Author: olls

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 21^st century.

January 26, 2018

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!

January 18, 2018

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.

January 11, 2018
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.

December 28, 2017
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.”

December 14, 2017
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 1^st (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 1^st, the period of time in which to respond commences on September 1^st, and a response is due three business days later on September 4^th.

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

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.

December 7, 2017
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.
November 30, 2017
Sharon Eubanks Takes the Reins at OLLS

We are happy to announce that the Executive Committee appointed Sharon Eubanks Director of the Office of Legislative Legal Services. Sharon has served the office and the General Assembly in many capacities during her 31 years with the OLLS, applying her cleverness to serve the General Assembly. As of October 4, she broke new ground as the first woman to lead the OLLS.

Sharon started her career with the OLLS on September 1, 1986, as a legislative attorney drafting in the areas of finance, education, and local government. She quickly rose to the position of assistant team leader and, in 1996, was appointed the team leader of the Government team, supervising four attorneys and three legislative editors working in the areas of taxation, government finance, state and local government, infrastructure, elections, and school finance.

When the Taxpayers’ Bill of Rights (TABOR) passed in 1992, Doug Brown, Director of the OLLS at the time, knew he would need in expert in all things TABOR. Knowing Sharon’s already considerable expertise in tax issues and her analytical turn of mind, Doug called on Sharon to lead both the office and legislators in understanding and implementing TABOR. Today, she is recognized both within and outside the capitol as one of the leading TABOR experts in the state.

In the late 1990s, Sharon partnered with Debbie Haskins to oversee the rule review process in the office. Additionally, Sharon served as the OLLS liaison to the Joint Budget Committee for several years, assisting the committee with legal questions arising through the budget process, overseeing drafting of JBC bills, and reviewing long bill footnotes.

Since April 1, 2004, Sharon has served as Deputy Director, covering a myriad of duties and projects. One of her most important duties has been serving as the OLLS Director’s designee on the Title Board, working with designees of the Secretary of State and the Attorney General to set titles for citizen initiatives. She has overseen and worked with outside counsel on litigation involving the General Assembly and individual legislators, including, most notably, writing interrogatories on behalf of the General Assembly and several briefs to the Colorado Supreme Court to determine whether transportation revenue anticipation notes are subject to prior voter approval under TABOR. (They are.)

For several years, Sharon has also been one of the office’s experts on ethics issues. Over the years she has helped staff House and Senate committees on ethics. In addition, she has presented many programs—within the office and for the National Conference of State Legislatures—on the ethical duties of legislative staff and the attorney-client relationship between staff and the legislative institution.

Sharon is also one of the office’s foremost experts on the legislative rules. During the term of our previous Director, Dan Cartin, Sharon was the liaison to the Senate to assist with rule issues that arose during floor work and, upon request, to consult with leadership. This experience will be especially helpful in her role as Director.

Sharon brings many strengths to her role as director in addition to her years of experience with the office. Sharon is thoughtful, meticulous, hard-working, solidly nonpartisan, and fiercely committed to serving and protecting the General Assembly. She is also helpful and supportive to both legislators and her colleagues, having served as a mentor to many attorneys in the office. Above all, Sharon is dedicated to ensuring that the OLLS continues to provide excellent work products and the highest possible level of service to the General Assembly.

As the OLLS nears its fiftieth anniversary, we are confident that Sharon will provide the same high-quality leadership we have enjoyed since 1968, guaranteeing that we remain the best legislative legal services office in the nation.

November 2, 2017
Joint Budget Committee to Write State’s Budget for the 58th Time
By Jessica Wigent

This week LegiSource publishes its final installment in the series on statutory committees that oversee the legislative staff agencies. The series so far has addressed the history and duties of the Legislative Council, the Audit Committee, and the Committee on Legal Services. We close the series by looking at the Joint Budget Committee.

The evolution of what would become the Joint Budget Committee, or JBC, began in 1955, when then-Representative Palmer Burch, a member of the joint subcommittee on Appropriations, took the reins of the budget from the governor to the legislature. This was the first, as John Straayer describes in his book The Colorado General Assembly, “legislative effort to develop budgetary expertise independent of … the executive branch.” It turned out well: The budget passed that year, with zero (!) amendments, and was signed into law. The next year, the General Assembly, impressed with the subcommittee’s efforts, approved an appropriation to hire outside staff to work specifically on the budget. And finally, in 1959, the JBC was officially created.

With great power comes great responsibility

You won’t find the word “budget” in the constitution Colorado adopted in 1876, but passing the state’s budget is possibly the most important duty of the General Assembly. The budget is a reflection of the state’s priorities—legislators have to balance it, and they have to pass it. And for that to happen, they depend on the JBC.

As Bob Ewegen, a statehouse reporter for the Denver Post in the 1970s, wrote in the introduction to Budgeting is the Answer, there are no monuments to budget committees, because “the complex and intricate mechanisms which govern society may engage men’s minds–but seldom stir their souls.” And yet the JBC’s invention and development was and has been not only innovative but integral to the success of the state.

Considered by many to be the most powerful committee in the General Assembly, the JBC is also the smallest.

Former Senator Joe Shoemaker, the author of Budgeting, and a member of the JBC for 12 years, described why the size of the committee, just six members—three from the House and three from the Senate—is important:

“Six was a good number to provide team spirit and camaraderie that helped us face the pressure and criticism bound to come with good budget making.”

As described by the Senator, the JBC is a David-sized committee with a Goliath-sized task. The six members include the chairs of the House and Senate Appropriations Committees, a logical choice as the work of those committees and the JBC is inextricably connected. The former deals with the funding requirements of newly introduced legislation and the latter the ongoing fiscal needs of the state. The other four JBC members—one majority and one minority member from each house—are appointed by their respective majority or minority leader. In the Senate (see Senate Rule 21), the appointees are first elected by their respective party caucus.

A condensed version of the members’ very busy terms includes: Public hearings of budget requests in the fall before the legislative session begins; writing the budget in more public hearings, line by line, for each department and institution, each line of which requires a vote; sending the bill to the appropriations committees, the party caucuses, and finally the floors of the House and Senate, where it’s 99.9% likely to be amended, which means after its passage in both houses, the JBC must meet as the conference committee to navigate the changes made to the budget in each house and how to patch it up.

More than just number$

For more than half a century, the various members of the JBC have been, according to Shoemaker, “pioneering in the complex, often dreadfully dry, but intensely important saga of governmental budgeting.”

Among their innovations and accomplishments—the name of the budget itself: The “Long Bill”, a not-wildly-creative-yet-accurate description for a document hundreds of pages long that when combined with the previous years’ budgets reflects a comprehensive history of the priorities of the state. If you’ve ever contemplated its many pages, you’ll notice that it contains line items, not just lists of numbers, and that headnotes and footnotes spell out the legislative intent of the funds appropriated. These notes are the answers to the question JBC members ask department heads and agency administrators: “What’s the money for?”

Members of the JBC also developed the idea of budgeting for an FTE, or a full-time-equivalent position, as opposed to appropriating money in the abstract for new hires, as well as the performance budget, the first of which was presented in 1974, which allows the JBC to take into account a department’s or institution’s performance goals and up-to-date reporting on their budgeted and actual expenditures.

The JBC’s innovations have proven that, for a budget to serve the people, it must be more than a collection of numbers and dollar signs.

With the help of their small, but talented staff, whose dedication the Senator called “contagious” (in a good way!), the members of the JBC are statutorily required to:
- Study the management, operations, programs, and fiscal needs of state government;
- Hold hearings to review budget requests of each state agency and institution;
- Review performance plans and performance evaluations of departments, considering each department’s responsibilities, goals and objectives, and, when appropriate, prioritize requests for new funding that are intended to enhance productivity, improve efficiency, reduce costs, and eliminate waste;
- Estimate the amount of revenue expected from existing and proposed taxes;
- Study, “from time to time,” the state’s financial condition, fiscal organization, and budgeting; and accounting, reporting, personnel, and purchasing procedures; and
- Work with the capital development committee concerning new methods of financing the state’s ongoing capital construction, capital renewal, and controlled maintenance needs.
And while the hatchet that once hung behind the JBC members as they questioned administrators, and which more recently was mounted to a piece of wood in the middle of the dais in the Committee’s room, may have been retired, Senator Shoemaker seemed to think it was an imperfect metaphor anyway. He described the work of the JBC as “not the result of thoughtless chopping … [but of] a carefully considered form of fiscal surgery.”

Whichever metaphor suits your view of the Joint Budget Committee, you’re in luck—the Committee will begin holding a series of (many) meetings on Monday, November 13, 2017, to hear the governor’s budget request and the briefings from the state’s agencies, departments, and institutions.

An earlier version of this article misspelled the name of Representative Palmer Burch. We regret and have corrected the error.
October 26, 2017
OLLS Says Good-bye to Long-time Employee Debbie Haskins

Sadly, the Office of Legislative Legal Services recently lost one of our own. Debbie Haskins passed away unexpectedly Saturday, October 7, from heart failure. Debbie served Colorado legislators for 34 years, practically her entire professional career. She took great pride and satisfaction in her service as nonpartisan legislative staff, helping literally hundreds of legislators achieve their legislative goals and serve the people of Colorado.

On October 1, 1983, Debbie began her career with the Office as a legislative attorney drafting bills. She developed great expertise in the areas of human services, criminal law, tort reform, and Medicaid. She was our go-to person for LGBT rights issues, state government organization issues, procedures for executive agency rules, and various family and children’s issues.

For a time during the ’90’s, Debbie was the supervising team leader for the group of attorneys and legislative editors drafting in the areas of criminal law, human services, public health, and civil law. And for the last seven years—in addition to drafting bills—she served as one of the office’s assistant directors, overseeing the rule review process, staffing the Committee on Legal Services, overseeing training for new employees and out-of-cycle training for new legislators, editing and maintaining the office’s drafting manual, and covering a myriad of other activities and details that helped keep our office running.

Debbie was a trusted colleague. She had been with the office the longest of anyone currently working here, and her memory, experience, wisdom, and bulging filing cabinets were invaluable assets that she shared generously. More than that, she was a friend. She was always available to talk with you about rules, about drafting issues you were running into, or about other challenges you were encountering. She had a quick smile and an easy, infectious laugh, and she enjoyed being helpful.

Debbie enjoyed being helpful outside the office as well. She was an active member of her church, serving on many committees and singing in the choir. And she was an indefatigable supporter of the Girl Scouts, serving as a troop leader, a chaperone on international trips, and a mentor for girls who were working on their Girl Scout Gold Award. For several years, she put in countless hours preparing for and helping host the annual Girl Scout Day at the Capitol.

And Debbie wasn’t just helpful in Colorado. She was helpful across the country. There are many legislative staff across the country who had the pleasure of working with Debbie through her active involvement with the National Conference of State Legislatures (NCSL). In 2009-10, Debbie served as vice chair and in 2010-11 she served as chair of the Legal Services Staff Section (now known as the Research, Legal, Editorial, and Committee Staff (RELACS) association), an NCSL-sponsored organization of legislative staff throughout the United States. In addition, she served on several RELACS association committees, including serving several years on the program committee, helping to assure that RELACS provided the highest quality professional development possible at national NCSL meetings.

Debbie was also well known for teaching many of those professional development programs, both in-person at national meetings and through webinars. Most recently, she participated on a panel discussing The Drafting Manual as a Tool for Statutory Interpretation presented at the RELACS professional development seminar in September. While perhaps not the most exciting topic to non-legislative staffers, our drafting manual was very important to Debbie since she had diligently edited and updated it for decades.

For her work with NCSL, Debbie received the Legal Services Staff Section Chair Award in 2011. And in 2012 she received the Legislative Staff Achievement Award for her long and distinguished career with the Colorado General Assembly.

Clearly, Debbie was a valued, respected, and beloved member of the Capitol Community, well known and greatly appreciated by legislators, lobbyists, and staff from all of the legislative staff agencies. We will deeply miss her positive presence in the months and years to come, but she leaves to us a model of hard work and dedication to nonpartisan service that we will do well to follow.

October 19, 2017

Author: olls

Deadlines

Finding records

Other Considerations

With great power comes great responsibility

More than just number$