Colorado LegiSource

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

Year: 2019

  • What Do You Mean By That? Definitions in the Statutes

    Editor’s Note: This article was originally posted July 31, 2014. We will post the third article in two weeks.

    by Julie Pelegrin

    When debating legislation or reading statutes, a person will sometimes wonder what a specific word means as it’s used in the bill or the law. A word may be defined in several places and in different ways within the Colorado Revised Statutes – or it may not be defined at all. Following are some tips for figuring out whether the words in a bill or statute mean what you think they mean.

    First, it’s important to know that there is a definitions section in the statutes that defines several words for purposes of the entire Colorado Revised Statutes. Section 2-4-401, Colorado Revised Statutes,1 states “The following definitions apply to every statute, unless the context otherwise requires:” and then defines several words, including:

    • Child, which includes a child by adoption;
    • Immediate family member, which means a person who is related by blood, marriage, civil union, or adoption;
    • Must, which means that a person is required to meet a condition for a consequence to apply;
    • Person, which means any legal entity, including an individual, corporation, limited liability company, or government; and
    • Shall, which means a person has a duty.

    Most words, however, are not defined for the entire statutes. They are defined specifically for the title, article, part, or smaller subdivision of law in which they are used. The definition of “minor” is an interesting case in point.  In one section of statute, “minor” means a person who is less than 22 years of age, and in another section, it means a person who is less than 18 years of age. The statute-wide definitions section – section 2-4-401 (6) – defines “minor” as a person who has not attained the age of 21 years. But also says that a statute that expressly states another age for majority will override this definition.

    To discover whether and how a particular word is defined, you should look first at the statutory section in which the word is used to see whether the section includes any definitions. Usually, if the section includes definitions, the word “definitions” is included in the headnote (the type in bold at the beginning of the section). If the section doesn’t include definitions or if the word you’re looking for is not defined, you should look to the next larger grouping of statutes – either the beginning of the part or the beginning of the article in which the statutory section is located.

    Note that the introductory portion of the definitions section specifies the portion of statute to which it applies, i.e., “As used in this part…” or “As used in this article…” or “As used in this title…” (etc.). Furthermore, the introductory portion to a definitions section or subsection almost always includes the words “unless the context otherwise requires.” This means, if the definition of a word conflicts with the context in which the word is used, the contextual meaning may override the written definition. The persons applying a statute, and, if necessary, a court, must decide which definition actually applies.

    When reading a bill, remember that the definition of a word probably won’t appear within the bill unless the bill is specifically defining the word or changing the definition of the word. To understand how a word in a bill is defined, you may need to look up the definitions section in the existing law that applies to the section that the bill amends.

    But, there will be many times when you will look for a definition in a bill or in the statutes and you won’t find one. Generally, a definition is included in a statute only if the word has more than one definition and it is important for clarity to define it specifically or if the word is a term of art. Also, a word may be defined to avoid repeated use of a long or awkward phrase. For example: the state board of public health and environment is usually defined as the “state board”.

    Generally, words used in a statute must be construed according to their commonly accepted meaning. So, if a court must interpret a statute, and the words used in the statute aren’t defined, the court will open the dictionary and interpret the statute by applying the standard definition of the word. If you’re reading a statute and wondering what an undefined word means, you should do the same!

    1. https://leg.colorado.gov/laws ↩︎

  • Introduction to Statutory Construction – The Plain Meaning Rule

    Editor’s Note: This article was originally posted September 12, 2013.

    by Julie Pelegrin

    You’ve worked hard to get your bill through both houses and onto the Governor’s desk. You worked with your colleagues on amendments to be sure the bill language clearly and explicitly said just what you intended. Now, the act is signed and on its way to implementation and you can rest easy. Right? Hopefully right. But there may be some people who don’t agree on what this new statute means or on what your carefully crafted language says. Some of these disagreements may be so serious that someone files a lawsuit asking the court to interpret the precise meaning of this new statute. How is the court going to interpret your bill and decide what it means?

    This is the first article in a series that looks at statutory construction—how courts approach interpreting a statute and the various rules that they apply. Generally, a court presumes that when a legislature enacts a statute, the legislators understand and apply the same rules of statutory construction that a court applies when interpreting the statute. This series of articles is intended to provide a helpful and informative overview of those rules.

    Generally, a court presumes that when a legislature enacts a statute, the legislators understand and apply the same rules of statutory construction that a court applies when interpreting the statute.

    We’ll begin the series by looking at one of the basic ground rules a court applies when reading statutes. When someone asks a court to interpret a statute, the first thing the judge does is read the statute. If the statutory language is clear on its face and there is no reasonable doubt as to its meaning, then the judge will simply apply the language of the statute to the case at hand. This is known as the “Plain Meaning Rule.” The judge will decipher the plain meaning of a statute by applying the ordinary, everyday definitions of the statute’s words, unless the statute itself provides specific definitions of the words.

    Colorado actually has a statute, section 2-4-101, Colorado Revised Statutes,1 that supports the Plain Meaning Rule:

    Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.

    In giving the ordinary meaning to words and phrases, the judge will avoid an interpretation that leads to an illogical or absurd result. The judge will also avoid an interpretation that would defeat the obvious intent of the statute.

    And as section 2-4-101 requires, the judge will read the statute in context, as a whole and try to give consistent and sensible effect to all parts of the statute. A judge assumes that the General Assembly intended the entire statute to be effective and did not include any statutory language that has no meaning or effect.

    Unfortunately the meaning of a statute is not always plain. A judge may find that the language of a statute can be reasonably read to have two or more meanings. Also, a judge may find that there are two or more statutes that apply to a particular situation. The meaning of each statute may be plain, but each statute, as applied, will result in different outcomes. When this happens, the judge will likely find that the statute is ambiguous.

    At this point, the judge may turn to the legislative history to try to determine the legislature’s intent when it enacted the statute. In Colorado, the legislative history consists almost entirely of the recorded debates and discussions concerning the bill in the committee of reference and on the floor. The court may also consider the goal that the statute is intended to accomplish, if that is clear from the legislative history or from the statutory legislative intent, and the consequences of a particular interpretation of the statute.

    In addition to the legislative history, a judge may apply one or more of the canons, or rules, of statutory construction to interpret a statute. Colorado has codified many rules of statutory construction that we’ll consider in later articles. There are also several widely accepted canons of construction that courts have developed and used to interpret statutes and other legal documents for many years. Subsequent articles will discuss these, as well.

    It is important to remember that, if the General Assembly disagrees with a court’s interpretation of a statute, the General Assembly can amend the statute to clarify its intent. But when the court interprets the constitution or finds that a statute violates a constitutional provision, the General Assembly, if it disagrees, can override the court’s opinion only by referring a constitutional measure to the ballot.

    1. https://leg.colorado.gov/laws ↩︎

  • Recent Developments in Single Subject Requirement Case Law – Part I

    By Jason Gelender

    The single subject requirement of the Colorado constitution prohibits bills enacted by the General Assembly, constitutional amendments submitted for a vote of the people by the General Assembly, and initiated statutory changes and constitutional amendments from addressing more than one subject. While three distinct constitutional provisions separately prescribe the rule for bills, referred constitutional amendments, and initiatives, they all respectively state that a bill, referred constitutional amendment or initiative cannot “contain more than one subject, which shall be clearly expressed in its title, but if any subject shall be embraced in [the bill, referred constitutional amendment, or initiative] which shall not be expressed in the title, [it] shall be void only as to so much thereof as shall not be so expressed.” [1]

    Most of the single subject case law from the last quarter century addresses proposed initiatives and is generated when the Colorado Supreme Court considers appeals of Title Board decisions.[2] But two recent single-subject challenges to bills enacted by the General Assembly have yielded interesting and informative, albeit not precedentially binding, Denver District Court decisions. One case involves a successful challenge to a bill that was not especially lengthy, complex, or broad in its scope; the other case involves a thus far unsuccessful challenge to a bill that was lengthy, complex, and broad in its scope.

    This post, which is the first of a three-post series on recent developments in single subject case law, examines the first of those two decisions. The second post will examine the second of those decisions, and the third post in the series will examine the Colorado Supreme Court’s recent decision holding that a proposed initiative to repeal the Taxpayer’s Bill of Rights (TABOR) contains a single subject.

    The first case, Arapahoe Cnty. Sch. Dist. No. 1 et al. v. Colorado,[3] involved a single subject challenge to House Bill 18-1306, “Concerning ensuring education stability for students in out-of-home placement, and, in connection therewith, making an appropriation.” House Bill 18-1306 contained six substantive sections;[4] the plaintiffs alleged that section 7 of the bill violated the single subject requirement. Section 7, which was added to the bill in the Senate, eliminated a requirement that a school district that wishes to furnish transportation to a child who resides in another school district first obtain the approval of the school district in which the child resides. The plaintiffs contended that it violated the single subject requirement because, unlike the other substantive provisions of the bill, it did not apply only to “students in out-of-home placement.” The Denver District Court agreed with the Plaintiffs. In an order granting their motion for summary judgment, the court declared “[s]ection 7 of House Bill 18-1306 … to be void and of no effect” on the grounds that:

    • The “modern application” of the single subject requirement “requires an act and its title [(1) to] notify the public and legislators of pending bills so that all may participate; (2) to make the passage of each legislative proposal dependent on its own merits; and (3) to enable the governor to consider each single subject of legislation separately in determining whether to exercise veto power;”
    • The title of the bill “is not general,” but instead “is narrow in its focus, specifically ‘out of home’ placed students;”
    • The title therefore did not provide proper notice to the General Assembly or the public that section 7 of the bill modified “transportation for all students, in all school districts, without any restrictions or qualifications;”
    • Because section 7 of the bill was identical to language that had been included in a different bill, Senate Bill 18-228, which the General Assembly had postponed indefinitely, section 7 could not have passed on its own merits and its inclusion in the bill was “logrolling;” and
    • The addition of section 7 to the bill deprived the Governor of the opportunity to consider the remainder of the bill, all of which had a necessary and proper connection to the narrow single subject of ensuring educational stability for out-of-home-placed students, separately from section 7.[5]

    The state initially planned to appeal the order granting plaintiffs’ motion for summary judgment, but the General Assembly rendered the appeal moot by enacting Senate Bill 19-039, which restored the district of residency approval requirement that the voided section 7 of House Bill 18-1306 had sought to eliminate.

    What can we learn from the Denver District Court’s Order in Arapahoe Cnty. Sch. Dist. No. 1?

    • First, legislators, bill drafters, and anybody else who happens to get involved in the drafting of a bill should make sure to carefully consider and review the scope of the bill’s title before the bill is introduced. House Bill 18-1306 did not fail to meet the single subject requirement because it was a lengthy or complex “omnibus” bill that addressed a myriad of matters that could not reasonably fit under even a broad title. It failed because the title was drafted too narrowly to encompass all of its provisions, specifically a provision that was added by amendment, which a broader title could have encompassed.
    • Second, there is a real risk that a provision that actually relates to the single subject of a bill will nonetheless be found to create a second subject if the provision also relates to other matters. The issue with section 7 of House Bill 18-1306 wasn’t that it didn’t apply to students in out-of-home placement, but that it also applied to all other students. Again this risk can often be mitigated by drafting a bill with a broad general title.
    • Third, a narrow title remains a useful tool for limiting the scope of a bill and preventing the bill from being amended in a way that is contrary to the sponsors’ intentions. This tool is especially useful for a bill sponsor who knows, before a bill is introduced, exactly what the sponsor wants to accomplish and how it should be accomplished. But a narrow title does carry some risk if, after introduction, the policy goal of the bill or the means of achieving it change.

    In the next posting, we’ll discuss the lessons to be learned from the district court’s decision in TABOR Foundation et al. v. Colorado Dept. of Health Care Policy and Financing et al., which addressed a single subject challenge to Senate Bill 17-267, “Concerning the sustainability of rural Colorado.”

     

    [1] For general information about the single subject rule, see the Colorado LegiSource post titled “Single Subject Requirement Prevents a Multitude of Evils” (https://legisource.net/2012/12/06/single-subject-requirement-prevents-a-multitude-of-evils/)

    [2] Before a proposed initiative to change the Colorado Revised Statutes or amend the Colorado constitution can be circulated for signatures and placed on the ballot, the Title Board, a three-member statutory body composed of designees of the Secretary of State, the Attorney General, and the Office of Legislative Legal Services, must determine whether the measure satisfies the single subject requirement and, if it does, “designate and fix a proper fair title” for it. Sections 1-40-106 and 1-40-106.5, C.R.S. Appeals of Title Board decisions are made directly to the Colorado Supreme Court. Section 1-40-107 (2), C.R.S.

    [3] Case No. 2018CV32901 (Denver Dist. Ct.).

    [4] Sections 2 through 7 of the bill included substantive amendments to Colorado law, while section 1 contained a non-statutory legislative declaration, section 8 contained an appropriation, and section 9 was a standard “act subject to petition” clause.

    [5] Omnibus order re: plaintiffs’ motion for summary judgment, defendant’s motion for summary judgment, and defendant-intervenors’ motion for summary judgment (December 14, 2018).

  • 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. 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)1. 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).2 The standard of review is based on language in section 24-4-103 (8) (a), Colorado Revised Statutes, 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 section 24-4-103 (8), 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. 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) 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 homepage3 under a tab entitled Rule Review. The OLLS maintains listings of each bill for which rules are adopted.4  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) 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.

    1. Article 4 of title 24, Colorado Revised Statutes. ↩︎
    2. https://content.leg.colorado.gov/agencies/office-legislative-legal-services/committees ↩︎
    3. https://content.leg.colorado.gov/agencies/office-of-legislative-legal-services ↩︎
    4. https://content.leg.colorado.gov/agencies/office-legislative-legal-services/rule-review ↩︎

  • Requesting an Interim Committee? All You Need is a Letter

     (Reprinted with updates for the 2019 Legislative Session)

    Pursuant to section 2-3-303.3, Colorado Revised Statutes,1 a legislator who thinks a group of his or her colleagues should study a particular issue during the interim must submit a written request or formal letter to the Legislative Council for consideration and prioritization.

    Requesting the creation of an interim study committee is a fairly simple process. A legislator starts by contacting either the Office of Legislative Legal Services or the Legislative Council Staff office to initiate a written request or letter for the creation of the interim study committee. Legislators can also initiate the request through the iLegislate iPad application. The only information the legislator needs to provide when initiating the written request is the general topic that the interim committee will study. Both offices will assign staff to work with the legislator to develop the necessary details for the request and to prepare and finalize a letter. The legislator can also identify lobbyists or others who are authorized to work with staff in crafting the language of the letter.

    The final letter must specify key details concerning the interim committee, such as:

    • The scope of the policy issues the committee will examine;
    • The number of legislators on the committee;
    • How many times the committee will meet;
    • Whether a task force is needed to assist the committee; and
    • An estimate of the number of bills the interim committee may request to address the issues it studies.

    The legislator who submits the request may ask other legislators who are in favor of creating the interim study committee to sign on as “supporters” of the request, similar to signing on as cosponsors of a bill or resolution. Unlike bills and resolutions, however, a letter requesting the creation of an interim study committee cannot have joint prime sponsors.

    Once the letter is ready, the legislator must submit it to the Legislative Council for consideration by the Executive Committee by the deadline specified in the Joint Rules, usually the 94th day of session.2 To help ensure adequate time to prepare the final letter for submission to the Executive Committee, a legislator should submit his or her request for a letter to the Legislative Council Staff office or the Office of Legislative Legal Services at least a week before the deadline.

    The Legislative Council will meet by the deadline specified in the Joint Rules, usually the 100th day of session, to review and prioritize all of the interim study requests. Before that meeting, the Director of Research of the Legislative Council will review the legislative budget and report to the Executive Committee of the Legislative Council the number of interim committee meetings that are funded that legislative interim. The Legislative Council will consider this information in deciding how many interim studies to prioritize. The President of the Senate, the Speaker of the House of Representatives, and the Minority Leaders of the Senate and the House will appoint the legislative members of the prioritized interim committees.

    This process is intended for one-time committees that meet during one interim period. Legislators who want to create a long-term, statutory committee will need to do so by introducing a bill.

    For questions, please contact the Office of Legislative Legal Services at (303) 866-2045 or the Legislative Council Staff office at (303) 866-3521.

    1. https://leg.colorado.gov/laws ↩︎
    2. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=JNTRULES.23&catg=Joint&pg=3.0 ↩︎

  • Legislative Ethics and Criminal Code Violations

    Bribery: Section 18-8-302, Colorado Revised Statutes.

    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 bribery1 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”2 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: Section 18-8-303, Colorado Revised Statutes.

    A legislator commits the crime of accepting compensation for past official behavior3 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: Section 18-8-402, Colorado Revised Statutes.

    A legislator may be held criminally liable for misuse of official information4 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? Use this link to open a new window to take the Legislative Ethics Tutorial.

    1. Section 18-8-302, Colorado Revised Statutes. ↩︎
    2. Section 18-8-301, Colorado Revised Statutes. ↩︎
    3. Section 18-8-303, Colorado Revised Statutes. ↩︎
    4. Section 18-8-402, Colorado Revised Statutes. ↩︎

  • Happy Birthday House of Burgesses

    by Jery Payne

    The year was 1619. Although the colony of Virginia had yet to produce much in the way of profit, the years of starvation were at last over. The Virginia Company, who owned the colony because of a patent granted by King James I, had made a decision. The company decided that the necessity for martial law had passed, so it sent a new governor, George Yeardley, with instructions:

    And that they might have a hande in the governinge of themselves, yt was graunted that a generall Assemblie shoulde be helde yearly once, whereat were to be present the Govr and Counsell wth two Burgesses from each Plantation, freely to be elected by the Inhabitants thereof, this Assemblie to have power to make and ordaine whatsoever lawes and orders should by them be thought good and proffitable …

    This was actually Virginia’s third form of government, and historians have claimed that this grant was less motivated by a desire to advance the cause of representative government than by a desire to find a form of government that actually worked.

    Four hundred years ago, these instructions led to the first elected legislature meeting in the new world. Its first law required tobacco to be sold for at least three shillings per pound. They passed laws concerning such things as contracts, drunkenness, and gambling. They also sat as a court, where they sentenced a man to four days with his ear nailed to a pillory. They finished their work in six days.

    Small seeds grow mighty trees. Patrick Henry, Thomas Jefferson, and George Washington all served in the Virginia House of Burgesses.

    To be sure, the new world’s first legislature didn’t always advance freedom. During its first century, its laws transformed indentured servitude to slavery. Before that, the colony had followed the biblical rule that a servant was free after seven years. But for people of African descent, a series of laws evolved this into the chattel slavery that led to the Civil War.

    And some of their campaign practices would shock modern sensibilities. At a time when a day’s travel was about 30 miles, voting was an all-day affair. A person would come off a dusty road parched and tired. So the candidates would offer the voter a few drinks, such as rum, beer, or cider. This was known as “treating.”

    In his first election, George Washington refused to treat the voters; he received 40 out of 541 votes.1 In his second election, his campaign bought 160 gallons of libations for the voters. He won that election.

    Yet, for all its failings, the House of Burgesses inspired other colonial legislatures and made the colonists used to ruling themselves. Each colony eventually followed Virginia’s example and established a legislature. Self-government became a tradition they would not give up lightly. When the British Parliament levied taxes on the colonists, their protests and eventual rebellion were embodied in the cry “No taxation without representation!”

    The 1765 Stamp Act taxed the colonists without their leave. It enraged many of the colonists and led to months of protests. On May 29, Patrick Henry introduced a resolution in the House of Burgesses declaring, “Only colonial assemblies had the right to impose taxes on their constituents and that right could not be assigned to any other body.”2 This direct challenge to King and Parliament raised questions of his loyalty to the mother country.

    The next day, Henry gave his first speech in the House of Burgesses defending his resolution. Getting to George III, he said, “Caesar had his Brutus, Charles the First his Cromwell and George the Third …” Cries of “Treason!” interrupted his speech. Henry had uttered the names of dead rulers and the authors of their deaths in the same breath as Britain’s King, George III. Henry paused until the uproar died down, and then, he calmly finished his sentence: “…may profit by their example. If this be treason, make the most of it.” Trolling is nothing new.

    After months of protest, and an appeal by Benjamin Franklin before the British House of Commons, Parliament voted to repeal the Stamp Act in March 1766. But the King and Parliament kept levying taxes, so the colonies eventually rebelled. They wanted to be governed, not by Parliament, but by their own legislatures.

    Four hundred years ago, the first general assembly was born in the new world, and the institution of the state legislature was born. Happy Birthday!

    1. https://www.newrivernotes.com/the-first-election-of-washington-to-the-house-of-burgesses/ ↩︎
    2. https://www.u-s-history.com/pages/h1266.html ↩︎