Colorado LegiSource

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

Month: November 2020

  • 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.