by Ashley Athey

If you take a drive up I-70 and visit Breckenridge, just off the main street you’ll see a little yellow Victorian house surrounded by modern restaurants and art museums. Step inside and you’ll be transported back in time to when Barney Ford was alive. But who was he? And why was he so important to our state’s history?

Barney Ford was born into slavery in Virginia in 1822. His mother, Phoebe, prayed for her son to escape, and at the age of 17 Barney escaped his enslavement via the Underground Railroad and made it to Chicago.

It was in Chicago that Barney met and married Julia Lyon (or Lyoni), who helped him pick out his middle and last names—as an enslaved person, he didn’t have them—and he chose Lancelot Ford. He worked as a barber and helped support the Underground Railroad and abolitionist efforts. But he dreamed of going west to California, and in 1851 the Fords set out together, traveling via ship from New York because traveling across the country as a former enslaved man was unsafe. When their ship stopped in Nicaragua, Barney and Julia went ashore and they fell in love with the area. Together they built a successful hotel and restaurant and stayed there for many years until a local civil war destroyed their businesses. The Fords left Nicaragua and, in 1860, moved to Colorado.

Barney Ford was one of the first people to find and put a claim on the gold deposits in the land above Breckenridge, but Colorado law forbade a Black man from owning mining claims or homesteads. After being chased away and threatened in the middle of the night, Ford opened up a barbershop on Blake Street in Denver. Barney Ford was a savvy and intelligent businessman, and he ran many other successful businesses in Denver, including the People’s Restaurant and the Inter-Ocean Hotel. He even opened a second Inter-Ocean Hotel in Wyoming.

In 1880, Ford returned to Breckenridge and opened Ford’s Chop House, making him the first Black business owner in the town. He built a five-room house in Breckenridge for his family, and he built it without a key room – a kitchen! Instead, his family ate food from the restaurant.

In Denver, Ford was active in politics and fighting for the rights of Black men and women. He fought for their right to vote, their right to receive an education, and their civil rights. He helped other formerly enslaved individuals receive an education. And, in 1864, he was part of a contingent of Black pioneers who fought against statehood for Colorado because the amendment for statehood excluded voting rights for Black men. Ford taught evening classes to the community about the principles of democracy, and along with Henry O. Wagoner, his brother-in-law and a well-known Black abolitionist and journalist from Chicago, opened up a school for African American children.

Barney Lancelot Ford died in 1902 in Denver at the age of 80. Ford was inducted into the Colorado Business Hall of Fame and the Colorado Black Hall of Fame, and he was honored with a stained glass portrait in the House Chamber of the Colorado State Capitol building. While many of the buildings he once owned have been torn down, both the original site of the People’s Restaurant at 1514 Blake Street in Denver and his Victorian cottage on Washington Street in Breckenridge still stand. The little yellow Victorian cottage is now the Barney Ford Museum, which visitors can tour daily.

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by Jason Gelender

The Colorado Open Meetings Law (OML), sections 24-6-401 to 402, Colorado Revised Statutes, declares that it is “a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret.” The OML also declares that “[a]ll meetings of two or more members of any state public body” or of “a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are … public meetings open to the public at all times.”

However, the OML includes an exception to the general open meetings requirement, allowing state and local public bodies to consider specified types of matters in a closed “executive session” if certain requirements are met. The OML has substantially similar notice of executive session requirements for both state and local public bodies. It requires a state or local public body to identify the particular matters to be discussed in an executive session “in as much detail as possible without compromising the purpose for which the executive session is authorized.”

During four public meetings held in 2016, the Basalt town council went into executive sessions to discuss matters related to four topics for which the OML allows executive session discussion: property interests, receipt of legal advice on specific legal questions, determination of negotiating positions, and addressing of personnel matters. In its required public notices of the executive sessions (notices), the town council simply cited the appropriate statutory authority and generic purposes (e.g., receiving legal advice) for the executive sessions without providing any information about what property interests, legal advice, negotiations, or personnel matters would be discussed.

Plaintiff Theodore Guy applied to the district court for an order declaring that the notices failed to adequately identify the particular matters to be discussed as required by the OML and requiring disclosure of the records of the executive sessions. The district court granted plaintiff the requested relief with respect to the matters relating to property interests and negotiations but concluded that the notices were not required to include any specific information about the legal and personnel matters because of the nature of the attorney-client privilege and the subject employee’s privacy interests. Guy appealed.

In Guy v. Whitsitt,¹ the Colorado Court of Appeals reversed the district court and held that the notices had not provided adequate notice of the legal and personnel matters. With respect to the legal matters, the court of appeals concluded that it was possible, without compromising the purpose of the executive session, and therefore legally required, for the notices to have identified at least the subject matter of the legal matters to be discussed because the attorney-client privilege does not ordinarily prevent mere identification of the subject matter of an attorney-client communication. With respect to the personnel matters, the court of appeals concluded that the notices were required to at least identify the subject employee because: (1) a public employee has a narrower expectation of privacy than other citizens; and (2) the town’s argument that disclosure could violate the terms of its employment contract with the employee was not relevant because a town may not, by contract, evade its statutory obligations.

The upshot of this decision is that it is now clear that when a public body (e.g. a legislative committee) gives notice that it intends to consider a matter in an executive session, the OML requires that it do more than simply cite the applicable statutory authority and generically state an authorized purpose such as “receiving legal advice” or “addressing a personnel matter.” The public body must instead at least identify the person who is the subject of a personnel matter or the “subject matter” about which it is receiving legal advice.

For more general information about the OML and executive sessions, please see the Legisource article “The 411 on Executive Session under the Colorado Open Meetings Law.”²

1. https://caselaw.findlaw.com/court/col-crt-app-div-i/2069898.html ↩︎
2. https://legisource.net/2018/03/15/the-411-on-executive-session-under-the-colorado-open-meetings-law/ ↩︎

by Carolyn Kampman, Kate Watkins, and Patti Dahlberg

Editor’s note: This article was originally posted on March 23, 2018, and has been edited as appropriate.

Most people associate the state budget process with a couple of long weeks during the legislative session. True, the annual General Appropriations Bill or “Long Bill” must be introduced and passed between the 76^th and 94^th days of session per the legislative rules, but that is only part of the state’s annual budget story. The annual passage of the Long Bill marks the completion of an extensive and collaborative effort on the part of legislators, legislative staff, executive and judicial branch departments, and the governor’s office to pass a balanced budget for the citizens of Colorado.

Each year, Colorado’s budget process begins long before the legislative session convenes. In the summer, most executive branch departments submit budget proposals to the Governor’s Office of State Planning and Budgeting (OSPB). The OSPB reviews the proposals and makes adjustments based on the governor’s priorities and the anticipated amount of money available.

These executive departments then submit the approved budget requests to the General Assembly’s Joint Budget Committee (JBC) by November 1. The eight judicial agencies and the executive branch departments that are overseen by an elected official (the Attorney General, the State Treasurer, and the Secretary of State) also submit their budget requests to the JBC by November 1. The JBC staff review these requests and prepare written briefings that they present to the JBC in November and December. The JBC conducts formal public hearings with each department a week or two after the JBC staff briefing to discuss department budget priorities, operations, effectiveness, and future planning.

All JBC budget briefings, hearings, and other meetings are open to the public, broadcast over the internet, and recorded and archived.¹ The JBC does not accept public testimony during budget hearings, but they may allow public testimony in other hearings. The JBC encourages other legislators to participate in briefings and hearings. In addition, the JBC meets with each committee of reference during the first month of the legislative session to discuss department budget requests.

From December through mid-February, the Capital Development Committee (CDC) and the Joint Technology Committee (JTC) review capital construction and information technology project requests and priorities from OSPB and hold hearings with departments on their requests. The CDC and JTC prioritize requests, finalize recommendations, and notify the JBC. The JBC ultimately reviews these recommendations and incorporates them into the proposed Long Bill.

From January through March, JBC analysts present department budget requests at JBC meetings and make recommendations regarding budget amounts, funding sources, and possible legislation needed to implement certain budget actions. The JBC votes on each department’s budget request and then invites departments to submit “comeback” requests to ask the JBC to reconsider specific budget decisions. Throughout the first half of the legislative session, the JBC meets almost daily to review, adjust, and reset line item appropriations to each department. Economic forecasts and other reports, department budget requests, and budget recommendations from the governor’s office help the JBC and its staff develop a “balanced budget” proposal, which includes the Long Bill and legislation included with the Long Bill, as well as bills introduced by other legislators. To do this, the JBC picks a budget forecast in March, either the Legislative Council staff’s or the OSPB’s, to budget to.

Introduction of the Long Bill alternates between the House of Representatives, in even years, and the Senate, in odd years. The bill is typically 300+ pages and often the JBC introduces several additional bills as part of a “long bill budget package.” This is necessary because, under the state constitution (Article V, Section 32), the Long Bill can only include appropriations; it cannot include substantive changes to the statutes. So, if the JBC makes budgeting decisions that require a change to a statute, they have to introduce a separate bill to accomplish that change. For example, if the JBC decides to appropriate a certain amount for a program, but wants to improve the efficiency with which the money is distributed, the committee will introduce a bill to change the statutory distribution method.

Once the Long Bill and any associated bills are introduced, all work in that chamber revolves around passing those bills. Committee of reference meetings and other floor work is minimized so that the legislators can meet in their party caucuses to listen to JBC presentations on the Long Bill, ask questions, and discuss amendments to the bill. It usually takes about one week for the Long Bill and its associated bills to pass each chamber. Because the second chamber almost always amends the Long Bill, a third week is required for a conference committee, which is traditionally composed of the JBC members, to meet and recommend a report that resolves the differences between the two chambers. Each chamber must then adopt the report and readopt the final version of the bill.

After the Long Bill passes both chambers it goes to the governor to sign into law. The governor can exercise the line-item veto to veto an entire appropriation; the governor cannot use the line-item veto to increase or decrease an amount. If there are vetoes, the bill returns to the General Assembly to consider the vetoes and possibly override one or more of them.

Once the Long Bill passes both chambers, the funding for existing programs and services is finalized and the General Assembly knows how much money is available for bills to create new programs or offer additional services. The House and Senate appropriations committees start meeting in earnest to pass or postpone indefinitely (PI) bills, many of which have been languishing in those committees awaiting passage of the Long Bill. The General Assembly tries to ensure that the total amount appropriated through the Long Bill and all enacted bills that fund new programs or services does not exceed the amount of revenue that the state is expecting to have available in the coming fiscal year.

A more comprehensive explanation of Colorado’s budget process is available on the Joint Budget Committee Staff homepage² through the budget process and budget documents links.

Legislative Council staff, in conjunction with JBC staff, launched a webpage dedicated to the state budget and the state budget process, “Explore the Colorado State Budget”.³ In addition to explaining the budget process and timelines, this new webpage also illustrates the state’s operating budget, budget sources, major funding requirements, state revenue sources, TABOR’s interaction with the state budget, and other budget resources and considerations. This new webpage is updated, as needed, with pertinent budget details.

1. https://sg001-harmony.sliq.net/00327/Harmony/en/View/UpcomingEvents/20201125/54 ↩︎
2. https://content.leg.colorado.gov/agencies/joint-budget-committee ↩︎
3. https://content.leg.colorado.gov/explorebudget/ ↩︎

by Bob Lackner

Congratulations! The election is over and you’re now a member of the General Assembly! You know the official salary for the job will hardly compensate you in full for the many official duties you’ll be undertaking, and you also know the state won’t pay for a lot in terms of funding your office or hiring staff. You likely have campaign funds remaining after the election and know there are probably some rules addressing the use of such money (after all, as you know from your campaign, there is never any shortage of rules governing the use of campaign money), but you don’t know what they are.

For starters, this is a nice problem to have. As we will see, the law allows elected officials to use leftover campaign funds for a number of specified and beneficial purposes—and having leftover campaign money certainly gives an advantage over elected candidates who finish the election without these additional resources. In addition, the rules in this area are mostly clear and concise.

The legal term for leftover campaign money is “unexpended campaign contributions.” [1] This year, the 2020 election cycle ends on December 3, 2020. A candidate committee’s unexpended campaign contributions will be the amount of money the committee has on hand as of the first day of the new election cycle, or December 4, 2020, less any unpaid obligations the candidate committee has incurred as of that date.

Rules governing the use of campaign contributions are specified in the Fair Campaign Practices Act (FCPA).[2] As a threshold matter, the amount of money a candidate committee may retain after the end of the election is subject to an important restriction found in the campaign finance requirements of article XXVIII of the Colorado Constitution (Article XXVIII). Under Article XXVIII, the amount of any unexpended campaign contributions retained by a candidate committee on the first day of the new election cycle is treated as a contribution by a political party, regardless of the original source of the contributions, for purposes of the limit on political party contributions in that election cycle. This means that all unexpended campaign contributions that a candidate retains at the beginning of the new election cycle convert, or are “morphed,” into political party contributions.

To make things more complicated and challenging, under current campaign contribution limits, for the election cycle that begins on December 4, 2020, a political party cannot contribute more than $24,425 to Senate candidates and $17,625 to House candidates.[3] On December 4, 2020, if a candidate committee retains unexpended campaign contributions in an amount that exceeds the limits for Senate and House candidates, respectively, the candidate committee will be in violation of the law because it will have, on that date, accepted more in contributions from a political party than is permissible. A candidate committee in that position must spend down enough of the unexpended campaign contributions so that the amount retained on December 4, 2020, is below the applicable limit.

The statute classifies permitted uses of unexpended campaign contributions in two groups. Under the first group,[4] unexpended campaign contributions may be:

• Contributed to a political party;
• Contributed to a candidate committee established by the same candidate for a different public office in accordance with the applicable campaign contribution limits as long as the candidate committee making the contribution is terminated no later than 10 days after the contribution is made;
• Donated to a charitable organization recognized by the Internal Revenue Service; or
• Returned to the contributors or retained by the committee for use by the candidate in a subsequent campaign.

In addition to the uses described above, a person elected to office may also use unexpended campaign contributions for any of the following additional purposes:[5]

• Voter registration;
• Political issue education, which includes obtaining information from or providing information to the electorate;
• Postsecondary educational scholarships;
• To defray reasonable and necessary expenses related to mailings and similar communication to constituents; or
• To pay expenses that are directly related to the candidate’s official duties as an elected official, including, without limitation, expenses for purchasing or leasing office equipment and supplies; room rental for public meetings; necessary travel and lodging expenses for legislative education expenses such as seminars, conferences, and meetings on legislative issues; and telephone and pager expenses.

The Office of Legislative Legal Services (OLLS) refers to the last provision as the “catch-all” provision because, by its very terms, it permits the use of unexpended campaign contributions for “any expenses that are directly related to such person’s official duties as an elected official….” This is the provision we consult to research a contemplated use of unexpended campaign contributions that is not explicitly addressed in the statute. Questions involving use of the “catch-all” provision typically hinge on how direct the connection is between the contemplated use of the money and the member’s official duties as a legislator.

If the use of the money is directly connected to a task enabling the member to perform his or her duties as a legislator, the OLLS is likely to recommend that the use conforms to the statutory requirements. For example, the OLLS has regularly advised members that they may use unexpended campaign contributions to retain one or more legislative aides.

A candidate committee for an officeholder who does not run for reelection or is not reelected or for a person who is not initially elected to office must use all unexpended campaign contributions retained by the committee no later than nine years after the date the officeholder’s term ends or after the date of the election at which the unelected person was on the ballot, whichever is later.[6] As with any other form of campaign expenditure, a candidate committee must disclose the use of unexpended campaign contributions in its regular campaign finance disclosure reports required to be filed by law.[7]

If you are a member of the Colorado General Assembly, we encourage you to contact the OLLS if you have any questions about the propriety of using unexpended campaign contributions for a particular purpose. Additional information on this topic is provided in a document on the Colorado General Assembly’s website entitled “Frequently asked questions and answers involving the conversion or use of unexpended campaign funds.” In accordance with our customary recommendations on these matters, we also encourage legislators with questions to seek the advice and counsel of the Colorado Secretary of State’s Office as the body charged by law with the administration and enforcement of the state’s campaign finance laws.

 

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[1] The campaign and political finance provisions of the state constitution define “unexpended campaign contributions” to mean “the balance of funds on hand in any candidate committee at the end of an election cycle, less the amount of all unpaid monetary obligations incurred prior to the election in furtherance of such candidacy.” See article XXVIII, section 2(15) of the Colorado Constitution.

[2] The FCPA is codified in article 45 of title 1, C.R.S. The section of the FCPA that addresses unexpended campaign contributions is § 1-45-106, C.R.S.

[3] See Rule 10.17(h) of the Secretary of State’s Rules Concerning Campaign and Political Finance.

[4] § 1-45-106 (1)(a)(I)(A)–(D), C.R.S.

[5] § 1-45-106 (1)(b)(I)–(V), C.R.S.

[6] § 1-45-106 (1)(a)(III), C.R.S.

[7] In general, these disclosure requirements are specified in § 1-45-108, C.R.S.

by Julie Pelegrin

Editor’s note: This article was originally posted March 6, 2014, and has been edited as appropriate.

The legislator’s bill has passed the committee of reference, passed the Committee of the Whole on second reading, and is finally calendared for third reading and final passage. There are fewer third-reading rules to learn, but knowing these rules is crucial if the bill sponsor wants to ensure that the bill safely finishes its journey through the House or the Senate.

Voting on Third Reading

Art. V, section 22, Colorado Constitution¹

House Rules 20(a)(1)² and 33(c) and (d)³

Senate Rules 17(f)(1)⁴ and 25(b)⁵

The state constitution and the legislative rules impose several requirements on the third reading process. Article V, section 22 of the Colorado Constitution requires that second and third reading take place on different days. For example, if a bill passes second reading on Monday, it cannot be considered on third reading until Tuesday at the earliest. Because of this requirement, it takes at least three days – from introduction in the first house through final passage in the second house – for the Colorado General Assembly to pass a bill. In the final three days of the regular legislative session, if a bill has not passed on second reading in the first house by the end of the 118^th day, the bill is considered dead because it cannot constitutionally pass by the end of the legislative session.

To pass on third reading, a majority of the elected members of the House and the Senate must approve the bill, and the third reading vote must be recorded in the House and Senate journals. This requirement leads to the Rule of 33, 18, and One: To pass, a bill must receive at least 33 aye votes in the House, 18 aye votes in the Senate, and the Governor’s approval, either explicit or implied.

The constitution and the rules of the House and the Senate also require that all substantial amendments to a bill must be printed and distributed to the legislators before the third reading vote. Both houses implement this requirement by creating the engrossed version of the bill that includes all of the amendments adopted on second reading in the first house and the revised version of the bill that includes all of the amendments adopted on second reading in the second house. When a chamber votes on a bill on third reading, it is voting to adopt the engrossed version or the revised version of the bill, depending on whether the third reading vote occurs in the first or second house.

Third reading consent calendar – Senate only

Senate Rule 25A(c) and (d)⁶

In the Senate, if a bill passes on the second reading consent calendar, it is placed on the third reading consent calendar for consideration on the next day of actual session. A senator may object to having the bill on the consent calendar at any time before the bill passes on third reading, in which case the bill is removed from the consent calendar and placed on the third reading calendar for the next day of actual session.

Senators cannot substantially debate bills that are on the third reading consent calendar, and they will not consider substantive third reading amendments to any of these bills. The Senate takes a single vote on all of the bills on the third reading consent calendar, but each senator has the opportunity to vote no on each bill. The yes and no votes are recorded in the Senate journal separately for each bill.

The House does not use a consent calendar.

Third reading procedures

House Rules 13(d); 23(h)(3); 27(b); 27A(a) and (c); 29(k); and 33⁷

Senate Rules 9(d); 11; 17(f)(15); 22A(b); 24A(a) and (c); 25(b), (k), and (m); and 31(f)⁸

Decorum. When the House or the Senate is considering bills on third reading, a legislator may not introduce any visitors in the gallery or chambers. During third reading in the House, representatives cannot use electronic devices to send or receive voice or data communications, including emails, texts, and tweets. And it’s worth noting that senators and representatives cannot use cell phones for voice communications at any time in the Senate chambers or House chambers.

Motions. All of the bills on third reading are read by title only unless a legislator requests that the bill be read at length. On third reading, a legislator may move to:

• Strike the enacting clause of the bill, which kills the bill;
• Amend the bill, which requires the permission of a majority of the representatives or senators;
• Adopt the bill;
• Refer the bill back to a committee of reference;
• Lay the bill over for consideration on a later date; and
• In the House, refer the bill back to second reading for consideration of a substantial amendment to the bill.

Third reading amendments. To offer an amendment on third reading, a legislator must first move for permission to offer the amendment. If a majority of the representatives or senators grants permission by voting yes on the motion, then the legislator can move for the adoption of the third reading amendment. The votes on each third reading amendment are recorded in the House and Senate journals whether the amendment passes or fails.

On third reading, the House and the Senate typically consider only technical amendments to correct a drafting oversight or error. Sometimes, however, a legislator finds that he or she needs to substantially amend a bill on third reading. In the House, if a representative wants to offer a substantial amendment on third reading, he or she must move to refer the bill back to second reading to consider the amendment. Except during the last three days of the session, a substantive amendment is not in order on third reading in the House. In the Senate, a senator must have the amendment printed and placed on the desk of each senator, and the bill and amendment are laid over for consideration until the next day of actual session.

Limits on speaking. On third reading, the House and Senate rules limit the number of times and the length of time that legislators may speak on a question – in most cases an amendment or a bill. These rules are somewhat different for the House and the Senate.

In the House, most representatives may speak only twice on each bill or amendment. But the chairman of the committee of reference to which a bill was assigned and the representative who moves the bill or amendment may speak more than twice. Regardless of how many times a representative speaks, however, the representative cannot speak longer than a total of 10 minutes on each bill and each amendment.

In the Senate, most senators are also limited to speaking only twice on each bill, but the bill sponsor may speak more than twice. And each senator is limited to ten minutes each time he or she speaks on the bill.

Second house sponsors. Before a bill can be heard on third reading in the first house, the bill sponsor must designate a prime sponsor for the bill in the second house. The Chief Clerk of the House and the Secretary of the Senate have forms that the legislators must complete and turn in to the House or Senate front desk before the bill can be heard on third reading.

Cosponsors. Immediately after a bill passes on third reading, legislators may add their names as cosponsors of the bill or request that their names be removed as cosponsors.

Once a bill passes on third reading in the first house, the bill, including any amendments adopted on third reading, becomes the reengrossed bill and it is sent to the second house for consideration. When the bill passes on third reading in the second house, the bill, including any amendments adopted on third reading, becomes the rerevised bill. If the second house amends the bill, the rerevised bill is returned to the first house for consideration of the second house amendments. If the second house does not amend the bill, the bill is engrossed, signed by the Speaker of the House of Representatives, the Chief Clerk of the House, the President of the Senate, and the Secretary of the Senate, and sent to the Governor, who decides whether to sign the bill, veto the bill, or allow the bill to become law without a signature.

1. https://advance.lexis.com/search?crid=c323e1ff-c718-4098-8e01-48dd697da9e5&pdsearchterms=Colo.%20Const.%20Art.%20V%2C%20Section%2022&pdbypasscitatordocs=False&pdsourcegroupingtype=&pdmfid=1000516&pdisurlapi=true ↩︎
2. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.20&catg=House&pg=2.0 ↩︎
3. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.33&catg=House&pg=4.0 ↩︎
4. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.17&catg=Senate&pg=2.0 ↩︎
5. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.25&catg=Senate&pg=3.0 ↩︎
6. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.25A&catg=Senate&pg=3.0 ↩︎
7. https://www.leg.state.co.us/inethsr.nsf/HomePage.xsp ↩︎
8. https://www.leg.state.co.us/inethsr.nsf/HomePage.xsp ↩︎

by Julie Pelegrin

Editor’s note: This article was originally posted February 20, 2014, and has been edited as appropriate. We will post the fourth article in two weeks.

The Merriam-Webster online dictionary defines “committee of the whole” as “the whole membership of a legislative house sitting as a committee and operating under informal rules.” But just what are those rules and how informal are they?

Committee of the Whole

House Rule 32¹
Senate Rule 28²

Second reading begins with a motion that the body resolve itself into the Committee of the Whole for consideration of either general orders or special orders. In the Senate, the motion may also be for consideration of general orders – consent calendar (see explanation below). When the motion passes, the Speaker of the House or the President steps down and selects a legislator to preside over the Committee of the Whole. The chair of the Committee of the Whole has all of the powers of the Speaker or the President that are necessary to conduct the business of the Committee. By rule in the House and by custom and practice in the Senate, the chair of the Committee of the Whole does not vote except to break a tie.

The procedural rules of the House and the Senate apply to the proceedings of the Committee of the Whole, except:

• A legislator may speak more than twice on the same subject;
• A legislator may not call for the ayes and noes, (i.e., a recorded vote), but a legislator may request a standing vote, known as a division, before the chair announces the outcome of the vote;
• There’s no appeal from a decision of the chair; and
• In the House, by rule, a motion for the previous question, which would cut off debate, and a motion for reconsideration are not in order. This also is true in the Senate, but by custom and practice, not by rule.

The Committee of the Whole may amend a bill, pass a bill, reject a bill, refer a bill to a committee of reference, or lay a bill over for consideration on another day. All votes taken by the Committee of the Whole are voice votes, unless a Representative or Senator calls for a division before the chair of the Committee of the Whole announces the vote. In that situation, the chair takes a standing vote, first of all those in favor of the amendment or bill, and second of all those opposed to the amendment or bill. The greater number standing carries the vote. Voice votes and votes taken on division are recorded only as pass or fail; the actual names or numbers of Representatives or Senators voting on each side are not recorded.

Consent Calendar – Senate only

Senate Rule 25A³

The Senate can deal with several bills on second reading with a single vote by using the consent calendar. The consent calendar is used only for noncontroversial bills that do not require substantial debate or substantive floor amendments. The Majority Leader, after consulting with the Minority Leader, decides which bills are placed on the consent calendar, usually based on recommendations by committees of reference. Once a bill is placed on the consent calendar, if a Senator objects at the microphone to including the bill on the consent calendar, the bill is removed from the consent calendar and placed at the end of the general orders calendar for that day.

The Committee of the Whole considers the bills on the consent calendar just like the other bills, except there is no substantial debate or substantive floor amendments allowed on consent calendar bills, and the Committee of the Whole takes a single vote on the consent calendar, which adopts or rejects all of the consent calendar bills on second reading.

The House does not use a consent calendar.

Amendments in the House – Settled Questions

House Rules 28, 32(c), and 34⁴

In the House, if the Committee of the Whole takes final action on a bill, an amendment, or a committee of reference report, either by adopting or rejecting it, the same Committee of the Whole cannot take a later action that would defeat or resurrect the same bill, amendment, or committee of reference report. This is known as the “settled question” rule, and it prevents the Committee of the Whole from amending the same language twice or from amending language that the Committee has already approved.

Because of the settled question rule, when a bill sponsor moves a bill in the House, he or she must first move the bill, then the first committee report, and then the second committee report, if there is one. The House will then consider any amendments to the second committee report before adopting or rejecting the report, then any amendments to the first committee report before adopting or rejecting the report, and finally any amendments to the bill before adopting or rejecting the bill. If a Representative has an amendment to the first committee report, and that report has already been adopted, the amendment is a settled question and the chair will likely rule that the amendment is out of order.

Each amendment must relate to the same subject as the original bill. If a Representative offers an amendment to a pending amendment or offers a substitute amendment to a pending amendment, the offered amendment must be germane to the subject of the pending amendment. For example, if a Representative offers an amendment to change the amount of a fee in the bill, another Representative cannot offer an amendment as a substitute to the pending amendment that would change the date on which the bill takes effect. But another Representative may offer a substitute amendment to the pending amendment to strike the fee requirement from the bill.

Each substantial amendment must be printed and distributed to the House members. In practice, this means that, if a Representative wants to offer an amendment that is longer than a page, the Representative must turn the amendment in to the Chief Clerk of the House no later than 4:30 p.m. the day before the bill is heard on second reading. During the Committee of the Whole, a Representative may move to lay a bill over so that the amendments that have been offered on the bill can be printed and distributed to the members.

An amendment to strike out the enacting clause of a bill takes precedence over any other motion relating to a bill. The amendment opens the question of passage of the bill to general debate and, if the amendment passes, the bill is dead.

Amendments in the Senate

Senate Rules 5⁵ and 25(h)⁶

In the Senate, to offer an amendment to a bill in the Committee of the Whole, a Senator must have the amendment typed and must turn it in to the Secretary of the Senate, who numbers each amendment in the order in which it is received.

The settled question rule does not exist in the Senate. The Committee of the Whole in the Senate can amend the same language in a bill multiple times, and the last amendment that the Committee adopts is the one that is enrolled into the bill for consideration on third reading.

When a Senator presents a bill to the Committee of the Whole, he or she moves the bill and then moves the first committee report and the committee either adopts or rejects the first committee report. If there are other committee reports, the bill sponsor moves each of those reports, and the Committee either adopts or rejects each report when it is moved. Then the Senators individually move their amendments, whether to one of the committee reports or to the bill, in the order that each amendment was turned in to the Secretary. The Committee must consider every amendment that is turned in to the Secretary unless the sponsoring Senator withdraws the amendment.

As in the House, an amendment to strike the enacting clause takes precedence over other amendments to a bill. Passage of an amendment to strike the enacting clause kills the bill.

Updated Fiscal Notes

House Rule 32A(c)⁷
Senate Rule 25(e)⁸

In the Senate, upon the request of five or more members, the legislative council staff will update the fiscal note for a bill that may have a significant effect on the revenues, expenditures, or fiscal liability of the state. If requested, the bill cannot pass on second reading until the fiscal note is updated.

In the House, a request for a revised fiscal note requires at least 10 Representatives. As in the Senate, once the updated fiscal note is requested, the bill cannot be considered on second reading until the updated fiscal note is prepared.

Committee of the Whole Report

House Rule 32⁹
Senate Rules 17(e), 17(f)(1), 25(f), 28(e), and 28 (g)¹⁰

Once the Committee of the Whole completes its work, a person – usually the majority leader – moves that the Committee rise and report. If the Committee isn’t actually done, but is taking a break and coming back on the same day or on the following day, the majority leader will move to rise and report progress and beg leave to sit again. Both motions are decided without debate. If the motion is to report progress and sit again, when the Committee returns, it resumes its work where it left off.

When the Committee of the Whole finishes and rises and reports, the actions the Committee took on every bill that it considered, including the amendments adopted on each bill, are summarized in the report of the Committee of the Whole. The person who chaired the Committee moves that the House or the Senate, as the case may be, adopt the report of the Committee of the Whole.

The report of the Committee of the Whole is similar to a report from any other committee – the body that adopts the report can amend it. In the case of the Committee of the Whole report, an amendment to the report reverses the action that the Committee took with regard to a bill or amendment. For example, a legislator may move to amend the Committee of the Whole report to show that a bill or amendment that the Committee passed did not pass. Or a legislator may move to amend the report to show that a bill or amendment that the Committee rejected did pass. In the Senate, a Senator may move an amendment to the Committee of the Whole report to show that an amendment that was not actually offered in the Committee of the Whole passed. The House will only consider amendments to the Committee of the Whole report that affect amendments on which the Committee voted.

Each amendment to the Committee of the Whole report and the report itself requires the affirmative vote of a majority of the elected members to pass: 33 votes in the House and 18 votes in the Senate. Each legislator’s vote on an amendment to the Committee of the Whole report and on the report itself is recorded. In the Senate, a Senator may request a recorded roll call vote on any individual bill that is included in the Committee of the Whole report.

Each bill that passes on second reading is then engrossed or revised and calendared for consideration on third reading. Engrossing, which occurs in the first house of introduction, and revising, which occurs in the second house of introduction, means that all of the amendments to the bill that are included in the adopted Committee of the Whole report are typed into the bill to create a new version of the bill: The engrossed version in the first house of introduction and the revised version in the second house of introduction. It is important to note that, after second reading, the operative version of a bill in the first house is the engrossed version, regardless of whether it was amended. Similarly, the operative version in the second house is the revised version, regardless of whether it was amended.

Reconsideration

House Rules 32¹¹ and 35(d)¹²
Senate Rule 18¹³

In the House, a Representative cannot move to reconsider a decision made by the Committee of the Whole. And an amendment to the Committee of the Whole report and adoption or rejection of the Committee of the Whole report and any bill included in the report are not subject to reconsideration.

In the Senate, a Senator cannot move to reconsider a decision made by the Committee of the Whole. However, a Senator can give notice of the intent to move to reconsider or move for immediate reconsideration of an action taken on an amendment to the Committee of the Whole report, the adoption or rejection of the Committee of the Whole report, or the adoption or rejection of a specific bill included in the Committee of the Whole report. For more information on reconsideration, see the LegiSource article: “The Four W’s and One H of Reconsideration of a Previous Vote.”¹⁴

1. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.32&catg=House&pg=4.0 ↩︎
2. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.28&catg=Senate&pg=3.0 ↩︎
3. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.25A&catg=Senate&pg=3.0 ↩︎
4. https://www.leg.state.co.us/inethsr.nsf/HomePage.xsp ↩︎
5. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.05&catg=Senate&pg=1.0 ↩︎
6. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.25&catg=Senate&pg=3.0 ↩︎
7. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.32A&catg=House&pg=4.0 ↩︎
8. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.25&catg=Senate&pg=3.0 ↩︎
9. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.32&catg=House&pg=4.0 ↩︎
10. https://www.leg.state.co.us/inethsr.nsf/HomePage.xsp ↩︎
11. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.32&catg=House&pg=4.0 ↩︎
12. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=HSERULES.35&catg=House&pg=4.0 ↩︎
13. https://www.leg.state.co.us/inethsr.nsf/Rule.xsp?id=SENRULES.18&catg=Senate&pg=2.0 ↩︎
14. https://legisource.net/2016/03/11/the-four-ws-and-one-h-of-reconsideration-of-a-previous-vote/ ↩︎

by Cathy Eslinger

The Legislative Council Committee will meet tomorrow, Thursday, September 3, to review analyses of the measures that the secretary of state has certified to the 2020 general election ballot. This year’s ballot will include 11 measures, the majority of which—seven—are on the ballot because each received at least 124,632 signatures on initiative petitions. Of the remaining four, the General Assembly referred three of them to the ballot and the people referred one to the ballot by petition.

As required by the state constitution and by statute the Legislative Council Staff (LCS) has been working for weeks to prepare the analyses to help the public understand the purpose and effect of each measure. Following the Legislative Council’s review, the LCS will mail the analyses, printed in the familiar “blue book,” to each registered-voter household in the state.

The LCS prepares a blue book before each general election for which initiated or referred constitutional or statutory amendments or questions are certified to the ballot. The analysis of each measure includes a summary of the measure, the major arguments for and against the measure, and a brief fiscal assessment of the measure. The analysis may also include other information that can help voters understand the measure’s purpose and effect. The goal is to write an analysis that is concise, readable for a layperson, and factually correct. In even‑numbered years, state law also requires that the blue book include information about the judges who are standing for retention in the coming election. The state commission and district commissions on judicial performance prepare this information and provide it to the LCS.

Each analysis typically goes through three drafts. But, depending on the complexity of the measure and the time available, some may require only two drafts. The LCS interviews proponents, opponents, and other stakeholders, using information provided by them, as well as information obtained through the LCS’s own research, to prepare and amend drafts.

The LCS maintains a stakeholder mailing list of individuals who express interest in receiving drafts and posts the draft analyses on a page on the General Assembly website along with the text of each measure. Any person may file written comments for staff to consider in preparing the drafts. The staff consider all comments and proposed amendments submitted by the established deadlines, but use discretion in changing the analysis. Some of the criteria for making proposed changes to the analysis include:

• Avoiding slogan-type language that triggers a response but does not contribute to greater understanding of the measure;
• Ensuring that statements are verifiable statements of fact rather than mere opinion, directly applicable to the measure, and not misleading;
• Ensuring that the language specifically strengthens or clarifies the arguments and is not repetitive;
• Maintaining the balance of the analysis between the opposing sides; and
• Avoiding language that is more appropriate for the campaigns conducted by the opposing sides.

As part of the analysis, the LCS also prepares a fiscal impact statement for each measure, taking into consideration fiscal impact information submitted by various state and local agencies, proponents and opponents, and other interested persons. The blue book will include a summary of each measure’s fiscal assessment, and the full fiscal impact statement for each measure will be available on the blue book website. At a minimum, the summary must include:

• An estimate of the measure’s effect on state and local government revenues, expenditures, taxes, and fiscal liabilities;
• An estimate of the amount of any state and local government recurring expenditures or fiscal liabilities; and
• For a measure that modifies the state tax laws, an estimate of the impact to the average taxpayer, if feasible.

The LCS submits a final draft of each analysis to the Legislative Council Committee, which holds a public hearing to review the analyses. Anyone who is interested in testifying on the accuracy or fairness of an analysis may do so at this public hearing. The Legislative Council may change the language of an analysis upon a two-thirds affirmative vote of the council members. Before the public hearing, the LCS will post on the General Assembly website information for each analysis that includes the final draft, any comments and amendments submitted to the last draft mailed to stakeholders, a list of persons who had opportunity to comment on the last draft, and the text of the measure.

Following the public hearing, the LCS mails copies of the blue book to each registered-voter household in the state no later than 30 days prior to the election. This year, the scheduled mailing date is Oct. 2. The LCS will also be mailing a Spanish language version of the book to each registered-voter household in counties identified by the U.S. Department of Justice under the federal Voting Rights Act.  In 2020, these counties include Conejos, Costilla, Denver, and Saguache. Staff contracts with a professional translation service to prepare these materials.

In addition, when the blue book is ready for mailing, no later than September 10 this year, the LCS will post both the English and Spanish versions to the blue book page on the General Assembly website.

If you would like more detailed information concerning the process for preparing the blue book, check the General Assembly’s website.

by Julie Pelegrin

The U.S. Supreme Court recently held in Chiafalo v. Washington¹ that not only can a state require a presidential elector to vote for the candidate nominated by the elector’s political party, the state can also punish an elector who fails to do so—a so-called “faithless elector.” The case was based on the removal of faithless electors in both Washington State and Colorado. The Washington Supreme Court looked to the legal precedent interpreting the U.S. Constitution and upheld the constitutionality of punishing faithless electors. The Tenth Circuit Court of Appeals, in Baca v. Colo. Dept. of State,² looked more to the plain language of the U.S. Constitution and how it had historically been applied and found that removing a faithless elector was unconstitutional.

The U.S. Supreme Court resolved the issue by taking the same approach as the Tenth Circuit—looking to the plain language and the historical application—but coming to the opposite conclusion. Looking at the same language and interpreting many of the same facts, the Supreme Court reversed the Tenth Circuit with an 8-0 decision (Justice Sotomayor recused herself).  A brief comparison of the two opinions illustrates how easy it is for lawyers to reach opposite conclusions.

First, a primer on how we really elect presidents and vice presidents. Article II, section 1(2) of the U.S. Constitution³ directs each state to appoint, “in such manner as the legislature thereof may direct,” electors to elect the president and vice president. These electors make up the Electoral College. In Colorado, when we vote for candidates for president and vice president, we are actually voting for a slate of electors nominated by the candidates’ political parties. In every state except Maine and Nebraska,⁴ the winner of the statewide popular vote receives all of the state’s electoral votes. For example, if the Democratic Party’s candidates win the popular vote in a state, then the Democratic Party’s electors will participate in the Electoral College for that state.

The Twelfth Amendment to the U.S. Constitution⁵ specifies the process the electors must follow in electing the president and vice president. Each elector casts a vote for president and a vote for vice president. The Electoral College votes from each state are tallied, and the candidates for president and vice president who receive the most votes win, so long as they receive a majority of all the votes cast by the Electoral College. If no presidential or vice presidential candidate receives a majority, the House of Representatives chooses the president from among the top three vote getters, and the Senate chooses the vice president from among the top two vote getters.

Colorado is one of 32 states that, by statute, require electors to vote for their respective parties’ presidential and vice presidential candidates. After the 2016 election, however, some of the Democratic Party electors decided to vote for someone other than Hillary Clinton, hoping to entice some of the Republican Party electors to vote for someone other than Donald Trump and ensure that no one received a majority of the Electoral College votes. If they had been successful, the House of Representatives would have chosen the president. Obviously, this strategy didn’t work. Instead, in Colorado, when an elector—Mr. Baca—voted for John Kasich instead of Clinton, the Secretary of State replaced him. And in Washington State, three faithless electors who voted for Colin Powell instead of Clinton were removed and fined $1,000.

In both states, statutes authorized removal of the electors. In Washington, the three electors sued in state court, claiming the statutes were unconstitutional and their removal violated their federal constitutional rights as electors. The Washington Supreme Court held that the Washington statute was constitutional and nothing prevented the state from requiring electors to vote for their party’s candidate and punishing them when they failed to do so. The Washington electors appealed to the U.S. Supreme Court.

In Colorado, Mr. Baca filed a civil action in federal court, claiming that the Secretary of State violated his constitutional rights by removing him. The Tenth Circuit agreed with Mr. Baca, holding that, even if the state could require electors to vote for their party’s nominee, it could not enforce the requirement by removing a faithless elector and nullifying the elector’s vote. The Secretary of State appealed to the U.S. Supreme Court, which agreed to hear both cases to resolve the disagreement.

Both the Supreme Court and the Tenth Circuit recognized that states may require presidential electors to support the presidential and vice presidential nominees of their parties.⁶ The issue was, whether a state could enforce that requirement. Both courts also agreed that the U.S. Constitution is silent on whether a state may remove a faithless elector. But that’s pretty much where the agreement ended.

The Tenth Circuit found there is no implied power for a state to remove an elector because the elector isn’t fulfilling a state duty; the elector is fulfilling a federal duty. But the Supreme Court looked at the state’s unfettered power to appoint electors, which includes the power to impose conditions on the appointment—like who the elector has to vote for. The Supreme Court concluded that removing an elector who fails to meet those conditions is just a natural extension of the power to impose the condition itself.

The Tenth Circuit looked to the “plain language” of Art. II, Section 1(2) and the Twelfth Amendment. Using contemporaneous definitions, it determined that the terms “elector,” “vote,” and “ballot” clearly imply that electors are to have discretion and exercise individual choices in voting for candidates.

The Supreme Court, however, noted that the “plain language” doesn’t specify that electors must make their own choice when voting, like some state constitutions did when the constitution was written. The federal constitution could have said that, but it didn’t. The Court also noted that the terms “elector,” “vote,” and “ballot” don’t have to connote independence. Electors had been pledging to vote their parties’ tickets for years before the Twelfth Amendment was written, and those votes were counted even though they were not the result of an independent choice.

Finally, the Tenth Circuit looked at history and original intent. Citing the Federalist Papers and former Supreme Court Justice Joseph Story’s commentary on the constitution, it found that the authors of the constitution intended electors to exercise their independent judgment; Justice Story had complained that electors had been pledging their votes for years, which was never the authors’ intent. The Tenth Circuit also found 165 instances of faithless electors, and all of those votes were counted even though the electors broke their pledges.

The Supreme Court countered all of these findings. The Court refused to allow the Federalist Papers to override or add to the actual language in the constitution. The Court noted that as early as 1796, voters expected electors to vote the party ticket and, citing Justice Story and others, recognized that electors did just what they were told to do. And finally, the Court identified 180 instances of faithless electors—out of 23,000. As such, those instances were mere anomalies, only one of which was even contested. That elector’s faithless vote was challenged and was upheld, but the elector came from a state that did not have a pledge statute. The Court observed that one instance in 200 years “hardly constitutes an historical tradition.”

Based on its reading of history and the law, the Supreme Court found that states, for much of the last 220 years or so, have been requiring presidential electors to keep faith with their parties and the voters, and there’s no constitutional requirement to change that now.

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1. https://www.congress.gov/crs_external_products/LSB/HTML/LSB10515.html ↩︎
2. https://law.justia.com/cases/federal/appellate-courts/ca10/18-1173/18-1173-2019-08-20.html ↩︎
3. https://www.law.cornell.edu/constitution/articleii#section1 ↩︎
4. In these states, the candidate who wins the popular vote in each congressional district gets the electoral vote for that district and the two remaining electoral votes go to the candidate who wins the statewide popular vote. So both Republican and Democratic Party electors may participate in the Electoral College for these states. ↩︎
5. https://www.law.cornell.edu/constitution/amendmentxii ↩︎
6. In the earlier case of Ray v. Blair, the U.S. Supreme Court had upheld the states’ ability to require presidential electors to vote for their parties’ candidates. ↩︎

by Jason Gelender

The Colorado constitution¹ requires a petition for a proposed ballot initiative to be signed by registered electors “in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of the secretary of state at the previous general election” before the initiative can be placed on the ballot.² If the proposed ballot initiative amends the Colorado constitution, the petition must also be signed by at least two percent of the registered electors residing in each of the state’s 35 Senate districts.³

The Colorado constitution also imposes requirements regarding the manner in which an initiative petition must be signed, stating that a petition “shall be signed by registered electors in their own proper persons only,” and that each petition must include “an affidavit of some registered elector that each signature thereon is the signature of the person whose name it purports to be and that, to the best of the knowledge and belief of the affiant, each of the persons signing said petition was, at the time of signing, a registered elector.”⁴

Accordingly, the implementing statutes⁵ that govern the qualification of proposed initiatives for the ballot require initiative petitions to be signed in person by registered electors while in the physical presence of a petition circulator. In 2020, government, business, and individual efforts to reduce the spread of COVID-19 through mandatory and voluntary social distancing have made in-person ballot petition signature gathering considerably more challenging for proponents of proposed ballot initiatives than it typically is.

The Colorado Disaster Emergency Act, Sections 24-33.5-701 to 24-33.5-717, Colorado Revised Statutes, (CDEA), authorizes the Governor to declare a disaster emergency during which the Governor may “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules, or regulations of any state agency….”⁶ On March 10, 2020, the Governor declared a disaster emergency as a result of the COVID-19 global pandemic. On May 15, 2020, recognizing the challenges to in-person ballot petition signature gathering posed by social distancing resulting from the disaster emergency, the Governor issued Executive Order D 2020 065 (EO 65), which, among other things: (1) suspended the requirement of section 1-40-111, Colorado Revised Statutes, that initiative petition signature collection take place in person; and (2) authorized the Secretary of State to create temporary rules to permit signature gathering by mail and email.

On May 18, 2020, petitioners Colorado Concern, a self-described “alliance of top executives with a common interest in enhancing and protecting the Centennial State’s business climate,” and Colorado Concern board member Daniel Ritchie filed a lawsuit in Denver District Court against the Governor and the Secretary of State seeking a preliminary injunction to stop the enforcement of EO 65 and a declaratory judgment finding EO 65 unconstitutional under the Colorado constitution and unauthorized under the CDEA. On May 27, 2020, after ordering expedited briefing and holding a hearing, the district court issued an order⁷ denying the injunction and declaratory judgment. The petitioners appealed to the Colorado Supreme Court.

On July 1, 2020, the supreme court reversed⁸ the district court, unanimously holding that article V, section 1 (6) of the Colorado constitution requires initiative petition signatures to be executed in person in the presence of a petition circulator and that the Governor cannot issue an executive order that suspends that requirement. The supreme court concluded that, by adopting the phrase “in their own proper persons,” the voters who approved article V, section 1 (6) intended that petition signatories sign for themselves rather than permitting someone else to sign for them. The supreme court further concluded that this requirement, read together with the additional article V section 1 (6) requirement that a registered elector attest to the validity of petition signatures, also requires that the in-person signing occur in the presence of the person circulating the petition. The supreme court supported these conclusions by observing, as the U.S. Supreme Court in Meyer v. Grant, 486 U.S. 414 (1988),⁹ had observed, that Colorado’s initiative process is interactive and involves direct engagement.

In light of its holding that article V, section 1 (6) requires in-person collection of initiative petition signatures, the supreme court did not determine whether EO 65 complied with the requirements of the CDEA. Instead it simply concluded that while the CDEA authorizes the Governor to suspend certain types of statutes, rules, and regulations during a declared disaster emergency, it does not authorize the Governor to suspend constitutional provisions.

The supreme court’s decision that initiative petitions must be signed in person and in the presence of a petition circulator dissuaded the proponents of at least one proposed initiative from even attempting to qualify the initiative for the 2020 ballot. Before the court issued its decision, the Secretary of State had authorized email and mail signature collection for six of the sixteen initiatives that had been approved for circulation: initiatives numbers 174, 271, 283, 292, 300, and 301. On July 2, 2020, the day after the supreme court announced the decision, the proponents of initiative #174 (“Setback Requirement for Oil and Gas Development”) announced that they would end their signature collection efforts because they were left with no safe way to proceed.

The proponents of at least one other proposed initiative also cited the decision as a factor in their inability to collect the required number of signatures. On July 31, 2020, three days before the August 3, 2020, deadline for turning in signatures, the backers of initiative #271 (“Policy Changes Pertaining to State Income Taxes”) announced that they had been unable to collect the required signatures because “we could not overcome the effects of a global pandemic and a Supreme Court decision that did away with a viable alternative to traditional signature collection.” However, despite these challenges, three initiatives have qualified for the ballot and four others have turned in enough signatures for the Secretary of State to review them for signature sufficiency.

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1. Colorado Constitution Article V, Section 1. ↩︎
2. Colorado Constitution Article V, Section 1 (2). For the 2020 general election, 124,632 verified signatures must be collected to qualify a proposed initiative for the ballot. ↩︎
3. Colorado Constitution Article V, Section 1 (2.5). ↩︎
4. Colorado Constitution Article V, Section 1 (6). ↩︎
5. Section 1-40-111 Colorado Revised Statutes. ↩︎
6. Section 24-33.5-704 Colorado Revised Statutes. ↩︎
7. https://www.courts.state.co.us/Media/Opinion_Docs/20cv31708%20-%20Ritchie%20v%20Polis%20-%20FINAL%20as%20filed. ↩︎
8. https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2020/20SC453. ↩︎
9. https://supreme.justia.com/cases/federal/us/486/414/ ↩︎

Part 2 of article 6 of title 24, Colorado Revised Statutes, otherwise known as the “Public Official Disclosure Law”, outlines requirements for the disclosure and reporting by public officials, including members of the General Assembly, of certain types of information. Section 24-6-202, Colorado Revised Statutes, largely concerns the disclosure of financial information, such as sources of income; businesses in which the legislator holds a financial interest; interests in property; the identification of all offices, directorships, and fiduciary relationships the legislator holds; and significant creditors of the legislator. Disclosure extends to the legislator’s immediate family. Financial disclosure must be made within 30 days after the legislator’s election or reelection, and each legislator must file an amended statement on or before January 10 of each calendar year.

The reporting of gifts, honoraria, and other benefits that an incumbent or a candidate elected to public office receives in connection with his or her public service is the subject of section 24-6-203, Colorado Revised Statutes. Section 24-6-203 (3), Colorado Revised Statutes, lists certain items that the legislator must report, and section 24-6-203 (4), Colorado Revised Statutes, lists other items that the legislator need not include in his or her report. Gift and honoraria must be reported quarterly. If a legislator does not receive any of the covered items, he or she need not file a report. Legislators must file reports under both statutory sections with the secretary of state’s office.

The subject of disclosure of reimbursement for travel expenses is addressed in section 24-6-203 (3)(f) and (4)(d), Colorado Revised Statutes.  Legislators must disclose reimbursements for travel if the reimbursement comes from a financial source other than public funds of a state or local government or from the funds of an association of public officials or public entities whose membership includes the member’s office or the General Assembly.

Seems easy enough. Here are some hypothetical situations for your consideration:

Situation #1. You are a member of the General Assembly. Following a very stressful session of the General Assembly, you had to endure painful foot surgery, which you postponed during the session. Your doctor has instructed you to stay off your feet for 3 weeks to let your foot properly heal. A longtime friend who has known you since long before you commenced your political career has offered the use of her condominium in a mountain town for your extended use. The offer comes with the assistance of a housekeeper who will prepare your meals. The relationship you enjoy with the donor is strictly personal, and the donor has never expressed any interest in the public business that you address as a legislator.

Are you required to disclose the gift of the use of the condominium?

1. There is no need for disclosure because you cannot accept your friend’s offer. Now that you are elected to the General Assembly, you should never accept a gift from anyone at any time for any purpose.
2. Since you probably can’t accept the gift under Amendment 41, there is no gift to accept and, therefore, to disclose under the Public Official Disclosure Law (“PODL”).
3. Since the donor is a long-time friend, no one would think anything improper about receiving a gift from that person and therefore there is no need to disclose such gift.
4. A gift from a long-time friend of the use of a condominium to assist in one’s recovery from surgery is not given in connection with the member’s public service. Accordingly, the member is not required to disclose the gift.

The correct answer is 4. Section 24-6-203 (2), Colorado Revised Statutes, requires disclosure of gifts given in connection with the member’s public service. In this case, the donor was a long-time friend who gave you the use of the condominium while you were recovering from surgery. The relationship you enjoy with the donor is strictly personal, and the donor has never expressed any interest in the public business that you address as a legislator. For these reasons, it does not appear the gift was given in connection with public service, which means you have no obligation to disclose it under section 24-6-203 (2), Colorado Revised Statutes.

Situation #2. You are the chair of an interim legislative committee formed to study the conversion of outdated shopping malls to alternate uses. A private non-profit foundation promoting this type of development by the name of STOP (for “Start Transferring Open Parcels”) has put together a trip for legislators from across the nation to study successful conversion projects in a dozen different cities. STOP wants to reimburse you for your reasonable travel expenses involved in participating on the trip. STOP receives less than 5% of its revenue from for-profit entities.

Are you required under the Public Official Disclosure Law (“PODL”) to disclose the reimbursement you will receive for these travel-related expenditures?

1. As it doesn’t look like you would be able to accept reimbursement for the trip under Amendment 41, you shouldn’t go, making disclosure of this reimbursement a moot point.
2. Since the reimbursement is coming from the funds of a nonprofit entity that is not an entity whose membership includes your office or the General Assembly, you are required to disclose your acceptance of it.
3. This trip sounds like one of those “junkets” that is the source of much criticism. Accordingly, if you go, you should disclose it if only for the sake of preventing an appearance of impropriety.
4. The work STOP does is really important to your constituents. There are three old and decaying shopping malls in your district alone. You feel a strong need to join the trip to learn how to generate the process of conversion in Colorado. This is such a boring issue and the sights are so depressing — why would anyone think a member would be going on this trip if he or she didn’t feel the issue was so important?

The correct answer is 2. Under section 24-6-203 (3)(f) and (3)(d), Colorado Revised Statutes, reimbursement for travel must be disclosed if payment of the reimbursement comes from a financial source other than public funds of a state or local government or from the funds of an association of public officials or public entities whose membership includes your office or the General Assembly. In this case, because STOP, the nonprofit organization making payment to you for your travel expenses, does not meet these criteria, the reimbursement must be disclosed under the PODL.