1921, the law has required elementary, junior, and high school teachers and college and university professors to take what’s called a “loyalty oath” affirming their loyalty to both the country and the state. The wording of the oath has changed over the years and been challenged a couple of times in court, but it’s still on the books as a requirement for licensed teachers or for employment as faculty in a public postsecondary institution.

    Oaths to uphold the constitution are common for elected officials. Since 1876, the Colorado Constitution has required every legislator and every other elected officer to take an oath to uphold the U.S. and Colorado constitutions and to “faithfully perform the duties of his office according to the best of his ability.”

    But in 1921, the General Assembly passed S.B. No. 123, by Senator Alexander R. Young and Representatives Mabel Ruth Baker and Charles C. Sackmann, entitled “An act to provide for an oath or affirmation of allegiance to be taken by all persons who are teaching or who may hereafter be employed to teach in public, private or parochial schools or other institutions of learning in the state of Colorado.”

    Why then? And why teachers?

    Think back to your American and world history classes. The United States helped broker the armistice that ended World War I—the “war to end all wars”— in 1918. Also, the Russian Revolution, which eventually resulted in the Bolsheviks taking over the government and installing the Communist regime, occurred in 1917.

    According to the Fort Collins Courier, in an editorial titled “Teachers Must Swear Loyalty,” published August 23, 1919, during the war, “a number of cases came to light of teachers who openly or by clever insinuation tried to undermine the children’s belief in their country, its cause and in the fundamental ideals of honest democracy. Although such cases were not common, they were numerous enough to create a real menace.” The Steamboat Pilot (“Gossip of State Capital” Feb. 16, 1921), also noted that “[d]uring the World war many disloyal teachers were uncovered, especially in Denver.”

    The Courier was in favor of a new law passed by Ohio that required all teachers in public, private, and parochial schools to take an oath of allegiance to the United States, at least for elementary, middle, and high schools. However, with regard to colleges and universities, the Courier thought “application of the law to be of dubious wisdom.” They didn’t want the law to cut off the benefits of having exchange professors who explained the viewpoints of their respective countries. They recognized that lectures by professors visiting from other countries could “bring about a pleasanter relationship based on mutual understanding.” But they also noted that the law “would of course keep out the propagandist and the man with dangerous alien doctrines.”

    Support for the bill was not unanimous across the state, however. The Leadville Herald Democrat opposed the bill in February of 1921, noting that the governor of Montana had vetoed a similar bill and urging Governor Shoup of Colorado to do the same once the bill landed on his desk. The Herald Democrat noted that requiring a teacher to declare his or her belief in the “‘American form’ of government” was supposed to “minister to a sort of super-patriotic sentiment” and keep “dangerous radicals” from putting the wrong ideas into students’ heads. But the effect of this requirement is actually to put “powerful weapons in the hands of the political heresy hunters, a phrase that [the Montana] governor uses….” It concluded with the remark: “The state needs good teachers, not automatons.” (Leadville Herald Democrat, “A False Political Test” February 6, 1921.)

    Despite the Herald Democrat‘s misgivings, the bill sailed through the legislature. It was introduced in the Senate on January 13 and passed on third reading in the House on February 7 without amendment. On February 15, 1921, Governor Shoup signed it into law.

    In June, the Herald Democrat was still railing against it. “The truth is that these and kindred measures are after-war reactions, based on the theory that the country is full of radicalism, revolution and strange doctrine.” The article notes that in the most recent election, “radical parties were almost wiped off the slate” and argues that the real threat to “the structure of Americanism” is “the introduction of too much of the Prussian system of state worship…” (Leadville Herald Democrat, “The Oath of a Teacher” June 4, 1921.)

    That fall, the American Legion held its national convention in Kansas City from October 31 to November 2. The Routt County Sentinel reported the convention highlights, including a list of items included in the Legion’s platform. Among other issues, the American Legion included these planks:

    Education in citizenship is the keynote of Americanism.

    That American history and civil government be taught more thoroughly in our public schools.

    Favoring state laws requiring every teacher to take an oath of allegiance to uphold the constitution and the conciliation of certificates of those teachers found disloyal to the American government.

     (Routt County Sentinel, “High Lights on Legion’s National Convention” Nov. 25, 1921.)

    Based on the newspaper coverage, we can deduce that the teacher loyalty oath statute arose out of the support for “Americanism” that was engendered by World War I and the threat, real or perceived, of anti-American, anarchist, and possibly Communist elements in society. So starting in the fall of 1921 and each year thereafter, all new teachers and professors were required to solemnly swear or affirm:

    [T]hat I will support the constitution of the State of Colorado and of the United States of America and the laws of the State of Colorado and of the United States, and will teach, by precept and example, respect for the flags of the United States and of the State of Colorado, reverence for law and order and undivided allegiance to the government of one country, the United States of America.

    Until 1969, that is. That year, the General Assembly amended the oath to its current form:

    I solemnly (swear) (affirm) that I will uphold the constitution of the United States and the constitution of the state of Colorado, and I will faithfully perform the duties of the position upon which I am about to enter.

    Why the change? And why then?

    We’ll talk about that next week. Hint: The answers lie with the judicial branch.

  • Statutory Revision Committee: Looking Back, Looking Ahead

    by Kate Meyer

    As we informed you last year, the General Assembly recreated the Statutory Revision Committee (SRC) through legislation enacted in 2016. Generally, the SRC makes an ongoing examination of the Colorado Revised Statutes (C.R.S.) to discover and—via legislation—rectify defects and anachronisms in the law. The SRC recommenced meeting during the 2016 interim and has had a very productive year.

    2017 session
    In the 2017 legislative session, the SRC recommended for introduction 26 bills, all of which the General Assembly passed and the Governor signed into law.  By way of comparison, this figure falls within the range of bills previously recommended by the SRC’s predecessor entity (also known as the “Statutory Revision Committee,” this entity existed from 1977-1985), which annually recommended between 12 and 39 bills.

    The majority (i.e., 18 of the 26) of the SRC’s 2017 bills conformed existing reporting requirements with the language in section 24-1-136 (11)(a)(I), C.R.S., which imposes an automatic three-year repeal of reports to the General Assembly from executive branch agencies and the judicial branch. In consultation with the reporting entities and the Joint Budget Committee, the SRC bills aligned statutory reporting requirements with the automatic repeal. In some cases, the SRC bills repealed reports that were no longer necessary due to lack of funding, expired programs, lack of information to report, redundant information included in other reports, etc.

    Other SRC-sponsored bills:

    • Eliminated out-of-date and unintelligible descriptions of congressional and state House and Senate boundaries (HB17-1074 and HB17-1025, respectively);
    • Removed redundant sections in Title 25, C.R.S., that resulted from an incorrect technical amending clause contained in a 2016 bill (SB17-018);
    • Updated various obsolete and outdated laws relating to the state auditor’s office (HB17-1005);
    • Relocated the Commission on Family Medicine laws to a more appropriate title of the C.R.S. (HB17-1024);
    • Repealed an antiquated duty of the state treasurer and controller to physically post lists of all uncashed warrants and uncashed checks (SB17-046);
    • Rectified incorrect references in Title 22, C.R.S. (SB17-052); and
    • Corrected out-of-date references to American National Standards Institute standards for accessible housing (HB17-1067).

    Overall, more than 30 pages of statutory text were repealed or modernized through SRC-recommended legislation.

    Current committee composition and activity
    The committee consists of four legislators (two appointees from the majority and minority leaderships in each house) and two nonlegislator, nonvoting attorneys appointed by the Committee on Legal Services. The current appointees are: Senator Beth Martinez Humenik (Chair), Senator Dominick Moreno (Vice-Chair), Representative Jeni James Arndt, Representative Edie Hooton, Representative Dan Nordberg, Senator Jack Tate, Representative Dan Thurlow, Senator Rachel Zenzinger, Patrice Bernadette Collins, and Brad Ramming.

    The SRC met in June 2017 and requested staff to draft two bills: One to reorganize without substantive change the state sales tax exemption for certain drugs and medical and therapeutic devices; and one to repeal the odometer reading requirement for VIN verifications. The committee meets again on Monday, August 21, 2017, to decide whether to recommend those bills, which requires an affirmative vote from at least five of the legislative committee members, and to hear staff presentations on another 13 potential bills. The items slated to be addressed during the August 21 meeting encompass a wide breadth of subjects, including:

    • An apparent statutory conflict over whether deputy sheriffs must be certified by the Peace Officers’ Standards and Training (P.O.S.T.) Board;
    • Various laws held to be unconstitutional relating to sexually explicit materials harmful to children, same-sex marriage, interest on damages in § 13-21-101 (1), C.R.S., and per-signature pay of ballot issue petition circulators;
    • Antiquated or ambiguous terms, such as “pauper,” “husband and wife,” or “mother and father;” and, with respect to children, “legitimate/illegitimate;”
    • Unfunded department of human services programs; and
    • Outdated and inconsistent state officials’ bonds and oaths requirements.

    The bill drafts, memoranda, and assorted documents for the August 21 meeting are all available through this link: http://leg.colorado.gov/publications/meeting-agenda-statutory-revision-committee-20170821 and the audio from the meeting can be live-streamed here: http://leg.colorado.gov/committee/granicus/933566.

    The SRC expects to meet in October 2017 as well—date to be determined.

    Know of any antiquated, redundant, or contradictory laws? Please feel free to contact SRC staff via email: StatutoryRevision.ga@coleg.gov.