An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.
The Colorado LegiSource is taking a break for the next several weeks. We expect to resume weekly postings on July 12. In the meantime, if you have questions you would like answered or issues you would like to see discussed on the Colorado LegiSource, please contact us using our feedback form.
By Julie Pelegrin
For the first time since the 2012 regular legislative session, both the House of Representatives and the Senate worked until midnight on the 120th legislative day before gaveling closed the second regular session of the Seventy-first General Assembly. Actually, the General Assembly wrapped up at 11:58 p.m. in 2012. For the most recent true midnight sine die, you have to go all the way back to 2002.
And there were some other unusual things about the 2018 legislative session.
Representatives introduced 441 bills, Senators introduced 280 bills, for a grand total of 721 bills. That’s the highest number of bills introduced in a single session in over a decade. Ten days before the session ended, there were still 276 bills pending passage. In the last three days of the session, the General Assembly voted on approximately 126 bills.
There was nothing unusual about the wide range of topics under consideration this session. There were several bills recommended by the Opioid and Other Substance Use Disorders Interim Study Committee, bills to address the teacher shortage, bills concerning school and student safety, a bill to expand access to broadband in rural areas, bills for tax credits, bills on marijuana, gun bills, higher education bills, bills addressing the competency of juveniles and other defendants, bills on a stunning array of topics. And, of course, there was the bill to fund the operations of the executive and judicial departments for the 2018-19 fiscal year: the budget bill.
Legislators had an unusual revenue windfall to apply toward the 2018-19 fiscal year, which resulted in a $150 million increase in funding for preschool, elementary and secondary education; a nine percent overall increase in funding for higher education; $495 million for transportation projects; and $225 million for the Public Employees’ Retirement Association (PERA).
And speaking of transportation and PERA…
One of the bills passed during the last two days of the 2018 legislative session was the first introduced: Senate Bill 18-001. After trying for several consecutive legislative sessions, the House and the Senate members were able to craft an agreement and pass a transportation bill. In addition to the $495 million for transportation projects just mentioned, the bill authorizes an additional $150 million in projects in the 2019 fiscal year and allows the state to request voter approval for $2.34 billion in transportation bonds.
The PERA bill—Senate Bill 18-200—took longer to wrap up. The conference committee (three representatives and three senators who meet to work out the differences between the House version and the Senate version of the bill) was formed Wednesday, May 2 but did not meet until late on the last night. The Senate passed the conference committee report and took final action on the bill at 11:10 p.m., less than an hour before adjournment. In its final form, the bill generally adjusts contribution levels, age of retirement, and cost-of-living increases to strengthen the solvency of the PERA system.
But that wasn’t the last controversial bill to pass. The House of Representatives took final action on House Bill 18-1256, which continues the existence of the Civil Rights Division and Commission within the Department of Regulatory Agencies, at 11:30 p.m. by repassing the bill and sending it to the Governor’s desk.
And still, the controversy continued.
The last bill considered during the 2018 session—Senate Bill 18-252—addressed determining the competency to proceed of a person who has mental illness and is accused of a crime. The conference committee met earlier in the day and reached a conclusion, although not all of the committee members agreed with the outcome. The House adopted the conference committee report and repassed the bill, and by about 11:30 p.m., it was ready for Senate action. The bill sponsor explained the conference committee report and asked for an aye vote. But at that point—about 11:40 p.m.—Senator Aguilar began speaking against the conference committee report, urging a no vote. She explained her reasons, and kept explaining her reasons, until the President banged the gavel at midnight and the Majority Leader made the motion to adjourn sine die. In one of the most unusual moves to occur in several years, the last bill of the session died at midnight due to a filibuster.
But there’s still one unusual outcome from the 2018 session that we must mention.
Each year, before they adjourn, the General Assembly passes a joint resolution to set the date for convening the next regular legislative session. This year, because of overlapping constitutional provisions (we’ll explain in a later post), the General Assembly set the date for convening the 2019 regular legislative session for January 4, 2019. Does that sound early to you? Well it is. And it’s a Friday; the legislative session usually starts on a Wednesday. Silver lining: The 2019 session will end on Friday, May 3, 2019, thanks to the 120-day constitutional limit.
The early start date drove the General Assembly to change the bill request deadlines. This year, each returning legislator must submit at least three bill requests to the Office of Legislative Legal Services no later than November 26, 2018. Each legislator who is newly elected to the General Assembly must submit at least three bill requests no later than December 10, 2018. Both of these dates are about a week earlier than usual.
Having survived one of the more unusual sessions in recent memory, we’re all looking forward to a nice, quiet interim – at least until the interim committees start meeting in July or August.
by Julie Pelegrin
In December of 2015, we told you about the case of Masters v. School District No. 1, in which several teachers who were placed on unpaid leave by the Denver Public School District (DPS) sued the district for violating what they claimed were statutory rights to continued employment. Specifically, they claimed that the teacher employment statute creates a private contract between the teachers and the school district, and certain provisions of S.B.10-191 (S.B. 191) unconstitutionally interfere with that contract. They also claimed that the teacher employment statutes create a property interest in continued employment, which S.B. 191 unconstitutionally takes away.
S.B. 191 includes several provisions, one of which says that a teacher cannot be placed at a public school unless the principal of the school and two teachers who represent the school staff agree to the placement. This is called the “mutual consent” provision—both the employer (principal) and the employee (teacher) have to agree to the placement. S.B. 191 also says that, if a teacher who is displaced cannot secure a mutual consent placement within the shorter of 12 months or two hiring cycles, the school district may place the teacher on indefinite unpaid leave until he or she secures such a placement. Once the teacher secures a mutual consent placement, the school district must reinstate the teacher’s salary and benefits at the level they would have been at if the teacher had not gone on unpaid leave. To further refresh your memory regarding S.B. 191 and the facts of the Masters case, check out “Court Continues Consideration of S.B.191 Provisions for Unpaid Leave”.
In December of 2015, the Colorado Court of Appeals sided with the teachers, agreeing that S.B. 191’s unpaid leave provisions interfered with the teachers’ employment contract and unconstitutionally deprived them of a property interest in their salaries and benefits. But, we noted at the end of our article that DPS had just filed for review by the Colorado Supreme Court.
The Court granted review and on March 12 of this year handed down its decision reversing the court of appeals. Unlike the court of appeals, the Court decided that the teacher employment law passed in 1990 (the 1990 law) not only removed the word tenure, but also removed any legitimate expectation that a teacher may have in continued employment with the school district. For this reason, the teacher employment law does not create a contractual relationship between teachers and their employing school districts. And the teacher employment law does not give teachers a vested property interest in salary and benefits, so placing the teachers on unpaid leave does not violate their constitutional right to due process.
No Contractual Relationship
The teachers argued that the 1990 law created a contractual relationship between teachers and their employing school districts and that the provisions of S.B. 191 unconstitutionally interfere with that contract by allowing the school district to place them on unpaid leave.
In considering this claim, the Court found that, to interpret a statute as creating a contract, there must be specific language indicating that the General Assembly intended to create a contract that it would be unable to interfere with later. The teacher employment law in place before 1990 (the old law) used the word “tenure.” By definition, a teacher who has tenure cannot be summarily fired and thus has an expectation of continued employment. The old law also used entitlement language, stating that under certain circumstances a teacher was “entitled” to employment as a teacher. So the Court agreed with the court of appeals that the old law created a contractual relationship.
But when the General Assembly rewrote the teacher employment law in 1990, it removed the word tenure and it removed any references to an entitlement or to the duration of employment. The Court found that, by removing these references when the General Assembly passed the 1990 law, the General Assembly specifically did not intend to create an employment contract for teachers that it could not interfere with later. The 1990 law did not create a contractual relationship between teachers and their employing school districts. Therefore, the mutual consent requirements of S.B. 191 do not unconstitutionally interfere with a contract.
No property interest in salary and benefits
The Court also considered the teachers’ claim that they have a property interest in receiving their salaries and benefits that the school district cannot take away without due process—providing them at least notice and an opportunity to be heard.
The Court agreed that the constitution states a person cannot be deprived of “life, liberty, or property, without due process of law.” However, the constitution doesn’t define property; it is defined by rules or understandings that come from an independent source, such as state law. So, again, the Court looked at the 1990 law to determine whether it creates a property interest that is protected by the constitution. And they concluded that it does not.
As mentioned before, the 1990 law does not use the term “tenure” or other words of entitlement or other suggestions that employment—and the right to receive salary and benefits as a result of employment—is guaranteed to continue for any length of time. The General Assembly removed all of that language in 1990, and therefore the teacher employment statute does not create a property interest in salary and benefits. For this reason, when DPS placed the teachers on unpaid leave, it did not violate their due process rights because their expectation of receiving salary and benefits is not protected by due process.
It’s interesting to note that the Supreme Court decided a similar case at the same time that it decided the Masters case. Johnson v. School District No. 1 also involved a teacher—Linda Johnson—who sued DPS after they placed her on unpaid leave when she could not secure a mutual consent placement. She brought her case in federal court, claiming a violation of the federal constitutional guarantee of due process. The federal district court found that, since her employment was not actually terminated, she was not deprived of a property interest. She appealed the decision to the Tenth Circuit Court of Appeals, and they certified the legal questions to the Colorado Supreme Court.
The Court took the same approach in the Johnson case that they took in the Masters case and came to the same conclusion. In Johnson, they specifically found that, in passing the 1990 law and specifically removing the word “tenure” and the durational and entitlement language, the General Assembly intentionally eliminated any property interest in salary and benefits for teachers.
Application of the mutual consent requirement
The Johnson case addressed another interesting question concerning the mutual consent provision. Ms. Johnson argued that the mutual consent requirement should apply only if a teacher was removed from a school for one of the reasons listed in the statute: an enrollment decrease; restructuring for turnaround; phasing out a program; reducing programs; or reducing buildings, including closures, consolidations, or reconstitutions.
In Ms. Johnson’s case, DPS had tried to fire her in 2008, but after her termination hearing, the hearing officer recommended that she be retained. So DPS assigned her to a probationary position at a school building for the 2009-10 school year, which was extended for the next year. She was assigned to a different school for the 2010-11 school year. Throughout this time, Ms. Johnson tried to secure a permanent position, but was unable to do so. At the end of the 2010-11 school year, DPS put her on indefinite unpaid leave under the mutual consent provisions of S.B.191.
Ms. Johnson argued that, because she was not displaced for one of the causes listed in the statute, she should not be subject to the mutual consent placement requirements. However, in interpreting the statute, the Court found that the reasons for displacement listed in the statute were not exclusive. In applying various canons of statutory construction, the Court concluded that, in reading the statute as a whole, it appears the General Assembly intended the mutual consent provisions to apply regardless of the reason for which the teacher was displaced,. And to hold that mutual consent applies if the teacher was displaced because of one of the listed reasons, which have nothing to do with the teacher’s performance, but does not apply if the teacher was displaced specifically because of her performance would be absurd.
So, it appears that the constitutionality and application of the mutual consent provision of S.B.191 are settled issues. And, going forward, it appears that a teacher cannot claim to have a property right in his or her employment, salary, or benefits.