Colorado LegiSource

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

Author: olls

  • Tribute, Resolution, or Memorial – Making the Right Choice

    By Patti Dahlberg

    When legislators wish to show support for individuals or groups, make public statements about issues or concerns, or ask Congress to take action on a matter, they can request a tribute, resolution, or memorial to get the job done. Legislators decide what they wish to do, and the legislative rules direct them how to get it done.

    This handy guide sums up these rules for making the right choice. For example, if a legislator wants to congratulate someone, a tribute is the way to go. It is an appropriate and efficient way to send congratulations to people or organizations or to recognize service to the state. In fact, whenever a legislator wishes to “officially” congratulate, recognize, express appreciation, commemorate, or even create a day of recognition, the rules pretty much scream “tribute”.

    Tributes

    Tributes are non-legislative actions and DO NOT require introduction, calendaring, or floor action. Tributes are a very efficient and effective way for legislators to show support for individuals or groups. Legislators are not limited in the number of tributes they may request, but they do need permission from the Speaker of the House or the President of the Senate  depending on the house of origin) before the tribute can be issued. The tribute’s content is unique to each request and is designed to fit the needs of each requestor — it can be short and created fairly quickly, or it can be longer and more detailed (based on information provided by the legislator). Tributes are easier to present to an individual or a group as they can be scheduled around the recipient’s and legislator’s calendars rather than the legislative calendar.  In addition, they can go on the road—the legislator can conveniently award them anywhere and any time.

    Tributes are personalized and look special. They are printed in a special font, on special paper, and placed in a special folder or, if preferred (and at a slight cost), in a frame for display. Tributes are signed by the Speaker or the President or, in the case of joint tributes, both.

    House Tributes:

    • The House will not issue a tribute unless the Speaker of the House has given her permission;
    • The Chief Clerk of the House maintains copies of each tribute issued for two years.

    Under House Rule 26A, a request should be a tribute if it pertains to any of the following:

    • Offering congratulations for significant public achievement;
    • Recognizing meritorious individual achievement;
    • Expressing appreciation for service to the state or the General Assembly;
    • Recognizing an individual’s service in the military (except in the case of recognizing an individual who died while serving, which can be done by House Resolution or Joint Resolution, see House Rule 26 (a)(2)(C));
    • Extending greetings to prominent visitors to the state;
    • Recognizing or commemorating any individual, organization, or group for a significant event or accomplishment;
    • Congratulating the members of an academic or athletic organization for achieving a specific historical, scientific, educational, or athletic goal, such as winning a league, state, or national title, competition, or championship; or
    • Designating a specified day for observing any of the achievements, events, service, or accomplishments set forth above.

    Senate Tributes:

    • The Senate will not issue a tribute unless the President of the Senate has given his permission;
    • Tributes are printed in the journal by title on the day following the issuance;
    • A list of all tributes requested in the Senate is available for inspection in the office of the Secretary of the Senate.

    Under Senate Rule 30A, a request should be a tribute if it pertains to any of the following:

    • Offering congratulations for significant public achievements;
    • Recognizing meritorious individual achievement;
    • Expressing appreciation for service to the state or the General Assembly;
    • Recognizing an individual’s service in the military; or
    • Extending greetings to prominent visitors to the state.

    The House and the Senate Rules state that a request should be a Memorial Tribute or a Joint Memorial Tribute if it expresses sentiment on the death of a person who has not served as a member of the General Assembly (except for the House exceptions listed above regarding military, law enforcement, and firefighting personnel who died while serving) or, in the Senate, meets the exceptions allowed under the rules for Senate Memorials and Joint Memorials. (Senate Rule 30 (d).)

    All requests for tributes must be made to the staff designated by the Chief Clerk of the House or the Secretary of the Senate.

    Resolutions

    Resolutions are non-statutory actions but DO require introduction, calendaring, and floor action.

    House Resolutions:

    • Representatives are limited to a total of two resolutions or joint resolutions, unless they receive special permission.
    • Resolutions and joint resolutions must be introduced prior to the last thirty legislative days as required in Joint Rule 23 (g).
    • Upon introduction, they are read into the record by title only and copies are printed.
    • At the discretion of the Speaker, they can either be laid over for one day before being acted on or referred to a committee of reference.
    • No action is taken on the resolution or joint until it is printed.

    Under House Rule 26, a request can be a House Joint Resolution if it pertains to:

    • Transacting the business of both the House and the Senate;
    • Establishing committees comprised of members of both houses;
    • Recognizing an individual member of the armed forces of this country who has died while serving in the armed forces or an individual member of a police, sheriff, or fire department who has died while performing duties for the department; or
    • Expressing the will of both houses on a matter not mentioned in House Rule 26A (i.e., not a tribute).

    In addition, but only in the House, pursuant to House Rule 26 (a)(3.5)(A):

    • Up to six resolutions recognizing or commemorating an individual, organization, or group for a significant event or accomplishment (i.e., which would normally have to be addressed through tributes) may be approved by the Speaker after consultation with the Majority Leader; and
    • Up to four resolutions recognizing or commemorating an individual, organization, or group for a significant event or accomplishment (i.e., which normally would have to be addressed through tributes) may be approved by the Speaker after consultation with the Minority Leader.

    Senate Resolutions:

    • Senators are limited to a total of three resolutions or joint resolutions, unless they receive special permission.
    • Resolutions and joint resolutions must be introduced prior to the last thirty legislative days as required in Joint Rule 23 (g).
    • Upon introduction, they are printed in the journal by title only and copies are printed.
    • At the discretion of the President, they can be acted on immediately, laid over, or referred to a committee of reference.
    • Resolutions and joint resolutions determined by the Majority Leader to be noncontroversial can be placed on the consent calendar.

    Under Senate Rule 30, a request can be a Senate Joint Resolution if it pertains to:

    • Transacting the business of both the House and the Senate;
    • Establishing investigating committees comprised of members of both houses; or
    • Expressing the will of both houses on a matter not mentioned in Senate Rule 30A (i.e., not a tribute).

    Any of the above can be a House Resolution or Senate Resolution if it pertains to similar matters as listed for the joint resolutions, but does not require concurrence of the other chamber or relates solely to the will of one chamber.

    All requests for resolutions and memorials must be submitted to the Office of Legislative Legal Services. In 2018, the deadline for requesting resolutions and memorials is Friday, April 6, and the deadline for introducing resolutions is Monday, April 9.

    Memorials

    Memorials are non-statutory actions but DO require introduction, calendaring, and floor action.

    House Memorials:

    • At the discretion of the Speaker, a former member of the House may be admitted to the House floor to address House members regarding the person being memorialized.
    • The House shall stand in recess to hear an address by a former member.

    Under House Rule 26, the request is a House or House Joint Memorial ifit expresses sentiment on the death of a person who served as a member of the General Assembly.

    Senate Memorials:

    • At the discretion of the President, a former member of the Senate may be admitted to the Senate floor to address Senate members regarding a memorial expressing sentiment on the death of a person who served as a member of the Senate.

    Under Senate Rule 30, the request is a Senate or Senate Joint Memorial if:

    • It expresses sentiment on the death of a person or persons who served as members of the General Assembly, present or former elected State officials, present or former justices of the Colorado Supreme Court, members of Congress, elected officials of other states or of the United States, or foreign dignitaries; or
    • It memorializes the U.S. Congress on any matter.

    All requests for resolutions and memorials must be submitted to the Office of Legislative Legal Services. In 2018, the deadline for requesting resolutions and memorials is Friday, April 6, and the deadline for introducing resolutions is Monday, April 9.

  • What’s with All the Extra Changes in My Bill?

    by Bethanie Pack

    Sometimes a seemingly quick fix in a bill, such as changing just a few words or extending a repeal date, results in a draft that was longer than anticipated with more changes than originally asked for.

    Why?

    Under the Revisor of Statutes’ authority granted in sections 2-2-802 and 2-5-103 C.R.S., the Office of Legislative Legal Services (OLLS) makes several on-going, non-substantive changes to modernize, maintain consistency, and improve the readability of the statutes. Drafters add these changes to bills prospectively, as the opportunity arises, rather than making a global revision change in the database, because making all these changes at once would 1) introduce a lot of opportunity for error; 2) potentially and unintentionally change the law substantively in some scenarios; and 3) take a ton of additional time to proofread the accuracy of all of the changes.

    Some examples of these additional non-substantive changes a legislator may see in a bill include:

    Short Titles and Standardized Language

    This article shall be known and may be cited as The short title of this article 30 is the “Limited Gaming Act of 1991”.

    Prior to Before its repeal, the department of regulatory agencies shall review the licensing functions of the secretary of state are scheduled for review in accordance with…

    Formatting of Internal References

    …the provisions of this article article 30.

    …described in paragraph (a) of this subsection (1) subsection (1)(a) of this section as the…

    Removing “C.R.S.” from a Section Number

    …the provisions of section 24-5-101; C.R.S.;

    “Which” to “That”

    …the administration of similar laws which that may be in effect in other states or countries;

    “Such” to “The”

    …upon such the sheriff’s or peace officer’s request…

    Gender Neutralization

    …in the performance of his or her duties…

    “Moneys” to “Money”

    …shall invest the moneys money in the…

    People First Language

    Mental retardation Intellectual and developmental disabilities theory and rehabilitation…

    …being a common drunkard person with an alcohol use disorder…

    One might think that some of these changes are simple enough to just “find and replace” them all in the statutes. Two clicks and done. Right?

    Unfortunately, it’s not that simple or easy.

    A change may seem straightforward at first, such as gender neutralizing, where the drafter or the Revisor could just add “or she” to every place in the statutes where it says “he”. But, since the intent of these changes is to modernize and improve readability, it may be better to clarify the actor rather than just add “or she” to the statute. “He shall authorize…” becomes “The commissioner shall authorize…” rather than “He or she shall authorize…”. This obviously requires interpretation that a computer simply cannot do.

    Because of this and the statutory directive to write in “plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning which are understandable to the average reader,” section 2-2-801 C.R.S., the OLLS continuously updates and modernizes the laws as they are amended for substantive purposes, which results in unanticipated additional changes in a bill.

    Under most circumstances, the OLLS makes these changes in a bill as the opportunity arises. However, these changes cannot be made in uniform laws or compacts or when it would conflict with federal law.

    So, with each extra, unanticipated change in a bill, the general assembly is doing its part in the slow but steady process of bringing the 20,000+ pages of statutes into the 21st century.

  • Title 12 Recodification Project Moves Forward

    by Thomas Morris

    Progress Through 2017

    In 2016, the General Assembly enacted S.B. 16-163, which directs the Office of Legislative Legal Services (OLLS) to study an organizational recodification of Title 12 of the Colorado Revised Statutes (C.R.S.) governing the regulation of professions and occupations and to bring recommendations, including any legislative proposals to recodify the title, to the Committee on Legal Services (COLS). During the 2017 legislative session, in furtherance of the study recommendations, the General Assembly enacted 14 bills proposed by the COLS to relocate 21 articles to more appropriate titles in the C.R.S. (See the Title 12 Recodification Project’s website for links to these bills). The General Assembly also enacted a bill, H.B. 17-1006, to allow agencies that need to correct statutory citations in the code of Colorado regulations because of these relocations to do so without the notice, comment, and hearing that usually accompany rule making by submitting to the secretary of state a specific, written determination by the attorney general.

    During the 2017 interim, the OLLS staff solicited feedback from stakeholders, drafted and distributed numerous relocation bills, and provided the COLS with updates regarding the project’s progress. During the COLS’s December meeting, the OLLS recommended, and the COLS approved, introducing for the 2018 legislative session 10 additional relocation bills. Nine of the relocation bills create a new Title 44 in the C.R.S. to which the bills will move current articles and parts in Titles 12 and 24 that are administered by the Department of Revenue. The tenth relocation bill relocates three articles and one part from Title 12 to other appropriate titles in the C.R.S.

    Because of the complexity of the remainder of the project, which entails reorganizing and restructuring the articles administered by the Department of Regulatory Agencies (DoRA) that remain in Title 12 and the need for more stakeholder meetings and in-depth discussions with the department and the regulated community, the OLLS recommended, and the COLS approved, introducing a bill to extend the Title 12 Recodification Project for one additional year.

    2018 Regular Session Legislation

    Members of the COLS are sponsoring the Title 12 Recodification Project bills in the 2018 legislative session. With the exception of the bill to extend the project, the bills simply relocate a particular set of statutes from one location in the C.R.S. to another location with minor technical updates and do not make any substantive changes to the law. Half of the relocation bills and the project extension bill were introduced in the Senate and the other half of the relocation bills were introduced in the House of Representatives. Here’s a list of the 11 bills introduced so far this session.

    Bill  No Prime Sponsors Status as of 1/18/18 Subject Law Being Relocated
    SB18-030 Sens. Holbert & Kagan

    Reps. Foote & Willett

    		 Senate second reading Motor vehicle dealers Article 6 of title 12
    SB-18-031 Sen. Gardner;

    Rep. Foote

    		 Senate Appropriations committee Extends Title 12 Project
    SB18-032 Sens. Gardner & Cooke;

    Reps. Foote & Herod

    		 Senate second reading Parental notification

    Firearms dealers

    Gun show background checks

    Unsworn declarations

    		 Article 37.5 of title 12

    Article 26 of title 12

    Article 26.1 of title 12

    Part 3 of article 55 of title 12
    SB18-034 Sens. Cooke & Guzman

    Reps. Wist & Lee

    		 Senate second reading Limited gaming

    Tribal-state gaming compact

    		 Article 47.1 of title 12

    Article 47.2 of title 12
    SB18-035 Sens. Gardner & Cooke

    Rep. Wist

    		 Senate second reading Gambling payment intercepts Part 6 of article 35 of title 24
    SB18-036 Sen. Kagan

    Rep. Wist

    		 Senate second reading Tobacco sales to minors Part 5 of article 35 of title 24
    HB18-1023 Rep. Herod

    Sen. Gardner

    		 House Judiciary Committee hearing, 1/23/18 at 1:30 pm Medical marijuana

    Retail marijuana

    		 Article 43.3 of title 12

    Article 43.4 of title 12
    HB18-1024 Rep. Lee

    Sen. Kagan

    		 House Judiciary Committee hearing, 1/23/18 at 1:30 pm Racing Article 60 of title 12
    HB18-1025 Rep. Herod

    Sens. Gardner & Cooke

    		 House Judiciary Committee hearing, 1/23/18 at 1:30 pm Colorado Beer Code

    Colorado Liquor Code

    Special event permits

    		 Article 46 of title 12

    Article 47 of title 12

    Article 48 of title 12
    HB18-1026 Rep. Herod

    Sens. Gardner & Cooke

    		 House Judiciary Committee hearing, 1/23/18 at 1:30 pm Liquor enforcement division cash fund Part 4 of article 35 of title 24
    HB18-1027 Rep. Wist

    Sen. Kagan

    		 House Judiciary Committee hearing, 1/23/18 at 1:30 pm Lottery Part 2 of article 35 of title 24

     

    During the stakeholder process that the OLLS conducted during the 2017 interim, some interest was expressed in not only relocating but also reorganizing both the marijuana laws and the laws governing automobile dealers and power sports dealers. Staff have distributed draft bills to accomplish these reorganizations to stakeholders, but there was insufficient time to develop consensus on them before the beginning of the 2018 regular session. The OLLS therefore did not recommend the introduction of these bills to the COLS; if consensus is reached later there is still a possibility that one or both of these bills could be introduced in the 2018 regular session.

    So, what’s left?

    Actually, the whole point of the project – to reorganize Title 12. If all of the 2018 legislation is enacted, the only laws left in Title 12 will be those administered by DoRA. But they will still be in their preexisting form – with lots of duplicative or nearly duplicative requirements scattered throughout Title 12 and without the benefit of one or more common provisions articles that would apply broadly throughout Title 12. Additionally, there are several laws administered by DoRA relating to professions and occupations that are codified outside of Title 12 (primarily in Title 24) that would benefit from being codified along with the rest of DoRA’s Title 12 authorities.

    The plan is for the OLLS to conduct more stakeholder outreach during the 2018 interim, distribute draft reorganization bills, and try to reach consensus on those bills by November. The OLLS would then present its recommendations to the COLS for the introduction of the consensus Title 12 reorganization legislation for the 2019 regular session. Stay tuned!

  • Looking Back: What Were the Political Issues in 1918…er…1917?

    by Julie Pelegrin and Nate Carr

    The Second Regular Session of the Seventy-first General Assembly is underway. Based on recent media coverage and the opening day remarks by legislative leadership, we know that some of the anticipated hot topics are funding for roads and bridges, teacher shortages, addressing opioid addiction, affordable housing, health care, rural broadband access, and shoring up the Public Employees’ Retirement Association. And people are hoping to address all of these issues in a spirit of bipartisanship in order to find workable solutions.

    We thought it would be interesting before we get too caught up in the 2018 session to look back and see what was happening in the 1918 session. What issues were our legislative forebears tackling one hundred years ago?

    Turns out, in 1918, they weren’t tackling anything legislatively. Before voters amended the constitution in 1950, the General Assembly met regularly every other year in odd-numbered years. They met in even-numbered years only if the Governor called them in to special session, which Governor Julius C. Gunter did not do in 1918. Not that there wasn’t a lot going on in Colorado in 1918: the federal government broke ground on “World War I Army Hospital 21,” later renamed Fitzsimons Army Hospital; the Broadmoor resort opened in Colorado Springs; the Influenza Pandemic of 1918 started in Colorado in September, ultimately killing nearly 8,000 Coloradans; and World War I ended on November 11.

    Not to be deterred, we decided to see what the General Assembly was considering 101 years ago, when they convened in 1917 for the Regular Session of the Twenty-first General Assembly.

    In 1917, the Democrats controlled both the House of Representatives and the Senate. They held the Senate with 18 Democrats to 17 Republicans and the House with 40 Democrats to 25 Republicans.

    The Twenty-first General Assembly convened at “12 o’clock, noon” on Wednesday, January 3, 1917, as required in the constitution at the time. Lieutenant Governor Moses E. Lewis, whose term ended on January 9, 1917, gaveled the Senate to order. He was replaced by James A. Pulliam, who presided as Senate President for the remainder of the legislative session. We should explain that, under the constitution until 1974, the state’s Lieutenant Governor served as President of the Senate, voting only to break a tie.

    Mr. Erlo E. Kennedy, Chief Clerk of the House, called the House of Representatives to order and, after the committee on credentials reported that the persons elected the previous November, as certified by the Secretary of State, were entitled to their seats as provided by statute, Representative Boon Best of Arlington, CO, was elected to preside as Speaker of the House of Representatives.[1] And yes, Speaker Best was a descendant of Daniel Boone. (See Presidents and Speakers of the Colorado General Assembly, Denver, Colorado, 2016 Edition.)

    So, what were the hot topics of 1917?

    Alcohol and marijuana were both on the list. On January 1, 1916, Colorado became a dry state (Colorado was leading the nation even then). Not surprisingly, in 1917, the General Assembly considered and passed a law to limit the purchase and sale of alcohol to licensed wholesalers and licensed manufacturers. The intent was to ensure that alcohol was used only as a “component part of some manufactured article, and that no article ordinarily used as a beverage will be manufactured therefrom.” The General Assembly also passed H.B. No. 263, carried by Rep. Andres Lucero from Saguache, to “declare unlawful the planting, cultivating, harvesting, drying, curing, or preparation for sale or gift of cannabis sativa,” also known as “mariguana”. The penalty was a fine of $10-$100, or up to 30 days in jail, or both.

    In his state of the state address, Governor Gunter praised Colorado for its impressive growth in the 40 years since statehood. Population had grown from 60,000 to 1,000,000; assessed valuation had increased from less than $45,000,000 to more than $1,211,000,000; and the total production of the state—$20,000,000 in 1876—had increased several times over due to steel production, sugar output, livestock, minerals, and agriculture.

    But there were issues to address. He cited an investigation of the public education system, which showed that the system

    provides for no efficient control or supervision of the schools by any state or county agency; does not provide for equality of opportunity; does not place the burden of support of schools equally on all property; [and] favors the city and town at the expense of the country. 1917 Senate Journal, Tuesday, January 9, 1917, 7th Legislative Day, pg 86.

    He asked for collaboration in making the school system more efficient and “to properly recognize by salary and otherwise, those giving their lives to this respected and useful calling,” i.e., teaching.

    The Governor raised myriad other issues, including state highways (“investment now more than $22,000,000”), encouraging the legislators to work with the director of the department to further develop “this great asset of the state.” He encouraged the legislators to raise funding for buildings and equipment at the state institutions of higher education and to appropriate state money to enforce the minimum wage law for women and minors. He called for legislation to “rearrange” the judicial districts and to adopt for the state a “Budget System for the expenditure of all moneys required for maintaining the government and the institutions of the state.”

    In all, the members of the General Assembly introduced 434 Senate bills and 587 House bills; passed 155 bills; and adjourned sine die on March 24, 1917, at noon. In his state of the state address in 1919, Colorado Governor Oliver H. Shoup recognized the 1917 session as “the shortest regular sitting in the history of the commonwealth, the most fruitful in a time of greatest peril in the life of the state.”

    Less than a month after the 1917 session adjourned, on April 6, 1917, the United States declared war on Germany and entered World War I. So maybe it’s not so surprising that there were no special legislative sessions called during 1918.

     

    [1] Actually, we have been unable to locate a copy of the House Journal for 1917. The order of business presented here is based on the procedures followed on the first day of the 1919 session as presented in the House Journal for 1919.

  • CCUSL Recommends Two Uniform Acts for Introduction in 2018

    by Patti Dahlberg and Thomas Morris

    The Colorado Commission on Uniform State Laws (CCUSL) meets each year during the Uniform Law Commission’s (ULC) annual conference in July to discuss a preliminary agenda of approved uniform acts for consideration in Colorado. In addition, the CCUSL typically hosts one or more public meetings at the State Capitol to discuss the proposed legislation and to finalize its legislative agenda. The CCUSL sends advance notice of any meetings held in the Capitol to interested parties, posts meeting information on the General Assembly and the CCUSL websites, opens the meetings to public testimony, and broadcasts the meetings over the internet.

    The CCUSL held meetings to discuss its legislative agenda on September 22, 2017, and November 3, 2017, and approved two ULC acts for introduction as commission bills for the 2018 regular session. These acts were not newly approved acts from this past ULC annual meeting in July, but were ULC-approved acts previously discussed and approved. They are:

    • Revised Uniform Unclaimed Property Act. Approved by the ULC in 2016, this update to the 1954, 1981, and 1995 versions of the act addresses recent technological developments and updates provisions on numerous issues, including gift cards and other stored-value cards, life insurance benefits, securities, dormancy periods, and use of contract auditors. Colorado first adopted the Uniform Unclaimed Property Act in 1987, and this new version of the act repeals and reenacts our current law governing how unclaimed property is determined, accounted for, and distributed.
    • The Uniform Trust Code (UTC) was first approved by the ULC in 2000, last amended by the ULC in 2010, and has been adopted in more than half the states. The UTC is more than 150 pages long and replaces much of current Colorado trust law, so it is no surprise that it has taken a couple of years for review and consideration. The Colorado Bar Association (CBA) undertook the huge task of adapting the UTC to Colorado law, included numerous interested parties in discussions, and still maintained the act’s uniformity. The CBA will continue to work on the draft of the CCUSL bill and will work with the bill’s sponsor for introduction and passage of the act. Because the uniform act adopted in Colorado will include numerous amendments to fit within current law, the Colorado version will be called the Colorado Uniform Trust Code.

    (For links to a preliminary draft of the Colorado Uniform Trust Code and some of the other ULC acts discussed in CCUSL meetings this year go to the CCUSL Meeting Documents Archive page and open the agenda for November 3, 2017.)

    The ULC also approved six new acts for states to consider for legislation at the annual July meeting, but none of these acts will be drafted for introduction in Colorado this year. The CCUSL may consider introducing the following 2017 ULC acts in 2019:

    • The Uniform Regulation of Virtual Currency Businesses Act: creates a statutory framework for regulating virtual currency business activity and covers a variety of businesses engaged in the exchange of virtual currencies.
    • The Uniform Directed Trust Act: addresses the division of a trustee’s traditional responsibilities regarding estate planning and asset management among several specialists.
    • The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act: an updated version of the Uniform Guardianship and Protective Proceedings Act, originally promulgated in 1969. The commission is asking the CBA to form a special study group to look at how the act will work within current Colorado law and work with stakeholders most affected by the act’s changes.

    The CCUSL, as a standing legislative committee, may recommend bills for introduction that are exempt from the five-bill limit imposed on legislators. Serving as CCUSL commissioners for 2017-18 are Senator Robert Gardner, former Senators Brandon Shaffer and Pat Steadman, Representative Cole Wist, and former Representatives Claire Levy and Anne McGihon. The CCUSL is Colorado’s delegation to the national ULC, which is comprised of more than 300 commissioners appointed by all 50 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico. The ULC has worked for the uniformity of state laws since 1892.

    Other articles regarding the ULC and CCUSL:

  • Capitol Visitor Services: The Public Face for Legislative Council Staff

    by Gwynne Middleton

    While state capitol regulars may be most familiar with the nonpartisan Legislative Council Staff (LCS) for its hardworking crew who staff legislative committees, constituents are more likely to interact with LCS’s constituent services staff who assist legislators in responding to constituent questions, concerns, and requests for information, and their public relations team, Visitor Services.

    Colorado State Capitol/Credit: Ashley Athey

    Housed on the ground floor of the capitol building, Visitor Services specializes in making the Colorado legislature approachable for the general public, welcoming visitors from as far away as Australia and as close as Cap Hill through their public tour programming. With approximately 70,000 people taking official tours each year, Visitor Services’ docents offer an insider’s look at the architecture and history of one of the most memorable public buildings in the state.

    Recently I had the opportunity to connect with the Visitor Services’ Assistant Manager, Erika Osterberg, and pick her brain about the many ways the capitol tour serves as a bridge between the legislature and the public they are committed to serving. Below you’ll find our conversation, edited for length and clarity.

    How does the capitol tour help LCS fulfill its mission?
    Our mission is to inspire and educate the public about our historic statehouse and the work of our General Assembly. While our work is a bit different than that of our colleagues in LCS, we share a deep pride and commitment to service as ambassadors to the capitol and the state of Colorado. Providing accurate, nonpartisan, and unbiased information in a professional manner is a responsibility we take very seriously and something we require each guide to honor.

    What does a typical tour look like, and what elements of the tour are unique to Colorado?
    Our public tours last about one hour and include a brief historical overview of our state; information about the architecture, construction, and materials that make up the capitol; capitol artwork; and the legislative process.  All public tours also offer an opportunity for visitors to make a trip up to the dome observation area to enjoy our incredible 360-degree view of the Front Range, downtown Denver, and the plains to the east.

    For groups with reservations, we offer this tour by default but can also build into their schedule a docent-led tour of Mr. Brown’s Attic Museum. Additionally, during the legislative session, we help coordinate a “legislative tour,” where groups can spend time observing work on the floor and learn in greater detail about the work of the General Assembly.  These tours are primarily designed for student groups, and Visitor Services leads these tours alongside staff from House and Senate Services.

    We have a very gifted team of guides comprised of volunteers and part-time work-study students from the University of Colorado at Denver and Metropolitan State University of Denver, as well as five full-time temporary college student “summer guides” who work from May-August and whose enthusiasm and love for this building is extraordinary.

    We see and hear many wonderful compliments about our knowledgeable and friendly staff who bring this building to life for so many visitors.  While in many ways the beauty of this building speaks for itself, touring with a guide gives one a deeper appreciation of the history and impact of the capitol and the work that happens here.

    Why do you think offering this tour to the public matters?
    In addition to educating the public about the rich history and heritage of Colorado, we recognize our unique opportunity in helping them better understand the legislative process and the importance of public participation in state government.

    Many visitors—both local and international— are surprised to learn that the public is welcome to observe work on the floor or that they may testify in committee, for example. We see it as an important responsibility to demystify work that some people find intimidating in its complexity.

    Ms. Osterberg’s insights into Visitor Services’ tour programming highlight the long-term value of welcoming people from all walks of life to the capitol. Opportunities to witness the House of Representatives or Senate in action from the galleries of their respective chambers and to stroll through the hallowed halls of this historic building may make visitors feel more invested in following the state legislative process because of their newly informed connection to this physical landmark that represents Colorado and its citizens.

    Free public tours start on the first floor of the capitol and occur Monday through Friday, on the hour every hour between 10 a.m. and 3 p.m. Groups with fewer than 10 members may join these tours and should arrive at least 20 minutes early because the tours are popular and often reach the 30-person limit before the tour begins. If visiting with more than 10 people, be sure to make a reservation via Visitor Services’ online booking form. These reservations can be made up to one calendar year in advance.

    For those who are unable to participate in an official tour of the building, the Capitol Building Advisory Committee, in conjunction with LCS’s Visitor Services, is currently working through a proposal to develop an audio tour that visitors can complete at their own pace. For more information about this proposed audio tour option, contact Visitor Services.

     

  • A Holiday Message

     

    Happy Holidays from the OLLS!

  • Mother May I? No. You May Not.

    By Jery Payne

    Imagine you are a judge who is hearing a case. The case involves a 16-year-old applying for his first driver’s license. He fulfilled all the requirements to receive a driver’s license, but the clerk at the DMV counter refused to issue one. The clerk didn’t explain the refusal other than to point out that Colorado law says the following:

    42-2-104. Licenses issued – denied. (1) Except as otherwise provided in this article, the department may license the following persons in the manner prescribed in this article:

    (c) Any person sixteen years of age or older who has not reached his or her twenty-first birthday, as a minor driver.

    The statute that authorizes the issuance of licenses says that the clerk “may” issue licenses. “May” is understood to mean that the clerk is authorized, but not required, to issue the licenses. “Therefore,” the clerk explains, “I don’t have to issue the license. Bye, now.”

    It turns out that the applicant had been dating the clerk’s daughter, but they had recently broken up. You suspect the clerk is punishing the applicant.

    As the judge, what do you do? The clerk’s explanation is more or less a correct understanding of the statute. The word “may” gives authority but does not normally impose a duty. Yet the clerk’s decision is clearly an abuse of authority. Do you apply the statute as written? Or do you hold that the statute requires the clerk to issue the license? Do you interpret “may” to mean “shall”?

    Now, imagine you are the drafter writing this statute, and you only have the words “shall” and “may” in your drafter’s toolbox. The goal is to grant authority to the DMV to issue licenses, but you realize you might not want to use the word “shall” because one of the goals is to make sure the DMV also has the ability to deny licenses to unqualified applicants.

    Another approach may be to focus on the applicant: “A person shall submit the following.” At first this seems to make sense, but then you realize that the law now requires people to submit the appropriate paperwork even if they don’t want a driver’s license. So this doesn’t quite work.

    A third approach may be to focus on the applicant’s age: “An applicant shall be at least sixteen years of age.” At first, this also makes sense, but then you realize that you have just given people a duty to be a certain age. The applicant can’t control his or her age, so saying he or she has a duty to be at least sixteen years of age is a little weird. And this approach has caused quite a few problems. What you really want to say is that an applicant needs to be a certain age to be licensed. Therefore, these approaches that use “shall” don’t quite work.

    At the same time, the word “may” can lead to a case such as the one imagined with the power-hungry clerk denying licensure to a qualified applicant. The word “may” doesn’t quite capture the goal, which is both for the DMV to issue licensees to qualified applicants and to make sure that applicants are qualified before being issued a license.

    If neither “shall” nor “may” quite captures the intention, then you face a conundrum. Go back and read the statute. It is actually quite clever in how it communicates the intention with words that don’t quite work.

    This is where the word “must” helps. Add this word to your toolbox. First, start with the DMV’s duty to issue licenses: “The department shall issue driver’s licenses to qualified applicants.” Now it is clear that the department has a duty to treat everybody fairly. Then, add a requirement (but not a duty) that the applicant meet the desired standards: “To be qualified, the applicant must be at least sixteen years of age.” The word “must” communicates a requirement, which is what the statute is trying to get at.

    This is why the General Assembly added the word “must” to the drafter’s toolbox. “Must” doesn’t mean a person has a duty; it means something is necessary, and this, it seems to me, is exactly what the legislature meant when it enacted this statute.

    Duprey v. Anderson is an actual case where a statutory “may” put the court in another type of conundrum. The case dealt with the purging of voter rolls. The statute provided for voter rolls to be purged of the names of people who didn’t vote in the last election. It also said that the county clerk “may” mail notices to purged voters.

    Upon the purging of the names of registered electors who failed to vote in the preceding general election, the county clerk may mail postal cards to all such purged electors informing them that their names have been purged from the registration books of the county clerk for failure to vote at such general election.

    The court faced the choice of declaring the statute unconstitutional or interpreting the “may” to mean “shall.”

    Here’s why the constitution requires notice: Without notice, the person probably wouldn’t know that voting again means reregistering. The person could show up on election day and, because the person isn’t registered, be denied the ability to vote. The constitutional requirement of due process requires the government to give notice to a person when it acts in a way that may affect his or her rights. Otherwise, the person will not know to take steps necessary to avoid the loss of a right.

    Unfortunately, the statute in this case used “may.” The statute allowed the clerk to decide not to send the notice, so it didn’t actually require the person be notified. To avoid the constitutional issue, the court chose to interpret the word “may” to mean “shall.”

    Using the word “may” normally means that the affected person or entity is authorized to do something. It grants discretion. It shouldn’t be used for something that is necessary. Both the driver’s license and voter roll statutes used “may” for a requirement.

    When working on a bill, the word “may” sometimes makes the stakeholders happy, but it might also put a court or state agency in a quandary. The court or agency might end up, in essence, rewriting the statute to make it work, and this can lead to unanticipated results.

    So what’s the takeaway from these two examples? If the intent of a statute is to require a person or entity to do something, the statute should not use the word “may.” If the statute imposes a duty, it should use the word “shall”; if it imposes a requirement, it should use the word “must”; and if it simply authorizes an action, it should use the word “may.” The drafter has good reason for suggesting the bill use “must” or “shall” instead of “may.”

  • The FAQs of Responding to CORA Requests

    By Kate Meyer

    Odds are, if you spend any time in the Capitol as a legislator or staff member, you’ll be the recipient of a “Colorado Open Records Act” (CORA) request at some point. In fact, given the recent uptick in CORA requests—and no sign that this trend is abating anytime soon—you may even have multiple requests to deal with (if you haven’t already!).

    This article addresses issues and answers questions that frequently arise for legislators and legislative staff in responding to a CORA request. Specifically, we’ll talk about deadlines associated with requests, tips for finding records, and other considerations you may find helpful. [Note: In addition to CORA, this article refers to the policies of the Colorado General Assembly regarding public records requests. The policies are included in the “Legislative Policies Related to Public Records and E Mail”, dated November 2013 (“the Policies”) and are available through the “Open Records Requests & Policy” link at the bottom of the Colorado General Assembly website.]

    Deadlines

    I’ve received a CORA request; what do I do and when do I need to do it? The first thing a legislator or legislative staff person should do is contact the Office of Legislative Legal Services, and he or she should do so as soon as possible. As you will see below, time matters in responding to CORA requests. The OLLS staff will work with legislators and legislative staff to prepare a response. Legisource previously covered the nuts-and-bolts of being CORA’d. Please refer to that article, and the Policies, for a broad overview of the process … and keep in mind that CORA imposes strict deadlines to provide public records to requestors. Generally, upon receiving a CORA request, recipients have three business days to respond.

    This CORA request is dated more than three days ago, but I only just opened the email/got the letter/found out about it from OLLS; what is my deadline to respond? According to subsection II.C.5 of the Policies, the CORA clock starts ticking when the recipient actually receives the request or, in the case of a request to a legislator that is also sent to the Office of Legislative Legal Services (OLLS), the earlier of when the legislator actually receives the request or when the OLLS notifies the legislator of the request and confirms that the legislator is aware of it. So, how does this work in real life?

    Example 1: If a CORA request arrives on August 1st (i.e., during the interim) via United States mail to a legislator’s office at the Capitol, and the legislator doesn’t open it until he or she is in the office on September 1st, the period of time in which to respond commences on September 1st, and a response is due three business days later on September 4th.

    Example 2: If the same CORA request from Example #1 is also sent to the OLLS, the OLLS receives its copy on August 1st and promptly leaves a message for the legislator to whom it is addressed. The legislator and the OLLS actually discuss the request on August 4th, and that’s the day from which the response deadline is calculated. The response will be due three business days later on August 7th.

    Ack! I need some time to get to my records to determine whether I have any to produce. Despite the stringent deadlines that attach to any CORA request, there is some wiggle room (up to seven additional business days) for recipients when “extenuating circumstances” exist. Even so, the recipient must provide written notice to the requestor that he or she is invoking an extenuating-circumstances extension within the initial three-day response window.

    Ok, but what constitutes “extenuating circumstances”? Subsection II.D.3 of the Policies states that extenuating circumstances exist when a request is submitted during the legislative interim and the recipient legislator’s office is closed. CORA itself provides that extenuating circumstances apply when an agency can’t fulfill a broadly stated request encompassing a large volume of records because, in the case of the general assembly or its staff or service agencies, the general assembly is in session (section 24-72-203 (3)(b)(II)(B), C.R.S.).

    Of course, “extenuating circumstances” do not exist when the CORA request is merely inconvenient. Because someone may file a CORA request at any time and the turnaround period is so short, CORA requests can be incredibly inopportune. Although “[r]esponding to applications for inspection of public records need not take priority over the previously scheduled work activities of the custodian or the custodian’s designee,” (Policies, subsection II.D.2.a) CORA recipients must take their duties under the law seriously.

    Finding records

    How should I assess whether I have responsive records? First, read the language of the request carefully. Many requests are limited to certain dates, names, terms, topics, and types of records. A legislator responding to a CORA request should keep in mind the request’s parameters. Start by using the request itself to identify appropriate search terms. Often, certain records are specified or terms are provided. If not, reassess: Is the request sufficiently specific to enable the legislator to comply? If so, proceed, making reasonably diligent and good faith efforts to devise search terms to unearth any responsive records. If not, the requestor will need to be contacted to clarify his or her submission.

    So, do I just need to check through my emails? No, not necessarily. CORA and the Policies broadly define “public records” to include many types of records. Only if the request is explicitly limited to emails should the legislator confine his or her review to emails. If the CORA request seeks records in broad-based categories such as “all correspondence/records/documents” or “any communications,” the type of records covered by those broad categories is not limited to emails but could be any type of correspondence—written letters or memoranda, hand-written notes, etc.

    Reviewing and retrieving my records will take me a few hours because I potentially have quite a few records to produce. In that case, please STOP! If responding to a CORA request will require more than one hour, the requestor must pay a fee deposit based on the estimated time required to retrieve any potentially relevant records before the legislator proceeds with retrieving and reviewing the records. A legislator who anticipates that it will require more than one hour to respond to a request, should provide the OLLS an estimate of the number of records that may be responsive to the request. The OLLS will use this figure to calculate the estimated search-and-retrieval fee deposit the requestor must pay within 30 days. Only when this timely payment is received will the legislator proceed with actually assembling the requested records. If payment is not received within the 30-day period, the CORA request is deemed closed and no further action is required.

    The requestor must be notified of the requirement for payment of the search-and-retrieval fee deposit estimate within three business days after receipt of the request unless extenuating circumstances exist—see #3 in Deadlines, above.

    Because the fee deposit is based on an estimate, the actual number of records located and the corresponding time spent retrieving and reviewing those records in order to respond to the CORA request may fall below or exceed that preliminary estimate. If it falls below the estimate, the overage paid by the requestor is refunded to him or her. If it exceeds the estimate, the requestor must pay a supplemental fee to cover the amount of time the legislator estimates will be necessary to retrieve the remaining volume of records.

    Do I have to produce my personal records that contain a term or otherwise appear to fall within the scope of the CORA request? Not necessarily; it’s the nature of the record, and not the platform on which it is created or stored, that is determinative. The mere fact that a document is created during one’s tenure as a legislator does not render it a public record. CORA defines “public records” as writings “made, maintained, or kept by the state, any agency, … or political subdivision of the state … for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.” Further, the Colorado Supreme Court has observed that the definition of “public records” in CORA is intended to preserve a balance between private and public interests. Accordingly, the scope of CORA’s “public records” definition limits the type of documents covered by CORA to those that relate to the performance of public functions or the receipt and expenditure of public funds. The Supreme Court found that “CORA was not intended to cover information held by a government official in his private capacity.”

    On the other hand, a public record is a public record regardless of the medium. So if a legislator uses a personal email account to conduct public business (e.g., relating to the performance of official functions), the records pertaining to that public business are still “public records” and must be disclosed if CORA’d.

    Is my constituent correspondence subject to disclosure under CORA? Potentially, yes. CORA’s definition of “public records” explicitly exempts a constituent communication that clearly implies by its nature or content that the constituent expects that it is confidential or is communicated to request assistance or information relating to a personal or private matter that affects the constituent and that is not publicly known. So other constituent correspondence (e.g., an email urging that a legislator vote for or against a particular bill) would not appear to meet this exemption. If a legislator has constituent correspondence that falls within the definition of “public records,” the OLLS will assist in redacting the constituent’s personal information before the document is released.

    Any other lifelines I can use? In addition to the OLLS, legislators may want to use their own staff members (aides, interns) for assistance in responding to a CORA request. Aides and interns are often tech-savvy and are familiar with the types, locations, and amount of records in a legislator’s custody. And legislators may want to apprise their caucus’s leaders or staff about CORA requests so that a caucus can track and assist with responses if it so desires.

    Other Considerations

    The requestor didn’t specify a reason for the request/I suspect the request is ill-intentioned. CORA does not require a requestor to explain why a request is submitted or for what purpose or in what manner any documents produced in response will be used. A record is subject to inspection or not; the impetus for the request is irrelevant.

    The request I’ve received is very, very broad; doesn’t the request need to be limited in some way? There is no requirement that a request contain any parameters; in fact, requests are often couched in expansive terms. For example, requestors can state that they are seeking “all records” that include a certain term (e.g., “energy” or “House Bill xxxx” or “the Jane Doe Lobbying Firm”), and they do not otherwise narrow the scope of the request. This approach can be deliberate (if a requestor isn’t certain what records may exist and thus wants to cast a wide net) or inadvertent (if a requestor doesn’t anticipate the large volume of records that a custodian may have in his or her possession that may contain the sought-after term). So long as the request is “sufficiently specific to enable the custodian to locate the information requested with reasonable effort” (Policies, subsection II.C.1.), that’s all that matters.

    Once I’ve been CORA’d, may I continue to discard records in accordance with my usual records retention process? No, at least not with respect to any records that may be included within the scope of the CORA request. Treat a CORA request like a litigation hold under which a person is obligated to preserve records for a certain amount of time in anticipation of future potential use. Once the CORA request has completely concluded, a legislator may proceed with document disposal pursuant to his or her written records retention and disposal policy. (For more information on developing such policies, please refer to Subsection IV of the Policies and consult with the OLLS.)

    Whew! Responding to that CORA request seemingly took forever; how can I reduce the amount of time the next one takes? A legislator can mitigate the time spent responding to requests by creating (and abiding by) a written records retention policy that establishes how long the legislator keeps various types of records, the frequency with which he or she disposes of records, etc. On one hand, the fewer records in existence, the lower the volume of records that a legislator may have to review and therefore potentially less time he or she will spend searching for, retrieving, and reviewing them. Alternatively, a legislator may feel it necessary, in order to adequately complete his or her legislative duties, to maintain records for significant lengths of time. The Policies contain a number of guidelines and recommendations regarding records categorization, retention, and deletion; a legislator may also consult with the OLLS. If a legislator decides to establish a written records retention policy that could affect the documents produced in response to a specific CORA request, the policy must be in place before the request was received.

  • Bill Requests – Fact or Fiction?

    by Patti Dahlberg

    Editor’s note: This article was originally posted on October 15, 2015. It has been updated for this posting.

    The 2018 legislative session is only a month or so away, which means the bill drafting season is quickly heating up. This seems like a good time to address a few items regarding bills and bill requests that may have perhaps gotten a little “lost in translation” here and there over the years. . .

    The legislator who submits the first bill request on a subject gets first ‘dibs’ on bill requests in that subject area and can prevent other legislators from submitting a similar bill request.
    The Office of Legislative Legal Services (OLLS) records each bill request into a bill tracking system as a legislator submits it and then assigns the request to a drafter according to the subject of the request. The OLLS attempts to assign seemingly similar bill requests to the same drafter. This helps in identifying potentially duplicate bill requests, which in turn helps the office to avoid duplicating bill drafting efforts by different drafters. If the OLLS identifies potential bill duplicates, the drafter will also try to notify the affected sponsors so that sponsors can decide whether they wish to introduce duplicate bills. But the office will not refuse a bill request on the grounds that it may be the same as another legislator’s request.

    Because of confidentiality concerns, the sponsors of the duplicate bill requests will need to agree to allow the drafter to share some information about their bill requests before this notification process can take place. See also “What happens when one bill is just like another?”, posted on December 1, 2016, for more information on duplicate bill requests.

    When a legislator submits a bill request, he or she is also “pulling a bill title” or otherwise deciding on the bill’s title.
    The OLLS considers the information it receives at the time of the bill request submission to be a starting point for the bill drafting process. This information enables the OLLS to describe the subject of the bill request in order to enter it into the bill tracking database, assign a tracking number, and assign a drafter based on the subject matter. Practicality dictates that the bill request will be referred to in some manner during the drafting process, but it is important for all to understand that whatever a bill is referred to during drafting is not the bill’s title. A bill’s title is the official, legal title of the bill when it is introduced, which must be a single subject. The drafter and bill sponsor will decide the bill’s title during the drafting process to ensure that the title accurately reflects the contents of the introduced bill. See also “Keeping a Bill Title Constitutional and Informative”, posted March 13, 2014, for more details.

    Being a joint prime sponsor on a bill will only count as half a bill request.
    Joint prime (or co-prime) sponsorship occurs when two legislators in the same house decide to jointly and equally sponsor a bill as it moves through the legislative process in that house. On the bill itself, joint prime sponsorship is indicated by the word “and” between the first two names listed on the bill. The rules concerning joint prime sponsorship are similar in the House (House Rule 27A) and Senate (Senate Rule 24A) and both state:

    (3) For purposes of any limitations on the number of bills that a member may request or introduce, bills with joint prime sponsors shall be counted as being requested and sponsored by both the prime sponsor and the joint prime sponsor. If either the prime sponsor or the joint prime sponsor has already requested or introduced the total number of bills authorized within any bill limitation, such sponsor shall obtain permission from the delayed bill committee to exceed such limits prior to requesting or introducing such a bill. (Emphasis added)

    In other words, the joint prime sponsored bill counts as one of each legislator’s five bill requests. For additional information regarding joint prime sponsorship, see “To Prime or to Joint Prime”, posted December 22, 2011 and “Bill Sponsor Basics and New Rules on Joint Prime Sponsorship of Bills”, posted on December 22, 2016.

    Are there any facts regarding bill requests?

    As a matter of fact, yes!

    • The first bill request deadline is December 1. The second bill request deadline is the seventh day of session, usually falling on the first Tuesday of the session calendar.
    • Joint Rule 24(b)(1)(A) limits legislators to 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. A legislator may also ask permission from the House or Senate Committee on Delayed Bills to submit additional bill requests or to waive a bill request deadline.
    • To request the five bills allowed by rule, a legislator must meet the bill request deadlines listed in Joint Rule 23(a)(1)—submitting three requests by the December deadline and two requests by the January deadline for a total of five bill requests.
    • Because Joint Rule 24(b)(1)(A) allows a legislator to submit only two bill requests after the December deadline, legislators are encouraged to submit more than three bill requests before that deadline. Submitting more than three requests by Dec. 1 may allow a legislator the flexibility to replace a bill request if he or she later withdraws a request. If a legislator only submits one request by the December deadline, then he or she forfeits the other two of the three “early” requests.
    • If a legislator has requested more than five bills before the first bill request deadline, the OLLS will contact that legislator early in December to have him or her identify the five bill requests that the legislator wants the OLLS to continue drafting. Bill drafting will stop on any bill request not designated as one of the legislator’s first five bills until the legislator receives delayed bill authorization for introduction of the bill.

    For additional information on making and keeping bill requests, see “Bill Requests – Making and keeping the five allowed by rule”, posted September 1, 2011. Please disregard any references in the article to specific session dates.