Colorado LegiSource

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

Year: 2020

  • Happy New Year

    Happy New Year!

    We wish you a happy and healthy 2021.

  • A Holiday Message

    Wishing you a safe and happy holiday season!

    Pictured: The 2018 Capitol Tree

  • Barney Ford: From Slavery to Successful Businessman

    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.

     

    For more information on Barney Ford and his contributions to Colorado’s history, visit:

    https://www.coloradovirtuallibrary.org/digital-colorado/colorado-histories/beginnings/barney-ford-from-slavery-to-success/

    https://coloradoencyclopedia.org/article/barney-ford

    https://www.historycolorado.org/story/collections-library/2017/02/08/barney-ford-african-american-pioneer

  • Colorado Court of Appeals Clarifies Executive Session Notice Requirements

    by Jason Gelender

    The Colorado Open Meetings Law (OML), sections 24-6-401 to 402, C.R.S., 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, 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.“

  • Colorado’s $tate Budget Process

    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 76th and 94th 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. [Please note that due to the current public health emergency, JBC meetings are open to the public through audio broadcast only.] 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 homepage through the budget process and budget documents links.

    Last Spring, Legislative Council staff, in conjunction with JBC staff, launched a new webpage dedicated to the state budget and the state budget process, “Explore the Colorado State Budget“. 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.

    For more background on the Joint Budget Committee and Colorado’s budget process, please see “Joint Budget Committee to Write State’s Budget for the 58th Time”, posted October 26, 2017.

  • A Thanksgiving Message

    Happy Thanksgiving from the Office of Legislative Legal Services

     

  • What’s so Special about a Special Session?

    by Julie Pelegrin

    Editor’s note: This article was originally posted on May 10, 2012, and has been updated with information pertaining to the upcoming special session commencing November 30, 2020.

    The Governor recently issued an executive order calling the General Assembly into a legislative special session. At this point, many legislators and other people may be wondering what, exactly, is a special session and how does it work?

    The most obvious things that are different about a special legislative session are: 1) The General Assembly is in session even though the regular, 120-day legislative session has ended, and they can remain in session as long as they choose to do so; and 2) The General Assembly is limited to addressing only certain subjects while meeting in special session.

    Governor’s Authority: Article IV, section 9 of the Colorado constitution authorizes the Governor to convene the General Assembly “on extraordinary occasions” by a proclamation, known as “the call,” that specifies the purposes for which the General Assembly is to convene. The only business the General Assembly may transact during the special session is the business the Governor specifically identifies in the call. The Governor decides what is an extraordinary occasion and sets the agenda of issues that the General Assembly may consider. The Governor’s call also sets the date and time at which the special session must begin.

    The Governor’s recent call directs the General Assembly to convene in special session at 10:00 a.m. on November 30, 2020. The Governor has identified several issues that the General Assembly may consider, all related to addressing the effects of the on-going COVID-19 pandemic:

    • Emergency tax relief to small businesses;
    • Housing and rental assistance to persons impacted by the pandemic;
    • Support for child care providers impacted by the pandemic;
    • Expanding broadband and wi-fi access for educational purposes;
    • Support for the food pantry assistance grant program;
    • Help for individuals who are unable to pay their utility bills due to financial hardship caused by the pandemic; and
    • Funding for public health expenses.

    Agenda Items: The Governor sets the agenda items, but the Colorado Supreme Court has held that he cannot prescribe the specific form of legislation; he cannot describe the agenda items so narrowly that the General Assembly is forced, in the words of the Court, “to do the bidding of the governor, or not act at all.” The General Assembly decides whether to enact legislation to address the agenda items and, if enacted, how the legislation will address the agenda items.

    It is the advice of the Office of Legislative Legal Services that the question of whether a bill or resolution fits within the agenda items is a substantive, not a procedural, question and cannot be decided by a ruling of the chair of a committee or by a ruling of the President of the Senate or the Speaker of the House of Representatives. Similar to deciding whether a bill is constitutional, the Senate and the House of Representatives decide whether a bill fits within the agenda items when they vote on the bill or resolution.

    Timing: While the General Assembly must convene on the date and time specified in the call, the General Assembly need not pass, nor even consider, any legislation while in special session, and the General Assembly decides how long the session will last. The Governor may not set a date by which the General Assembly must adjourn.

    General Assembly’s Authority: During a special session, the General Assembly retains its full plenary authority, other than being limited to considering only the agenda items. The General Assembly may convene and, after establishing the presence of a quorum, immediately adjourn. The General Assembly may consider but refuse to pass any legislation during a special session, or it may pass one or more bills that address one or more of the agenda items on the Governor’s call. The Governor has no authority to either force the General Assembly to stay in session or force the General Assembly to adjourn.

    Rules and Procedure: Although the agenda is limited, a special session operates under the same constitutional requirements and legislative rules, other than the deadline schedule, that apply during a regular session. Each bill must have a single subject; each introduced bill must be assigned to a committee and receive consideration and a vote on the merits; and the vote on second reading and the vote on third reading must occur on different calendar days, so it still takes at least three days to pass a bill. All of the legislative rules with regard to committees and the operations of the Senate and the House that apply in a regular legislative session also apply in a special legislation session.

    If you have additional questions about how the General Assembly operates during a special session, please consult the special session FAQ memo available on the Office of Legislative Legal Services website.

  • Covid or No Covid – Bill Request Deadlines Are Quickly Approaching!

    by Patti Dahlberg

    The 2020 election is finally in the rear view mirror and the first bill request deadlines are just ahead! One might think that returning and newly elected legislators would have a little time to take a breath and relax a bit before gearing up for the 2021 legislative session. Unfortunately, the constitution, legislative rules, and a looming 120-day legislative session don’t allow for much relaxation, and they don’t care about Covid.

    And what a year of Covid it has been and continues to be. The state has been under a declared statewide public health disaster emergency since last March, and the 2020 legislative session recessed for two months then reconvened in late May. A huge number of bills were left on the side of the road in order to streamline the legislative process and balance the state’s budget before the end of the 2019-20 fiscal year. The General Assembly did tie up its business in 84 days but didn’t adjourn until June 15, making 2020 the longest, shortest, and strangest session in recent memory. These events also made the 2020 legislative interim one of the shortest in recent history. In any case it’s all behind us now, and it’s time to look forward, where the upcoming bill deadlines require legislators to complete the bulk of their bill drafting in December before the first day of the legislative session.

    Returning legislators have until Tuesday, December 1, 2020, to submit their first three bill requests to the Office of Legislative Legal Services (OLLS).* A legislator is considered “returning” if the legislator served in the 72nd General Assembly, even if the legislator previously served as a representative and will be serving as a senator in the 73rd General Assembly.

    Newly elected legislators have a little extra time — but not much — to get their session legs. They must submit their first three bill requests to the OLLS by Tuesday, December 15, 2020.*

    What all legislators need to know about requesting bills [Joint Rule 24(b)(1)(A)]:

    • The Joint Rules allow each legislator five bill requests each session. These five bill requests are in addition to any appropriation, committee-approved, or sunset bill requests that a legislator may choose to carry.*
    • To reach the five-bill-request limit within the bill request deadlines, legislators must submit at least three bill requests to the OLLS by the December deadlines. Legislators must submit the last two requests by January 19, 2021 (but see below).
    • If a legislator submits fewer than three requests on or before the December deadline, he or she forfeits the other one or two requests that are due by that date.*

    The first bill request deadline is still about 10 days away, so some may feel there is still plenty of time. But if a legislator waits until December to submit the first three bill requests, the legislator will almost immediately need to provide sufficient drafting information so that the drafters can draft all three of the bills quickly. The legislator will also have to very quickly decide which of these requests will become his or her “prefile bill”, which needs to be filed for introduction before the beginning of session. And for newly elected members – although the legislative rules allow them more time to request their first three bills than a returning legislator – these rules do not actually allow a new legislator additional time to have his or her bills drafted. Newly elected members have less time for drafting bills if they wait until the December 15 bill request deadline to submit their requests.

    If possible, every legislator — even the new ones — should try to submit at least one bill request ASAP. This bill request may address any subject matter and does not need to be completely conceptualized. The bill drafter will help you figure out how to word your bill, and the bill drafting process allows for potential issues or problems to rise to the surface, making it easier for the legislator to decide whether the idea is “workable.” If it becomes apparent that a request isn’t needed or is unworkable, the legislator can withdraw and replace it with a new request, as long as he or she makes that decision on or before the December 1 deadline for returning members or the December 15 deadline for new members. By submitting bill requests and draft information as soon as possible, legislators give drafters more time to work on their drafts. It will make it easier to determine duplicate bill requests and work out any drafting kinks before the first day of session — Wednesday, January 13, 2021.

    Legislators should also consider submitting more than three requests by the December deadlines. By doing so, a legislator preserves the flexibility to withdraw and replace at least one of his or her requests after the December deadline without losing a request. If a legislator submits only the three-request minimum by the December deadline and later withdraws one of those requests, the legislator forfeits the withdrawn bill request because the rules allow a legislator to submit only two bill requests after the December deadline and before the January deadline.* On the other hand, if a legislator submits four bill requests by the December deadline and later withdraws one of those requests, the legislator is left with three bill requests that meet the early request deadline plus the legislator can submit the two requests that are allowed after the early bill request deadline — for a total of five bill requests.

    Upcoming deadlines: Too many to remember and too important to forget.  Bill request and bill introduction deadlines are listed below. Deadlines applying only to House bills are in green, deadlines applying only to Senate bills are in red, and deadlines applying to both the House and Senate are in blue.  Click here for a link to House and Senate bill drafting, finalization, and introduction deadlines. The listed OLLS internal deadlines are designed to help move bill requests through the drafting process in a timely manner and to allow sufficient time for editing and review in order to provide a higher-quality work product and assure the timely introduction of bills. Paper copies of these tables are available in the OLLS Front Office, Room 091 of the Capitol.

    It is important to note for the upcoming session that the deadlines that arise after January 13, 2020, may be delayed. Normally, when the General Assembly convenes, that first day and every calendar day thereafter counts against the constitutional 120-day limit on the length of the regular legislative session. But so long as the statewide public health disaster emergency declaration remains in place, only those days on which at least one of the houses convenes will count as a legislative day. All of the deadlines during the legislative session are based on the numbered legislative days, so days on which neither house convenes—such as a Saturday or Sunday—won’t count. And if, like last session, the houses temporarily adjourn, any deadlines that have not yet passed at the time of adjournment will be delayed until the houses reconvene and the legislative days start counting again.

    December deadlines:*

    December 1. The last day for returning legislators to request their first three (or early) bill requests. After December 1 these legislators will only be allowed two additional bill requests (and only if they are under the five-bill limit). December 15. The last day for newly elected legislators to request their first three (or early) bill requests. After December 15 these legislators will only be allowed two additional bill requests (and only if they are under the five-bill limit).

    Upcoming filing and introduction deadlines (assuming a 120 calendar day session):*

    January 8. Deadline to file prefile bills with House and Senate front desks.
    January 15. Deadline to file Senate early bills with the Senate front desk.
    January 19. Deadline to request last two bills (regular bills) if a legislator is under the five-bill limit.
    January 19. Deadline to file House early bills with the House front desk.
    January 29. Deadline to file Senate regular bills with the Senate front desk.
    February 3. Deadline to file House regular bills with the House front desk.

    * A legislator may ask permission from the House or Senate Committee on Delayed Bills, whichever is appropriate, to submit additional bill requests or to waive a bill request deadline.

     

  • Office of Legislative Workplace Relations Meets GA’s Human Resources Needs

    By Ben FitzSimons

    The Office of Legislative Workplace Relations (OLWR) was created in 2019 (§ 2-3-511, C.R.S.) to help fulfill the Colorado General Assembly’s human resources needs and to provide a neutral, professional entity to support conflict and complaint resolution in the work environment. The OLWR, in its current state, was developed after considerable research and feedback from experts, consultants, and an interim legislative committee.

    The OLWR is located in Room 026 in the northwest quadrant of the Capitol basement and provides a number of specialized services for the Colorado General Assembly. Ben FitzSimons serves as the Director of the OLWR, which serves all legislators; all staff in all legislative agencies, the House of Representatives, and the Senate (both partisan and nonpartisan); and some third parties (e.g. lobbyists, members of the media, and individuals testifying before legislative committees).

    The OLWR provides employee relations, training, and organizational development services, including:

    • Confidential consultation, facilitation, and resolution planning for workplace issues and concerns. This includes working with legislators and supervisors to help resolve concerns or issues with their staff members and working with staff members (including aides, interns, partisan staff, nonpartisan staff, and volunteers) to help resolve questions or concerns about the work environment or their supervisors.
    • Confidential consultation regarding corrective/disciplinary action and planning. In addition, the OLWR can review or draft documents related to performance management and resolution of personnel issues.
    • Harassment complaint intake, investigation, and resolution. Any person who is covered by the Colorado General Assembly’s Workplace Harassment or Workplace Expectations policies may speak confidentially with the OLWR regarding questions or concerns about behaviors that may fall under the policy. The OLWR will help to assess concerns to determine which policy they may fall under, will discuss what options may be available for resolving the concerns, will talk through what the various options may look like, and will manage or coordinate any resolution processes pursuant to the policies under which the concerns fall.
    • Workplace training, including:
      • Annual workplace harassment and expectations training – for all legislators, staff, and third parties.
      • Manager/Supervisor training – this includes topics like coaching, providing effective feedback, and effective meeting management.
      • Other professional development training – this includes topics like effective training skills, intro to project management, leadership, and workplace ethics.
    • Other Employee Relations services, including:
      • Employee engagement – working with management to brainstorm and implement programs and practices designed to ensure that staff feel connected and committed to their roles and agencies.
      • Succession planning – working with management to brainstorm and implement plans for providing their staff with the necessary skills, knowledge, and experience to fill high-level internal positions as the individuals in those roles retire or move on.
      • Personnel policy reviews and recommendations – this includes reviewing for best practices, legal compliance, and consistency.
      • Exit interviews for departing staff – this includes collecting feedback confidentially and reporting data back to agencies without providing the individual identities of those interviewed.
    • Organizational development services, including:
      • Provision or coordination of organizational development services to teams or agencies.
      • Team or individual coaching.
      • Customized team-building programs or exercises.
      • Team-based leadership development training and projects.

    In addition, the OLWR serves as the ADA Coordinator under the Colorado Legislative Branch Policy on Services for Persons with Disabilities, Including Grievance Resolution Procedures. In this role, the OLWR serves as the initial point of contact for members of the public seeking accommodation in order to participate in or observe the legislative process and oversees the formal and informal processes for grievances filed under the policy.

    You may contact the OLWR by email at OLWR.ga@coleg.gov or call 303-866-3393.

  • Leftover Campaign Money: What can I do—and not do—with it?

    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.

     

    [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.