Colorado LegiSource

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

Month: October 2018

  • Legislative Council Reviews and Approves 2018 Interim Committee Bills – Part I

    Since July, several legislative interim study committees met to hear testimony from experts and discuss policy issues that the Legislative Council prioritized for study last spring.  On Monday, October 15, the Legislative Council met to consider the bills recommended to them by these study committees. This week and next we will provide a summary of those bills that the Legislative Council approved.

    Before summarizing bills, we note that of the 13 prioritized committees, one – the Legislative Interim Committee on School Finance – is exempted by statute from the requirement to obtain approval of the Legislative Council to introduce its bills; and the Legislative Interim Workplace Study Committee must submit its recommendations to the Executive Committee. Accordingly, these committees met, but neither of them recommended bills to the Legislative Council.

    Alternatives to the Gallagher Amendment Interim Study Committee

    The Alternatives to the Gallagher Amendment Interim Study Committee met a total of five times over the 2018 interim, including one meeting in Glenwood Springs and one meeting in Pueblo. The committee had discussions with representatives of local fire, library, and water districts and county commissioners, as well as heard public testimony from the state’s small business community, regarding the impact of the Gallagher Amendment and the financial burden experienced as a result.

    At its final hearing on October 3, 2018, the committee considered seven bills and recommended three of them to the Legislative Council. At the Legislative Council meeting on October 15, 2018, the Council voted to introduce Bill B only:

    Bill B: Concerning the establishment of regional residential assessment rates.
    In response to contrasting residential property values across the state, the bill establishes eight regions in the state (according to the regions managed by the regional offices within the division of local government in the department of local affairs as of January 1, 2019) that the property tax administrator is then required to determine the residential assessment rate for, as opposed to the state-wide residential assessment rate currently required by law.

    To review the bills recommended by the Alternatives to the Gallagher Amendment Interim Study Committee, including those not approved by the Legislative Council, please visit the committee’s website. For questions concerning the legislation, please contact Ed DeCecco.

    Water Resources Review Committee

    The Water Resources Review Committee met six times during the 2018 interim. At the September 27, 2018, meeting, the committee considered and voted on five bill drafts and two joint memorial drafts that committee members requested in August. Pursuant to section 37-98-103 (1), C.R.S., a two-thirds majority of the Water Resources Review Committee members must vote to report a bill draft to the Legislative Council. Although the committee voted to report both of the joint memorial drafts to the Legislative Council, only two of the five bill drafts were approved by the necessary two-thirds majority of the committee.

    Bill A: Concerning the Republican river water conservation district, and, in connection therewith, expanding the boundaries of the district and adjusting the meeting schedule of the district’s board of directors.
    The boundaries of the Republican river water conservation district are currently established by statute as certain counties and portions of counties that are within the Republican river basin. The bill expands the boundaries by including in the district areas where groundwater pumping depletes the flow of the Republican river as contemplated by applicable United States Supreme Court case law. The composition of the district’s board of directors is adjusted accordingly. Current law requires the Republican river water conservation district board of directors to conduct regular quarterly meetings in January, April, July, and October. The bill changes these months to February, May, August, and November.

    Bill B: Concerning the methodology to distribute money in the severance tax operational fund after core departmental programs are funded without changing the transfers to the natural resources and energy grant programs.
    Money in the severance tax operational fund (operational fund) is primarily used for two purposes. The general assembly annually appropriates money from the operational fund for several core departmental programs, which were previously described as “tier-one programs”. If money remains after these appropriations and after a reserve requirement for the core departmental programs is satisfied, then the state treasurer transfers money to an array of funds that support natural resources and energy grant programs, which were previously described as “tier-two programs”. There is also a requirement that the reserve include an amount equal to 15% of the maximum transfers to natural resources and energy grant programs required by law, and this reserve is used for the transfers, if necessary. The bill changes the distribution of the money in the operational fund as follows:

    • Separates the reserve into the core reserve and the grant program reserve, while maintaining the overall purpose of each reserve;
    • Increases the maximum grant program reserve to 100% of the maximum transfers to the natural resources and energy grant programs required by law, which currently is equal to $36,378,072;
    • Requires the state treasurer to make the transfers to the natural resources and energy grant programs on August 15 after a fiscal year and to base the transfers on actual revenue as opposed to estimated revenue. Money from the grant program reserve may be used for these transfers; and
    • If all of the appropriations and transfers have been made and both reserves are full, then the state treasurer is required to transfer any money remaining in the operational fund to the severance tax perpetual base fund.

    Joint Memorial A: Concerning memorializing the United States Congress to fulfill the commitment of the federal government to provide funding for the Arkansas Valley Conduit project.
    This Senate joint memorial asks the United States Congress to fulfill its commitment to provide funding for the Arkansas Valley Conduit project, which was authorized by Congress as part of the Fryingpan-Arkansas Project in 1962 as a means to address water quality and availability issues in the Arkansas River basin east of Pueblo but was never built, largely because of the inability of participants to repay construction costs.

    Joint Memorial B: Concerning memorializing the United States Congress to enact legislation directing the United States Army Corps of Engineers, in conjunction and cooperation with the Lower Arkansas Valley Water Conservancy District, to dredge a portion of the Arkansas River.
    This Senate joint memorial asks the United States Congress to immediately enact legislation that directs the United States Army Corps of Engineers, in conjunction and cooperation with the Lower Arkansas Valley Water Conservancy District, to dredge a portion of the Lower Arkansas River from below the Fort Lyons diversion to the John Martin Reservoir, including a “pinch point” through which the river passes as it traverses between the towns of La Junta, on the south bank, and North La Junta, on the north bank.

    To review the bills and memorials recommended by the Water Resources Review Committee, please visit the committee’s website. For questions concerning the legislation, please contact Thomas Morris, Jennifer Berman, or Richard Sweetman.

    Wildfire Matters Review Committee

    The Wildfire Matters Review Committee held four hearings during the 2018 legislative interim. During these hearings, the committee heard from public and private agencies and organizations on the front lines of wildfire prevention and mitigation in Colorado, including the Division of Fire Prevention and Control within the Department of Public Safety, the United States Forest Service, the Colorado State Forest Service (CSFS), the Colorado Division of Insurance, public utilities, the Colorado State Fire Chiefs, and the Colorado Sheriff’s Association. Over the course of its hearings, the committee heard presentations on such topics as the use of drones in fire suppression, the role of forest management in mitigating wildfire risk, the condition of the state’s timber industry, incentives from insurers and local governments to assist in fire mitigation efforts, the effects of the Gallagher Amendment on local fire-fighting resources, the efforts of utilities to make their systems more resistant to natural disasters, and partnerships the CSFS has entered into with other stakeholders to improve wildfire fighting and mitigation efforts.

    At its final meeting, the committee voted to recommend four bills to the Legislative Council, three of which were approved.

    Bill A: Concerning development of a system to patrol the airspace above wildland fires.
    This bill requires the center of excellence for advanced technology aerial firefighting, subject to available appropriations, to study and, if feasible, implement a system to patrol the airspace above a wildland fire.

    Bill B: Concerning measures to mitigate the effects of wildfires within wildland-urban interface areas, and, in connection therewith, creating a state grant program to promote forest management fuels reduction projects in such areas.
    This bill creates a state grant program that the CSFS will administer to fund proactive forest management fuels reduction projects to reduce the impacts to life, property, and critical infrastructure caused by wildfires. Groups of individual landowners whose land is in an area covered by a community wildfire protection plan are eligible to apply for a grant award. The bill specifies requirements pertaining to the evaluation of grant proposals. The CSFS must select the proposals that will receive funding, administer the grant program, and develop procedures by which applicants will apply for grants. The bill imposes a monetary limit on the amount of a grant and requires a grant applicant to demonstrate an available amount of matching funds to be awarded a grant. The bill requires the CSFS to report annually to the general assembly on the number, location, and benefits of all projects for which a grant award is made.

    Bill D: Concerning the power of a county to restrict the use of fireworks during the period between May 31 and July 5 of any year.
    Under current law, a county may prohibit or restrict by ordinance the sale, use, and possession of fireworks, including permissible fireworks (fireworks restrictions), for a period that does not exceed one year in length within all or any part of the unincorporated areas of the county; except that the county may not have such an ordinance in effect between May 31 and July 5 of any year unless the ordinance includes an express finding of high fire danger, based on competent evidence. The bill specifies that such an ordinance is in effect for the period between May 31 and July 5 of any year only if the county adopts by resolution such fireworks restrictions for such period, which resolution includes an express finding of high fire danger, based on competent evidence.

    The bill also adds as a source of competent evidence justifying a finding of high fire danger predictions of future fire danger such as those issued by the national interagency coordination center or any successor entity.

    To review the bills and memorials recommended by the Wildfire Matters Review Committee, please visit the committee’s website. For questions concerning the legislation, please contact Bob Lackner or Megan Waples.

    Opioid and Other Substance Use Disorders Study Committee

    The Opioid and Other Substance Use Disorders Study Committee met five times over the interim and heard from state agencies and officials and stakeholders representing all aspects of the substance use disorder crisis. The committee also held several stakeholder meetings to discuss potential legislation. The committee requested the drafting of five bills and voted to advance all five bills to Legislative Council. Of the five bills recommended, the Legislative Council approved two:

    Bill B: Concerning supports for persons recovering from substance use disorders, and, in connection therewith, expanding a program in the department of local affairs that provides vouchers for housing assistance to certain individuals, requiring each recovery residence operating in Colorado to be licensed by the department of public health and environment, and creating the opioid crisis recovery fund.
    The bill:

    • Expands the housing voucher program currently within the department of local affairs to include individuals with a substance use disorder and appropriates $4.3 million each of the next 5 fiscal years to support the program;
    • Requires each recovery residence operating in Colorado to be licensed by the department of public health and environment; and
    • Creates the opioid crisis recovery fund for money the state receives as settlement or damage awards resulting from opioid-related litigation.

    Bill E: Concerning treatment of individuals with substance use disorders who come into contact with the criminal justice system, and, in connection therewith, making an appropriation.
    The bill:

    • Requires the Colorado commission on criminal and juvenile justice to study and make recommendations concerning:
      • Alternatives to filing criminal charges against individuals with substance use disorders who have been arrested for drug-related offenses;
      • Best practices for investigating unlawful opioid distribution in Colorado; and
      • A process for automatically sealing criminal records for drug offense convictions.
    • Requires the department of corrections (DOC) to allow medication-assisted treatment to be provided to persons who were receiving treatment in a local jail prior to being transferred to the custody of the DOC. The DOC may enter into agreements with community agencies and organizations to assist in the development and administration of medication-assisted treatment.
    • Contains a legislative declaration that the substance abuse trend and response task force should formulate a response to current and emerging substance abuse problems from the criminal justice, prevention, and treatment sectors that includes the use of drop-off treatment services, mobile and walk-in crisis centers, and withdrawal management programs as an alternative to entry into the criminal justice system for offenders of low-level drug offenses.
    • Directs the department of health care policy and financing to seek federal authorization under the Medicaid program for treatment of substance use disorders for persons confined in jails.
    • Creates a simplified process for sealing convictions for level 4 drug felonies, all drug misdemeanors, and any offense committed prior to October 1, 2013, that would have been a level 4 drug felony or drug misdemeanor if committed on or after October 1, 2013. A defendant may file a motion to seal records three years or more after final disposition of the criminal proceedings. Conviction records may be sealed only after a hearing and upon court order.
    • Requires jails that receive funding through the jail-based behavioral health services program to allow medication-assisted treatment to be provided to individuals in the jail. The jail may enter into agreements with community agencies and organizations to assist in the development and administration of medication-assisted treatment.
    • Provides an appropriation, including for the following programs funded through the annual long appropriations act:
      • Increasing from four to 10 the number of the law-enforcement-assisted diversion pilot programs; and increasing corresponding funding for criminal justice diversion pilot programs in the office of behavioral health in the department of human services.

    To review the bills and memorials recommended by the Opioid and Other Substance Use Disorders Study Committee, please visit the committee’s website. For questions concerning the legislation, please contact Kristen Forrestal, Yelana Love, or Brita Darling.

  • An Introduction to Initiatives (Continued)

    by Ed DeCecco

    I know that the end of part one of this article was quite the cliffhanger, and you’ve probably been obsessively refreshing the LegiSource page to see what happens after the Title Board sets the ballot title for an initiative. So, without further delay, here is the conclusion of the initiative process.

    Signature Gathering

    Once the ballot title is officially set, the proponents may proceed to the signature-gathering phase, which many people think of as “those times when I’m accosted outside of King Soopers to sign something, but that is not nearly as fun as being accosted to buy Girl Scout cookies.” (Okay, that might just be me.) The reason for these encounters is that the state constitution requires that an initiative petition be signed by a number of registered electors in the state that is greater than or equal to 5% of the total number of votes cast for all candidates for the office of Secretary of State at the previous general election. Currently, that threshold is 98,492 signatures. Lucky for designated representatives, they may use volunteer and paid petition circulators to help gather signatures.

    As a result of Amendment 71, an initiative from 2016, if the initiative is for a constitutional amendment, then 2% of the total required signatures must also come from each Senate District. This has had a twofold effect. First, it means that citizens throughout the state are involved in the petition process for constitutional initiatives. Second, it’s been a major boon for businesses that sell maps of the state Senate Districts.

    Circulators must collect the signatures on petition sections approved by the Secretary of State, which include LCS’s fiscal information abstract on the first page of the initiative section and have spaces for the electors to sign their name and identify the address. So, if someone outside of King Soopers asks you to sign anything other than this official form, then congratulations, you’re famous, and someone wants your autograph.

    Submission and Verification of Petitions

    The designated representatives must turn in their signed initiative petitions to the Secretary of State no later than six months after the date a ballot title is set or three months before the election, whichever date is sooner. Secretary of State Wayne Williams will then personally review and verify each signature submitted, oftentimes visiting with each elector to confirm that he or she signed the petition. (Not true. I was just checking to see if you were still paying attention.) The Secretary of State’s office will verify that the petition is signed by registered electors of the state using random sampling, and, depending on the number of valid signatures, possibly a line-by-line analysis.

    If there are enough signatures to meet the constitutional requirements, then the Secretary of State will deem the petition sufficient, and barring a successful protest against the determination, the proponents have successfully navigated the initiative process and the measure will appear on the ballot.

    Blue Book

    But before jumping to the ballot, a word about the Blue Book is in order. Named as an homage to The Beatles eponymous album or, perhaps, because it has a blue cover, the Blue Book is the excellent ballot information booklet published by LCS as required by the state constitution. It includes the full text of the initiative, the title, a fair and impartial analysis, and arguments for and against it. If the measure is a matter arising under TABOR, then it will also include fiscal information required by that initiative, which was approved by voters in 1992.

    LCS prepares three drafts of the measure, and solicits feedback from interested parties and the public. The Legislative Council committee considers LCS’s final draft and may modify it with a 2/3rds vote. Once completed, the Blue Book is mailed to every residence in the state with a registered elector. Everyone should have received the 2018 version. It is just a smidge shorter than Moby Dick because it describes a total of 13 initiated and referred measures.

    Ballot

    Having gone through the appropriate steps, an initiative will appear on the ballot. Initiated constitutional amendments are numbered consecutively from 1 to 99 and are referred to as “amendments.” Initiated statutory changes are numbered consecutively from 101 to 1999 and are referred to as “propositions.” (See §1-5-407, C.R.S.) To pass, an amendment requires 55% of the votes cast, unless the measure just repeals a provision, in which case it requires a majority vote, which is the same amount needed to pass an initiated statutory change (See Art V, §1(4)(b) of the Colorado Constitution).

    If approved by voters, the initiative will officially become part of the Colorado Constitution or the Colorado Revised Statutes, and the designated representatives may finally rest on their laurels. I, on the other hand, may have to prepare a LegiSource article about their successful endeavor. So thanks for that!

     

    For additional resources about the initiative process, check out these helpful links:

    https://www.sos.state.co.us/pubs/elections/Initiatives/InitiativesHome.html

    https://leg.colorado.gov/content/how-file-initiatives

  • An Introduction to Initiatives

    by Ed DeCecco

    While sitting in Starbucks, filling out the 2018 general election mail ballot, and sipping what might be your last Pumpkin Spice Latte for the season, you might think to yourself, “Only seven statewide initiatives—why aren’t there more of these delightful, thought-provoking questions?”[1] You might even be inspired to become an active participant in Colorado’s robust system of direct democracy. If so, here is an initiative-process primer to help you.

    Initiating the Initiative

    To paraphrase Lao Tzu, the journey of a thousand signatures begins with a single email to Legislative Council Staff (LCS). That is, proponents begin the initiative process by submitting to LCS a draft of the initiative to change the Colorado Revised Statutes or amend the Colorado Constitution, or occasionally to do both. The petition must be typewritten and legible and contain the text of the initiated measure, and it must include the names and mailing addresses of the two designated representatives of the proponents. Proponents are encouraged to write the measure “in plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning that are understandable to the average reader.”[2]

    Review and Comment

    Two weeks after submission to LCS, LCS and the Office of Legislative Legal Services (OLLS) are required “to render their comments to the proponents of the petition concerning the format or contents of the petition at a review and comment meeting that is open to the public.”[3] Upon reading this rather formal-sounding requirement, one might think that the review and comment meeting is akin to the senate committee grilling Michael Corleone. It’s not. In fact, it is not a hearing at all because it is not conducted by a legislative committee and there no witnesses. Instead, it is a relaxed discussion at the State Capitol between staff, the designated representatives, (both of whom are required to attend the meeting), and the designated representatives’ attorney, if they have one.

    But, like the scene from The Godfather II, the designated representatives will have a script for their discussion. At least 48 hours prior to the meeting, staff from OLLS and LCS will give the proponents a Review and Comment Memorandum, which includes our view of the proposal’s major purposes and our substantive and technical comments and questions. At the meeting, staff will read the review and comment memorandum aloud and provide the proponents with a chance to respond.

    Many proponents view this as an opportunity to provide a record of their intent and to see if they can improve the measure. Others do not. For example, one set of proponents responded to each question and comment by saying something along the lines of, “Thank you very much for the question. We will take it under consideration.” Which is fine, as the designated representatives are under no obligation to answer our questions or make any changes after the review and comment meeting. This is their initiative and they are free to disregard our comments, considered and wise as they hopefully may be, and proceed to title setting.

    Many times, however, the designated representatives will make changes based on staff’s questions and comments. If so, they can resubmit the measure to LCS for another review and comment meeting. Alternatively, if all of their changes are directly in response to staff suggestions, they may make the changes and proceed to title setting.

    Setting the Ballot Title

    Initiatives do not appear in their entirety on the ballot, which is beneficial to everyone other than the printers paid to prepare the ballots. Instead voters are presented with a question known as a ballot title, which is in a form that they can answer “yes/for” or “no/against.” A ballot title is a summary of what the initiative does and includes the single subject and central features of the proposal. It cannot include slogans or catch phrases, and it must be brief.

    To procure a ballot title, the designated representatives must submit their finalized initiative to the Secretary of State and appear at a title board meeting. These meetings occur on the 1st and 3rd Wednesdays from December through May. The title board consists of representatives from the Attorney General’s office, the Secretary of State’s office, and the OLLS. If the initiative is properly before the title board, and if the title board determines the measure has a single-subject, which is a constitutional requirement, then it will set a ballot title.

    Prior to the title board meeting, LCS will prepare an initial fiscal impact statement and an abstract of the fiscal impact. These numbers are a sneak peak of the fiscal impacts that will be described in the Blue Book, and the abstract is used in the next phase in the initiative process.

    If the proponents or literally any other registered voter in the state is dissatisfied with a ballot title or the title board’s failure to set a ballot title, or with the abstract prepared by LCS, then he or she may file a motion for rehearing with the Secretary of State within seven days after the title board’s decision. The rehearing decision may be further appealed to the Colorado Supreme Court, which will hear the case on an expedited schedule. Obviously, these appeals can add a few extra steps for the designated representatives. On the bright side, this appeal means the proponents would have completed a coveted state government trifecta: legislative branch for review and comment; executive and legislative branch for title board; and judicial branch for the final review. How many citizens can say that? Not many.

    “Not many” is also the answer to the question, “How many people will keep reading this blog if it gets any longer?” Check back for the next installment to read about the remainder of an initiative’s amazing administrative journey.

     

    [1] I realize this may be an unlikely scenario. You may actually be having your first Peppermint Mocha of the season while voting and thinking about how much you like initiatives.

    [2] § 1-40-105 (1), C.R.S.

    [3] Id.; see also Legislative Council Rules for Staff of Legislative Council and Office of Legislative Legal Services Review and Comment Filings (9)(a), which requires the meeting to take place two weeks after submission, with some exceptions.

  • When More is More

    by Jery Payne

    A United States Court of Appeals’ opinion begins, “For want of a comma, we have this case.” The facts are simple. Delivery drivers employed by a Maine dairy company were suing for overtime. The dairy wasn’t paying them overtime, which they believed the law required.

    Whether the law required it was not so simple. The law states that the overtime protection law does not apply to:

    The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

    (1) Agricultural produce;

    (2) Meat and fish products; and

    (3) Perishable foods.

    The intent appears to be that overtime shouldn’t be required for jobs when dawdling might cause food to perish. The court was wrestling with whether this exemption covers delivery drivers.

    Is the phrase packing for shipment or distribution of one item or two items on the list? In other words, which of the following is exempted?

    • Packing for shipment and packing for distribution; or
    • Packing for shipment and any kind of distribution.

    The dairy argued that distribution of should be read as one item on the list. If the distribution of perishables is read as one item on the list, then the law doesn’t require the dairy to pay the delivery drivers overtime. But if the whole phrase packing for shipment or distribution of is meant to be read together, then the dairy owed the delivery drivers a lot of money.

    The statute has at least one of two grammar errors. Notice that the list starts with a series of gerunds, which is a five-dollar word for a noun created by adding “ing” to the end of a verb: canning, processing, preserving, freezing, drying, marketing, storing, packing. And distribution of isn’t a gerund. Because every other item on the list is a gerund, the grammar indicates that the phrase was intended to be one item, packing for shipping and distribution of. But if this is true, then the statute is missing the word “or” before the last item of the list. It should read marketing, storing, or packing for shipment or distribution of. And it doesn’t. So the statute should have been written in one of two ways:

    • …marketing, storing, or packing for shipment or distribution of:
    • …marketing, storing, packing for shipment, or distributing of:

    These dueling errors bedeviled the court, so it gave up trying to parse the sentence. It decided that the ambiguous exception should be read narrowly and ruled that the dairy had to pay the delivery drivers.

    As I mentioned, the court pointed out several times that an Oxford comma would have solved the issue. If the statute had read storing, packing for shipment, or distribution of perishables, it would have been clear that the statute covered the delivery drivers.

    So using the Oxford comma is good advice. We aim to use it in the Colorado Revised Statutes.

    But what if the legislature hadn’t intended to cover the delivery drivers? How could we draft the statute so that it is clear? What if we repeated the preposition of?

    The canning of, processing of, preserving of, freezing of, drying of, marketing of, storing of, or packing for shipment or distribution of:

    (1) Agricultural produce;

    (2) Meat and fish products; and

    (3) Perishable foods.

    Now the statute is clear.

    I bet I know what a lot of you are thinking: “We don’t need all those extra prepositions, of. Just don’t forget the disjunctive, or.” No, I suppose in this case we didn’t need the extra prepositions. But they do help. And what about the following statute[1] that authorized the defendants to move a case to federal court:

    Any officer of the United States or any agency thereof …

    Can any officer of any agency move the case to federal court? Or does the defendant have to be the agency itself? In other words, the list was ambiguous because it could be read either of these two ways:

    • An officer of the US or an officer of an agency of the US; or
    • An agency of the US or an officer of the US.

    The United States Supreme Court settled this issue by deciding that an officer of an agency could move the case. They decided that Congress meant an officer of an agency. If that is the correct intent, repeating the preposition of would have solved the issue:

    Any officer of the United States or of any agency thereof …

    I know that people will be tempted to dispense with the repetitious preposition in a list, but repeating those prepositions does remove ambiguity. My advice is to repeat those prepositions when clarity is at stake.

     

    [1] Hat tip to Bryan Garner from his Advanced Legal Drafting Course.