Colorado LegiSource

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

Month: February 2019

  • Legislative Ethics and Criminal Code Violations

    Editor’s note: This is the third in a series of articles based on the ethics issues included in the online ethics tutorial available through a link at the bottom of the General Assembly website. For earlier articles, see “Legislative Ethics – Post-legislative Employment” and “Legislative Ethics – Legislative Immunity”.

    Bribery: §18-8-302, C.R.S.
    A legislator commits the crime of bribery if he or she solicits, accepts, or agrees to accept a pecuniary benefit based on an agreement or understanding that the legislator’s vote, opinion, judgment, exercise of discretion, or other action as a legislator will be influenced by receiving the pecuniary benefit. A “pecuniary benefit” could be money, property, commercial interests, or anything else that primarily results in economic gain to the legislator. A person can be guilty of bribery even if he or she has been elected or appointed but has not yet been sworn in to office. The crime of bribery is a class 3 felony, punishable by a minimum of four years and a maximum of 12 years in prison, followed by a mandatory parole period of three years, or by a fine of at least $3,000 but not more than $750,000, or by both the fine and imprisonment.

    Seems pretty straight forward. Get out your pencils—let’s take a quiz!

    Hypothetical #1. It’s the first day of the session and you’re on your way to the House Chambers to be sworn in. Just before you leave your office, you get a call from one of your new constituents. This person is very concerned about his mother. She’s in the country illegally, and she has a serious health condition. If she has to return to her native country, she will not be able to receive the treatment she needs. You try to explain that immigration law is a federal issue, and, as a state legislator, there’s really nothing you can do. But your constituent is convinced that introducing a bill will send a message to Congress. Your constituent also mentions that he has driven past your house a couple of times and noticed that your driveway is in very bad condition. Your constituent actually has a driveway resurfacing company, and he would be happy to give you a free resurfacing, but he really needs your help. You tell him that you won’t introduce a bill, but you will introduce a memorial to Congress to express the General Assembly’s opinion that there should be an exception made in the immigration laws for persons in immediate need of significant medical treatment. Then you make an appointment for next Saturday for your constituent to start resurfacing your driveway.

    Have you just committed the crime of bribery?

    a. NO. As a state lawmaker, you can’t change federal immigration law.

    b. NO. You haven’t been sworn in, so you weren’t a public servant when you agreed to introduce the memorial and accepted the free driveway resurfacing.

    c. YES. You agreed to introduce the memorial to Congress to help your constituent, and you’re accepting his offer of a free driveway resurfacing.

    d. NO. A memorial to Congress does not have the force and effect of law, so it is not included in the actions for which you can be bribed.

    The correct answer is c. To convict a public servant of the crime of bribery, a district attorney must prove that the person was a public servant and that he or she agreed to accept a pecuniary benefit on the basis that one or more of the person’s actions as a public servant would be influenced. You had been elected, so you fit the definition of a “public servant” even though you were not yet sworn in. You initially explained that you could not help your constituent, but after hearing the offer of a free driveway resurfacing, you agreed to introduce legislation to address your constituent’s concern. And you accepted the offer of a free driveway resurfacing by making the appointment. It appears that a district attorney would have sufficient evidence to prove each of the elements of the crime of bribery.

    Compensation for past official behavior: §18-8-303, C.R.S.
    A legislator commits the crime of accepting compensation for past official behavior if the legislator solicits, accepts, or agrees to accept any pecuniary benefit as compensation for having given a decision, opinion, recommendation, or vote favorable to another person, while the legislator was a member of the General Assembly, or for having otherwise exercised discretion in favor of the other person, while the legislator was a member of the General Assembly, regardless of whether the legislator violated a duty in so doing. In essence, this statute prohibits payment of a bribe after the fact. A “pecuniary benefit” could be money, property, commercial interests, or anything else that primarily results in economic gain to the legislator. The crime of accepting compensation for past official behavior is a class 6 felony punishable by a minimum of one year and a maximum of 18 months in prison, followed by a mandatory parole period of one year, or by a fine of at least $1,000 but not more than $100,000, or by both the fine and imprisonment.

    Let’s see how this one might play out.

    Hypothetical #2. You have served in the Colorado State Senate for the last eight years. During that time, you have sponsored several pieces of legislation, but the one you’re most proud of is the bill to establish a state-funded community outreach program for youth involved in gangs. Since the bill passed six years ago, this program has been repeatedly recognized for successfully directing several young men and women away from gangs and into useful community service. Last week, you received a call from the president of the board of directors for the program. The executive director of the program has accepted a new position and is moving to Chicago. Because you were the bill sponsor, the board of directors is offering you the job. You don’t have any experience in operating this type of a program, but the pay is significantly more than you make as a legislator. You tell him you’ll think about it.

    If you take this job, will you commit the crime of accepting compensation for past official behavior?

    a. YES. Your vote for the bill created the program. As such, it was a vote that was favorable to the president and to the board of directors, and they are now offering to compensate you for it.

    b. NO. Even though you will receive a pecuniary benefit – a job – as a result of legislation that you introduced and passed, voting for the bill did not directly benefit either the president or the board of directors; their offer of a job is not compensation for a vote in their favor.

    c. NO. It’s a good program that benefits many people. You have the best understanding of the legislature’s intent in creating the program, so you are the best person to operate it.

    d. YES. If you accept the job, you will receive compensation for having introduced and voted for the legislation.

    The correct answer is b. Creating the program conferred a benefit on the community or on the public as a whole. It does not constitute a vote that is favorable to an individual or specific group of individuals. Because the vote for the bill was not a vote in favor of the individuals offering you the job, accepting the job would not constitute accepting compensation for past official behavior.

    Misuse of official information: §18-8-402, C.R.S.
    A legislator may be held criminally liable for misuse of official information if the legislator takes certain actions in contemplation of official actions to be taken by the legislator or the General Assembly or takes certain actions based on information that is not available to the public but is known by the legislator. Specifically, a legislator may commit misuse of official information if he or she knows that some official action will be taken or the legislator has some piece of nonpublic information, and the legislator acquires a pecuniary interest in property, a transaction, or an enterprise that may be affected by the action or the information, or if the legislator speculates on the basis of the action or the information. The legislator may also be guilty of misuse of official information if he or she wants to grant another person a special pecuniary benefit and does so by aiding, advising, or encouraging the other person to acquire a pecuniary interest or to speculate based on the action or the information. Misuse of official information is a class 6 felony punishable by a minimum of one year and a maximum of 18 months in prison, followed by a mandatory parole period of one year, or by a fine of at least $1,000 but not more than $100,000, or by both the fine and imprisonment.

    This one is a bit confusing. Let’s take it for a test drive.

    Hypothetical #3. You are sitting in the House Education Committee listening to testimony on a bill to allow CSU-Pueblo to open a new satellite campus in La Junta. Your ears perk up when the witnesses from CSU-Pueblo start describing exactly where the new campus will be located. It’s in the neighborhood you live in. You happen to know that the Lucky Licks Ice Cream Shop is located just across the street from where the new campus will be built and that Lucky Licks has been for sale for about two years. The committee passes the bill to the Committee of the Whole; you are the only committee member to vote against the bill. That evening, you make an offer on the Lucky Licks property, which is immediately accepted. You close on the property a month later. Two weeks after your closing, the General Assembly passes this very popular bill by a wide margin. You voted against the bill each time it came up for a vote in the House.

    Have you committed the crime of misuse of official information?

    a. NO. Authorization of the new campus and the location of the new campus was public information; anyone could have been smart enough to buy the ice cream shop.

    b. NO. The campus won’t open for at least a year and there’s no guarantee that opening the campus will lead to higher profits at the ice cream shop.

    c. YES. In contemplation of the legislature’s action to authorize the new campus, you bought a business that is likely to be more profitable because of that new campus.

    d. NO. You never voted in favor of the bill, so you didn’t act in contemplation of any official action that you took.

    The correct answer is c. In contemplation of the General Assembly’s action in authorizing CSU-Pueblo to open the new campus in La Junta, you acquired a pecuniary interest in property across the street from the new campus. This property – an ice cream shop – is likely to be affected by the General Assembly’s action in approving the bill because of the property’s location next to the new campus. Based on these facts, it appears that a district attorney could prove all of the elements of the crime of misuse of official information.

    Want to learn more about legislative ethics? Take the Legislative Ethics Tutorial.

  • Throwback Thursday: Looking Back at the Twenty-second General Assembly

    By Patti Dahlberg

    If we stepped back one hundred years and fifty legislative sessions, what would we find?

    Well to start with, when the dust cleared from the 1918 elections, the Democrats retained control of the Senate with 21 Democrats to 14 Republicans, but lost control of the House of Representatives with 41 Republicans to 24 Democrats, almost a complete flip in numbers from 1917. This House flip in Colorado mirrored political power flips in the U.S. Senate and House of Representatives, as well as in many state assemblies across the country.

    Coloradans passed three initiatives in November of 1918. The Bone dry prohibition law initiative passed 63% to 36% and made Colorado one of the driest states in the country. The ballot measure Placing state civil service in the Constitution passed 64% to 35% and moved civil service laws from the statutes into the constitution. The Relief of the adult blind measure passed 93% to 6% and provided for the creation of a commission to consider applications for financial assistance by persons who were blind. In addition, two referendums passed. Limiting the time for introduction of legislative bills passed 77% to 22% and required all bills, except the general appropriations bill, to be introduced within the first 15, instead of 25, days of the legislative session. Concerning the publication of proposed constitutional amendments and initiated and referred laws passed 88% to 11% and required ballot proposals to be published at least twice and in two different publications in each county.

    The Twenty-second General Assembly

    The General Assembly convened at “12 o’clock, noon” on Wednesday, January 1, 1919. The Colorado Constitution required a January 1 convening date at the time. In the House of Representatives, Mr. M.D. Bowen, the Chief Clerk of the House of the twenty-first General Assembly, called the House to order and read the official announcement and designation of members elected to the House. Representative Allyn Cole of Prowers and Baca Counties was elected to preside as Speaker of the House. (Photo from Presidents and Speakers of the Colorado General Assembly, Denver, Colorado, 2016 Edition.) The Senate was called to order by Lieutenant Governor James A. Pulliam, who presided as Senate President. Before 1974, the constitution required the state’s Lieutenant Governor to serve as President of the Senate, voting only to break a tie. Speeches were made, opening day committees were formed, the governor was notified. The House went on to start their work for the session, introducing “House Concurrent Resolution No. 1, by Messrs. Wilcox and Colgate” to ratify the proposed amendment to the U.S. Constitution “prohibiting the manufacture, sale or transportation of intoxicating liquors…”, and ending the convening day by remembering its deceased members from the Twenty-first General Assembly, Messrs. Baar, DuPraw, McDonald, and Murphy.

    On the 14th legislative day, Tuesday, January 14, 1919, the newly elected Governor of Colorado, the honorable Oliver H. Shoup, presented his inaugural address to a joint session of the House of Representatives and the Senate to direct their attention to matters he considered important and to assure them of his cooperation on addressing these matters. High on his list was determining how best to honor the sacrifice of and provide for almost 25,000 Colorado solders. Governor Shoup recommended that the legislature provide for returning soldiers to attend Colorado’s state institutions of learning tuition-free and for free medical treatment for wounded soldiers. The legislature responded by funding an educational loan fund for soldiers and appropriating additional funding to the University of Colorado to offer additional classes for those who served in the Armed Services or in the Red Cross. The General Assembly also set aside money for a memorial for Colorado’s soldiers who served in the First World War, and on the last day of the session the legislature designated November 11 as “Liberty Day”.

    Governor Shoup recommended that the legislature implement a budget system to guide the state’s expenditures and eliminate over-appropriation. He encouraged the legislature to invest in building good roads and to work with federal programs for highway construction and funding. He asked that the legislature simplify the workmen’s compensation process and make the prompt payment of just claims mandatory. He encouraged additional funding for education and other state institutions and called for the creation of a state institution for the treatment of the acutely insane. The legislature created the Office of the Budget and Efficiency Commissioner, which also required state agencies to submit budgets to the governor, and passed two bills to help fund highway construction: a Special tax created for the building of highways and a one cent per gallon tax.  In addition, the legislature passed the “Workmen’s Compensation Act of Colorado” and established the Psychopathic Hospital and Laboratory of the University of Colorado in Denver.

    The Governor emphasized the importance of fostering, protecting, and stimulating the various industrial  interests of Colorado with improved transportation options, equitable freight rates, and the fair inspection and grading of products. The General Assembly enacted laws regarding livestock branding, state ore testing, and grain, produce, and mine inspections. Other general recommendations from the Governor included establishing a Civil Service Commission to enforce the recently adopted constitutional amendments regarding civil service laws, enacting a blue-sky law to protect consumers against the sale of worthless stocks, and providing for the codification and publication of the state’s statutes. The legislature established the Civil Service and Blind Benefit commissions and appropriated money for these entities. Bills to penalize the false representation of stocks for sale and creating a commission for the compilation of statutes to revise, consolidate, codify, edit, and prepare for publication the general laws of the State of Colorado were enacted.

    In closing, Governor Shoup said, “We are entering upon a new era of National and State affairs. Let us not lightly abandon that which experience has proven to be good, nor stubbornly refuse to accept that which is new, simply because it is new. Let us at all times and in all things, give to the people of Colorado, whose servants we are, the best that is in us, unswayed by any consideration other than the public welfare. To do more is beyond us, to do less is beneath us.”

    In all, the members of the General Assembly introduced 593 House bills and 436 Senate bills; passed around 210 bills; and adjourned sine die on April 7, 1919, at 6 o’clock.

    So what was the climate in 1919?

    Heading into 1919, Colorado and the rest of the country were relieved to see an end to World War I (WWI) but would soon be facing economic and public health issues arising out of the war and the Spanish Flu pandemic. WWI was the first global conflict using modern warfare and consequently was one of the deadliest conflicts in history. An estimated seven million civilians and 10 million military personnel died from war-related causes — bombings, poison gas attacks, combat, accidents, disease, or deaths as prisoners of war. Other estimates put the combined total of casualties closer to 40 million. After four years of fighting in Europe, the combatants declared an armistice on November 11, 1918. The large number of American troops sent overseas (more than two million men in combat or combat services) and the wait for a seat on a ship back meant that most soldiers did not return home until well into 1919, long after the celebrations ended. The ill and wounded returned with slow-healing wounds, amputated limbs, and blindness or with war-caused health problems such as gas-related tuberculosis or the newly coined “shell shock” (now termed post-traumatic stress disorder). As if that were not enough, the 1918-19 Spanish Flu pandemic infected 500 million people worldwide and left an estimated 20 to 50 million people dead. Just over 1,000 Colorado military personnel were killed or died in service during WWI, but almost 8,000 flu deaths were recorded in Colorado during a 10-month period.

    Many of the able-bodied veterans returning home found re-adjusting to civilian life difficult. There was no GI Bill or other financial or educational benefits for veterans at that time; many found high unemployment, business bankruptcies, and falling wages. The high demand for the U.S. agricultural products that “fed the world” during the war years dropped, slowing down the economy even more. The fighting had stopped, but the post-war world now seemed out of control. In Europe, old empires were crumbling; the Russian Bolshevik Revolution ushered in communism, which threatened to overrun Europe. There were workers’ risings in Berlin, Bavaria, and Bremen. Factory seizures, strikes, and various revolutions took hold and then waned in Budapest, Barcelona, Paris, Lyons, Brussels, and Glasgow, across the ocean to Canada in Nova Scotia, Toronto, Winnipeg, Edmonton, and even in the United States in Seattle, Boston, and Cleveland. These localized disturbances were soon followed by national steel and coal strikes.

    How does this compare to today?

    Luckily, we are not recovering from a devastating world war or flu pandemic. Based on opening day remarks by legislative leadership, however, the hot topics continue to be funding for transportation and education improvements. Other issues include addressing teacher shortages, opioid addiction, health care costs and coverage, inequities in the criminal justice system, and improving the quality of life in Colorado through economic development, job security, affordable housing, increasing renewable energy use, protecting water and air quality, and preserving our natural resources. The times have changed, but many of the issues remain much the same.

    Sources:

    https://www.theworldremembers.org/countries/united-states-of-america/the-united-states-and-ww1

    https://www.smithsonianmag.com/history/the-shock-of-war-55376701/

    http://lawcollections.colorado.edu/colorado-house-and-senate-journals/islandora/object/journals%3A89265#page/1/mode/1up

    https://www.codot.gov/programs/environmental/archaeology-and-history/highways-to-the-sky/ch5.pdf

  • The Title 12 Recodification Bill is Coming!

    By Thomas Morris
    Back in 2016, the General Assembly enacted Senate Bill 16-163, which directed the Office of Legislative Legal Services (OLLS) to conduct a study regarding an “organizational recodification of Title 12 of the Colorado Revised Statutes.” As described in the legislative declaration in the act, the rationale for the recodification is that Title 12 (which regulates professions and occupations):

    Lacks a coherent structure among its articles . . . ; [l]acks a true “common provisions” article resulting in the recurrence of identical or nearly identical provisions throughout the title; and . . . [i]ncludes numerous articles that do not strictly relate to the regulation of a profession or occupation and that could be more appropriately codified elsewhere in the Colorado Revised Statutes . . . .

    As directed by Senate Bill 16-163, from the summer of 2016 to the fall of 2018, the OLLS conducted extensive stakeholder outreach and held 18 meetings with stakeholders. During these meetings, OLLS staff and stakeholders reviewed proposals to:

    • Relocate laws into and out of Title 12; and
    • Reorganize Title 12 through the creation of common provisions and the revision of laws regulating professions and occupations (practice acts) to accommodate the common provisions.

    In 2017 and 2018, the Committee on Legal Services (COLS), which has overseen the recodification project, sponsored and the General Assembly enacted two dozen bills to relocate 36 articles and parts from Title 12 (and four provisions from Title 24) to their more appropriate titles in the Colorado Revised Statutes, including a newly created Title 44 for activities under the regulatory authority of the Department of Revenue.

    As a result of these efforts, Title 12 currently contains only laws administered by the division of real estate, the division of professions and occupations (DPO), or the division of conservation within the department of regulatory agencies. The COLS has agreed to sponsor the final result of all this preparatory work—a bill to recodify all of Title 12.

    The bill recodifies Title 12, as contemplated by Senate Bill 16-163, by:

    • Reorganizing and renumbering articles and parts within the title;
    • Relocating into Title 12:
      • Current statutes in article 34 of title 24 relating to the creation, powers, and duties of the DPO in administering the practice acts; and
      • A practice act regarding passenger tramways from Title 25;
    • Creating common provisions that are generally applicable to all practice acts administered by the DPO, except as otherwise specified, and modifying the various practice acts to eliminate redundancies with the common provisions; and
    • Eliminating provisions in Title 12 that are archaic or obsolete.

    In keeping with the guidelines established by Senate Bill 16-163 to cause an “organizational” recodification rather than a substantive recodification, the bill’s title is:

    Concerning an organizational recodification of title 12 of the Colorado Revised Statutes, and, in connection therewith, limiting substantive changes to those that conform similar provisions to achieve uniformity, eliminate redundancy, or allow for the consolidation of common provisions or that eliminate provisions that are archaic or obsolete.


    At 1,762 bill pages, the recodified Title 12 is plenty big. But the conforming amendments necessitated by the bill add about another 160 pages to the bill, and the bill also includes, as an addendum, comparative tables that show how all sections of the Colorado Revised Statutes that are in the bill have been relocated or repealed. All in all, the bill exceeds 2,000 pages. The bill has an October 1, 2019, effective date to give affected state agencies time to make necessary adjustments to their rules and forms.

    Because Title 12 in its entirety is repealed and reenacted, all of the existing sections of law in Title 12 have new section numbers. Also, because the Title 12 bill has an October 1, 2019, effective date, when it takes effect it will overwrite any bills enacted during the 2019 session that amend the existing Title 12 and have an earlier effective date. Therefore, each bill enacted during the 2019 session that amends an existing provision in Title 12, or that proposes to add a new provision to Title 12, will need to include a conforming amendment that amends the applicable updated section of Title 12 to preserve the policy changes contained in the non-recodification bill. This means the OLLS staff will likely be bringing to bill sponsors many amendments related to the Title 12 recodification.

    Some OLLS staff have taken to referring to the bill as “MOAB”—the mother of all bills. MOAB will soon be filed for introduction, so check your bill calendars. The Title 12 recodification bill is coming!

    Editor’s note: The Title 12 recodification bill has been introduced as House Bill 19-1172.