Colorado LegiSource

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

Author: olls

  • Automatic Rule Changes During the Last Days of Session

    by Julie Pelegrin

    (A previous version of this article was posted on April 30, 2015, as “The Race is On to the End of the Session: Automatic Rule Changes Pick Up the Pace”.)

    On May 10, legislators, legislative staff, lobbyists, and capitol reporters can all hit the snooze button and roll over for another hour of sleep. But between now and then, there are several amendments to read, bills to consider, and differences to resolve. To help ensure that both houses can complete their work by midnight on May 9, the legislative rules automatically speed up or suspend certain procedural requirements in the last few days of the session.

    Last 5 Days of Session:

    • Joint Rule 7: One day after a bill is assigned to a conference committee, a majority of either house may demand a conference committee report, and the committee must deliver the report before the close of the legislative day during which the demand is made. If a bill has been assigned to a conference committee at any time during the session and the committee hasn’t turned in a report, the committee must report the bill out within these last five days of session.

    Last 3 Days of Session:

    • House Rule 25 (j)(3); Senate Rule 22 (f): Each House committee chairperson must submit committee reports to the House front desk as soon as possible after the committee acts on a bill. No more waiting for two or three days to turn in the report. This requirement—to submit the committee report as soon as possible—actually applies to Senate committee chairs in the last 10 days of session. And during these last 10 days, at the request of the Senate Majority Leader or President, the chairman must submit the committee report immediately. If that doesn’t happen within 24 hours after the request, the committee staff person is required to submit the report to the Senate front desk on the chairman’s behalf.
    • House Rule 36 (d); Senate Rule 26 (a): The House and the Senate can consider the amendments made in the second house without waiting for each legislator in the first house to receive a copy of the rerevised bill and for the notice of consideration to be printed in the calendar.
    • House Rule 36 (d); Senate Rule 26 (b): Legislators can vote on conference committee reports as soon as the reports are turned in to their respective front desks—even if the report has not been distributed to the members and has not been calendared for consideration. The usual practice, however, is to try to distribute copies of conference committee reports to legislators before the vote.
    • House Rule 35 (a): Throughout most of the session, a Representative may give notice of the intention to move to reconsider a question. In this case, the Representative has until noon on the next day of actual session to move to reconsider. However, during the last three days of session, a member may not give notice of intention to reconsider.
    • Senate Rule 18 (d): Throughout most of the session, a Senator may give notice of reconsideration, and the Secretary of the Senate will hold the bill for which the notice was given for up to two days of actual session. During the last three days of session, however, this rule is suspended, and a Senator cannot hold up a bill by giving notice to reconsider.
    • House Rule 33 (b.5): Usually, the House rules only allow technical amendments on third reading; offering a substantial amendment on third reading may result in the bill being referred back to second reading. During the last three days of session, however, a Representative may offer a substantial amendment to a bill on third reading.

    Last 2 Days of Session:

    • House Rule 35 (b) and (e): A motion to reconsider usually requires a 2/3 vote to pass. In the last two days of session, however, a motion to reconsider – in a House committee or in the full House – requires only a majority vote.

    Before the 117th legislative day, the Speaker of the House or the President of the Senate may announce that the House or the Senate, respectively, is in the last three days of the legislative session. This does not mean that either the House or the Senate will adjourn sine die before the 120th legislative day, but it does trigger the rule changes that apply in the last three and last two days of session.

    Digest of Bills

    With these expedited procedures, bills will probably be moving quickly. If you find yourself wondering which bills passed and what they do, you’ll want to check the digest of bills. The Office of Legislative Legal Services (OLLS) annually publishes the digest, which contains a summary of each bill enacted during the legislative session, organized by subject matter. The OLLS will publish a preliminary digest by May 9 that will include all of the bills that have passed and been signed by the Governor or allowed to become law by that date. The OLLS will publish the final digest once the 30-day period for Governor action is passed. Copies of the preliminary and final digest will be available in Room 091 in the Capitol basement and posted on the OLLS website.

  • A Brief Evolution of Campaign Ads

    by Robert Garcia

    Soon we will begin to see a few campaign ads and posters, and soon after that they will be everywhere.

    The modern campaign ad or poster is a slick thing, with Facebook- or Twitter-tested taglines or slogans and occasionally colorful trendsetting design. It’s nothing like its early forebears. As an element of political pop culture, the campaign poster has taken a long road to its present form.

    In earlier times of campaign advertising the ads and posters were positive, informative, even charming.

    1924: Calvin Coolidge (Republican) v. John Davis (Democrat) v. Robert La Follette (Progressive)

    John Quincy Adams was the first presidential candidate to widely use posters in 1824, according to the Miller Center at the University of Virginia, but the oldest American campaign poster in the Library of Congress’s digital file was issued by presidential candidate William Henry Harrison in 1840.

    William Henry Harrison in 1840.

    In the 1800s, posters were far more detailed than they are today. Early campaign posters featured etched portraits of the candidates looking statesmanly, even regal, and were printed using the print technology of the day, sometimes inked in color. Extensive text was sometimes included with the portraits, and in some instances the text was the poster’s main feature.

    1860: Abraham Lincoln (Republican) v. George B. McClellan (Democrat)

     

    1872: Ulysses S. Grant (Republican) v. Horace Greeley (Liberal Republican)

    Steven Heller, a design expert and former New York Times art director, commented that it was harder to reproduce images than to reproduce text. They wanted to inform the public, and the public even then was fairly literate, so there was more of an emphasis on the written or printed word. Later into the 19th century as technology advanced, it became easier to reproduce things with wood or steel engravings. But by the end of the century, the camera had become more popular. Photos of candidates Ulysses S. Grant and Abraham Lincoln routinely appeared on posters during their campaigns.

    Cleveland/Hendricks 1884

    By the middle of the 20th century, a new design scheme became very popular—black-and-white photography with color backgrounds and large, easier to see and read text. Big, block-letter slogans and candidate names replaced the lengthy cursive script seen in the etched prints of the late 1800s, and bright primary colors replaced their dusty olives, sepias, and sun-yellows.

    1968: Richard M. Nixon (Republican) v. Hubert Humphrey (Democrat) v. George Wallace (Independent)

    Offset printing became popular for commercial printing in the 1950s, and color photographs, along with full color layouts, supplanted black-and-white by the time Richard Nixon ran for president in 1972.

    1972: President Richard M. Nixon (Republican) v. Senator George McGovern (Democrat)

    While candidates are now able to mass-produce color-photography posters in every election year, printing advancements haven’t necessarily made campaign posters more complex. The most widespread style, to this day, is the block-lettered rectangle using only the candidate’s last name and maybe a brief slogan or tagline. These signs hang on countless walls and populate countless front yards every couple of years.

    This tells us printing capabilities don’t necessarily change the design imperative. Simplicity is what seems to be practiced most often.

    Other technologies may have helped to popularize the simplistic design formula. With mass electronic media, candidates choose not to deliver platform information through posters, and the long scripts and etched portraits of the late 1800s would now look ridiculous. TV commercials and social media have taken over the function of higher-level messaging and image creation.

    Today, the posters just remind us simply of what the candidates’ names are. Aesthetics and mnemonics are left mostly to computer generated art, font, and color scheme.

    1984: Ronald Reagan (Republican) v. Walter Mondale (Democrat)

    2008: Barack Obama (Democrat) v. John McCain (Republican)

  • Legislative Ethics – Post-legislative Employment

    Editor’s note: This is the second in a series of articles based on the ethics issues included in the online ethics tutorial available through a link at the bottom of the General Assembly website.

    The “revolving door” provision of article XXIX, section 4 of the Colorado Constitution (commonly referred to as Amendment 41) prohibits statewide elected officeholders and members of the General Assembly from personally representing another person or entity for compensation before any other statewide elected officeholder or member of the General Assembly for a period of two years after leaving office. More clearly: Legislators cannot lobby for pay for two years after leaving the General Assembly. In addition, the statutory code of ethics prohibits a member of the General Assembly from lobbying, soliciting lobbying business or contracts, or otherwise establishing a lobbying business or practice before the expiration of the legislator’s term. (Section 24-18-106 (3), C.R.S.)

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

    Situation #1. You are a legislator and an attorney. Your term as a legislator will end this year. You know that the statutory code of ethics prohibits you from lobbying, or even soliciting lobbying business, before the expiration of your term. However, you are considering accepting a position with a prestigious law firm in town with practice areas that include government and policy. There are attorneys at the firm who lobby on behalf of clients when certain policy issues come before the General Assembly. Your position with the firm, however, would not require you to lobby.

    May you accept a position with the law firm?

    1. Amendment 41 prohibits a legislator from personally representing another person or entity before another member of the General Assembly for two years after leaving office.
    2. The gift ban established by Amendment 41 prohibits negotiations of future employment.
    3. Since you will not personally represent another person or entity before the General Assembly and the work you will be doing will not require you to register as a professional lobbyist with the Secretary of State’s office, you may accept the position.
    4. So long as you do not offer any gifts to state officials or members of the General Assembly as prohibited by Amendment 41.

    The correct answer is c. Amendment 41 prohibits a former legislator from personally representing another person or entity for compensation before any other statewide elected officeholder or member of the General Assembly for two years following his or her departure from office. However, the Independent Ethics Commission (IEC) has interpreted the term “personally represent” to mean serving as a “professional lobbyist” and has concluded that a former member of the General Assembly may not accept employment that will also require his or her registration as a professional lobbyist under section 24-6-301, C.R.S. (See, IEC PS 09-02.) Because this position would not require you to register as a professional lobbyist, it is permissible to accept it.

    Situation #2. You are a term-limited legislator and you have been offered a paid position as a director on the board of directors of a nonprofit organization that focuses on health care issues. Although you will be a member of the board, you believe that there is an expectation, because of your former role as a legislator, that you will lobby members on certain issues important to the organization and even appear and testify before committees of the General Assembly when health care bills of interest to the organization are being considered.

    May you accept the position as a member of the board of directors?

    1. YES, so long as you have not solicited any lobbying business or contracts or established a lobbying business or practice before your term actually expires.
    2. YES, so long as you register in accordance with the rules of the Secretary of State.
    3. YES, because the members of the General Assembly are your friends and you will not really be lobbying them so much as chatting informally with them about topics of interest to them.
    4. NO, because Amendment 41 prohibits former members of the General Assembly from personally representing another person or entity for compensation before any other statewide elected officeholder or member of the General Assembly for two years after leaving office.

    The correct answer is d. The IEC has interpreted this section of the constitution as restricting a member of the General Assembly from serving as a professional lobbyist for two years after leaving office. Stated another way, the former legislator must wait two years before accepting employment that would require his or her registration as a professional lobbyist under section 24-6-301, C.R.S., or other relevant laws or statutes because of his or her new position. See, IEC PS 09-02.

     

    Want to learn more about legislative ethics? Take the Legislative Ethics Tutorial.

  • Conference Committees: A Quick Review of the Options

    by Julie Pelegrin

    Editor’s note: This article was originally posted on April 17, 2014. It has been updated for this posting.

    We are more than half way through this legislative session and a legislator’s thoughts turn to…conference committees! Following is an overview of the conference committee process.

    For a bill to go to the Governor, it must pass both the House and the Senate in exactly the same form. If the second house amends a bill, it cannot go to the Governor for signature unless the first house accepts, or “concurs in,” the second house amendments and readopts the bill or unless both houses form a conference committee to create a report that resolves the differences between the two versions.

    There is a third option, but it can be risky. A legislator can move for the first house to adhere to its position (i.e., refuse to consider any changes to the bill proposed by the second house). At that point, the second house can choose to recede from its changes and adopt the version of the bill that the first house passed. However, the second house can also choose to adhere to its position (i.e. refuse to consider adopting the first house’s version of the bill). Most often, when the first house adheres to its position and refuses to discuss a compromise, the second house also adheres. If this happens, the bill is dead.

    But, let’s assume that the bill sponsor moves to reject the second house amendments and request the formation of a conference committee. The conference committee consists of three persons appointed from each house: Two majority party members and one minority party member. The Speaker and the President will each appoint the two majority members from their respective houses, and the Minority Leaders will each appoint the minority members from their respective houses. In most cases, the bill sponsors in both houses are appointed to the conference committee, and the bill sponsors can submit their preferences for the other members they would like to see appointed to the conference committee from their respective houses.

    The conference committee’s report can address any of the differences between the two versions of the bill. But, if the conference committee wants to address language that was not changed by the second house or address an issue that fits within the bill title, but was not included in either version of the bill, the bill sponsors must ask their respective chambers for permission “to go beyond the scope of the differences” between the two versions. The conference committee members can discuss changes that are outside the scope of the differences, but they cannot sign the committee report until both houses have granted the committee permission to go beyond the scope of the differences.

    The date, time, and location for all conference committee meetings are printed in the House and Senate calendars. After agreeing on wording changes to resolve the differences, the committee may adopt the committee report conceptually or, if the bill drafter prepared the report in advance of the meeting, may adopt the committee report as written. For the report to pass, a majority of the conference committee members from each house (i.e. two House members and two Senate members) must approve the report. Following adoption of the report, the committee members who voted to approve the report sign it. A committee member who voted against the report and any committee member who missed the meeting may also choose to sign the report.

    Once the report is signed and turned in to the front desk of the House and the Senate, the house that agreed to go to conference committee, usually the second house, acts first on the report. Usually, the second house adopts the report and readopts the bill as amended by the conference committee report. Then the first house also adopts the report and readopts the bill. At that point, the bill is enrolled and sent to the Governor.

    However, either house may choose to adhere to its position, recede from its position, or reject the conference committee report and ask that a second conference committee be formed. Assuming both houses agree to a second conference committee, they will appoint the members of the second conference committee, which may be the same as the first conference committee, and the committee will meet again and attempt to come to another agreement. Only two conference committees can be appointed for a bill. If either house rejects the committee report of the second conference committee, one of the houses will have to recede and adopt the other house’s version, or the bill is dead.

    This article describes how conference committees usually work. The OLLS has prepared charts for the House and Senate that explain the possible actions, in addition to adopting a conference committee report, that each house may take in resolving differences between the houses. If you are interested in reading the legislative rules on conference committees, you can find them at House Rule 36, Senate Rule 19, and Joint Rules 4, 5, 6, 7, and 8.

  • Colorado’s $tate Budget Process

    It’s Spring and for the Colorado General Assembly that means just one thing: The annual Long Appropriations Bill or “Long Bill” is due to be introduced. Introduction—and passage—of the Long Bill completes an extensive and collaborative effort on the part of legislators, legislative staff, executive 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 early fall, the 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.

    Executive departments then submit the approved budget requests to the General Assembly’s Joint Budget Committee (JBC) by November 1. The judicial department also submits its budget requests at this time. The JBC staff review these requests and prepare written briefings and oral presentations to the JBC. Starting in November, the JBC schedules hearings with each department 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. The JBC does not accept public testimony during budget hearings, but they may allow public testimony in other hearings.

    During the legislative session, JBC analysts present department budget requests at JBC meetings and make recommendations regarding budget amounts, funding sources, and possible legislation needed to facilitate the Long Bill. Departments often ask the JBC to reconsider its actions regarding specific budget decisions. Throughout the first half of the legislative session, the JBC meets almost daily to review, adjust, and reset legislative department budget line items.

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

    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, 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 the 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 parties can meet in their 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 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; he or she 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 all of these bills, many of which have been languishing in those committees awaiting passage of the Long Bill. The General Assembly typically 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.

    For a more comprehensive and detailed explanation of Colorado’s budget process, please visit the Joint Budget Committee Staff homepage to review their information on the budget process and budget documents.

     

    During the 2018 Legislative Session, the Long Appropriations Bill is scheduled to be introduced in the House of Representatives on Monday, March 26, 2018. The deadline for the Long Bill to pass both houses is Friday, April 6, 2018, and the deadline for adoption of the conference committee report and final passage of the Long Bill is April 13, 2018.

  • The 411 on Executive Session under the Colorado Open Meetings Law

    by Bob Lackner

    You are the chairman for a legislative committee, and the committee’s next hearing starts in 15 minutes. The committee will be discussing a new report that you expect may embarrass employees of a particular state agency. To avoid this type of embarrassment, it would be better if the committee could meet in executive session so the committee can talk about the issue in a “safe space” without the media or any professional malcontents being present. You read the Open Meetings Law when you started chairing the committee, and you’re sure that the fine print of the law includes a list of reasons for which you can close the meeting. Specifically you’re hoping it includes a general catch-all for sensitive matters that would make the state look bad if disclosed. But you also seem to recall that there are specific procedures to follow when going into executive session. You reach for the phone for a quick consult with your legislative staff…

    This article aims to provide a basic understanding of the requirements for meeting in executive session under the Colorado Open Meetings Law (OML) and enable legislators and legislative staff to successfully navigate the requirements for executive sessions.

    First, it’s important to note that the OML begins with an over-arching statement of policy: “It is declared to be … the policy of this state that the formation of public policy is public business and may not be conducted in secret.” Next, the OML declares that all meetings of “two or more members of any state public body at which any public business is discussed or at which any formal action is taken are declared to be public meetings open to the public at all times.” The General Assembly and its committees are specifically included in the definition of “state public body.”

    The OML allows a legislative committee to go into executive session, that is, to conduct a closed session, only to discuss topics that are specified in the statute. Only members of the committee and staff—and in some cases outside counsel—may be present in an executive session. Before the committee can go into executive session, the committee chair must announce to the public—in open session—the “topic for discussion in the executive session,” including specific citation to the OML provision authorizing the committee to meet in executive session, and  identify “the particular matter to be discussed in as much detail as possible without compromising the purpose for which the executive session is authorized…”. Going into executive session requires the affirmative vote of 2/3 of the entire membership of the committee after the chair makes the announcement. The committee may hold an executive session only at a regular or special meeting. Presumably this means the committee is not permitted to hold a spontaneous get together to go into executive session.

    These are the specific grounds for which the statute authorizes a legislative committee to meet in executive session:

    • Discussions regarding the purchase of property for public purposes or the sale of property at competitive bidding if premature disclosure of the information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general interest;
    • Conferences with an attorney representing the General Assembly, the legislative committee, or a legislator concerning disputes involving the General Assembly, the committee or the legislator that are the subject of pending or imminent court action, concerning specific claims or grievances, or for purposes of receiving legal advice on specific legal questions;
    • Matters required to be kept confidential by federal law or rules, state statutes, or in accordance with any joint legislative rule pertaining to lobbying practices;
    • Specialized details of security arrangements or investigations; and
    • Determining positions relative to matters that may be subject to negotiations with employees or employee organizations; developing strategy for receiving reports on the progress of such negotiations, and instructing negotiators.

    The OML additionally permits a legislative committee that is acting as a search committee to go into executive session to consider certain appointments or employment matters, but establishing job search goals and the time frame for appointing an agency’s chief executive officer must take place at an open meeting.

    This list states the only reasons for which a legislative committee may meet in an executive session. (There are other reasons on the list that apply to state public bodies that are not associated with the General Assembly.) If the topic of the discussion is not on the list, the legislative committee cannot hold an executive session to discuss it. There is no general catch-all for a legislative committee to meet in executive session to avoid a public discussion that could make the state, a state agency, or a state employee look bad. And no catch-all for sensitive matters that decision makers simply want to be able to discuss in secret. As stated above, under the OML, the default position is that the discussion of public business should be conducted in the open.

    The OML prohibits a legislative committee from adopting a proposed policy, position, resolution, rule, or regulation or otherwise taking formal action at an executive session. If the discussion during executive session leads to an official action, the committee will complete its discussion in executive session, then go back into the open meeting, make a motion, and vote to take the action.

    When a legislative committee goes into executive session, the committee staff turns off the official digital recorder and turns off the internet streaming technology. But under the OML, the committee’s discussions in an executive session must be electronically recorded. The electronic recording must reflect the specific citation to the provision of the OML that authorizes the body to meet in an executive session and the actual contents of the discussion during the session.  The minutes of a meeting during which an executive session is held must reflect the topic of the discussion of the executive session.

    A person who feels that a legislative committee improperly held an executive session may sue for a copy of the record of the executive session under the Colorado Open Records Act (CORA). If this happens, the court will privately review the recording of the executive session. If it finds that the legislative committee discussed matters that are not included in the list of reasons to hold an executive session or took formal action while in the executive session, the court will declare the part of the record that applies to those issues or actions to be open and available for public review.

    The public cannot inspect, and the members of the legislative committee are not supposed to disclose, any part of the record of an executive session and the record is not subject to discovery in a trial unless 1) the legislative committee consents; or 2) the legislative committee fails to comply with the OML, resulting in disclosure of the record in accordance with CORA.

    Armed with this information, legislators and legislative staff should now be better prepared to appropriately meet in executive session in compliance with the OML.

  • Federal District Court Writes Final Chapter to Endrew F. Case

    by Julie Pelegrin

    When last we talked about children with disabilities and their education, the United States Supreme Court had just handed down its decision in the case of Endrew F. v. Douglas Cty. School Dist. RE-1. The Court found for Endrew (he goes by Drew) and his parents by interpreting the federal “Individuals with Disabilities Education Act” (IDEA) to require that each child with a disability must receive educational services that are reasonably designed to enable the child to make “progress appropriate in light of the child’s circumstances.”

    As you may recall,  IDEA requires each state to provide a “free, appropriate public education” (FAPE) to each child with a disability. Before the Supreme Court’s decision in Drew’s case, when a court was deciding whether a child was receiving a FAPE, it would consider whether the services provided to the child were providing “some educational benefit.” Specifically, the standard was whether the child was making “merely more than de minimis” progress as a result of the educational services provided by the state.

    In the last LegiSource article on this topic, we concluded our explanation of the Supreme Court’s ruling by wondering how the federal district court would apply the Supreme Court’s new standard to Drew’s case. Would the judge find that the services Douglas County Schools (DCS) was offering would have enabled Drew to make progress appropriate to his circumstances?

    Now we know. And the answer is—no.

    On February 12 of this year, the U.S. District Court for the District of Colorado ruled that DCS had failed to provide Drew with a FAPE because the individualized education program (IEP) that it provided for him was not reasonably designed to enable him to make progress appropriate to his circumstances.

    When it first heard the case, the district court found that the services DCS was providing caused Drew to make at least some educational progress from year to year. And the Tenth Circuit court of appeals agreed, concluding that it was “without question a close case,” but there were sufficient indications of Drew’s past progress to find that the school district was making more than minimal progress. So DCS met the standard that applied at that point.

    But when the federal district court applied the new, more rigorous standard required by the U.S. Supreme Court, it found the IEP that DCS prepared for Drew was not sufficient. The IEP proposed in April of 2010 was based largely on the services provided in earlier years during which Drew had made only just minimal progress. As such, these same services could not be expected to help him make the higher level of progress that he could achieve, given his circumstances. The court also found that DCS had not developed a formal plan to properly address Drew’s behaviors that were disrupting his access to educational progress, which suggested the IEP proposed in April 2010 was not reasonably designed to enable Drew to make progress.

    So what does this decision mean for Drew and his parents? The district court ordered DCS to reimburse them for all of the tuition they have paid since Drew enrolled in Firefly Autism House in 2010, for the costs incurred in transporting him to the school, and for their reasonable attorney fees and costs in pursuing the case. The family will file a brief tallying up what they think the full amount should be, and DCS will have the chance to respond. In a recent Denver Post article, the family’s attorney estimated the final judgment would be in the seven figures.

    In our previous article, we also questioned how much of a difference the new standard would make and whether it would drive real changes in the level of services that schools provide to children with disabilities. The Supreme Court really didn’t answer the question of whether a school has to provide very expensive services to enable a student to make the most progress or whether less expensive services that result in good progress are sufficient. And deciding how much progress is appropriate in light of a child’s circumstances is not clear-cut.

    So far, there have been two reported cases decided using the new standard of “progress appropriate in light of a child’s circumstances.” In Board of Education of Albuquerque Public Schools v. Maez, the U.S. District Court for the District of New Mexico found that Albuquerque Public Schools (APS) created an IEP for the student, known as “MM”, that was reasonably calculated to enable him to make appropriate educational progress.

    But, in Paris School District v. A.H., the U.S. District Court for the Western District of Arkansas found that the Paris School District (PSD) failed to provide the student—AH—a “free, appropriate public education.”

    In both cases, the students had significant disabilities related to autism, and in MM’s case other “global developmental delays.” Not surprisingly, the analysis in each case is based very heavily on the facts and the circumstances that are specific to each student.

    In MM’s case, his IEP included services that had enabled him to make progress in the previous school year. It did not provide exactly the educational program that his parents wanted, but the court found that the choice of “educational methodology is reserved for the school district.” The court also wasn’t swayed by the fact that MM made more progress when he received private, in-home clinical services. In general, the court agreed with the school district that, although MM made more progress receiving personal at-home care, this fact did not mean that the IEP that APS offered was inappropriate or unreasonable. The court specifically stated, “While [MM’s] parents may have wanted more for their son, the law did not require APS to do more than it did for MM.”

    In AH’s case, several evaluations indicated that AH needed physical, occupational, and speech therapies, but the school district failed to provide these therapies. Also, because of AH’s behavioral issues, the school district removed her from the regular classroom, placed her in an “alternative learning environment,” and ultimately refused to provide her any special education services. The alternative learning environment was a single room with eight other students and a teacher who not only wasn’t highly qualified in the core academic subjects, he didn’t have any significant training in teaching children with disabilities.

    The court found that, by not addressing any of AH’s behaviors, the school district failed to meet even the test for enabling the student to make “more than de minimus” progress, much less progress appropriate to her circumstances.

    While these cases may give some indication as to how courts will apply the new standard, the outcome in each case arguably would have been the same under the old standard. It’s likely that the new standard will make a difference only in the cases like Drew’s where it’s a very close call; the student is making a little bit, but not much, progress. In these cases, the new standard will make it more likely that a court will require a school district to provide a higher level of educational services.

  • Legislative Ethics – Legislative Immunity

    by Jason Gelender and Patti Dahlberg

    Under article V, section 16 of the Colorado constitution, legislators cannot be “questioned” for any speech or debate in either house or in any committee. Referred to as “legislative immunity,” this privilege is designed to preserve the integrity of the legislative process and protect the legislative branch from intimidation. Courts have interpreted it broadly to grant legislators immunity from civil lawsuits and state criminal prosecution, but not federal criminal prosecution, and a privilege against being compelled to testify or produce documents in legal proceedings with respect to matters that fall within the “sphere of legitimate legislative activity.”

    The “sphere of legitimate legislative activity” includes actions taken during official legislative proceedings conducted in accordance with constitutional procedural requirements and other activities that are integral to the legislative (i.e., lawmaking) function. It does not include actions taken outside of official legislative proceedings that are not integral to the legislative function, such as town hall meetings or publishing newsletters. Courts have considered these actions more political than legislative because they are undertaken to stay in touch with constituents and help legislators get reelected.

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

    Situation #1.  During heated floor debate on a controversial bill that would repeal all state restrictions on private swimming pools near busy intersections, a legislator who opposes the bill claims that the bill sponsor is only carrying the bill because a Colorado-based swimming pool manufacturer bribed him.

    Does legislative immunity protect the legislator who made the accusation of bribery from liability in a civil lawsuit for defamation filed by the bill sponsor?

    1. NO, because the legislator accused the bill sponsor of bribery, a crime that is a felony, legislative immunity does not apply.
    2. NO, because the purpose of legislative immunity is to protect the General Assembly from intimidation by the executive and judicial branches of government and private parties, it does not apply to a statement made or other action taken by a legislator against another legislator.
    3. YES, because a legislator who takes bribes directly impacts the integrity of the legislative process, it is important to allow other legislators to “blow the whistle” without fear of legal repercussions if they think that another legislator is taking a bribe, even if the charge later proves to be false.
    4. YES, because the legislator made the claim during an official legislative proceeding while acting as a lawmaker, legislative immunity protects the legislator from liability in a civil lawsuit for defamation filed by the bill sponsor.

    The correct answer is d. Because the legislator made the claim during an official legislative proceeding while acting as a lawmaker, legislative immunity protects the legislator from liability in a civil lawsuit for defamation filed by the bill sponsor. However, while this is technically correct in the context of potential liability in a civil lawsuit, a legitimate question exists as to whether the legislator’s claim is, in fact, ethical. The question and answer are illustrative of the tension between what is legal and what is ethical that legislators often face in the course of their legislative activities.

    Situation #2.  During heated floor debate on a controversial bill that would repeal all state restrictions on private swimming pools near busy intersections, a legislator who opposes the bill claims that the bill sponsor is only carrying the bill because a Colorado-based swimming pool manufacturer bribed him.

    Assuming that the accusation of bribery is true, does legislative immunity prevent criminal prosecution of the accused legislator?

    1. NO, legislative immunity does not protect a legislator from criminal prosecution. It only protects a legislator from being a defendant in a civil lawsuit or from otherwise being questioned as part of a civil proceeding.
    2. NO, legislative immunity does not prevent criminal prosecution of the legislator. Prosecution for bribery does not require a protected inquiry into a legislator’s motives for the legislative acts of sponsoring or voting on a bill because the alleged crime occurred when the legislator accepted money in exchange for a promise to sponsor the bill and could be proven even if the legislator had not actually sponsored the bill.
    3. YES, the purpose of legislative immunity is to prevent intimidation of legislators through, among other things, questioning of their motives for taking legislative actions. Because sponsorship of legislation is a legitimate legislative function that is within the “sphere of legitimate legislative activity,” a legislator’s improper motivation for sponsoring legislation cannot form the basis of a criminal prosecution of the legislator.
    4. NO, because a legislator’s compensation is prescribed by law in accordance with article V, section 6 of the Colorado Constitution and such compensation does not include bribes. Taking a bribe as compensation for what is normally a legislative act of sponsoring legislation makes the sponsorship of the legislation violate a constitutional rule of procedure that governs the legislative process and therefore places the sponsorship outside of the protected “sphere of legitimate legislative activity.”

    The correct answer is b. Legislative immunity does not prevent criminal prosecution of the legislator.

    Although sponsoring legislation falls within the “sphere of legitimate legislative activity,” the United States Supreme Court has found that “[t]aking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act (U.S. v. Brewster, 92 S. Ct. 2531, 2544 (1972)). In this hypothetical, because a successful bribery prosecution requires only proof that the accused legislator accepted money in exchange for a promise, fulfilled or unfulfilled, to sponsor a bill, and does not require examination of the legislator’s legislative act of actually sponsoring the legislation, legislative immunity does not prevent criminal prosecution of the legislator.

    Situation #3.  The CEO of a privately held swimming pool company testifies during a meeting of a special Interim Committee on Swimming Pools Near Busy Intersections that imposing a statewide ban on these pools will drive swimming pool companies out of Colorado and severely damage Colorado’s economy. In response, a legislator on the committee who supports a statewide ban on all swimming pools calls the CEO a “greedy child-killing liar” who is concerned only about the bottom line and says that “you don’t even care that swimming pools near busy intersection pose a clear safety hazard to children!” The CEO sues the legislator for defamation.

    Does legislative immunity prevent the legislator from being found liable for defamation?

    1. NO, because interim committees are study committees rather than committees of reference and only have the power to act regarding proposed legislation that has not yet been introduced and assigned a bill number, the legislator’s allegedly defamatory statements were not made within the “sphere of legitimate legislative activity.”
    2. NO, because the legislator’s allegedly defamatory statements were so outrageous that the “outrageous conduct” exception to legislative immunity applies.
    3. YES, because the interim committee meeting at which the legislator made the allegedly defamatory statements was an official legislative proceeding. The legislator was acting within the “sphere of legitimate legislative activity” and cannot be found liable for the statement in a civil lawsuit.
    4. YES, because the allegedly defamatory statements were made in the context of a discussion about public policy options that could reasonably expect to lead to legislation being proposed, they fall within the “sphere of legitimate legislative activity.”

    The correct answer is c. The interim committee meeting at which the legislator made the allegedly defamatory statements was an official legislative proceeding and, therefore, within the sphere of legitimate legislative activity. Statements made during a legislative committee meeting almost always fall within the sphere of legitimate legislative activity, and legislative immunity protects a legislator who makes such a statement from being held liable for the statement in a civil lawsuit.

    And, in case you were wondering, there is no “outrageous conduct” exception to legislative immunity.

    Situation #4.  The CEO of a privately held swimming pool company testifies during a meeting of a special Interim Committee on Swimming Pools Near Busy Intersections that imposing a statewide ban on these pools will drive swimming pool companies out of Colorado and severely damage Colorado’s economy. In response, a legislator on the committee who supports a statewide ban on all swimming pools calls the CEO a “greedy child-killing liar” who is concerned only about the bottom line and says that “you don’t even care that swimming pool near busy intersection pose a safety hazard to children!” The CEO sues the legislator for defamation. Following the completion of the Interim Committee on Swimming Pools Near Busy Intersections’ meetings, the committee, with the assistance of Legislative Council Staff, issues a written final report that quotes as part of a summary of proceedings the allegedly defamatory statements made by the legislator. The CEO then amends his defamation complaint to include both the other legislators who served on the committee and the legislative staff who prepared the report as defendants.

    Does legislative immunity prevent the legislators and legislative staff from being found liable for defamation?

    1. NO, although the legislator who made the allegedly defamatory statements is entitled to legislative immunity because the statements were made during an official legislative proceeding, the other legislators and legislative staff are not entitled to legislative immunity because they republished the statements outside of the meeting.
    2. YES, because the republication of the allegedly defamatory statements occurred in an official legislative report it falls within the “sphere of legitimate legislative activity.” And legislative privilege applies to legislative staff to the same extent it applies to legislators.
    3. YES and NO. Because the republication of the allegedly defamatory statements occurred in an official legislative report, it falls within the “sphere of legitimate legislative activity” and the legislators cannot be found liable for defamation. But the legislative staff may be found liable for defamation because legislative immunity only protects legislators.
    4. NO, legislative immunity does not protect the other legislators and staff from being found liable for defamation. But under the law of defamation itself, the other legislators and legislative staff cannot be found liable for defamation because only the person who originally makes an allegedly defamatory statement may be held liable for the statement

    The correct answer is b. Republication of the allegedly defamatory statements occurred in an official legislative report. The preparation, adoption, and publication of the official report of a legislative interim committee falls within the “sphere of legitimate legislative activity.” Consequently, legislative immunity protects both the legislators and the staffers from being found liable for defamation for actions taken in preparing, adopting, and publishing the report.

    If you want to read more about legislative privilege and immunity, check out “A Look at the Limits of Legislative Immunity.”

    Want to learn more about legislative ethics? Take the Legislative Ethics Tutorial.

  • A Word of Praise for the Sergeants-at-arms

    by Darren Thornberry

    Hang around either chamber of the Colorado General Assembly at, say, 10 a.m. on a weekday and you’ll notice something striking. Amidst the speaking, the voting, the throng of lobbyists, the visitors along the walls, and the fast pace of the legislature at work, there are a few people actually making sense of the chaos. You’ll see them in their green (House) and maroon (Senate) jackets, delivering documents to legislators, keeping the aisles clear, ensuring appropriate decorum is upheld, and maintaining the security of the chambers. In the afternoons, they provide security for committee meetings, and throughout the day they also enforce parking laws on the capitol grounds. They are the security officers, or sergeants-at-arms, of the Colorado General Assembly, and they’re heavily relied upon to keep the wheels of the legislature turning.

    So why are they called sergeants?
    Karl Kurtz, formerly with the National Conference of State Legislatures (NCSL), looked into this question some years back in an article for NCSL’s The Thicket in which he looked up the etymology of “sergeant at arms.” He wrote that dictionaries agree that “sergeant” is derived from the Latin, serviens, meaning serving or servant. He further explored the online Britannica Encyclopedia and found the following definition:

    an officer of a legislative body, court of law, or other organization who preserves order and executes commands. In feudal England a sergeant at arms was an armed officer of a lord and was often one of a special body required to be in immediate attendance on the king’s person, to arrest traitors and other offenders. Through this function, the title of sergeant at arms eventually came to denote certain court, parliamentary, and city officials with ceremonial (and ostensibly disciplinary) functions. Each house of the British Parliament has a sergeant at arms, as does each house of the U.S. …

    The sergeants have been present in the chambers of the Colorado state house since the first legislative session of the territory. Here in fact is the page from the legislative manual of 1861 that lists the names of the sergeants for both the Council and the Representatives:

    Records from that year show that Mr. Kingsbury and Mr. Elmer were paid “in addition to their regular compensation, the sum of three dollars per day.”

    In 1877, the book of general laws of the newly founded state of Colorado, page 487, reads:

    That until otherwise provided by law, the officers and employees of the respective houses of the general assembly of Colorado shall be as follows, to wit: Of the senate—a secretary, assistant secretary, sergeant-at-arms, assistant sergeant-at-arms, engrossing clerk, assistant engrossing clerk, enrolling clerk, messenger, door keeper, chaplain, janitor, and two pages. Of the house of representatives—a chief clerk, assistant clerk, sergeant-at-arms, assistant sergeant-at-arms, engrossing clerk, assistant engrossing clerk, enrolling clerk, messenger, door keeper, chaplain, janitor, and four pages. (Emphasis added)

    We call them ‘the enforcers,’ but the House Sergeants have always been the most accommodating group of individuals you could meet. They are people- and service-oriented, and are willing to do most anything to help anyone. There really isn’t much that the House Sergeants don’t do. – Marilyn Eddins, Chief Clerk, House of Representatives

    So what is the role of a sergeant-at-arms in modern times? Consider House Rule 44: Other Officers and Employees:

    (a) The sergeant-at-arms shall attend the House during its sittings, shall maintain order in the House chamber and the approaches thereto at all times…

    (b) The sergeant-at-arms shall supervise the assistant sergeant-at-arms in the performance of their duties.

    (b.5) The sergeant-at-arms and the assistant sergeants-at-arms shall be selected without reference to party affiliation and solely on the basis of ability to perform the duties of their positions.

    Were a ne’er do well to actually enter the chamber, the sergeants, as peace officers, have the authority to arrest them on the spot. They also have the authority to track down and return to the chambers any missing legislator. If that sounds far-fetched, I give you Senate Rule 20: Call of the Senate:

    (a) Any five Senators may demand a call of the Senate, and require absent Senators to be sent for… and those for whose absence no excuse or an insufficient excuse is made, shall be sent for and taken into custody by the sergeant-at-arms…

    In the House, it’s Rule 19: Call of the House requires 10 members to initiate. In addition, both houses have rules regarding executive or secret sessions and the role that the sergeants play in securing the chambers as well as their duty to keep silent regarding such proceedings. (House Rule 17 and Senate Rule 27.)

    Embed from Getty Images

    Ninety-four years after statehood, in 1973, the role of the sergeants as peace officers was statutorily codified in section 2-2-402, Colorado Revised Statutes, as follows:

    2-2-402. Chief security officers. (1) Each house of the general assembly may appoint a chief security officer to ensure the orderly operation of each house and committees thereof. Such chief security officers shall perform the duties of the house employing them and shall be under the direction of one or more members or officers of such house as may be designated in the rules of each house.

    (2) Such chief security officers are hereby designated to be peace officers and shall have jurisdiction to act as such in the performance of their duties anywhere within the state.

    (3) Each house may adopt rules regarding the organization, supervision, and operations of its security staff, prescribing the qualifications, training, and duties of its security officers and all other matters relating to the performance of their responsibilities.

    The Senate Sergeants are a wonderful group of people who do their daily tasks with professionalism and a smile. They provide a sense of order and decorum to the chamber while enforcing the rules and procedures of the chamber. The pragmatic tasks they perform on a daily basis in the chamber as well as in the Senate Committee rooms makes the Senate the well-oiled machine that it is. We could not do it without them. – Kevin Grantham, Senate President

    While the sergeants-at-arms don’t get loose-lipped about the things they’ve seen over the years, stories abound. There’s the one about finding a missing member in a dentist chair in Ft. Collins and returning him to the House chamber to vote. On another occasion, a legislator said to have been in Pueblo was returned by the state patrol, upon the request of the sergeant-at-arms, to participate in a House vote. There are rumors, too, about sergeants having to dissuade legislators from slipping out of windows on Sine Die (the last day of the legislative session)! Regardless of what hijinks are occurring and how fast-paced the work might be, the sergeants-at-arms do their work with the utmost professionalism, and a friendlier cadre cannot be found on the capitol grounds.

    Author’s Note: My thanks to Theresa Holst and Molly Otto.

  • Who’s Afraid of the Origination Clause?

    by Nicole Myers

    Senators, has this ever happened to you?  You have a great idea for a bill to create a tax credit. It will provide assistance or incentives to deserving Coloradans who satisfy the criteria to claim it. You submit your bill request to the OLLS at your earliest opportunity, and within a day or two, an OLLS attorney calls you to discuss your request.  But before you can even explain your great idea, the attorney respectfully tells you that because your bill creates a tax credit, it is considered revenue raising and therefore should start in the House of Representatives.

    Now hold on just a minute.  You are a State Senator! Why is an OLLS attorney telling you that your bill, which was your idea, should start in the House?  What’s with this revenue-raising thing…did the OLLS make this up? And, how can a tax credit, which is revenue reducing, be considered a bill that raises revenue?

    Senators, your OLLS attorney gave you this unhappy news because Section 31 of article V of the state constitution requires that “[a]ll bills for raising revenue shall originate in the house of representatives, but the senate may propose amendments, as in the case of other bills.” This requirement is known as the “Origination Clause” and was likely modeled after a similar provision in the United States constitution.

    You may be wondering why the Colorado and United States Constitutions require bills that raise revenue to originate in the House of Representatives. The right to introduce money bills is an ancient privilege of the House of Commons, the lower house of the British Parliament. This privilege was awarded the lower house in the belief that the House of Lords, a permanent, hereditary body created by the king, would be more subject to influence by the crown than the House of Commons, a temporary elective body.  They thought it was more dangerous to let the Lords impose new taxes; better to leave that to the body elected by the people.

    A substantial number of state constitutions and the United State constitution maintain the privilege of the “lower” house to introduce money bills. While the limitation regarding revenue-raising bills is a remnant of Parliament’s struggles with the Crown, in modern times it expresses a preference for keeping the power to tax as close as possible to those subject to the tax. The House of Representatives, deemed the “lower” house, is presumed to more directly represent the people both because lower houses are customarily larger than their corresponding upper chamber and their membership is usually subject to election more frequently.

    There are many Colorado cases in which the court has assessed the constitutionality of bills under the Origination Clause, and there have been various interpretations of the phrase “bills for raising revenue” as stated in both the Colorado and United States Constitutions. In Colorado, the courts have determined that a bill for raising revenue “is one which provides for the levy and collection of taxes for the purpose of paying the officers and of defraying the expenses of government.” The courts have also held that “[a] bill designed to accomplish some purpose other than raising revenue, is not a revenue-raising measure.  Merely because as an incident, to its main purpose, it may contain provisions, the enforcement of which produces a revenue does not make it a revenue measure.”

    If you are thinking “but the General Assembly can’t pass a bill for the levy and collection of taxes for any purpose,” you are one step ahead of me. Today, the accountability to taxpayers for tax increases that the Origination Clause provides is largely superseded by the Taxpayers’ Bill of Rights. TABOR requires voter approval for any legislation that increases taxes, so now the voters directly decide whether taxes should be increased. (Interestingly, a bill that includes a referendum clause asking voters to increase or decrease state general fund revenue is considered a bill for raising revenue, even though voter approval is required.) So why are OLLS attorneys still bothering you with e-mails or phone messages about revenue-raising bills?

    The Colorado Attorney General’s Office has issued several opinions regarding bills for raising revenue. One of these opinions states that a bill that would have the obvious effect of decreasing collected revenues is still a bill for raising revenue.[1] The Attorney General’s Office determined through its research that bills for raising revenue “means bills which provide for the levy and collection of taxes. A bill levying taxes may cause a tax to decrease as well as increase.  Accordingly, art. V (section) 31 precludes the senate from introducing measures that decrease state taxes”. For this reason, the OLLS advises members of the General Assembly that a bill that affects the amount of general fund revenue collected by the state is considered a revenue-raising bill and should be introduced first in the House. Bills that fall into this category include income tax credits, income tax exemptions, bills to decrease any state tax, and bills that seek voter approval for an increase or decrease in any state tax or approval for the creation of a new state tax. Bills that are not deemed to affect the amount of general fund revenue collected by the state and therefore can be introduced in the Senate include bills that delegate authority to local governments to levy local property taxes, bills that appropriate money from the general fund, and bills that create, increase, or decrease a fee or toll as compensation for the use of government facilities or for services provided by the government.[2]

    Although the OLLS does its best to advise Senators of the provisions of section 31 of article V of the state constitution, Senators have started many revenue-raising bills in the Senate. There is now precedent for these bills being enacted after starting in the Senate, and these bills are presumed to be constitutional. To our knowledge, no one has challenged any of these revenue-raising bills in court based on a violation of the Origination Clause; therefore, the OLLS does not know whether a court would give more weight to the constitutional provisions of the Origination Clause or the presumption of constitutionality afforded every measure enacted by the General Assembly. Regardless, it is interesting to note that one Speaker of the House within recent memory, to protect the House’s authority to introduce revenue-raising bills, refused to introduce in the House any Senate bill that was revenue raising. While a Senator may decide that he or she is not going to let the Origination Clause stop him or her from introducing a Senate Bill that affects the overall amount of revenue coming into the state general fund, the House of Representatives may use the Origination Clause to prevent the bill from proceeding in the House.

    As all Colorado State Senators and Representatives know, the OLLS will never tell a member of the General Assembly that he or she cannot introduce a bill for any reason. So if you are a Senator and are ever advised that your bill is revenue raising and, pursuant section 31 of article V of the state constitution, should start in the House, it is just the OLLS reminding you of the requirements of the Origination Clause. We do this in an effort to protect the constitutionality of your bill, maintain the authority of the House of Representatives to introduce revenue-raising bills, and preserve the integrity of the laws and traditions that govern the legislative process in Colorado. We leave it to you to determine whether to be afraid!

    [1] For a list of specific Attorney General Opinions discussing article V (section) 31, please see section 8.1.5 of the OLLS Drafting Manual.

    [2] For a more thorough discussion of bills that are and are not considered revenue raising, please see sections 8.1 and 8.2 of the OLLS drafting manual.