Colorado LegiSource

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

Year: 2021

  • The Four Ws and One H of Reconsideration of a Previous Vote

    by Sharon Eubanks

    Editor’s note: This is the fifth in a series of articles on the legislative rules that LegiSource is reposting during 2020-2021. This article was originally posted April 11, 2016, and has been edited as appropriate.

    The definition of “reconsider” pretty much sums up what reconsideration is all about – “to consider again, especially with a view to change a decision or action.” In the legislative arena, “reconsideration” is the mechanism in the rules that enables a committee of reference or the House or the Senate to consider changing an action it has already taken.

    A legislative body has a right to reconsider a vote on an action previously taken by the body, subject to certain limits. When a body reconsiders its vote, that original vote is canceled completely, as though it had never been taken, and the body immediately votes again upon the question reconsidered.

    Closely related to reconsideration is giving notice of intent to reconsider, which provides notice of a member’s intent to reconsider, at some point in the future, a prior vote on an action. The effect of giving notice of intent to reconsider is to suspend all action on the subject of the motion until either the reconsideration is acted on or the time to act on the reconsideration has expired. However, giving notice of intent to reconsider does not necessarily mean that reconsideration will actually occur.

    Senate Rule 18 and House Rule 35 govern reconsideration and notice of intent to reconsider in Colorado legislative proceedings on the floor and in committees of reference.

    What can be reconsidered? Any action that the House or Senate takes when conducting business as a body and any action that a House or Senate committee of reference takes may be reconsidered by the acting body. But reconsideration is not allowed for an action that the House takes while sitting as the Committee of the Whole (COW).

    The Senate does not have a similar rule expressly prohibiting reconsideration of an action of the COW, but there are some practical problems in applying the reconsideration rules when the Senate is sitting as the COW. For example, how would the chair determine if the person moving for reconsideration voted on the “prevailing side” (see explanation of who can request reconsideration, below) when votes in the COW are taken viva voce? However, at least once recently, a Senator made a motion to reconsider an action of the COW and the motion was considered without objection. Nonetheless, generally it has been the Senate’s practice to not permit reconsideration during the COW.

    Who can request reconsideration?  In both the House and the Senate, only a member who voted on the prevailing side of an action, whether taken on the floor or in committee, may make a motion to reconsider that action. Sometimes a member will switch his or her vote at the last moment to the prevailing side to preserve the option of subsequently moving to reconsider the action.

    Only a House member who has voted on the prevailing side of an action of the House may give notice of intent to reconsider that action. And, while only a Senator who voted on the prevailing side may give notice of intent to reconsider a committee action, any Senator, regardless of how he or she voted, may give notice of intent to reconsider an action of the Senate.

    How does reconsideration occur? Reconsideration occurs after a member makes a motion to reconsider a House or Senate floor or committee action and the motion is approved. In the Senate, a majority of the members elected to the Senate or a majority of the members of a committee of reference, whichever body took the action at issue, must approve the motion to reconsider. In the House, two-thirds of the members elected to the House or two-thirds of the members of a House committee, as applicable, must approve a motion to reconsider unless a member makes the motion during the last two days of session. In that situation, only a majority of members must approve a motion to reconsider.

    To prevent the abuse of motions to reconsider, if a motion to reconsider is lost or, upon reconsideration, the original action is affirmed, the same Senate action cannot be reconsidered a second time unless the motion is approved by unanimous consent of the Senate or a Senate committee, as appropriate. If a motion to reconsider is defeated or the original action is affirmed by the House or a House committee, no further motion to reconsider the same action is allowed.

    Senate members of committees of reference may give notice of intent to reconsider. In this case, the measure affected by the notice must be held until the next regularly scheduled committee meeting. But giving notice to reconsider is out of order if holding the measure will cause it to miss a deadline for passage out of committee and the deadline isn’t extended. In contrast, members of House committees of reference cannot give notice of intent to reconsider a committee action.

    When can reconsideration occur? A member must make a motion to reconsider an action of a House or Senate committee either at the meeting at which the action is taken or at the next meeting of the committee.

    A Senator must make a motion to reconsider, or give notice of intent to reconsider, an action of the Senate on the same day that the action is taken or on either of the next two days of actual session. A Representative must make a motion to reconsider, or give notice of intent to reconsider, an action of the House before adjournment of the legislative day on which the action is taken.  If notice is timely given, the House member then has until noon on the next day of actual session to make a motion to reconsider the action.

    But, it’s important to remember that a body can reconsider an action only if the measure on which the action was taken is still before the body and the action is still capable of being changed. So, a committee member can’t make a motion to reconsider a committee action on a measure if the committee report has already been signed by the chair and delivered to the House or Senate front desk. And a member can’t move to reconsider a third reading vote if the measure has already been introduced in the second house or delivered to and acted upon by the Governor.

    A Senator’s motion to reconsider the action taken on a measure already transmitted to the House, but not yet introduced, must be accompanied by a motion asking the House to return the measure to the Senate. If a House member makes a motion to reconsider, the chief clerk of the House is directed to request the return of the relevant measure if it has already been transmitted to the Senate or the Governor. But if the measure’s been introduced in the Senate or acted upon by the Governor, the measure can’t be returned to the House.

    Why would someone request reconsideration? In many situations, a motion to reconsider is used when a member, for whatever reason, doesn’t vote the way he or she intended to vote or a member is absent during the recorded vote on a measure. With reconsideration, the original vote is wiped away and replaced with the second vote. When controversial issues and close votes are involved, a motion to immediately reconsider a vote can be used to lock in that vote since unanimous consent is required for a subsequent motion to reconsider after the first motion to reconsider is lost or, upon reconsideration, the original action is affirmed. On the flip side, giving notice of intent to reconsider a vote can be used as a delay tactic to slow a measure’s progress through the legislative process or to allow time to try to convince enough members to change their votes and thereby change the action taken. Once notice is given, all action on a measure is suspended and the Secretary of the Senate or the Chief Clerk of the House, as applicable, holds the measure until the time for reconsideration has expired. In the Senate, giving notice of intent to reconsider can be used to delay a floor action up to three days and a committee action until the conclusion of the next regularly scheduled committee meeting. Giving notice of intent to reconsider can delay an action taken by the House until noon on the next day of actual session after the action is taken.

    For more information on reconsideration, check out the September 29, 2011, Legisource article, which discusses actual legislative situations that involved reconsideration.

  • Legislative Ethics – Conflict of Interest

    “A member who has a personal or private interest in any measure or bill proposed or pending before the general assembly, shall disclose the fact to the house of which he is a member, and shall not vote thereon.” Article V, section 43 of the Colorado Constitution, effective August 1, 1876.

    Legislative ethics principles have been included in the state’s constitution and been an integral part of legislative proceedings from the earliest days of statehood. The legislature expanded on these ethical principles and codified the standard of conduct expected for all persons involved with government in House Bill 88-1209. The ethical principles specific to the General Assembly listed in the bill and now codified as section 24-18-107, C.R.S., provide guidance to legislators when determining whether a conflict of interest exists and instructions on disclosing such an interest according to the applicable chamber’s rules.  It also states that a failure to disclose does not constitute a breach of the public trust of legislative office.

    According to Joint Rule 42, a legislator is considered to have a personal, private, or financial interest in a pending bill, measure, or question if the passage or failure of the legislation will result in the legislator deriving a direct financial or pecuniary benefit that is greater than any benefit derived by or shared by other persons in the legislator’s profession, occupation, industry, or region. Joint Rule 42, like section 24-18-107, C.R.S., provides that a legislator is not considered to have such an interest in legislation if the interest arises from legislation affecting the entire membership of a class to which the legislator belongs. House Rule 21(c), and Senate Rules 17(c) and 41 discuss voting, disclosing, and excusing oneself from a vote.

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

    Situation #1. The General Assembly is considering a bill that would provide comprehensive state assistance to promote biotechnological research within the state as well as related commercial applications. The assistance includes tax benefits, the establishment of a special state fund, and a new grant program. You are a member of the General Assembly and your spouse is a well-known and well-recognized research scientist who heads a special institute for biotechnological research at one of our state’s leading research universities. The bill would direct state financial assistance to a variety of public and private entities, but significant resources would be particularly directed to the institute headed by your spouse. It is likely the benefits from the bill would increase the institute’s budget and your spouse’s national profile and income.

    May you vote on the legislation?  

    1. Since the legislation only benefits your spouse, there is no problem voting on the legislation.
    2. With sluggish economic growth, the legislation is vital for creating jobs and members need to put aside their private qualms about ethics and enact good programs.
    3. The legislation would appear to distribute benefits to many private and public entities across the state. You can vote on the legislation because all persons with an interest in the legislation amount to one big class of persons.
    4. By virtue of your spouse’s position, you have a personal, private, or financial interest in the legislation necessitating your abstention from voting on the bill.

    The correct answer is 4. Under Joint Rule 42, the relevant inquiry is whether you, as a member, will benefit from or be disadvantaged by the legislation more than any other member of your profession, occupation, industry, or region. Because of the special position your spouse holds and the extra benefits that the bill directs to the institute generally and to your spouse more specifically, there is a reasonable likelihood that your immediate household will benefit from the legislation more than others in your profession, occupation, industry, or region. This gives you a personal, private, or financial interest in the legislation necessitating your abstention from voting on the bill.

    Situation #2. You are the owner of several apartment buildings and other rental properties in your community. A bill has been introduced that would lengthen the period of time available to a tenant to pay past-due rent.

    May you vote on the legislation?

    1. YES. But only if you vote “for” the bill. Since the bill favors tenants and you are a property owner, no one would think it improper for you to support the bill.
    2. YES. Because the governing legal requirements specify that a conflict of interest situation does not arise from legislation affecting the entire membership of a class. Here, the relevant class is the entire group of rental property owners across the state. Because you are a member of this class, you do not have an improper conflict-of-interest situation and, accordingly, may vote on the legislation.
    3. NO. Because landlords are so distrusted in the community, it would be better to abstain than to call public attention to your outside real estate interests.
    4. NO. Existing law already affords tenants sufficient time within which to cure any default.

    The correct answer is 2. Section 24-18-107 (3), C.R.S., and Joint Rule 42 explicitly state that a conflict-of-interest situation does not arise from legislation that affects the entire membership of a class. Under this same principle, teachers who are members of the General Assembly may vote on education bills and attorneys who are members of the General Assembly may vote on bills affecting tort liability and evidentiary matters. Here, the relevant class is the entire group of rental property owners across the state. Assuming you will not benefit from, or be disadvantaged by, the legislation any more than any other owner of these properties statewide, an improper conflict-of-interest situation is not present. You would be permitted to vote on the legislation.

     See also “Reducing Conflicts Over Conflicts (of Interest)”, posted April 27, 2017.

    Click here for other LegiSource articles regarding ethics.

  • One Thing’s for Certain – Things are Uncertain

    by Patti Dahlberg

    The Executive Committee of the Legislative Council sent out a joint release on December 21, 2020, announcing the plan to delay the 2021 legislative session due to safety concerns. The state is still under a declared statewide public health disaster emergency order, and the December COVID infection numbers are expected to remain high into January. According to the release, the plan is for the 73rd General Assembly to convene on Wednesday, January 13, as required by the Colorado Constitution and take care of any necessary business, including the swearing in of newly elected legislators. The General Assembly will then temporarily adjourn until, tentatively, mid-February when, hopefully, COVID infection rates will be lower and legislative work can continue in a more normal manner.

    What does this mean for legislators?

    No one really knows for sure. Last session, the General Assembly temporarily adjourned for six weeks only to reconvene long enough to take care of the state’s budget and other miscellaneous bills that were considered necessary. Many bills introduced as part of the normal legislative session or that had substantial fiscal impacts were “Postponed Indefinitely” or “Deemed Lost” by the end of the 2020 session. The General Assembly had to drastically shift gears upon reconvening to prioritize the passage of the budget-balancing bills needed to adjust for the revised forecasts of significant revenue loss and balance the state’s budget.

    This year is a little different in that the legislative session has not yet started, and legislators should have a better idea of the budget they will be working with for the 2021-22 fiscal year, hopefully eliminating unpleasant budget issues halfway through session. In addition, the General Assembly convened for a special legislative session in early December to pass legislation deemed necessary to help the state and its citizens weather the economic hardships of the pandemic. Having provided some relief with these bills, legislators may now have the opportunity to consider other needed legislation.

    Also, this year the temporary adjournment will be at the beginning of session. This allows the Executive Committee to adjust deadlines and clarify expectations for the bulk of the legislative session.

    Although the December bill request deadlines are behind us, there is still time for legislators who have not yet requested their last two bills to submit those requests by the Tuesday, January 19 bill request deadline. Because of the delayed start, all of the filing dates for bills have been delayed until later in the year. The Executive Committee of the Legislative Council issued a joint letter on Wednesday, December 23, 2020, explaining the new filing and introduction deadlines. The new filing deadlines are:

    Although the deadlines have been delayed, legislators still need to designate the order in which they would like their bills introduced. To be able to introduce all of the five bills allowed by rule, a legislator needs to choose one bill to be the first bill introduced, two bills to designate as early bills, and two bills to designate as regular bills. The bills, as designated, need to meet the applicable filing dates.

    This session, the plan is to have all the prefile (or first) bills and the early bills filed before the session reconvenes and ready to be introduced (read across the desk) on the first day back in session (tentatively February 16). The bills will be assigned to committees as they are being read across the desk and, with the potential for 300 bills to be introduced within a couple of days, committee work will truly begin in earnest.

    These changes to the filing deadlines mean that legislators will have more time than usual to draft and prioritize all five of their bill requests before those requests must be filed with the House and Senate. Because of the delay in the session, legislators can take a little more time to work with drafters and stakeholders to get their bills crafted early enough to enable fiscal analysts to draft fiscal notes even before the bills are filed for introduction.

    The Executive Committee is still determining how to adjust the remaining session deadlines – i.e., first house committee passage and final passage, second house committee passage and final passage, introduction and passage of the Long Bill, and many others – to keep session work moving along. Once that information is determined it will be announced.

    What we know for sure is that things are uncertain during a pandemic. Many bills were left on the side of the road last year due to extreme time constraints, budget reductions, and a shortened legislative session. And of course, until the declared disaster is lifted, everything is subject to change.

    For more information regarding bill order, see “Got Bill Requests? Next Step is the Bill Order”. But please disregard any deadlines included in the article.