Colorado LegiSource

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

Author: olls

  • Legislature Passes the Laws – But Executive Branch Used to Write Them

    by Julie Pelegrin

    Newly elected legislators are often (pleasantly) surprised to find that they do not have to write their own bills. The Office of Legislative Legal Services – a nonpartisan legislative staff agency – provides expert legislative drafting services to help legislators put their policy ideas into statutory language. But this was not always the case. For over 90 years, Colorado’s legislation was written by employees of the executive branch.

    From the first Legislative Assembly of the Colorado Territory in 1861 until 1917, it’s not clear who was writing the legislation. There is no mention of bill drafting services in the statutes or anywhere else that we can find. Presumably, every legislator wrote his or her own bills, although some may have sought help from private attorneys or the Attorney General. The first mention we find of a bill drafting office is in the 1917-18 biennial report of Colorado Attorney General (AG) Leslie E. Hubbard. He reports that he formed a division within the Attorney General’s office to assist legislators in writing bills. His motivation: To avoid the introduction of bills with “patent inaccuracies, conflicts and constitutional objections” and so reduce the amount of litigation against the state.

    2012 Colorado Revised Statutes/Photo by Ashley ZimmermanIt appears this informal division of the AG’s office continued to operate until 1927. That year, the General Assembly officially created a legislative reference office (LRO) within the Attorney General’s office with the passage of S.B. No. 200. The LRO consisted of one attorney who served as director of the office and at least one stenographer. The Attorney General appointed the LRO director, with the consent of the Governor. S.B. No. 200 also authorized the Supreme Court Librarian to assign library employees to work with the LRO during the legislative session.

    From the beginning, the employees of the LRO were nonpartisan – appointed without reference to party affiliation, solely on the ground of fitness. The director of the LRO had to be an attorney licensed to practice law for at least five years before appointment. And all bill requests were confidential; neither the director nor any employee of the LRO could reveal to anyone outside the office the contents or nature of a bill request without the requesting legislator’s consent. Also, the director and the LRO employees were prohibited from lobbying in favor of or against any type of legislation.

    The LRO had several duties including: Maintaining bill files and information relating to bills; accumulating data and statistics concerning the practical operation of Colorado’s statutes and those of other states; studying the statutes to find ways to reduce the number and bulk of the statutes; and working with the legislative reference bureaus in other states.

    Most importantly, at a legislator’s or the Governor’s request, the LRO was required to draft bills, resolutions, and amendments; advise the legislature or the Governor as to the constitutionality or probable effect of proposed legislation; prepare summaries of existing laws and compilations of laws in other states; and research proposed legislation.

    Although employees of the executive branch were drafting legislation for the legislative branch, the separation-of-powers implications did not seem to cause any concern – at least not until 1968. That year, Senator Bill Armstrong and Representative Star Burton Caywood introduced and passed S.B. 1, concerning the administrative reorganization of state government. This was a massive bill, the product of at least two years of interim committee meetings and planning. The act significantly restructured state government, reducing the sprawling mass of executive branch agencies and offices to just 17 state executive departments.

    S.B. 1 also moved the LRO out of the Attorney General’s office and into the legislative department, renaming it the Legislative Drafting Office (LDO). And the bill created the Legislative Drafting Committee, a bipartisan committee consisting of the three members of leadership in each house and one additional minority party member appointed from each house.

    The new LDO had a director, appointed by the legislative drafting committee without regard to party affiliation, who had to be an attorney. The director could appoint additional attorneys and clerical personnel as necessary to staff the office. The duties of the new LDO were essentially the same as the old LRO, except the attorneys in the LDO could no longer advise the Governor as to whether to sign a bill.

    In 1969, the General Assembly passed S.B. 396, which, among other things, renamed the legislative drafting committee the Committee on Legal Services and changed the membership to consist of eight legislators and the Attorney General – but it remained a bipartisan committee. The General Assembly removed the Attorney General from the committee in 1973 and expanded the membership to 10 legislators in 1985.

    Finally, in 1988, the General Assembly passed House Bill 1329, which combined the LDO and the Office of the Revisor of Statutes into what we now know as the Office of Legislative Legal Services (OLLS). The duties of the OLLS did not change significantly from those exercised by the LDO, but, with the addition of the Office of the Revisor of Statutes, the OLLS is also responsible for revising, codifying, and publishing the statutes.front-door-of-office-1

    Several things about the OLLS have not changed as it has evolved from the executive branch into the legislative branch. Bill and amendment requests and communications between OLLS staff and legislators are all still confidential. The OLLS is still nonpartisan and is still charged with providing legal services. And, finally, the mission of the OLLS continues to be providing “the best technical advice and information … available to the General Assembly, agencies of state government, and the people of this state.”

  • Art at the Capitol: By and For Coloradans

    By Gwynne Middleton

    If you’ve wandered the halls of the state Capitol basement recently, you’ve likely noticed visual art exhibits in the rotunda. Curious about these rotating art displays, I gumshoed my way to a conversation with Ruth Bruno, the liaison for Creative Colorado Industries, Inc.’s Creative Capitol program, to learn more about its role in showcasing Colorado artists at the Capitol.

    The brainchild of Colorado Creative Industries, Inc. (CCI), a division of the Colorado Office of Economic Development & International Trade, the Creative Capitol program started in 2008 to combat the dearth of new public art hung at the Capitol. Since Capitol public art projects are usually tied to the state’s Capitol Construction funds and 2008 was far from a banner year for the state’s budget, public art was not a top priority when it came to new Capitol Construction requests. With no new public art projects to manage, CCI started Creative Capitol to provide consistent access to art for Capitol visitors and staff. Funds for this program come from the CCI budget, avoiding a financial burden for the state during both fat and lean years.

    Bristlecone pine in the Mt. Goliath grove on Mt. Evans//"The Ancient One" by Jao van de Lagemaat
    “The Ancient One” by Jao van de Lagemaat // Bristlecone pine in the Mt. Goliath grove on Mt. Evans

    When asked how the Capitol and the general public benefit from the Creative Capitol program, Bruno explained that anyone who visits the Capitol to partake in the historic architecture and permanent art installations gets the added benefit of enjoying current works created by Colorado artists. For Bruno, providing this pro bono loaned artwork in our Capitol shows that the state not only champions art and arts programming but arts and arts programming by and for Coloradans: “[S]howcasing and supporting Colorado artists is one of the key goals of [CCI]. Artists benefit from the exposure and by having a place to show their art, and CCI benefits because we can highlight the work we do to the general public and also to Capitol staff and legislators.” This promotion of talented Front Range, as well as rural and mountain, artists reflects the artistic diversity in the Centennial State and offers legislators and other public officials an insiders’ perspective on the state they know and love.

    The Capitol staff’s response to these art exhibits has been overwhelmingly positive, with numerous requests for more art to improve the quality of their offices. Since 2014, Creative Capitol has been able to meet popular demand, expanding their venture beyond the Capitol basement rotunda, with works now hung in the Lieutenant Governor’s office and the Legislative Council offices, as well as in the nearby Legislative Services Building in the Joint Budget Committee Room on the third floor and in the Committee Hearing Rooms A and B on the first floor.

    If you’re in the Capitol in the next three months, be sure to stroll through the basement rotunda to view, “The Clear Creek Watershed through the Photographer’s Eye”, the newest local artist exhibit on display. A testament to the rare natural beauty of our home state, the high-quality images in this exhibit were chosen from entries in the Clear Creek Land Conservancy Annual Photography Contest, a competition calling for photographs taken in Colorado’s Clear Creek drainage basin that highlight the awe-inspiring natural areas running from the mouth of Clear Creek Canyon in Golden to the start of Clear Creek at the Continental Divide.

    For more information on Creative Capitol’s prior exhibits, click here.

  • Bribery (Don’t Do It!)

    by Bob Lackner

    Arguably, the worst offense a public official can be accused of is the crime of bribery — essentially offering, giving, receiving, or soliciting something of value for the purpose of influencing an official in the discharge of his or her public duties. The crime violates a basic notion inherent in a healthy democracy: That a public servant’s sole motivation is the promotion of the public interest — not the securing of private gain. Although it is fortunate that, in Colorado, accusations of bribery against public officials are rare, every public official should have a basic understanding of the nature of the crime to avoid even coming close to what would constitute criminal behavior.

    The crime of bribery made its first appearance in Colorado law in the original state constitution, which went into effect on August 1, 1876. Section 40 of article V of the state constitution, the article that governs the Legislative Department, is entitled “Bribery and influence in general assembly”, and it states in relevant part:

    If any member of the general assembly shall give his vote or influence for or against any measure or proposition pending in such general assembly, or offer, promise, or assent so to do, upon condition that any other member will give or will promise or assent to give his vote or influence in favor of or against any other measure or proposition pending or proposed to be introduced in such general assembly, or in consideration that any other member hath given his vote or influence for or against any other measure or proposition in such general assembly, he shall be deemed guilty of bribery; and any member of the general assembly, or person elected thereto, who shall be guilty of either of such offenses shall be expelled, and shall not be thereafter eligible to the same general assembly; and, on conviction therefor in the civil courts, shall be liable to such further penalty as may be prescribed by law.

    Thus, as applied to a member of the General Assembly, this constitutional prohibition applies to the specific crime of “vote-trading,” whereby a legislator agrees to vote a certain way on the condition that another legislator votes in a particular way. (This practice is more informally referred to as “log-rolling.”) The inclusion of a prohibition on this practice in the section governing the legislative department reflects the deep distaste the framers of our state constitution had for the practice.

    This is especially true given that section 40 does not forbid (or even address) what we now think of as bribery; that is, offering, giving, receiving, or soliciting something of value for the purpose of influencing an official in the discharge of his or her public duties. This more conventional form of bribery is addressed and prohibited in section 6 of article XII of the state constitution, which applies to civil officers and members of the General Assembly. In relevant part, this section prohibits those individuals from soliciting or receiving, directly or indirectly, anything of value for their votes, official influence, or actions. Like the aforementioned log-rolling provision, this provision has been part of the state constitution since its adoption in August of 1876.

    Bribery is also among the many crimes addressed and prohibited in our state’s Criminal Code. Under section 18-8-302 (1)(b), C.R.S., which concerns “Bribery and Corrupt Influences,” a public servant (which includes a member of the General Assembly) commits bribery if he or she solicits or accepts any financial benefit upon any agreement or understanding that his or her vote, opinion, or other action as a public servant will be influenced. A person who offers or agrees to extend a benefit to a public servant with the intent to influence the public servant’s action in his or her official capacity commits the crime as well. (See section 18-8-302 (1) (a), C.R.S.)

    Bribery is a class 3 felony, which means that a person convicted of the crime faces a prison sentence of four to 12 years. (See section 18-1.3-401 (1) (a) (V) (A), C.R.S.)

    Other criminal offenses in the Colorado Criminal Code relating to bribery include:

    • Compensation for official past behavior (when a public servant accepts any benefit as compensation for taking official action in favor of another);
    • Trading in public office (accepting a benefit in exchange for appointing someone to public office);
    • Directing a bidder or contractor to deal with a particular person in connection with obtaining goods or services in bidding on a contract; and
    • Failing to disclose a conflict of interest when the public servant owns a substantial interest in a private entity participating in the transaction.

    In McDonnell v. United States, 579 U.S. ___ (2016), the United States Supreme Court stated that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns…”. (For an in-depth discussion of the case, see this recent Legisource post) Ethical and conscientious legislators know the appropriate actions to take on behalf of their constituents and others with interests in public policy. They are also aware of those actions that may subject the legislators to criminal prosecution for engaging in bribery or related offenses that harm the public trust at the heart of representative government.

  • Why submit bill requests now?

    by Patti Dahlberg

    Although the Colorado General Assembly is only in session from January to May each year, General Assembly members know that being a bill-clipartlegislator requires year-round attention to legislative responsibilities. The first bill request deadline is still almost three months away (Thursday, December 1), but there are significant benefits to starting the bill drafting process as early as possible during the interim. (See Ask OLLS posting “The start of the legislative session is over 4 months away. Why should I bother to get my bill requests in now?”)

    Submitting bill requests early allows legislators, legislative staff, and stakeholders more time to research, consider, develop, and draft bills. And there are other benefits for legislators who can invest a little more time on bill drafting earlier in the fall.

    Time Management:
    There’s no way around it – bill request deadlines require legislators and staff to complete the bulk of the bill drafting before the convening date of the next session. A legislator can wait until the deadline to submit his or her bill requests and spend the four to five weeks immediately before session – including the holidays – in heavy drafting mode or try to shift a portion of the pre-session drafting demands to earlier in the interim and:

    • Reduce the time demands of drafting in December and January, allowing more time to prepare for session, meet with constituents and stakeholders, and tie up other personal matters before the session starts.
    • Save big on time and enjoy bill request flexibility by having a solid draft of a bill completed by November. (There is no need to finalize a bill until closer to the desired introduction date.)
    • Have the luxury of focusing on one or two bill requests at a time. Once a bill draft is close to being finished, the request can be set aside and the legislator and drafter can start work on another bill. This way, a legislator isn’t just trading a busy December for a busy September or October, but instead leveling the time demands of bill drafting over four to five months.
    • Allow legislative staff more time to assist in developing and drafting the legislation. Staff is more readily available to attend meetings, consult on drafting language, and, if needed, provide in-depth research before December.

    A lot can change between now and January and it may seem that drafting in September and October could be a waste of time. After all, a legislator may need to significantly change, update, or even withdraw a bill draft before introduction. But that’s okay, because it’s usually easier and faster to revise or rewrite an existing bill draft than to create it from scratch at the last minute. Even if a legislator finds that he or she must withdraw a bill request, he or she doesn’t lose the benefits of early drafting efforts.

    Decision-making:

    • Early interim bill drafting allows a legislator and the bill’s stakeholders more time to make informed decisions about the bill’s content. Early interim drafting may require legislators to set some internal production deadlines to keep the bill draft moving along, especially when working with larger groups of stakeholders and constituents.
    • With a bill draft in hand, even if it’s only an initial draft, a legislator is better equipped to know whether to introduce the bill, who to approach for second house sponsorship, and where the bill fits best in his or her bill introduction order.
    • Often it is impossible to determine if a bill request is identical or substantially similar to another legislator’s bill request until draft language is available. By having drafts completed earlier in the interim, staff can more easily identify duplicate bills and the legislator can decide whether to proceed or replace the request sooner. (See Ask OLLS posting “What happens if I make the same bill request as another legislator?”)
    • If a legislator has his or her bill drafted in the fall, he or she may authorize a fiscal analyst to provide an early estimate of how much the bill may cost. Knowing how expensive a bill may be before it’s introduced enables the legislator to consider changes before the bill is introduced and becomes public.
    • The ability to review drafts of bills before the December 1 deadline is one of the best reasons to use more of the interim to develop and draft bills. If a legislator must decide whether to withdraw and replace one or more bill requests, then it’s best to make that decision before the first bill request deadline when the rules allow greater flexibility in making and replacing bills.

    Bill Requests 2

  • VA Governor’s Bribery Conviction Turns on a Definition of Official Action

    by Bob Lackner

    During his four-year term in office, the former Governor of Virginia tried to assist a constituent who had bestowed extensive loans and gifts on the official, his wife, and their family. At what point does such assistance qualify as an “official act” necessary to sustain a conviction for violating federal law prohibiting bribery? This was the issue before the United States Supreme Court in the case of McDonnell v. United States, 579 U.S. ___ (2016).

    Background/Issues
    In November 2009, Robert McDonnell was elected Governor of Virginia. While in office, McDonnell and his wife Maureen and other family members received $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams. Williams was chief executive officer of Star Scientific, a Virginia-based company that had developed and marketed a nutritional supplement named Anatabloc that was made from a compound found in tobacco. Star Scientific hoped to obtain federal approval of Anatabloc as an anti-inflammatory drug. An important step in that approval was initiating independent research studies on Anatabloc’s health benefits. Williams sought McDonnell’s assistance in obtaining these studies from Virginia’s public universities.

    The gifts and loans that Williams gave to the Governor and his family included $20,000 worth of designer clothing for Mrs. McDonnell, personal loans totaling $70,000, a $15,000 gift towards their daughter’s wedding, a Rolex watch for the Governor, and a $10,000 wedding gift to one of their daughters.

    In 2014, the federal government indicted Robert and Maureen McDonnell (by then out-of-office) on various bribery charges. To convict the McDonnells of bribery, the government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts from Williams. After a trial, the jury convicted McDonnell of accepting bribes from Williams. Mrs. McDonnell was also convicted of most of the similar criminal charges against her.

    Governor McDonnell appealed his conviction to the United States Fourth Circuit Court of Appeals. He challenged the definition of “official action” in the jury instructions used at his trial on the ground that it deemed “virtually all of a public servant’s activities ‘official’, no matter how minor or innocuous.” The Fourth Circuit affirmed the conviction. McDonnell appealed to the United States Supreme Court.

    The Supreme Court’s Analysis
    The issue before the Supreme Court was the proper interpretation of the term “official act” as used in the federal bribery statute, 18 USC §201. That statute makes it a federal crime for “a public official…directly or indirectly, corruptly” to demand, accept, or agree to accept “anything of value” in return for being “influenced in the performance of any official act.” An “official act” is defined as

    any decision, or action on any question, matter, cause, suit, proceeding or controversy, which at any time may be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit. [Sec. 201 (a) (3).]

     

    The government argued that the term “official act” encompasses nearly any activity by a public official. The term specifically includes, therefore, arranging meetings, hosting events, and merely contacting other government officials concerning any subject, including a broad public policy issue such as Virginia economic development. The Governor had undertaken these acts on behalf of Williams.

    By contrast, the thrust of Governor McDonnell’s appeal was that the statutory context compels a more circumscribed reading of the statutory text, limiting “official acts” to those acts that “direct[] a particular resolution of a specific government decision” or that pressure another official to do so. Taking into account the statutory text, its precedents, and constitutional concerns raised by Governor McDonnell, the Supreme Court unanimously rejected the government’s reading of the federal bribery statute and, in an opinion authored by Chief Justice Roberts, adopted a more restricted interpretation of “official act.”

    The Court held that an “official act” is a decision or action on a “question, matter, cause, suit, proceeding, or controversy.” The “question or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question or controversy” or agree to do so. That decision or action may include using his or her official position to exert pressure on another official to perform an “official act,” or to advise another official knowing or intending that the advice will form the basis for an “official act” by another official. Setting up a meeting, calling another public official, or organizing an event (or agreeing to do so)—without more—does not fit the definition of “official act.”

    In addition, the Supreme Court expressed concern that the government’s expansive interpretation of “official act” would raise significant constitutional concerns. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on those constituents’ concerns. The Court found that the Government’s position would likely pose a chilling effect on the interactions of public officials with the people they serve and thus damage the ability of public officials to effectively perform their duties. The Court expressed a related concern that, under the government’s interpretation, the term “official act” is not defined with “sufficient definitiveness that ordinary people can understand what conduct is prohibited” or in a manner that does not encourage arbitrary and discriminatory enforcement.

    The Supreme Court agreed with McDonnell’s contention that his convictions must be vacated because the jury was improperly instructed on the meaning of “official act” as used in the governing statute. Because the jury was not correctly instructed on the meaning of this term, it may have convicted McDonnell for conduct that is actually lawful. These errors were not harmless. The Court noted that a more limited interpretation of the term “official act” would leave ample room for prosecuting corruption while comporting with the statutory text and its precedents in this area.
    Governor McDonnell’s conviction spurred some reforms to Virginia’s ethics laws in the next legislative session. Among the changes was the creation of a $100 annual limit on gifts lawmakers can accept from lobbyists, their clients, or others seeking to do business with the state.

    As with the Governor of Virginia, a Colorado public official could engage in conduct that results in a bribery conviction under federal law, and the McDonnell case would apply. Also, in Colorado the statutory standards of conduct forbid a member of the General Assembly from accepting a gift primarily given to reward the legislator for official action he or she has taken. See section 24-18-104 (1)(b)(II), C.R.S. The Colorado courts could apply the McDonnell case to augment the meaning of the key term “official action” as used in Colorado’s statutory standards of conduct in weighing the appropriateness by a legislator of accepting gifts.

  • Colorado LegiSource: Happily Blogging Since September 1, 2011!

    Five years ago today, Colorado LegiSource made its debut as the only known blog written by nonpartisan legislative staff for their legislators and the public. In the years since, we have posted at least one article almost weekly (okay – there have been a few weeks during the legislative sessions that we just couldn’t pull an article together). At this point we have about 172 subscribers and 819 twitter followers. For the last year, we averaged 1,937 views a month and for our entire five-year lifetime, we’ve racked up a total of 78,774 views. We may not have made eBiz’s top 15 most popular blogs list, but we’ve done okay!AwardOLLS

    We have also achieved some recognition along the way. In August 2015, the Colorado LegiSource received an NCSL Notable Documents Award. The Legislative Research Librarians staff section presents these awards annually to recognize excellence in documents that explore topics of interest to legislators and staff and present substantive material in an outstanding format. Also in 2015, the LegiSource article on “Educator Effectiveness and Senate Bill 10-191” was cited in an article on employment law issues published in the October edition of the Colorado Lawyer, a Colorado Bar Association publication.

    That first day we were anxious to get started. We posted three articles: “The Director’s Welcome,” by Dan Cartin; “The Legislature’s Role in the Review of Administrative Rules,” by Chuck Brackney; and “Bill Requests – Making and keeping the five allowed by rule,” by Patti Dahlberg.

    Our top five most viewed articles present an interesting mix.

    The most popular article in the last five years – with 14,893 views – is “Does Colorado Have a ‘Stand Your Ground’ Law?” In this article, Richard Sweetman explained that Colorado does not actually have a “stand your ground law” but it does have a “make my day law.” The difference? Both allow a person to use deadly force to protect himself or herself in certain situations, but Colorado’s law is generally limited to protecting against home invasions and does not include some of the presumptions that are common in “stand your ground” laws. You should read the article.

    The top five list also includes:

    “When Can a Local Government Override State Law? Home Rule Cities in Colorado,” also by Richard Sweetman, in second place with 7,283 views;

    “A New Look for the Colorado Revised Statutes On-Line,” by Revisor of Statutes Jennifer Gilroy, in third place with 1,676 views;

    “What is the difference between the session laws and the statutes?“, posted in “Ask OLLS”, in fourth place with 1,331 views; and

    “Powers, Duties, and Functions of Executive Branch Agencies (Type 1, type 2, and type 3 transfers),” by Rebecca Hausmann, rounding out the top five with 1,243 views.

    In the first article we published, Dan Cartin, director of the OLLS, described the LegiSource’s purposes as both informational and educational, applying the experience and expertise of the OLLS staff to help legislators and the public understand the issues in many areas, including:

    To this list, we’ve added fun and informative articles about the history of Colorado’s state government and of the state capitol.

    birthday cakeWe hope we’ve lived up to our purpose in the last five years; we hope that our readers have gained as much knowledge, understanding, and enjoyment in the reading as we have in the writing.

    Happy Birthday, Colorado LegiSource – here’s to the next five years!

  • NCSL Report: States Need World-class Education Systems to Compete Globally

    by Julie Pelegrin

    Based on the most recent results from the Program for International Student Assessment (PISA), the United States ranks 24th in reading scores, 36th in math scores, and 28th in science scores out of 65 participating countries. The PISA is an international comparative test that 15-year-old students take to demonstrate their knowledge in math, reading, and science. The Organisation for Economic Cooperation and Development (OECD) administers the PISA every four years to a sample of 15-year-old students in each participating country.

    The OECD also administers the Survey of Adult Skills as part of its Programme for the International Assessment of Adult Competencies (PIAAC). This instrument assesses persons from 16 to 65 years of age in numeracy, literacy, and problem-solving. The most recent survey involved 33 countries. Persons in the workforce from teens to early 30s – the millennials – in the United States scored in last place or tied for last place in numeracy and problem-solving. They scored third from last (ahead of only Spain and Italy) in reading.

    Scoring in the middle to low end of the global pack is more than just a blow to our American egos. According to the report, with this level of performance in reading, math, and science, the United States “will struggle to compete economically against even developing nations, and our children will struggle to find jobs in the global economy.”

    Based on the level of concern generated by a presentation on the 2012 PISA results, the National Conference of State Legislatures (NCSL) formed a study group to look at the educational systems in the top-performing countries. The study group’s goal was to identify the common design elements in world-class education systems. For the last two years, 28 veteran legislators and legislative staff, with the assistance of NCSL staff and other national and international education experts, have studied the education systems in ten of the top-performing provinces and countries: Alberta and Ontario, Canada; Hong Kong and Shanghai, China; Estonia; Finland; Japan; Poland; Singapore; and Taiwan.

    Last week at the NCSL 2016 Legislative Summit, the study group released its report: “No Time to Lose – How to Build a World-Class Education System State by State.”

    As is obvious in the title, the report has a clear sense of urgency. The executive summary starts with the bad news: Most state education systems are falling behind other countries’ educational achievement and failing to make progress on the United States’ National Assessment of Educational Progress. But it also gives the good news: There are common elements in the educational systems of high-performing countries that states can adapt and adopt for their own systems.

    The report identifies these common elements:

    1. Children come to school ready to learn, and struggling students receive extra support so that all have the opportunity to achieve high standards.
    2. A world-class teaching profession supports a world-class instructional system in which every student has access to highly effective teachers and is expected to succeed.
    3. A highly effective, intellectually rigorous system of career and technical education is available to students who prefer an applied education.
    4. Individual education system reforms are connected and aligned as parts of a clearly planned and carefully designed comprehensive system.

    The report then sets out steps that a state can immediately take to further improve and develop its education system:

    • Build an inclusive team and set priorities
    • Study and learn from top-performing countries and states
    • Create a shared statewide vision for public education
    • Benchmark the state’s education policies against those of high-performing countries and states
    • Get started on changes to one piece of the system
    • Work through the “messiness” of the process of designing system-wide reform
    • Invest the time that it will take to implement system-wide reform

    In looking at the high-performing countries, the study group recognized that most had developed a plan for public education and had implemented the plan over the course of 10 to 20 years. The group also noted that the high-performing countries did not adopt “silver bullet” strategies. Their plans for their public education systems were integrated, each element coordinated with and supporting the other elements.

    The report addresses some of the objections that are typically raised in comparing the education systems in the United States with those of other countries. One of the main criticisms is the assertion that the United States is more diverse than other countries and therefore faces challenges that other countries do not. But both Europe and Asia have experienced increases in immigration in the past several decades, and some of these countries have overcome the educational challenges that stem from a student population with multiple ethnicities, languages, and religions. And the proportion of Canadian students who were born outside Canada is actually greater than the proportion of U.S. students born outside the U.S.

    The report recognizes that each state is responsible for the quality of its educational system. And while each system may include the elements identified in the report, each state must modify and adapt each element to fit the uniqueness of the state’s educational system and needs.

    Finally, the report concludes:

    If we assemble the best minds in policy and practice, implement what we know works, and commit ourselves to the time, effort, and resources needed to make monumental changes, we can once again be among the best education systems in the world. If [the high-performing countries] can do it, so can we. But there’s no time to lose.

  • Columbia Beckons from the Pediment, But How Did She Get There? Exploring Colorado Capitol Architecture

    by Darren Thornberry

    Our state capitol is bursting with wonderful architectural nuance, and some of it is not readily apparent as one wanders the halls or the grounds. In fact, I discovered the pediment statuary above the House chamber windows, on the building’s west side, completely by accident. I was standing out there in a crowd of people, waiting for a fancy jet fly-by that was due to happen, and it just caught my eye. It’s fascinating to me how much detail is there, despite the sculptor’s understanding that very few people would ever have a clear view of it. Squinting to see the shapes and forms, I wondered what they represented.

    pedimentBPhoto courtesy of Dr. Derek Everett

    Dr. Derek Everett, former capitol tour guide and author of “The Colorado State Capitol: History, Politics, Preservation,” provided the following information via email about the pediment and the accompanying photo.

    “The pediment statuary was originally designed, as with every other element of the building from floor plans to banister posts, by architect Elijah E. Myers, who’d already won commissions for the capitols in Michigan and Texas. He produced an extensive, complicated description for his vision of an appropriate collection of statuary reflecting Colorado’s experience to the Board of Capitol Managers (BoCM), the body responsible for erecting the building. Here’s his vision from an undated letter, but likely written between 1886-88:

     

    ‘On the extreme right of the sketch is represented the prairie schooner drawn by oxen, representing emigrants coming to the new Territory, while in the roadway partly concealed behind the rocks is the skulking indians [sic] evidently bent on his deadly intent to prevent the advance of civilization. As the emigrants proceeds [sic] on their way he meets the happy greetings of plenty with the outstretched cornucopia. She conveys to him that here is a new home that by his industry and skill that the land will produce for him and his family his horses and cattle abundance, and in obedience to the law greets him with a hearty welcome to the settlement. The next figure is a representation of a statue recording the law of the people, representing legislation, with the open tablet in her hands conveys to him the rights and priviledges [sic] under the law he has granted to him in the protection of himself his family and his property. The centre [sic] figure represents Justice the right hand resting on the book of law, at the left of this statue is the globe, representing the universality of law and benefits of civilization and law affords, the protection of property. On the left of the centre [sic] figure is represented the Mechanical arts. And still further to the left is a representation of the happy home.’

     

    As you can imagine, the cost and complication of creating something so intricate, especially since it would be so crowded and small up in the pediment that few people would be able to appreciate it, dissuaded the BoCM from carrying it out. By 1889, Myers had left the project anyway, and the board made their own call. In September 1890, a few months after the cornerstone ceremony and at a point where little more than the first floor granite walls and the sandstone rotunda core were in place, the BoCM viewed a plaster model of the pioneer family pediment statuary based upon Myers’ work. They revised and simplified it dramatically, and worked with California sculptor Ludwig Oehlmann to make a new plaster model and ultimately carve the sculpture they approved. It consists of a figure representing Columbia (an allegorical stand-in for the United States popular at the time) flanked by figures representing agriculture and mining/commerce. The simplified work was carved early in the 1890s and installed no later than 1892, by which time the granite walls of the building were complete.”

     

    What’s your favorite thing about the capitol building? Let us know on Twitter @LegiSource.

  • Statutory Revision Committee: A Legislative Revival

    by Kate Meyer

    The ’80s are, indeed, making a comeback.  While popular culture sees the resurgence of shoulder pads, My Little Pony, and Ghostbusters, the state legislature is experiencing its own blast from the past. House Bill 16-1077, recently signed into law by Governor Hickenlooper, revives the Statutory Revision Committee (SRC), an entity repealed in 1985.

    Creation and composition. The SRC, created in part 9 of article 3 of title 2, Colorado Revised Statutes, consists of 10 members: Eight legislators (two each appointed by the Speaker and the Minority Leader of the House of Representatives and by the President and the Minority Leader of the Senate); and two nonvoting attorneys 2016 SRC Membershipappointed by the Committee on Legal Services. The legislators currently appointed to the SRC are Representatives Moreno (temporary chair), Arndt, Dore, and Thurlow and Senators Holbert, Kerr, Steadman, and Tate. The Committee on Legal Services is expected to appoint the nonvoting members at its September 29, 2016, meeting.

    Duties. A year-round committee, the SRC is staffed by the Office of Legislative Legal Services. The SRC’s statutory duties are to:

    • Make an ongoing examination of the statutes of the state and current judicial decisions to discover defects and anachronisms in the statutes and recommend needed reforms;
    • Receive, solicit, and consider proposed changes in the statutes recommended by the American Law Institute, any bar association, or other learned bodies;
    • Receive, solicit, and consider suggestions from justices, judges, legislators, and other public officials and lawyers and from the public generally as to defects and anachronisms in the statutes;
    • Recommend legislation annually to effect such changes in the statutes as it deems necessary to modify or eliminate antiquated, redundant, or contradictory rules of law and to bring the statutes of this state into harmony with modern conditions; and
    • Report its findings and recommendations on or before November 15 of each year to the legislature.

    Legislation and limitations. The SRC may recommend bills by a majority vote. Although there is no limit on the number of bills that the SRC may propose annually, and such bills do not count against an SRC sponsor’s 5-bill limit, there are a few constraints on the legislation the committee may introduce. First, the SRC may not consider matters that are currently pending or appealable before any court. And the SRC must “propose legislation only to streamline, reduce, or repeal provisions of the Colorado Revised Statutes” and “endeavor to recommend legislation that cumulatively has, in each legislative session, no net increase in the number of laws or pages of laws.” This directive did not exist in the statutes that created the former SRC.

    While the SRC must adhere to these mandates, it is not limited to any particular substantive areas of law when considering legislation. The former SRC typically examined a wide array of topics for potential legislation. In 1985, for example, the SRC received 80 bill ideas from various sources and ultimately sponsored 12 bills. The bills’ subjects ranged from curing internal inconsistencies within the “Uniform Commercial Code” to restoring the ability of judicial clerks to collect a certain filing fee (which authority had been inadvertently deleted from the Colorado Revised Statutes) to removing mention of gender in certain correctional facility names to reflect that the facilities were not limited to any particular gender.

    First meeting. The SRC is conducting its first public meeting, at 9 a.m. on Wednesday, August 17, 2016, in House Committee Room 0112 at the state Capitol. When available, the agenda and minutes, for this and future meetings, will be posted here and the live and archived broadcast of meetings can be accessed here.

    Submissions and suggestions? Finally, to fulfill its statutory charges, the SRC will rely on its ongoing dialogue with the legal community and the public. To notify the SRC of possible defects or anachronisms in the law or possible antiquated, redundant, or contradictory law, please send an email to SRC staff at StatutoryRevision.ga@coleg.gov.

  • What Do White Teeth Have to Do with Federal Preemption?

    by Jery Payne

    In the 1990s, dentists in North Carolina started whitening teeth. And they made lots of money. But in the early 2000s, other people started whitening teeth. And they charged a lot less.

    North Carolina’s dentists began to complain about the competition. Soon the board of dentistry got involved. Eight out of ten members of the board of dentistry were dentists. And although the statute did not specifically say that whitening teeth is dentistry, the board decided to it would go “forth to do battle.” The board issued over 40 cease-and-desist letters. These letters warned that whitening teeth is the practice of dentistry and practicing dentistry without a license is a crime.

    winking toothThe letters worked. In North Carolina, soon only dentists were whitening teeth.

    But there was a problem: The Federal Sherman Act prohibits “every contract, combination, or conspiracy in restraint of trade”. It is well-settled law that trade is restrained by forcing your competitors out of the market so you can charge more. And the members of the board had agreed to force these folks out of the market, so there was a combination or conspiracy. The board’s letters appear to violate the act.

    Now I bet that some of you are thinking, “So what?” The board acted under the color of law. After all, don’t all laws regulating professions restrain trade? If nothing else, these laws stop unqualified people from competing with qualified people. Do all the laws that regulate professions violate this act? What gives?

    Yes, technically, laws that regulate professions restrain trade. And although the act of passing a state law doesn’t violate the Sherman Act, the actions of people are a different matter. People can’t violate federal law merely because the state has a law allowing it. So there is a potential conflict between the actions taken under state programs and federal law. And this, as you can imagine, is a bit of a problem for business regulation in a federal system of government. So the U.S. Supreme Court has created the state-action exception.

    If a regulatory program falls under the state-action exception, then the program and any incidental restraint of trade by the program do not violate the Sherman Act. But this raises the question of how “state action” is defined. To the degree that a regulatory program looks like a legitimate exercise of state power to protect the common good, the courts will defer to the state. But if it looks like the state has merely blessed a restraint in trade, the courts won’t defer to the state.

    An example can be found in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc. In this case, California passed a law creating a framework for its wine companies to fix prices. The United States Supreme Court ruled that a state can’t pass a law excepting its citizens from federal law.

    In this case, the court set down a two-part test to decide whether a “state action” qualifies as an exception to the Sherman Act: “[F]irst, the State has articulated a clear policy to allow the anticompetitive conduct, and second, the State provides active supervision of the anticompetitive conduct.”

    The heart of this test is two basic questions: The first asks who set the policy. Is the policy the act of a sovereign? Or is it the act of people who would be tempted to restrain trade? The second asks who enforces the policy. Is the policy enforced by state officials? Or is it enforced by people who would be tempted to restrain trade?

    The court explained: “Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult even for market participants to discern.”

    Returning to North Carolina, a statute did not actually declare whitening teeth to be the practice of dentistry. And it was pretty convenient that eight out of the ten members of the board of dentistry are dentists. So when the U.S. Supreme Court decided this issue, in North Carolina Board of Dental Examiners v. Federal Trade Commission, what do you think was the outcome?

    You would be right if you said that the cease-and-desist letters violated the Sherman Act.

    Although the reasoning of the decision follows the reasoning of prior decisions, this is the first time the Court has ruled that the actions of a state regulatory board violate the Sherman Act. Boards that include market participants are common in professional regulatory programs. Some states are concerned that many of their boards are affected by the ruling.

    If so, a state board should be careful to stay within the bounds of its statutory authority. And a state should make sure that each board with market participants is actively supervised by a governmental agency. The Court didn’t give very specific advice about what kind of supervision is needed. It did say that supervision should ensure that “a private party’s anticompetitive conduct promotes state policy, rather than merely the party’s individual interests.”

    Although the decision has caused some concern for the states, one point to remember is that the Court didn’t strike down the whole program; it merely stopped the dental board from issuing cease-and-desist letters. Under the ruling, the board is still regulating dentistry.