Colorado LegiSource

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

Author: olls

  • 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.

  • Amendment C Eases Restrictions on Charitable Gaming

    by Duane Gall and Patti Dahlberg

    Colorado may have been born out of the Wild West, but when the good citizens of the state approved the original state constitution in 1876, they wanted no part of any “lotteries or gift enterprises for any purpose.” Article XVIII, section 2 of the Colorado Constitution of 1876 required the General Assembly to pass laws prohibiting the sale of lottery or gift enterprise tickets in the state.

    Since that time, the state has softened its stance on lotteries and “gift enterprises”, and this November 2, the voters will have the opportunity to loosen the restrictions on charitable gaming even more when they vote on Amendment C.

    Evolution of charitable gaming in Colorado.

    In 1958, some citizens circulated a petition to put an initiative on the ballot to amend article XVIII, section 2 to permit the operation of certain games of chance by nonprofit organizations as a way to raise funds to support their charitable activities. Under that exception, the Secretary of State could license nonprofit organizations that had operated continuously in Colorado for at least five years to conduct raffles or bingo games. The organizations had to meet three specific conditions: (1) The proceeds of a game had to be exclusively devoted to the purposes of the nonprofit organization conducting the game; (2) Only members of the organization could be involved in managing and operating the game; and (3) The organization could not pay bingo or raffle managers or workers any wages.  The voters approved the amendment 51% to 49%. These provisions remain in place today.[1]

    Since article XVIII, section 2 was last amended, Colorado voters have legalized several gambling options in addition to those involving charities. In 1980, voters approved state-run lotteries; in 1990, they approved limited gaming in casinos in three areas of the state; and just last year, they approved sports betting in Colorado. As the gambling market has grown more crowded since 1958, it’s likely the market share enjoyed by charitable gaming has dwindled significantly.

    Changes proposed by Amendment C

    Amendment C offers Colorado voters the first chance to change article XVIII, section 2 in almost 40 years. On June 15, the last day of the 2020 legislative session, the General Assembly adopted House Concurrent Resolution 20-1001, which places Amendment C on the ballot.

    As explained in the 2020 Bluebook, Amendment C:

    • Decreases from five to three the number of years that a nonprofit organization must operate in Colorado to qualify for a bingo-raffle license. The measure further authorizes the General Assembly, after January 1, 2024, to change the years of operation by enacting a statute. Thus, future changes to the required number of operating years would not require a constitutional amendment and so would not be subject to a statewide vote.
    • Eliminates the requirement that persons who manage or work a raffle or bingo game be members of the nonprofit organization that hosts the game; and
    • Permits people who manage or operate raffles and bingo games to receive compensation, such as meals or payment. But the compensation paid to these managers and operators cannot exceed the minimum wage.

    Amendment C is a constitutional amendment that does more than just repeal existing language. As such, under article XIX, section 2 (1)(b) of the Colorado Constitution, the amendment requires a 55% majority vote to pass.

    2020 State Ballot Information Booklet, Legislative Council of the Colorado General Assembly, Research Publication No. 748-1.

     

    Visit the General Assembly’s website for more information on the initiative process and for a history of election results for ballot issues.

     

    For more information on the ballot measure process, see:

     

    [1] Art. XVIII, section 2 of the Colorado Constitution was amended again in 1980 to authorize the General Assembly to establish state-supervised lotteries, some of the proceeds of which go to municipalities and counties for park, recreation, and open space purposes. That amendment passed by a whopping 59.8% to 40.2%.

     

  • Amendment B – A bit of the backstory

    by Ed DeCecco

    The year was 1982. Michael Jackson released Thriller, ET was phoning home and charming audiences the world over, and the Denver Broncos finished last in the AFC West. More notably for Colorado taxpayers, voters also approved Amendment 1, which was passed by the General Assembly as House Concurrent Resolution No. 1005.

    Amendment 1 was a constitutional amendment and it was first. (Note: My editor has informed me that wasn’t quite enough backstory.) Amendment 1 was a comprehensive restructuring of article X, section 3 of the Colorado Constitution that made a number of changes to the property tax system. Prior to its introduction, a Citizen’s Panel reviewed and made recommendations for changing the property tax system, and then a House Ad Hoc Committee synthesized those recommendations into a concurrent resolution. Amendment 1 exempted some properties; established penalties for counties that failed to value property correctly; made a number of changes to the State Board of Equalization; and last but not least, amended how actual property value is determined and how property is valued for assessment.

    Now, if you are a county assessor, you would read this last item and think to yourself “Everyone knows how to value and assess property. On with it, you buffoon!” But for everyone else, a brief explanation of the property tax system is probably helpful. First, the actual value of property is determined for each assessment cycle, which for most property begins every odd-numbered year. The assessed valuation of the property is then determined by multiplying the actual value by the applicable assessment rate. Finally, the assessed valuation is multiplied by a local government’s mill levy, which is the property tax rate expressed in one one-thousandths, to determine the amount of tax owed.

    Prior to Amendment 1, the assessment rates were fixed in statute at 30% for residential and nonresidential property, although there were also a number of subclasses of property that had lower assessment rates established in law. With the exception of producing mines and lands or leaseholds producing oil or gas, Amendment 1 required nonresidential property to be assessed at 29% of its actual value, and residential property to be initially assessed at 21% of its actual value.

    But as a result of the conference committee report for House Concurrent Resolution No. 1005 that both chambers adopted, article X, section 3 (1)(b) of the Colorado Constitution requires the General Assembly to determine the percentage of aggregate statewide assessed property that is attributable to residential real property for the 1985 property tax year and to recalculate that percentage each year thereafter based on certain adjustments (called the “target percentage” in statute).[1] Each property tax year when there is a change in the level of value, which is the biennial reassessment cycle, the General Assembly must adjust the residential assessment rate with the goal of keeping the target percentage the same as it was in the year immediately preceding the new assessment cycle. You probably know this provision by its common moniker—the Gallagher Amendment.[2]

    As a result of the Gallagher Amendment, the residential assessment rate has over time declined to 18%, 16%, 15%, 14.34%, 12.86%, 10.36%, 9.74%, 7.96%, 7.2%,[3] and finally to its current level of 7.15%. Those percentages remind me of the scores on my last 10 German tests in high school. And just as my scores alarmed my high school German teacher and parents, this trend of lowering residential assessment rates caught the attention of the General Assembly. Thus, it convened the Alternatives to the Gallagher Amendment Interim Study Committee during the interim after the 2018 legislative session. As part of this committee, the legislators heard testimony about the declining residential assessment rate and the effect on local governments and, as its name suggested, considered alternatives to the Gallagher Amendment.

    While no proposals passed in 2018 as a result of the interim committee, perhaps a seed was planted, as two committee members—Senator Jack Tate, Arapahoe County, and Representative Daneya Esgar, Pueblo County—were prime sponsors of Senate Concurrent Resolution 20-001. Senate Concurrent Resolution 20-001. And if that happens, the assessment rates will remain constant—7.15% for residential property and 29% for nonresidential property—by operation of the existing statutory provisions. So if Amendment B passes, the state will be back where it started prior to the election in 1982. The assessment rates will be set in statute, and the Broncos will likely finish in last place again.[4]

     

    [1] This is often described as a 45%/55% split, which describes the first ratio of aggregate statewide valuation of assessment attributable to residential property to the aggregate statewide valuation of assessment attributable to nonresidential property, but the actual target percentage often varies a percentage point or two from 45%.

    [2] No, it is not named after the 70s prop comedian known for smashing watermelons with oversized hammers, but rather for Dennis Gallagher, the legislator and later City and County of Denver Councilperson and Auditor, who championed the provision as a state Senator.

    [3] These decreases were not in successive years. Sometimes the residential assessment rate stayed constant.

    [4] For more information about Amendment B, see the Blue Book at http://leg.colorado.gov/sites/default/files/blue_book_english_for_web_2020_1.pdf

  • National Popular Vote Compact: Every Colorado citizen’s chance to change how we elect the President

    by Bob Lackner

    During every presidential election, millions of Americans cast a ballot for a presidential candidate. Those votes, however, are actually cast not for the presidential candidates themselves, but for a slate of presidential electors: Members of the Electoral College, who actually select the President of the United States. From the first days of the Republic, the Electoral College has been a controversial mechanism for electing the president. The fact that in the past 20 years, there have been two elections (in 2000 and 2016) in which the winner of the national popular vote did not obtain a majority of votes in the Electoral College has helped fuel the controversy. This continuing debate over the continued utility of the Electoral College has led people to consider alternatives. One alternative that is before the voters of Colorado this year is the National Popular Vote Compact (Compact). Voters have the opportunity to support or oppose the Compact by voting on Proposition 113.

    The issue of determining how to select the nation’s chief executive was described as the most difficult of all the issues the Constitutional Convention had to decide.[1] The Electoral College emerged as an 11th hour compromise.[2] The United States Constitution specifies that each state has a number of presidential electors (or members of the Electoral College) equal to the whole number of its senators and representatives in Congress.[3] Colorado has two senators and currently seven representatives, which means our state has a total of nine electoral votes. The full membership of the Electoral College is 538 electors, representing 100 senators, 435 members of the House, and three electors from the District of Columbia.

    Currently, individual voters in all the states and the District of Columbia vote for a ticket consisting of a presidential and vice presidential candidate. The tally of individual votes is known as the popular vote. With the exception of Maine and Nebraska, every state appoints a slate of presidential electors selected by the political party whose candidate wins the state’s popular vote in the general election.[4] In this manner, for all but those two states, the Electoral College operates as a winner-take-all system in which the winner of the statewide popular vote receives all of that state’s Electoral College votes.

    Each December, after a presidential election, the presidential electors meet (typically in their state capitols) to cast their votes to elect the president and vice president. A candidate must receive at least 270 Electoral College votes to be elected president. If no candidate receives enough votes, the House of Representatives chooses the president and the Senate selects the vice president, although this scenario has not occurred since 1824. There have been five elections in the United States in which the winner of the national popular vote was not the winner of the Electoral College vote.[5]

    The idea of the Compact came from those supporting direct election of the president or who otherwise object to the Electoral College. Essentially, the Compact is an agreement among participating states to ensure that the presidential candidate who receives the most votes nationwide is elected president. Under the Compact, each member state designates the presidential slate with the largest national popular vote total as the “national popular vote winner” for that state. Once the Compact goes into effect, a participating state commits to awarding all of its electoral votes to the national popular vote winner.[6] This would mean, for example, that if the voters of Colorado give a majority of their votes to Candidate A but Candidate B is the winner of the national popular vote, all of Colorado’s electoral votes would be awarded to Candidate B, the national popular vote winner, notwithstanding the fact that Candidate B did not win the statewide popular vote in Colorado. Under the current system, by comparison, the candidate who wins a majority of Colorado’s votes gets all of Colorado’s votes in the Electoral College – regardless of how well that candidate performs nationally.

    The Compact ensures that the candidate who wins the most nationwide votes also wins a majority of the votes in the Electoral College, since a majority of electoral votes will be automatically awarded to the winner of the national popular vote. In this way, the Compact will preclude future controversies in which the winner of the national popular vote is not the candidate who wins a majority of the votes in the Electoral College.

    By its terms, the Compact takes effect on July 20 of any presidential election year in which states representing 270 or more electoral votes have enacted the Compact. If Proposition 113 passes, the Compact will include 15 states and the District of Columbia, representing 196 electoral votes. This is 74 votes short of the 270 electoral votes necessary for the agreement to take effect. Because the Compact was not in effect as of July 20, 2020, it will not apply to the 2020 presidential election, which means that it can take effect no earlier than the 2024 presidential election. Until the Compact becomes law, Colorado will continue to award its Electoral College votes to the winner of the state’s popular vote.

    The Compact is designed to implement what amounts to direct election of the president without having to formally amend the U.S. Constitution to eliminate the Electoral College. Getting states representing 270 electoral votes to enact the Compact is arguably much easier than undertaking the arduous and time-consuming process of amending the Constitution.

    In 2019, during the regular legislative session of the General Assembly, the General Assembly passed, and the Governor signed into law, Senate Bill 19-042. The bill makes Colorado a party to the Compact. After the bill was passed, opponents initiated a referendum petition as allowed in article V, section 3 of the Colorado Constitution. The text of Proposition 113 consists of the full text of Senate Bill 19-042.

    A “yes” vote on Proposition 113 is a vote to approve Senate Bill 19-042 and award all of Colorado’s electoral votes in presidential elections to the winner of the national popular vote once the Compact takes effect. A “no” vote on Proposition 113 is a vote to reject Senate Bill 19-042 and retain the current system of awarding the state’s Electoral College votes to the candidate who wins the Colorado popular vote.[7]

     

    [1] Chiafalo v. Washington, No. 19-465, slip. op. at 2 (U.S. July 6, 2020)

    [2] Id.

    [3] Article II, §1, Cl. 1. The number of members of the U.S. House of Representatives that is allocated to a state is based on the total population of the state as adjusted after the last census.

    [4] In Maine and Nebraska, the candidate who wins the popular vote in each congressional district get the electoral vote for that district and the remaining two electoral votes go to the candidate who wins the statewide popular vote.

    [5] As noted above, this has happened twice in the past 20 years (2000 and 2016) while the other three instances occurred in the 1800s. Such an event did not happen between the 1888 and 2000 presidential elections.

    [6] Most of the substantive provisions of the Compact are contained in Article III. That article specifies in relevant part that “[t]he presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.” Most of the other provisions contained in the Compact address requirements that are more of a procedural and administrative nature.

    [7] The author wishes to acknowledge reliance on the 2020 State Ballot Information Book, Legislative Council of the Colorado General Assembly, Research Publication No. 748-1A (“Blue Book”) for general background relating to the Electoral College and the Compact as part of the Blue Book’s discussion of Proposition 113 on the 2020 general election ballot.