Colorado LegiSource

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

Month: April 2019

  • Parsing Powers: Legislative Review of State Department Rules

    Parsing Powers: Legislative Review of State Department Rules

    by Julie Pelegrin

    Each year, executive branch agencies in Colorado adopt between 400 and 500 sets of rules creating many thousands of pages of rules and accompanying materials. Specifically, in 2018 alone there were 457 sets of rules adopted. Counting the rules and corresponding materials,that totals up to 26,971 pages. That’s a lot of rules! And every one of those rules, along with the corresponding materials, was read and analyzed by a staff member of the Office of Legislative Legal Services (OLLS).

    This rule review function provides an instructive example of how the vague constitutional concept of separation of powers actually works between the legislative and executive branches. The legislature has the authority to make the laws. But in some instances, it makes more sense for the persons working directly with a program to decide the implementing details. In those situations, the legislature delegates some of its legislative authority to an executive branch department, allowing it to adopt rules. However, in adopting rules, the department must comply with statutes and cannot go beyond the authority that the legislature delegated to it. To ensure this does not happen, the legislature retains the ability to review the executive branch department’s rules and approve only those rules that are within the department’s rule-making authority and do not conflict with state or federal law.

    This process for reviewing and approving executive branch department rules is found in the State Administrative Procedure Act (APA). The APA requires each department to submit every rule that it adopts or revises within a one-year period to the OLLS for review under the supervision of the Committee on Legal Services (Committee). The standard of review is based on language in §24-4-103 (8) (a), C.R.S., which states, “No rule shall be issued except within the power delegated to the agency and as authorized by law.” The vast majority of rules meet these requirements. But sometimes a rule conflicts with a statute or the constitution or does not fit within the limits of the department’s rule-making authority. At that point, the Committee and the General Assembly turn to the process laid out in the APA.

    The APA establishes a year-round cycle for reviewing rules.  Under §24-4-103 (8), C.R.S., rules adopted during the one-year period from November 1 through October 31 automatically expire on the next May 15, unless the General Assembly extends the rules by passing a bill.  This annual bill is called the Rule Review Bill and is sponsored by the Committee. This year, it’s introduced as S.B. 19-168. The Rule Review Bill postpones the automatic expiration of all of the adopted department rules, except for those rules listed in the bill that the Committee has decided should expire because the rules: 1) lack statutory authority, 2) exceed statutory authority, or 3) conflict with a state or federal statute or constitutional provision.

    During the process of reviewing the rules, if the OLLS staff finds one of those three grounds for challenging a rule, the staff contacts the department to discuss the issues with the rule. If the department disagrees with the analysis or is unable to fix the problems identified with the rule, the staff schedules the rule issue for a hearing before the Committee. The OLLS staff writes a memo for the Committee explaining its analysis, and the department may also submit a responsive memo to the Committee.

    At the hearing, the OLLS staff and if, they choose to appear at the hearing and make a presentation, the department staff or the department of law staff representing the department explain their positions to the Committee, and the Committee takes public testimony.  At the end of the hearing, the Committee votes to either extend the rule through the Rule Review Bill or allow the rule to expire. The Committee bases its decision on the legal question of the authority of the rule—not on whether the rule in question is good or bad policy for the state.  After the Rule Review Bill passes, the OLLS staff transmits the bill to the Secretary of State’s office, which removes any expired rules from the Colorado Code of Regulations.

    Sometimes a department will seek a change to a statute to provide authority for a rule. The Committee will not carry a bill to do this, but if an individual legislator introduces and passes such a bill, the Committee will amend the Rule Review Bill so that the newly authorized rule does not expire.

    Another legislative oversight function that the OLLS carries out relates to tracking legislation that requires or authorizes departments to adopt rules. Many legislators, after passing bills that create new programs, later ask, “Did the department ever adopt rules to implement my bill?” Section 24-4-103 (8) (e), C.R.S., requires the OLLS to identify rules related to newly enacted bills and notify prime sponsors and co-sponsors when the department adopts rules required or authorized by the new legislation. The OLLS sends out e-mail notices to prime sponsors and co-sponsors when the new rules are adopted.

    But what if you want to know whether a department ever adopted rules to implement a bill you heard in a committee of reference?  Or what if you’re a legislator and you no longer have the e-mail notice?  Anyone can look up rule implementation information at any time on the OLLS’s homepage under a tab entitled Rule Review. The OLLS maintains a chart that is organized by committees of reference and lists each bill for which rules are adopted.  The chart also provides a link to the rule information that each department files during the rule adoption process.

    Section 24-4-103 (8) (e), C.R.S., also requires the OLLS to notify the current members of the applicable committees of reference when these rules are adopted.  Each January, the OLLS sends an email notice to the committees of reference with the chart of rules that the OLLS has compiled.

    So, while the legislature is willing, when appropriate, to delegate some of its authority to the executive branch by authorizing a department to adopt rules, the legislature keeps a close eye on how that authority is exercised, ensuring that the department stays within the lines.

  • Automatic Rule Changes During the Last Days of Session

    By Julie Pelegrin

    (A previous version of this article was posted on April 30, 2015, as “The Race is On to the End of the Session: Automatic Rule Changes Pick Up the Pace”.)

    On May 4, legislators, legislative staff, lobbyists, and capitol reporters can all hit the snooze button and roll over for another hour of sleep. But between now and then, there are several amendments to read, bills to consider, and differences to resolve. To help ensure that both houses can complete their work by midnight on May 3, the legislative rules automatically speed up or suspend certain procedural requirements in the last few days of the session.

    Last 5 Days of Session:

    • Joint Rule 7: One day after a bill is assigned to a conference committee, a majority of either house may demand a conference committee report, and the committee must deliver the report before the close of the legislative day during which the demand is made. If a bill has been assigned to a conference committee at any time during the session and the committee hasn’t turned in a report, the committee must report the bill out within these last five days of session.

    Last 3 Days of Session:

    • House Rule 25 (j)(3); Senate Rule 22 (f): Each House committee chairperson must submit committee reports to the House front desk as soon as possible after the committee acts on a bill. No more waiting for two or three days to turn in the report. This requirement—to submit the committee report as soon as possible—actually applies to Senate committee chairs in the last 10 days of session. And during these last 10 days, at the request of the Senate Majority Leader or President, the chairman must submit the committee report immediately. If that doesn’t happen within 24 hours after the request, the committee staff person is required to submit the report to the Senate front desk on the chairman’s behalf.
    • House Rule 36 (d); Senate Rule 26 (a): The House and the Senate can consider the amendments made in the second house without waiting for each legislator in the first house to receive a copy of the rerevised bill and for the notice of consideration to be printed in the calendar.
    • House Rule 36 (d); Senate Rule 26 (b): Legislators can vote on conference committee reports as soon as the reports are turned in to their respective front desks—even if the report has not been distributed to the members and has not been calendared for consideration. The usual practice, however, is to try to distribute copies of conference committee reports to legislators before the vote.
    • House Rule 35 (a): Throughout most of the session, a Representative may give notice of the intention to move to reconsider a question. In this case, the Representative has until noon on the next day of actual session to move to reconsider. However, during the last three days of session, a member may not give notice of intention to reconsider.
    • Senate Rule 18 (d): Throughout most of the session, a Senator may give notice of reconsideration, and the Secretary of the Senate will hold the bill for which the notice was given for up to two days of actual session. During the last three days of session, however, this rule is suspended, and a Senator cannot hold up a bill by giving notice to reconsider.
    • House Rule 33 (b.5): Usually, the House rules only allow technical amendments on third reading; offering a substantial amendment on third reading may result in the bill being referred back to second reading. During the last three days of session, however, a Representative may offer a substantial amendment to a bill on third reading.

    Last 2 Days of Session:

    • House Rule 35 (b) and (e): A motion to reconsider usually requires a 2/3 vote to pass. In the last two days of session, however, a motion to reconsider – in a House committee or in the full House – requires only a majority vote.

    Before the 117th legislative day, the Speaker of the House or the President of the Senate may announce that the House or the Senate, respectively, is in the last three days of the legislative session. This does not mean that either the House or the Senate will adjourn sine die before the 120th legislative day, but it does trigger the rule changes that apply in the last three and last two days of session.

    Digest of Bills

    With these expedited procedures, bills will probably be moving quickly. If you find yourself wondering which bills passed and what they do, you’ll want to check the digest of bills. The Office of Legislative Legal Services (OLLS) annually publishes the digest, which contains a summary of each bill enacted during the legislative session, organized by subject matter. The OLLS will publish a preliminary digest by May 2 that will include all of the bills that have passed and been signed by the Governor or allowed to become law by that date. The OLLS will publish the final digest once the 30-day period for Governor action is passed. Copies of the preliminary and final digest will be available in Room 091 in the Capitol basement and posted on the OLLS website.

  • Statutory Revision Committee: Four Years In and Going Strong

    by Jessica Wigent

    In the four years since its (re)creation in 2016, the Statutory Revision Committee (SRC) (codified in part 9 of article 3 of title 2, C.R.S.) has, in accordance with its charge, introduced and passed more than 70 bills to modify or eliminate antiquated, redundant, or contradictory rules of law to harmonize the statutes with modern conditions.

    During the lively hearings held during the 2018 interim and the 2019 legislative session, committee members heard memo presentations and testimony on issues including the federal preemption of Colorado statutes concerning human smuggling; duplicative statutes governing the disposal of cancer drugs; and obsolete statutes concerning powers of the board of health that arguably should’ve been updated decades ago.

    Overall, hundreds of pages of statutory text have been repealed or brought into the 21st century through SRC-recommended legislation.

    Membership
    The SRC consists of eight legislators (two appointed by the majority and minority leadership in each house) and two nonlegislator, nonvoting attorneys appointed by the Committee on Legal Services. The appointees for 2019-20 are:

    • Senator Rachel Zenzinger, Chair
    • Senator Rob Woodward, Vice-chair
    • Representative Jeni Arndt
    • Representative Hugh McKean
    • Senator Dominick Moreno
    • Senator Jack Tate
    • Representative Donald Valdez
    • Representative Kevin Van Winkle
    • Patrice Collins
    • Brad Ramming

    Attending to the Antiquated, Obsolete, and Anachronistic
    The SRC is introducing 19 bills during the 2019 legislative session, including legislation:

    • Correcting a very small, yet significant error in the definition of “appraisal management company” – the word “train” should’ve been “retain” (SB 19-046);
    • Eliminating redundant and potentially confusing language in statute that was created when two bills amended the same section in 2018, concerning the requirements for issuing professional teacher and special services licenses to applicants from another state (HB 19-1059);
    • Clarifying that the scope of a certain sales tax exemption applies to manufactured homes (HB 19-1011);
    • Making consistent the laws and administrative rules that allow payment of taxes by electronic funds transfer; (SB 19-024); and
    • Removing statutes that have been outdated for decades regarding the state board of health and clarifying that the board: Does not accept, handle, or act as a custodian for money appropriated to the department of health and environment (SB 19-082); does not make rules regarding water quality, as that’s the job of the Water Quality Control Commission (HB 19-1071); and hasn’t for more than 50 years tested cancer drugs – that’s the FDA’s job (HB 19-1070).

    How an SRC Idea Becomes a Bill
    Executive department agencies, the judicial branch, interested Colorado residents, and nonpartisan staff from a number of agencies in and around the Capitol, as well as legislators themselves, have brought issues for the SRC to consider. Initially, staff considers these requests and whether they fall within the charge of the SRC and then prepares a memo detailing the requested change, often with a bill draft attached for the SRC to consider.

    In addition, the statutory charge of the SRC includes examining “current judicial decisions.” To that end, the SRC has asked staff to review current statutes that are found by an appellate court to be unconstitutional. Staff annually prepares memos for the SRC to bring attention to these provisions.

    An affirmative vote from at least five of the legislative SRC members is needed to introduce proposed legislation, and the SRC regularly considers more draft bills than it approves. In 2019, the SRC rejected multiple proposals it determined were outside its charge. All proposed drafts are publicly available on the SRC’s website and in the annual report submitted to the General Assembly. You may also email staff for more information.

    The SRC plans to meet twice during the 2019 legislative interim, though they are still finalizing the dates and the issues to be considered. Join the SRC mailing list and be notified when the details are available.

    Know of any antiquated, redundant, or contradictory laws? Please contact the SRC staff via email: statutoryrevision.ga@coleg.gov All meetings are public, and everyone is encouraged to attend or to propose issues to the SRC staff.

  • Conference Committees: A Quick Review of the Options

    by Julie Pelegrin

    Editor’s note: This article was originally posted on March 29, 2018. It has been updated for this posting.

    With just a few weeks left in the 2019 legislative session, a legislator’s thoughts turn to…conference committees!

    So far this session, the House and the Senate have sent just five bills to conference committee. But there are still more than 300 bills pending in the House and the Senate for this session; chances are good, the number of conference committees will increase. So now seems like a good time for a quick refresher course on the ins and outs of conference committee procedure.

    For a bill to go to the Governor, it must pass both the House and the Senate in exactly the same form. If the second house amends a bill, it cannot go to the Governor for signature unless the first house accepts, or “concurs in,” the second house amendments and readopts the bill or unless both houses form a conference committee to create a report that resolves the differences between the two versions.

    There is a third option, but it can be risky. A legislator can move for the first house to adhere to its position (i.e., refuse to consider any changes to the bill proposed by the second house). At that point, the second house can choose to recede from its changes and adopt the version of the bill that the first house passed. However, the second house can also choose to adhere to its position (i.e. refuse to consider adopting the first house’s version of the bill). Most often, when the first house adheres to its position and refuses to discuss a compromise, the second house also adheres. If this happens, the bill is dead.

    But, let’s assume that the bill sponsor moves to reject the second house amendments and request the formation of a conference committee. The conference committee consists of three persons appointed from each house: Two majority party members and one minority party member. The Speaker and the President will each appoint the two majority members from their respective houses, and the Minority Leaders will each appoint the minority members from their respective houses. In most cases, the bill sponsors in both houses are appointed to the conference committee, and the bill sponsors can submit their preferences for the other members they would like to see appointed to the conference committee from their respective houses.

    The conference committee’s report can address any of the differences between the two versions of the bill. But, if the conference committee wants to address language that was not changed by the second house or address an issue that fits within the bill title, but was not included in either version of the bill, the bill sponsors must ask their respective chambers for permission “to go beyond the scope of the differences” between the two versions. Sometimes, the bill sponsors will ask for this permission at the same time that they request a conference committee; more often they do not. The conference committee members can discuss changes that are outside the scope of the differences before they ask for this permission, but the members cannot sign the committee report until both houses have granted the committee permission to go beyond the scope of the differences.

    The date, time, and location for all conference committee meetings are printed in the House and Senate calendars. After agreeing on wording changes to resolve the differences, the committee may adopt the committee report conceptually or, if the bill drafter prepared the report in advance of the meeting, may adopt the committee report as written. For the report to pass, a majority of the conference committee members from each house (i.e. two House members and two Senate members) must approve the report. Following adoption of the report, the committee members who voted to approve the report sign it. A committee member who voted against the report and any committee member who missed the meeting may also choose to sign the report.

    Once the report is signed and turned in to the front desk of the House and the Senate, the house that agreed to go to conference committee, usually the second house, acts first on the report. Usually, the second house adopts the report and readopts the bill as amended by the conference committee report. Then the first house also adopts the report and readopts the bill. At that point, the bill is enrolled and sent to the Governor.

    However, either house may choose to adhere to its position, recede from its position, or reject the conference committee report and ask that a second conference committee be formed. Assuming both houses agree to a second conference committee, they will appoint the members of the second conference committee, which may be the same as the first conference committee, and the committee will meet again and attempt to come to another agreement. Only two conference committees can be appointed for a bill. If either house rejects the committee report of the second conference committee, one of the houses will have to recede and adopt the other house’s version, or the bill is dead.

    This article describes how conference committees usually work. The OLLS has prepared charts for the House and Senate that explain the possible actions, in addition to adopting a conference committee report, that each house may take in resolving differences between the houses. If you are interested in reading the legislative rules on conference committees, you can find them at House Rule 36, Senate Rule 19, and Joint Rules 4, 5, 6, 7, and 8.