Colorado LegiSource

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

Author: olls

  • Bill Request Deadlines Looming — Even for New Legislators

    by Patti Dahlberg and Julie Pelegrin

    The 2014 election is finally over and the first bill request deadlines are just around the corner! One might think that returning and newly elected legislators would have a little time to take a breath and relax awhile before the 2015 legislative session starts. Unfortunately, the legislative rules don’t allow for much relaxation. The bill deadlines require legislators to complete the bulk of bill drafting in December before the first day of the legislative session.*

    Returning legislators have until Monday, December 1, 2014, to submit their first three bill requests to the Office of Legislative Legal Services (OLLS). Newly elected legislators have a little extra time — but not much — to get their session legs. They must submit their first three bill requests to the OLLS by Monday, December 15, 2014. But if all legislators submit their bill requests now, or as soon as possible, drafters can work on rough drafts sooner and work out any drafting kinks long before the first day of session — Wednesday, January 7, 2015.

    What all legislators need to know about requesting bills [Joint Rule 24(b)(1)(A)]:

    • The Joint Rules allow each legislator five bill requests each session. These five bill requests are in addition to any appropriation, committee-approved, or sunset bill requests that a legislator may choose to carry.†
    • To reach the five-bill-request limit within the bill request deadlines, legislators must submit at least three bill requests to the OLLS by the December deadlines. Legislators must submit the last two requests by January 13, 2015.
    • If a legislator submits fewer than three requests on or before the December deadline, he or she forfeits the other one or two requests that are due by that date.†

    The first bill request deadline is still a few weeks away so some legislators may feel they have plenty of time. But if a legislator waits until December to submit the first three bill requests, he or she will, almost immediately, have to provide sufficient drafting information so that the drafters can draft all three bills at once, and the legislator will have to very quickly decide which of these requests will be introduced on the first day of session. Although the legislative rules allow newly elected members of the General Assembly more time to request their first three bills than a returning legislator has, these rules do not actually allow a new legislator more time to have his or her bills drafted.

    If possible, every legislator — even the new ones — should try to submit at least one bill request ASAP. This bill request can touch on any subject matter and does not need to be completely conceptualized. The bill drafting process allows for potential issues or problems to rise to the surface making it easier for the legislator to decide whether his or her idea is “workable.” If it becomes apparent that a request isn’t working, the legislator can withdraw it and replace it with a new request, as long as he or she makes that decision on or before the December 1 deadline for returning members or the December 15 deadline for new members.

    The OLLS encourages legislators to submit more than three requests by the December deadlines. By doing so, a legislator preserves the flexibility to withdraw and replace at least one of his or her requests after the December deadline without losing a request. For example, if a legislator submits only the three-request minimum by the December deadline and later withdraws one of those requests, the legislator forfeits the withdrawn bill request because the rules allow a legislator to make only two bill requests after the December deadline and before the January deadline. On the other hand, if a legislator submits four bill requests by the December deadline and later withdraws one of those requests, the legislator is left with three bill requests that meet the early request deadline plus the legislator can submit the two requests that are allowed after the early bill request deadline — for a total of five bill requests.

    Bill Requests 2

    * Every legislator’s first bill must be introduced on the first day of the legislative session (Wednesday, January 7). Every senator’s next two bills must be ready for introduction on the 3rd legislative day (Friday, January 9), and every representative’s next two bills must be ready for introduction on the 7th legislative day (Tuesday, January 13).

    † A legislator can ask permission from the House or Senate Committee on Delayed Bills to submit additional bill requests or to waive a bill request deadline. Permission to introduce an additional bill request or a delayed bill in the House requires the approval of at least two of these three persons: the Speaker of the House, the Majority Leader, and the Minority Leader. Permission to introduce an additional bill request or a delayed bill in the Senate requires the approval of at least two of these three persons: the President of the Senate, the Majority Leader, and the Minority Leader.

  • Spooky Oddities at the State Capitol

    by Ashley Zimmerman

    As with many old, historical buildings, a number of ghost stories haunt the Colorado state capitol. Officially, there are no ghosts to be found in the building. However, those of us who have smelled an odd perfume, seen an odd figure, or heard an odd hoof beat know better. In honor of Halloween, we present to you a few of the most notable ghosts that unofficially haunt our halls.

    The Bloody Espinosas

    Perhaps the most well-known story of the capitol, this tale begins in 1863. Back then, the Colorado settlement was four years young, and the Gold Rush had brought a curious crowd to the territory. Denver was less a big city and more a town full of tents and temporary occupants hoping to make it rich. A few smaller mining towns were popping up throughout the state as gold was discovered, including Breckenridge, Colorado City, and Black Hawk, but these developments upset many people who already lived in the area. Two brothers from New Mexico, Felipe and Vivian Espinosa, were especially irate at the pioneers moving onto their land in the San Luis Valley and, for the better part of 1863, were intent on killing as many of the new residents as they could. Numbers of the murdered vary, but it’s believed they killed between a dozen and 30 people in just a few months.

    Accounts of how the brothers’ bloody careers ended differ, but eventually the brothers were killed, likely by a volunteer group of citizens from Park County. Their heads were brought to the capitol to collect the bounty set by the governor, but the governor refused to pay and no one knew what to do with the heads. They were first kept in the Treasurer’s Office in the capitol building but were later moved to the sub-basement beneath the capitol. Eventually, the heads were destroyed in the furnace.

    Since then, it’s been said that the heads of the Espinosa brothers can be seen floating through the building after dark. And if you’ve ever heard the sound of horses galloping up and down the main staircase, well, that’s just the Bloody Espinosas…looking for their heads!

    Ghost on stairs

    The Victorian Apparition

    On the third floor of the capitol building, rumor has it that you can see the ghostly visage of a woman wearing Victorian-era garments. She appears out of a mist near the entrance to the senate chambers and then floats off to either side of the chamber before disappearing.

    The Woman in a Long Dress

    A female spirit, appearing in a long, turn-of-the-century dress, is said to wander the steam tunnels beneath the capitol, as well as the capitol building and all the buildings connected to the tunnels in the Capitol Hill area. She’s been seen reading over the shoulders of employees in each of the buildings.

    The Mysterious Tunnels

    Certainly the steam tunnels under the capitol building lend themselves to spooky stories and an overall heightened awareness. In addition to The Woman in a Long Dress, there have been reports of odd cold spells, during which keys, ID badges, and other items are pulled away from the body of the owner and lifted into the air by an unseen force.

    General Spookiness

    While the above stories illustrate a few of the known spirits, there are still a few more spooky happenings in the capitol building that don’t have a known explanation:Ghosts-of-riddle-house

    • In the early hours before business gets going, and in the late hours well after business is done for the day, it’s said that the temperature in many areas of the capitol suddenly drops and a vintage, rose-scented perfume permeates the air before disappearing without a trace as the temperature returns to normal.
    • When business is done for the day, voices, conversations, and footsteps can be heard in and around empty meeting rooms and offices.

    For more information on the eerie and unexplained happenings under the Dome, visit Colorado Central’s two-part story on the Espinosa brothers here and here, as well as the New York Times archival report on the brothers, and “Colorado Legends and Lore: The Phantom Fiddler, Snow Snakes, and Other Tales” by Stephanie Waters.

  • Net Neutrality: I’m totally for it! Wait, what exactly is it?

    by Jennifer Berman

    Hardly anyone is neutral on the issue of net neutrality. Passions flare when the issue is discussed — from Netflix Slow laneand Twitter participating in an “internet slowdown” protest last month to comedian John Oliver’s thirteen-minute rant on his late-night HBO show in early June.

    Although virtually everyone who discusses the issue comes out in favor of net neutrality, the debate gets heated when discussing how the Federal Communications Commission (FCC) should achieve net neutrality. But before discussing which of the two major regulatory courses of action the FCC will likely choose, let’s get everyone up to speed on net neutrality.

    What is net neutrality?

    Understanding net neutrality first requires an understanding of how the internet works. There are three key players in the internet — the internet service providers (ISPs) such as Comcast and Verizon, the content providers such as Google, Facebook, and Netflix, and the end users such as you and me. Sometimes these three key players overlap. You were a content provider when you tweeted a funny comment last week— oh you, you’re so witty! But let’s keep things simple for now by assuming that the key players do not overlap.

    Computer highwayWe can use the overused internet highway analogy to demonstrate how the key players fit together. Think of the ISPs as toll booth operators, the content providers as drivers, and the end users as the drivers’ destinations. The toll booth operators can control which toll lanes are open, how fast the drivers get through the lanes, which drivers are allowed access to their destinations, and how much the drivers have to pay. If given free reign, the toll booth operators could make it very difficult and expensive for drivers.

    Similarly, if given free reign, an ISP could block certain content providers from accessing the ISP’s “backbone network,” which is considered the “last mile” connecting the content provider to the end user. An ISP could also require content providers to pay for priority over other traffic — an internet “fast lane”. Finally, an ISP could discriminate against content providers by giving priority to the ISP’s own content over competing content providers’ content, such as a cable company blocking an online video provider like Netflix.

    Back of shirtNet neutrality is a principle that requires ISPs to treat all content the same, regardless of its source. Net neutrality would prohibit ISPs from engaging in content blocking, paying for prioritization, and preferring an ISP’s own content over competitors.

    Sounds good, right? So why is net neutrality in jeopardy?

    How did we get here?

    Before 1996, all communications systems were treated as common carriers, which meant that providers were required to serve all customers without discrimination. They had no say over the content and had to allow unfettered access.

    The Telecommunications Act of 1996 created differential treatment of “telecommunications services” — those communications networks that offered two-way connectivity to the public– and “information services” — the content and applications shared over telecommunications services. Telecommunications services were regulated but information services were not. Therefore, the FCC could regulate the ISPs, but not the websites and applications.

    But starting in 2002, the FCC deviated from this clear distinction by classifying cable modem services, a subset of ISPs, as information services. In 2005, the FCC broadened the unregulated information services classification to broadband offered through other platforms. Thus, broadband generally became unregulated.

    In response to a backlash for deregulating broadband, the FCC issued a policy statement containing a set of principles “to ensure broadband networks are widely deployed, open, affordable, and accessible to all consumers.” Sounds familiar, right? The 2005 Openness Principles embodied net neutrality.

    In 2010, the FCC promulgated rules codifying the 2005 Openness Principles in an Open Internet Order that included anti-blocking, anti-discrimination, and disclosure rules governing ISPs. In Verizon v. FCC, Verizon challenged the FCC’s authority to issue the Open Internet Order. They argued that it lacked the statutory authority to do so and that the rules it imposed on ISPs were arbitrary and capricious.

    In January of this year, the D.C. Circuit Court overruled the anti-blocking and anti-discrimination provisions of the Open Internet Order because those provisions essentially treated ISPs as common carriers, but the ISPs were explicitly exempted from common carrier regulations.

    With the D.C. Circuit gutting the FCC’s Open Internet Order, net neutrality advocates worry that ISPs are free to block websites and applications from their network and implement pay-for-priority routing schemes.

    Now what?

    gravestoneOn May 15, 2014, the FCC issued a notice of proposed rulemaking to address net neutrality. In the notice, the FCC has proposed two avenues to codify net neutrality without running afoul of the Verizon ruling.

    The first avenue is to use its authority under Section 706 of the Telecommunications Act of 1996 to maintain an open internet. Section 706 requires:

    [The FCC shall] encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans … by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market or other regulating methods that remove barriers to infrastructure investment.

    Critics of this approach point out that, in light of the Verizon holding, it does not appear that the FCC’s authority under Section 706 would permit the agency to prohibit paid prioritization. To do so would be treating ISPs as common carriers without classifying them as common carriers.

    The second avenue is to reclassify ISPs as common carriers under Title II of the Communications Act of 1934. By reclassifying ISPs as common carriers, the FCC would presumably be able to prohibit paid prioritization because it can regulate against “unjust or unreasonable discrimination in charges, practices, classifications, facilities, or services” under section 202 of Title II. Critics of the Title II approach point out that section 202 is just one of 47 statutes governing common carriers, and that imposing common carrier status on ISPs would stifle innovation and competition in internet services. And some ISPs think such a reclassification would not ban paid prioritization.

    It’s a thorny issue. The FCC invited the public to comment on “the best way to define, prevent and punish the practices that threaten an open Internet” and “on the benefits of both section 706 and Title II, including the benefits of one approach over the other.” And comment we did …

    The FCC received more than 3.7 million comments on its proposed rulemaking. This is almost twice the number of comments the agency received in response to Janet Jackson’s “wardrobe malfunction” at the Super Bowl XXXVIII halftime show.

    The FCC also sought expert opinions on the best way to ensure internet openness. On September 16th, the FCC hosted Open Internet Roundtables, at which panels of experts from a variety of disciplines debated three issues: threats to internet openness; the proper scope of internet openness rules; and how best to enhance transparency by internet service providers.

    While the FCC wades through these comments and reflects on the recent roundtable discussions, there is talk of addressing the net neutrality issue through legislation. In June, Senator Patrick Leahy of Vermont and Representative Doris Matsui of California introduced the “Online Competition and Consumer Choice Act”. The Act would require the FCC to prohibit paid prioritization agreements between ISPs and content providers.

    While we’re waiting to see what the FCC and Congress do about net neutrality, let’s enjoy this award-winning internet cat video: Winner of the Golden Kitty Award at the 2014 Internet Cat Video Festival.

  • When Will There Be An “Official” Electronic Version of the Colorado Revised Statutes?

    by Jennifer Gilroy, Revisor of Statutes

    When you access information on the internet, how reliable do you think it is? What if the source of the information you’re looking at is the state or federal government? Do you think you can rely on its accuracy or authenticity? What if it’s the Colorado law and you found it on the Colorado General Assembly’s website? Seems like it should be reliable, right? Maybe not.

    The savvy internet user knows that the reliability of even government-published legal materials on the internet can be questionable. So in 2011, the National Conference of Commissioners on Uniform State Laws proposed a uniform act that would require a government publisher of electronic legal materials to meet certain standards before the government agency could designate the materials as an “official” version. The act, called the “Uniform Electronic Legal Material Act” (UELMA), was immediately embraced by the Colorado legislature, which was among the first in the nation to enact it. See House Bill 12-1209.

    In their official comments to UELMA, the uniform law commissioners observed that providing information on line is integral to conducting state government in the 21st century. But they also acknowledged that changing to an electronic environment raises new issues in information management. In their prefatory note, the commissioners stated:

    [e]lectronic legal information moves from its originating computer through a series of other computers or servers until it eventually reaches the individual user. The information is susceptible to being altered, whether accidentally or maliciously, at each point where it is stored, transferred, or accessed. Any such alterations can be virtually undetectable by the consumer. A major issue raised by the change to an electronic format, therefore, is whether the information presented to consumers is trustworthy, or authentic.

    To address this concern and establish reliable, outcomes-based electronic resources, the commissioners drafted UELMA to guide would-be government publishers of official electronic legal materials.

    As drafted by the uniform law commissioners and as adopted by the Colorado General Assembly, UELMA requires an official publisher of legal material in an electronic format to meet the following three conditions before it may designate the material as official:

    1. The official publisher must authenticate the legal material in the electronic record;
    2. The official publisher must provide for the preservation and security of the record; and
    3. The official publisher must ensure that the material is reasonably available for public use on a permanent basis.

    For purposes of Colorado’s UELMA law, the General Assembly is the “official publisher” of the state constitution, the Colorado Session Laws, and the Colorado Revised Statutes. So long as the General Assembly continues to publish these legal materials in a printed format, it does not have to designate the electronic version as official or meet the UELMA requirements. However, before the General Assembly may designate an electronic version of any of the legal materials it publishes on line as official, it must meet the three prerequisites.

    As part of its contract with the Colorado General Assembly to print and distribute the official Colorado Revised Statutes books, LexisNexis also hosts the on-line version of Colorado’s statutes. However, the General Assembly has not designated this electronic version of the statutes as an “official” version of the law. In fact, statute provides that only the print version of the Colorado Revised Statutes may be viewed as “official” statutes and is entitled to be considered as evidence in Colorado courts. In other words, the on-line version of Colorado’s statutes does not meet the requirements of UELMA and is not, therefore, “official”.

    Enter the Legislative Digital Policy Advisory Committee (LDPAC). In 2013, the General Assembly enacted legislation creating the LDPAC. See House Bill 13-1182. This committee, comprised of staff from all three branches of government, was initially charged with developing a plan to digitize archived audio recordings and a plan to implement UELMA. In 2014, the General Assembly re-established the LDPAC and, adding three members to the committee, directed it to continue studying and make recommendations to the Joint Budget Committee and the Committee on Legal Services regarding the implementation of UELMA, including authenticating certain legislative electronic legal materials such as the Colorado Session Laws and the Colorado Revised Statutes. See House Bill 14-1194.

    The LDPAC has met three times this year and recently issued its first progress report. In studying the issue, the LDPAC is researching the technology and government resources that the other states that have adopted UELMA (now 10) are using to authenticate their electronic legal material, including the associated costs as well as the advantages and disadvantages the various governmental agencies have experienced in the process. The LDPAC’s final report is due October 1, 2015. Thereafter, expect legislation and, in the not-too-distant future, the designation of an on-line version of the Colorado Revised Statutes as official!

  • Interim Committees Finalizing Recommendations for Legislation – Part 2

    by OLLS Staff

    The Legislative Council is scheduled to meet this Wednesday, October 15, to consider the legislation recommended by the interim committees that have met over the 2014 interim. Each of the bills that the Legislative Council approves will be introduced during the first month of the 2015 regular legislative session that convenes January 7, 2015.

    Last week, we summarized the bills recommended by four of the 2014 interim committees. This week, we’re summarizing the recommendations of the Wildfire Matters Review Committee, the Marijuana Revenues Committee, and the Water Resources Review Committee.

    Wildfire Matters Review Committee (WMRC)

    The WMRC requested that the staff of the OLLS draft seven potential bills and one joint resolution. After one of the bill requests was withdrawn, the committee considered the six remaining bill concepts at its September 26, 2014, meeting. Ultimately, the WMRC approved the following five bills and one joint resolution as recommended legislation for the Legislative Council’s approval or disapproval:

    Bill A “Concerning the continuation of funding for the wildfire risk reduction grant program.” In 2013, the General Assembly created the wildfire risk reduction grant program (Senate Bill 13-269) funded through the wildfire risk reduction fund. An initial transfer of $9.8 million was made from the general fund to the wildfire risk reduction fund as a result of that legislation. The bill directs the state treasurer to make another transfer of the same amount, effective July 1, 2015. The prime sponsors of the bill, which will be a Senate Bill if approved, are Senator Nicholson and Representative Exum.

    Bill B “Concerning a grant program to promote the use of woody biomass as a fuel source for public buildings.” The bill promotes the use of woody biomass as a fuel source for public buildings by creating the woody biomass grant program, which is funded by an annual $1 million transfer from the general fund for five fiscal years. The executive director of the Department of Natural Resources will award grants to a public entity that will use woody biomass as a fuel source for a public building’s biomass energy system when either the use of the grant allows the public building to be cost-effective when compared with other fuels or the executive director reasonably believes that making the grant provides other substantial benefits as specified in rules. The bill specifies additional matters that must be included in the rules. The prime sponsors of the bill, which will be a Senate Bill if approved, are Senators Nicholson and Jones and Representative Exum.

    Bill C “Concerning the status under the ‘Colorado Governmental Immunity Act’ of state employees conducting prescribed fire activity.” The bill clarifies that an employee of the state conducting prescribed fire activity who has been officially certified or recognized by the state as being able to conduct activity and who is acting within the course and scope of his or her employment is covered by existing sovereign immunity provisions except where the employee’s act or failure to act giving rise to the claim of injury was willful or wanton. The prime sponsors of the bill, which will be a House Bill if approved, are Representative Hamner and Senator Roberts.

    Bill D “Concerning nongovernmental volunteer fire departments in Colorado, and, in connection therewith, enacting the ‘Volunteer Fire Department Organization Act’.” To assist areas that currently lack full-time fire protection services, the bill sets forth a framework to establish and maintain volunteer fire departments that are recognized by the Division of Fire Prevention and Control in the Department of Public Safety. The bill also makes available grants for technical and funding assistance for the establishment of volunteer fire departments recognized by the division. The prime sponsors of the bill, which will be a House Bill if approved, are Representatives Buck and Hamner and Senator Roberts.

    Bill E “Concerning the classification of agricultural land when the land is destroyed by a natural cause.” The bill specifies that, if agricultural land is destroyed by a natural cause on or after January 1, 2014, and, were it not for the destruction, the land would have qualified as agricultural land for the following property tax year, the agricultural land classification will remain in place for the year of destruction and the four subsequent property tax years unless certain exceptions apply. The prime sponsors of the bill, which will be a House Bill if approved, are Representatives McLachlan and Hamner and Senator Roberts.

    Resolution A “Concerning requests to the federal government regarding support for wildland fire suppression.” This joint resolution asks the federal government to:

    (1) Create a separate fire suppression line item in the federal budget; and
    (2) Purchase and deploy additional aerial firefighting equipment to assist in fighting wildfires across the country.

    The prime sponsors of the resolution, which will be a House Joint Resolution if approved, are Representative Exum and Senator Roberts.

    Other committee action. In addition to considering the above legislation, the WMRC approved a letter to the Joint Budget Committee describing the WMRC’s recommendations for funding various wildfire mitigation efforts. Moreover, in accordance with Senate Bill 14-164, the WMRC considered creating a statutory wildland and prescribed fire advisory commission (WAPFAC) under the Division of Fire Prevention and Control in the Department of Public Safety. The WMRC decided not to recommend codification of the current gubernatorial WAPFAC and, pursuant to SB14-164, communicated this recommendation in a letter to the House Agriculture, Livestock, and Natural Resources Committee and the Senate Agriculture, Natural Resources, and Energy Committee.

    Marijuana Revenues Committee (MRC)

    The MRC met four times during the 2014 interim. Legislative and executive branch staff briefed the committee regarding the most recent retail marijuana revenue forecast as well as the retail marijuana market, retail marijuana tax revenue collections, and regulation of the retail market. The MRC also heard presentations from representatives from various state agencies and non-profit entities that received moneys from marijuana taxes or fees for the 2014-15 fiscal year. The MRC approved the following two bills as recommended legislation for the Legislative Council’s approval or disapproval:

    Bill A “Concerning marijuana issues that are not regulated by the department of revenue.” The bill requires the following in connection with medical marijuana:

    • The Colorado medical board must adopt rules regarding guidelines for physicians who make medical marijuana recommendations for patients suffering from severe pain;
    • The state health agency must adopt rules regarding guidelines for primary caregivers to give informed consent to patients that the products they cultivate or produce may contain contaminants and that the THC levels are not verified;
    • All primary caregivers must register with the state health agency and the state medical marijuana licensing authority (licensing authority). A primary caregiver who is not registered must register within 10 days after being informed of the duty to register. If a person fails to register within this time, the state health agency and licensing authority will prohibit the person from ever registering and acting as a primary caregiver; and
    • The licensing authority and the state health agency must share the minimum amount of information necessary to ensure that a medical marijuana patient has only one caregiver and is not using a primary caregiver and a medical marijuana center.

    In addition, the bill permits the money in the marijuana tax cash fund to be used to fund the implementation of any bills approved by the MRC. The prime sponsors of the bill, which will be a Senate Bill if approved, are Senator Aguilar and Representative Singer.

    Bill B “Concerning the authority of certain local governments to implement specified taxes on retail marijuana subject to approval by the eligible electors of the local government.” Currently, a county or municipality that allows the sale of retail marijuana may levy the standard county or municipal sales tax on the sale of retail marijuana in addition to the state retail marijuana sales tax and the state retail marijuana excise tax. The bill clarifies that counties and municipalities are authorized, subject to voter approval, to levy, collect, and enforce a sales tax on all sales of retail marijuana and retail marijuana products by a retailer, in addition to any sales tax imposed by the state or by the county or municipality as applicable.

    In addition, the bill authorizes, subject to voter approval, a county and a municipality to levy, collect, and enforce an excise tax on the first sale or transfer of unprocessed retail marijuana by a retail marijuana cultivation facility, in addition to any sales tax that the state or the county or municipality imposes, as applicable, and in addition to the state excise tax imposed on retail marijuana.

    The Department of Revenue may not collect, administer, or enforce a retail marijuana sales tax or excise tax imposed by a county or municipality. Instead, the county or municipality that imposes the tax must collect, administer, and enforce the tax.

    A county or municipality in which the eligible electors approve an additional retail marijuana sales tax or excise tax may credit the revenues collected from the taxes to the county’s or municipality’s general fund or to any special fund created in the county’s or municipality’s treasury. The governing body of a county or municipality may use the revenues collected from the taxes for any purpose as determined by the governing body or the electors of the county or municipality, as applicable. The prime sponsor of the bill, which will be a House Bill if approved, is Representative Singer.

    Water Resources Review Committee (WRRC)

    The WRRC met six times and took three tours during the 2014 interim. At its meetings, the committee received briefings on major water issues affecting the state, including planning for future water needs, funding needs for state water agencies and water projects, municipal outdoor water consumption, regulation of groundwater use, and the development of a Colorado Water Plan. In accordance with SB14-115, the WRRC also held nine public meetings, one in each geographic region associated with a basin roundtable, to collect feedback from the public on the draft Colorado Water Plan.

    The WRRC requested the OLLS staff to draft 10 bills. Ultimately, three bills were withdrawn and, on September 30, 2014, the committee recommended the following six bills to the Legislative Council for approval:

    Bill A “Concerning the promotion of water conservation in the land use planning process.” The bill directs the Colorado Water Conservation Board (CWCB), in consultation with the Division of Planning in the Department of Local Affairs, to develop and provide free training programs for local government water use, water management, and water conservation. The CWCB must also recommend best management practices regarding how to better integrate water demand management and conservation planning into land use planning. The CWCB and the Colorado Water Resources and Power Development Authority, in determining whether to provide financial assistance to a local governmental water supply entity, must consider whether the entity’s planners, if the entity has any, have taken the training and are actively applying the training in their planning decisions. The prime sponsors of the bill, which will be a Senate Bill if approved, are Senator Roberts and Representative Vigil.

    Bill B “Concerning incentives for precipitation harvesting.” The bill expands the types of projects that are eligible for precipitation harvesting pilot projects to include the redevelopment of residential housing or mixed uses and new or redeveloped multi-building nonresidential property. The CWCB will update its approval criteria that sponsors of precipitation harvesting pilot projects can use for substitute water supply and augmentation plans. The bill reduces the amount of water required for a project’s temporary substitute water supply plan and permanent augmentation plan by the amount of historical natural depletion caused by the preexisting natural vegetative cover and evaporation on the surface of the area made impermeable as part of the pilot project. It also specifies that a project’s temporary retention of storm water for the purpose of improving water quality is not subject to an order of the State Engineer or division engineers, if the retention complies with the CWCB’s criteria and guidelines and the applicable requirements of the state’s water quality laws. The prime sponsor of the bill, which will be a House Bill if approved, is Representative Coram.

    Bill C “Concerning augmentation requirements for wells withdrawing water from the Dawson aquifer.” Current law specifies that, beginning July 1, 2015, augmentation requirements for withdrawing water from the Dawson Aquifer must be based on actual aquifer conditions. The bill repeals this requirement, thereby continuing current law, which requires replacing actual out-of-priority depletions to the stream. Replacing post-pumping depletions is required only if necessary to compensate for injury. The prime sponsor of the bill, which will be a Senate Bill if approved, is Senator Hodge.

    Bill D “Concerning the implementation of recommendation number one set forth in the study of the South Platte river alluvial aquifer prepared by the Colorado water institute pursuant to House Bill 12-1278.” The bill requires the CWCB, in consultation with the State Engineer, to administer two pilot projects in the geographic areas of Gilcrest/LaSalle and Sterling to evaluate alternative methods of lowering the water table in areas that are experiencing damaging high groundwater levels. It also authorizes the State Engineer to review an augmentation plan submitted to a water court if it includes the construction of a recharge structure. The water court may approve the augmentation plan only if the State Engineer approves or proposes changes to the operation and design of the proposed recharge structure. The prime sponsor of the bill, which will be a House Bill if approved, is Representative Coram.

    Bill E “Concerning the establishment of a grant program for the management of invasive phreatophytes.” The bill establishes a five-year grant program for managing invasive phreatophytes, which are deep-rooted plants that consume water from the water table or the layer of soil just above the water table. The bill also creates the Invasive Phreatophyte Grant Program Account in the Noxious Weed Management Fund. The Department of Agriculture administers the grant program under its authority to manage noxious weeds. To qualify for a grant, an applicant must propose a project for managing invasive phreatophytes that uses best management practices. The prime sponsor of the bill, which will be a House Bill if approved, is Representative Coram.

    Bill F “Concerning the appellate process governing a district court’s review of final agency actions concerning groundwater.” Under the bill, a district court that reviews a decision or action of the Ground Water Commission or the State Engineer on appeal may consider only the evidence originally presented to the commission or the State Engineer. The prime sponsors of the bill, which will be a Senate Bill if approved, are Senator Jones and Representative Coram.

  • Interim Committees Finalizing Recommendations for Legislation – Part 1

    by OLLS Staff

    Several interim committees have met during the 2014 interim to examine a wide range of topics. They are wrapping up their work in the next couple of weeks and preparing recommendations for legislation that they will submit to the Legislative Council. This week, we’re summarizing the bills approved by the Transportation Legislation Review Committee, the Police Officers’ and Firefighters’ Pension Commission, the Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems, and the Early Childhood and School Readiness Legislative Commission.

    Transportation Legislative Review Committee (TLRC)

    The TLRC requested that the staff of the OLLS draft five potential bill concepts; considered three of the requested drafts at its September 9, 2014 meeting; and approved the following two bills as recommended legislation for the Legislative Council’s approval or disapproval:

    Bill A “Concerning authorization for firefighter license plates to be issued for motorcycles.” The bill directs the Colorado department of revenue to issue firefighter license plates for motorcycles, passenger cars, trucks, or noncommercial or recreational motor vehicles that do not exceed 16,000 pounds empty weight. Currently, the department issues this plate for all of the listed vehicles except motorcycles. The prime sponsors of the bill, which will be a House Bill if approved, will be Representative Tyler and Senator Todd.

    Bill B “Concerning funding for the safe routes to schools program.” For the 2015-16 fiscal year, the bill requires the Colorado department of transportation to award grants under the safe routes to school program using state money available to the department in a total amount of at least $3 million. The required total amount is reduced by the amount of any federal moneys received by the department for the program. Current law requires the department to award at least 20% but not more than 30% of the state grant money for noninfrastructure programs. The prime sponsors of the bill, which will be a House Bill if approved, will be Representatives Tyler and Mitsch Bush and Senator Todd.

    Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems.

    The legislative oversight committee considered and approved one bill as recommended to them by the task force concerning treatment of persons with mental illness in the criminal and juvenile justice systems.

    Bill A “Concerning competency to proceed for juveniles involved in the juvenile justice system.” The bill changes the definition of “incompetent to proceed” and addresses the evaluation of competency to proceed for juveniles involved in the juvenile justice system. A subgroup of the task force, which included representatives from the district attorney’s office, the office of the public defender, the division of behavioral health, forensic psychology, the office of the child’s representative, and social workers, worked for several months to develop a definition of “incompetent to proceed” that allows the differences between juveniles and adults to be factored into a determination-of-competency evaluation. Updated definitions for “developmental disability”, “intellectual disability”, “mental capacity”, and “mental disability” are included in the bill. The prime sponsors of the bill, which will be a House Bill if approved, will be Representative Rosenthal and Senator Newell.

    Police Officers’ and Firefighters’ Pension Reform Commission (Commission)

    The Commission met once during the 2014 interim for an annual briefing from the Fire and Police Pension Association (FPPA) and to consider five bills recommended by the FPPA Board of Directors (Board) for introduction during the 2015 legislative session. Based on the Board’s recommendations, the Commission approved the following bills as recommended legislation for the Legislative Council’s approval or disapproval:

    Bill A “Concerning the transfer of an individual’s retirement funds to the statewide defined benefit plan administered by the fire and police pension association.” Current law allows a member of the FPPA to roll over distributions from an eligible pension plan to the statewide defined benefit plan administered by the FPPA for other employment that isn’t covered by the statewide defined benefit plan. But, current law treats these roll overs as a purchase of service credit. The bill authorizes a separate process for a member to be granted service credit upon a qualified transfer of funds from an eligible pension plan for other employment that is not covered by the statewide defined benefit plan and maintains the current process for the purchase of service credit. The bill specifies that the Board will award service credit to the member in an amount that the Board calculates on an actuarially equivalent basis. The prime sponsors of the bill, which will be a Senate Bill if approved, will be Senator Jones and Representative Melton.

    Bill B “Concerning additional authority of the board of directors of the fire and police pension association to assess administrative charges.” The bill authorizes the Board to promulgate rules for assessing interest on unpaid contributions to statewide plans, which rules may allow for the waiver of interest due for good cause. The interest rate will be one-half of one percent per month. The Board may also assess the individual plans administered by the FPPA with the reasonable actuarial, audit, and operational costs that the FPPA incurs in complying with regulatory requirements and that are attributable to each plan. The prime sponsors of the bill, which will be a Senate Bill if approved, will be Senator Ulibarri and Representative Court.

    Bill C “Concerning the contribution rate for participants beginning membership in the fire and police pension association’s statewide defined benefit plan.” This bill specifies the contribution rate for an active employee of a municipality, fire protection district, fire authority, or fire improvement district who is directly involved in providing police or fire protection and who becomes a participant in the statewide defined benefit plan administered by the FPPA because of a merger, consolidation, or exclusion or dissolution proceeding among one or more employers. The contribution rate for these employees is the continuing uniform rate of contribution that the Board establishes as directed by statute. The prime sponsors of the bill, which will be a Senate Bill if approved, will be Senator Balmer and Representative Ginal.

    Bill D “Concerning requirements for employee participation in a plan administered by the fire and police pension association.” A municipality that offers police or fire protection service and a special district, fire authority, or county improvement district that offers fire protection service (employer) must provide to its employees the pension benefits of the statewide defined benefit plan (defined benefit plan) administered by the FPPA. Currently, the department chief of a fire or police department may be exempt from the defined benefit plan upon written agreement and notice to the FPPA. The bill clarifies that, if a chief opts out of the defined benefit plan, federal law requires that the chief participate in either social security or a federal insurance contribution act (FICA) replacement plan. And, if a chief opts for a FICA replacement plan, the chief may participate in an employer-sponsored plan, the statewide money purchase plan, or the statewide hybrid plan. A chief who elects to become exempt from the defined benefit plan must participate in a plan with a contribution rate of at least 16% if the chief wants to maintain coverage in the statewide death and disability plan. In addition, currently, an employer that participates in the social security supplemental plan may also elect coverage under the statewide death and disability plan. Beginning January 1, 2017, an employer that elects coverage under the statewide death and disability plan must also participate in the social security supplemental retirement plan. The prime sponsors of the bill, which will be a Senate Bill if approved, will be Senator Balmer and Representative Ginal.

    Bill E “Concerning a study of volunteer firefighter pension plans in the state.” The state auditor, in cooperation with the FPPA and the Department of Local Affairs (DOLA), must contract with a nationally recognized law firm with experience in federal tax law as it relates to public sector pension plans to study specified issues regarding the legal status of the volunteer firefighter pension plans in the state. The law firm must deliver a report detailing the findings of the study to the state auditor, FPPA, DOLA, and the Commission. The bill requires the state auditor, FPPA, and DOLA, upon receiving the report, to work collectively to develop recommendations for the General Assembly regarding changes to the system of volunteer firefighter pension plans based on the information contained in the report. The Commission must meet after it receives the report to hear a presentation of the report from a representative of the law firm and to hear a presentation from the state auditor’s office, FPPA, and DOLA regarding recommendations for the volunteer firefighter pension plans in the state. The Commission must discuss the presentations and, after hearing input from relevant stakeholders, decide whether to propose legislation relating to the funding and structure of the volunteer firefighter pension plans. The prime sponsors of the bill, which will be a Senate Bill if approved, will be Senator Ulibarri and Representative Melton.

    Early Childhood and School Readiness Legislative Commission (ECSRLC)

    The ECSRLC met four times during the interim to hear presentations and discuss several aspects of and policies related to early childhood care and education, including tax credits, professional development for early childhood education providers, family resource centers, and the family, friends, and neighbors programs for early childhood care. In addition, five working groups met to discuss specific aspects of early childhood care and education more in depth. The ECSRLC requested the OLLS staff to draft four bills. Ultimately, one was withdrawn and the Commission recommended the following three bills to the Legislative Council for approval:

    Bill A “Concerning the treatment of child support for purposes of the Colorado works program.” When a person receives assistance through the Colorado works program, the person must assign the right to receive child support to the state as partial reimbursement for the assistance the person receives. The bill requires the department of human services to pass through to the person the amount of current child support that it collects as a result of the assignment. The department will report the amount of the pass through to the joint budget committee. The amount of child support that the person receives will not be counted as income for purposes of calculating the person’s basic cash assistance payment. The prime sponsors of the bill, which will be a Senate Bill if approved, will be Senators Kefalas and Marble and Representative Pettersen.

    Bill B “Concerning the creation of an income tax credit for certain early childhood education providers.” For income tax years commencing on or after January 1, 2015, the bill allows an income tax credit to a taxpayer who is an early childhood education provider if:

      • The taxpayer holds a Colorado early childhood professional credential issued by the department of education; and
      • The taxpayer:
        • Is employed, and has been employed for at least six months, by a child care center that accepts children through the Colorado child care assistance program; or
        • Is a licensed family child care home provider who has been doing business for at least six months.

    The amount of the income tax credit varies from $1,600 to $2,500 depending on the level of credential that the taxpayer holds. If the income tax credit is more than the amount of income taxes due, the department of revenue will refund to the taxpayer the amount of the credit that is not used. The prime sponsors of the bill, which will be a House Bill if approved, will be Representative Pettersen and Senator Todd.

    Bill C “Concerning increasing the number of students enrolled in the Colorado preschool program as preschool students.” Starting in the 2015-16 budget year, the bill increases by 3,000 the number of students who can participate in the Colorado preschool program as either half-day or full-day preschool students. The prime sponsors of the bill, which will be a House Bill if approved, will be Representative Pettersen and Senators Kefalas and Todd.

  • Ex Post Facto Laws, Effective Dates, and Legislative Time Travel

    by Richard Sweetman and Rebecca Hausmann

    You want your bill to take effect on January 1, 2015, but your bill drafter says it’s not possible. Why not?

    Because the General Assembly convenes on January 7, 2015, the earliest any bill can be introduced is January 7, 2015. The earliest it could pass both houses of the General Assembly is January 9, 2015. And you can’t make a law travel back in time to apply to dates that occurred before the law was even passed!

    Or can you?

    Retroactivity and Retrospectivity

    Section 11 of article II of the Colorado constitution provides that “No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.” [emphasis added]

    However, in Colorado, the courts observe a distinction between retroactive application of law and retrospective application of law. Although the retroactive application of a statute is generally disfavored by the common law and by section 2-4-202, C.R.S., (“A statute is presumed to be prospective in its operation.”), the retroactive application of a civil statute is not necessarily unconstitutional. Retroactively applied civil legislation is unconstitutional only if it is also retrospectively applied. Ficarra v. Dep’t of Regulatory Agencies, Div. of Ins., 849 P.2d 6, 11 (Colo. 1993).

    A statute is retrospective if it takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. In re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002).

    The Colorado Supreme Court’s retrospectivity analysis consists of two inquiries. First, the court will consider the “vested right” prong of retrospectivity. Second, if a vested right is not implicated, the court will consider the “new obligation, new duty, or new disability” prong of retrospectivity.

    A couple of recent court cases provide examples of how a bill’s effective date can affect a court’s retrospectivity analysis.

    Impermissible Retroactivity

    On March 27, 2006, the General Assembly enacted the “Colorado Clean Indoor Air Act,” which imposes restrictions on smoking in public places. The Act had an effective date of July 1, 2006. In Coalition for Equal Rights, Inc. v. Owens, 458 F. Supp. 2d 1251, 2006 U.S. Dist. LEXIS 77914 (D. Colo. 2006), the U.S. District court in Denver ruled that section 25-14-204 (2), C.R.S., was impermissible ex post facto legislation because a cigar-tobacco bar owner who legally expanded a business between December 31, 2005, and July 1, 2006, would become subject to penalties as of July 1, 2006, for the pre-enactment expansion. Section 25-14-204 (2), C.R.S., states in part:

    A cigar-tobacco bar shall not expand its size or change its location from the size and location in which it existed as of December 31, 2005.

    The court stated that “on its face, this language criminalizes activity, expansion of a cigar-tobacco bar, that occurred prior to enactment, when it was still legal.”

    Permissible Retroactivity

    But, the fact that a law applies to a past action does not, in and of itself, make it impermissibly retroactive. In Meyerstein v. City of Aspen, 282 P.3d 456 (Colo. App. 2011), the Colorado Court of Appeals addressed the question of retroactive applicability. Section 38-12-301, C.R.S., which prohibits rent control by counties and municipalities, was amended effective September 1, 2010, by HB10-1017. The “effective date – applicability clause” of the act indicated that the changes applied to agreements entered into “before, on, or after September 1, 2010.” [emphasis added]

    Before the 2010 amendment, section 38-12-301, C.R.S., simply stated:

    38-12-301. Control of rents by counties and municipalities prohibited – legislative declaration. The general assembly finds and declares that the imposition of rent control on private residential housing units is a matter of statewide concern; therefore, no county or municipality may enact any ordinance or resolution which would control rents on private residential property.

    The 2010 amendment clarified the restriction in that section by adding subsection (2):

    (2) For purposes of subsection (1) of this section, an ordinance or resolution that would control rent on either private residential property or a private residential housing unit shall not include:

    (a) A voluntary agreement between a county or municipality and a permit applicant or property owner to limit rent on the property or unit or that is otherwise designed to provide affordable housing stock; or

    (b) The placement on the title to the unit of a deed restriction that limits rent on the property or unit or that is otherwise designed to provide affordable housing stock pursuant to a voluntary agreement between a county or municipality and a permit applicant or property owner to place the deed restriction on the title.

    The Meyerstein court found that the 2010 changes to section 38-12-301, C.R.S., were meant to clarify the existing law, not change it, and therefore the retroactive application of the new language under the circumstances of the case did not violate the constitutional prohibition against retrospective legislation.

    To reach its decision, the court first noted the General Assembly’s explicitly stated intent that the new subsection (2) be applied retroactively. Meyerstein, at 465. The court also noted that in a prior case (Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000)) the Colorado Supreme Court had concluded that the unamended statute was ambiguous — particularly as to whether the statute could be read to extend beyond just ordinances and resolutions to deed restrictions. Id. Finally, the court considered the legislative history of the 2010 bill, especially comments by the sponsor, Senator Betty Boyd, indicating that the bill was intended to “clarify” the scope of the existing provision. Id., at 466.

    Next, applying the two-prong approach described in DeWitt, the court stated that the statutory change did not deprive the plaintiff of any vested right and did not produce any change in the plaintiff’s position. Id., at 466. The plaintiff had purchased property that was subject to a deed restriction limiting tenants and rents, and application of the new rent control statute did not change that fact. Id., at 466.

    Legislative Time Travel

    So in the rules of the legislative universe, it is technically possible to make a law travel back in time to apply to dates and actions that occurred before the law was passed. That is, it is possible for an enacted law to apply retroactively. However, for this to happen, the General Assembly must be absolutely clear about its intent, and the retroactive application of the law must pass strict judicial tests to ensure its constitutionality.

  • Statutory Construction: Interpreting requirements for action by a public body, numbers, references to statutes, and introductory portions of statutes

    by Julie Pelegrin

    Editor’s Note: Last September, LegiSource began a series of articles focusing on statutory construction. This week’s article is the fourth in the series. For the earlier articles, see postings on Sept. 12, 2013, and July 31 and August 21, 2014.

    Continuing our exploration of the General Assembly’s clarifications of certain words and phrases, this week we look at (1) how many members it takes for a public body to act; (2) what happens when the numbers say one thing, but the words say another; (3) what does “to” really mean; and (4) what it means when a drafter refers to the “introductory portion” of a statute.

    Joint authority and quorum of a public body: §§2-4-110 and 2-4-111, C.R.S.

    Many sections of statute create boards, commissions, task forces, advisory boards, or some other group of people who make policy decisions or recommendations. The statute that creates a policy group seldom specifies the minimum number of members that must be present for the body to take action and how many of them must agree for the action to be valid.

    But that’s okay because sections 2-4-110 and 2-4-111, C.R.S., clarify that, for every public body, a quorum is aLegislative Services CRS majority of the members of the body, as set in the statute. And if the body consists of three or more persons, a majority of the total number of members — not just a majority of a quorum — must agree for the body to exercise its authority. But if the statute that creates the policy group specifies a different number of members for a quorum or for the group to exercise its authority, the specific number will override §§2-4-110 and 2-4-111, C.R.S.

    The House of Representative and Senate don’t follow these sections. House Rule 25 (i) (1) and (j) (10) and Senate Rule 22 (b) and (n) require a majority of the members of a legislative committee for a quorum, and the agreement of a majority of a quorum or a majority of those present and voting, whichever is greater, is necessary to take action on legislation. So for a nine-member committee, at least five members must be present for the committee to take any action. And if only five members are present, the action can be approved by the affirmative vote of three members. But if all nine members are present, the action must be approved by the affirmative vote of at least five members.

    Expression of numbers: §2-4-112, C.R.S.

    A statute will sometimes include a number, and it may express the number both in numerals and in words. If the numeral is different from the word, §2-4-112, C.R.S., says that the word will govern. This provision also applies to nonstatutory portions of a bill such as appropriations clauses.

    The use of “to” in referring to several sections of statute: §2-4-113, C.R.S.

    Often, a statute will make a cross-reference to other statutory sections as follows: “section xx-xxx-xxxx to section xx-xxx-xxxx.” This creates an ambiguity: Are one or both of the listed sections included in the cross reference? Or does it include just the sections between the two listed sections? Section 2-4-113, C.R.S., solves this dilemma. Whenever the statutes refer to several sections and the section numbers given in the reference are connected by the word “to,” the reference includes both of the sections whose numbers are given and all intervening sections.

    If subsequent legislation adds a new section that falls between the two listed sections, that new section is automatically included in the cross-reference unless it is specifically excluded. So an existing reference to “sections 2-2-110 to 2-2-113” will automatically include a new section 2-2-110.5. Section 2-4-113, C.R.S., also applies to references to subdivisions of a section, such as “subsections (1) to (5).”

    Introductory portion: §2-4-114, C.R.S.

    You will sometimes hear a bill drafter refer to the “introductory portion” of a statute, and you may wonder what she’s talking about. The drafter did not make up the term; it’s created in §2-4-114, C.R.S.:

    The portion of any section, subsection, paragraph, or subparagraph which precedes a list of examples, requirements, conditions, or other items may be referred to and cited as the “introductory portion” to the section, subsection, paragraph, or subparagraph.

    There are several examples of this in the statutes; the most common is in definitional sections. A typical definitional section starts as follows:

    x-x-xxx. Definitions. As used in this article, unless the context otherwise requires:
    (1) “A” means….
    (2) “B” means…
    (3) “C” means…

    The text that precedes the colon is the introductory portion to the section.
    That’s it for statutory clarification of specific words and phrases. With the following articles in this series, we’ll look at part 2 of article 4 of title 2, C.R.S., which provides several rules or canons that courts apply when interpreting the statutes.

  • A Case of Mistaken Identity: Word pairs that are deceptively different

    by: Kurt Woock

    The English language is rife with confusing words. In English classes, you likely studied various categories of linguistic confusion: homophones, heteronyms, homonyms, synonyms, antonyms. At the root of the confusion is the fact that words can have a lot in common, to the extent they deceive writers and readers into thinking the words are interchangeable.

    Sometimes, a group of words signify a similar meaning, but with differing gradations or levels of emphasis. Those subtle differences allow writers to express nuance and help bring clarity to writing. Using these words incorrectly might blur the author’s true intent, but it won’t substantially alter the meaning.

    However, in some cases, despite the similarities between words, an impassable chasm exists between the two meanings. Using these words interchangeably does alter the sentence’s substance.

    Here are four word pairs that are commonly mistaken as synonyms when, in fact, each word expresses a distinct idea:

    Impact-Effect

    Impact and its variations (impacted, impacting, etc.) have become some of the most ubiquitous buzzwords today. You’ll see it (mis)used in writing of all types. In most cases, effect is the better option.

    Impact, whether used as a noun or a verb, means the moment two objects collide. It means strong, often violent force. Strictly speaking, its scope in time is limited to the very moment of…you guessed it…impact.

    Effect is a broader term that means the consequences or results stemming from an action. Rather than focusing tightly on the singular moment in which a sudden change occurs, it is oriented toward changes that occur after the initial point of inflection, and without any cap on time.

    Consider this sentence: “The group will study the impact the construction will have on the neighborhood.”

    In this case, effect would be a better choice. Construction does not collide with anything, nor is it sudden or violent. Instead, the author intends to say something about resulting changes (whether short-, medium-, or long-term) that will occur because of the construction.

    Although-While

    Although has a meaning similar to “despite that fact that…”. Often it is used to dispel a possible assumption the reader might have.

    Example: Although I like most vegetables, I don’t like peas.

    The word doesn’t give most people problems, but it’s important to understand the particulars of although because its cousin, while, tends to trip up writers. While is a function of time. It shows that two events occur concurrently:

    Example: I went to the park while I was on lunch break.

    Try substituting the word “when” for while whenever you use it. If the sentence still makes sense, you’re likely using while right.

    While is often used where although would be a more precise choice. Oddly enough, you’ll rarely see although as an incorrect substitution for while…perhaps an indication that the two aren’t interchangeable.

    Here’s a sentence in which although would have been a more precise choice:

    While the Broncos are a very good football team this year, I still think the team from ’98 could beat them.

    Here’s a similar sentence in which while is perfectly fine:

    While the Broncos are taking the field for the first time this season, their fans are surely going to be loud.

    Since-Because

    Because shows causation or association. Use if you can replace with “as a result of the fact that…”.

    Example: Because I live in Denver, I can easily go to the mountains.

    Example: I need a lawyer because I am in trouble.

    Since shows that a period of time has elapsed.

    Example: It’s been five years since I’ve been to Texas.

    The two words, side by side:

    1. Since you’ve been gone, I can breathe for the first time.
    2. Because you’ve been gone, I can breathe for the first time.

    These two samples show how a sentence’s meaning can change, depending on word choice. In the first example, using “since” shows that the writer is emphasizing the time that has passed between two events (and is not necessarily the cause of either). The person who has vacated the author’s presence might or might not be related to the increase in the author’s ability to breathe. The departure is simply something used to mark time. Perhaps the other person’s departure simply coincided with the opening of a few windows. You likely hear similar constructions daily: “Since lunch, my phone hasn’t stopped ringing”; “I haven’t been able to concentrate since I woke up.” In both these cases, the writer is trying to define a period of time, not a cause.

    In the second example, “because” suggests that the breathing is directly related to the person leaving.

    May-Might

    When you were a child, you probably learned the difference between “may” and “can”. In recent years, OLLS has emphasized understanding the particular nuances of the terms “may”, “must”, and “shall” to express statutory requirements more clearly. However, the distinction between “may” and “might” is discussed less frequently.

    May is best used to show that an action is dependent upon someone first granting permission. Take the following sentence:

    “You may go on a short vacation during session if you are on top of your workload.”

    Might is best used to show that a particular outcome, situation, or action comes about by chance.

    The sentence “It might rain today” expresses might correctly. To say “it may rain today” would be incorrect. The rain does not occur because of any rational actor’s choosing, nor does it occur because it was given permission to do so.

    Sometimes, both words can make sense in a sentence. However, this does not mean that both sentences mean the same thing. For example:

    Alice may vote.

    Alice might vote.

    In the first example, the writer is expressing that Alice meets all the requirements to vote: She is 18, etc. However, it technically says nothing about the likelihood that she will do so. She might just stay home and watch TV. The second sentence considers just that—the chances that she’ll vote.

    Use the distinctions found among these words to make your writing as clear as you can. Although we can write well, we don’t always. While we write, we too often choose the first word that comes to mind. We may choose whichever words we want, but we might not always choose the best ones. Because we strive to write as clearly as possible, we must be aware of this. Since you began reading this article, perhaps you’ve become more aware of the unintended effects that words such as “impact” can have.

  • Legislative Oversight of State Agency Rule-making

    by Debbie Haskins

    Each year executive branch agencies in Colorado adopt over 500 sets of rules creating at least 16,000 pages of rules and accompanying materials. That’s a lot of rules! And every one of those rules, along with the corresponding materials, is read and analyzed by a staff member of the Office of Legislative Legal Services (OLLS).

    Through this rule review function, required by statute and performed by the OLLS and the Committee on Legal Services (Committee), the legislative branch oversees executive branch agency rule-making. In this example of the checks and balances between the legislative branch and the executive branch, the General Assembly reviews rules adopted by state agencies to find any instances where an agency has adopted Rule Booksrules that do not comply with the agency’s statutory authority or where rules conflict with state or federal law. When problems are found, the General Assembly takes steps to “check” that action by eliminating the flawed rule.

    The State Administrative Procedure Act (APA) requires each state agency to submit every rule that it adopts or revises to the OLLS for review under the supervision of the Committee. The standard of review is based on language in section 24-4-103 (8) (a), C.R.S., which states that “No rule shall be issued except within the power delegated to the agency and as authorized by law.” This means that when the General Assembly enacts statutes that delegate to a state agency the power to adopt rules, those rules must conform with the power delegated to that agency, must be authorized by the law, and must not conflict with the law. The vast majority of rules meet these requirements and the Committee and the General Assembly do not have to take action regarding them. But sometimes a rule fails to meet one of these requirements. At that point, the Committee and the General Assembly turn to the process laid out in the APA.

    The APA establishes a year-round cycle for reviewing rules. Under section 24-4-103 (8), C.R.S., rules adopted during that one-year period (from November 1 through October 31) automatically expire on May 15 following their adoption, unless the General Assembly extends the rules by passing a bill. The bill referred to in the statute is the annual Rule Review Bill, sponsored by the Committee. The Rule Review Bill postpones the automatic expiration of these agency rules, except for those rules listed in the bill that the Committee has determined should expire because the rules 1) lack statutory authority, 2) exceed statutory authority, or 3) conflict with a state or federal statute or constitutional provision.

    If the OLLS staff finds one of those three grounds for challenging a rule, the staff contacts the agency to Man reading Rulesdiscuss the issues with the rule. If the agency disagrees with the analysis or is unable to fix the problems identified with the rule, the staff schedules the rule issue for a hearing before the Committee. The OLLS staff writes a memo for the Committee explaining the staff’s analysis, and the agency may also submit a memo to the Committee. At the hearing, the Committee hears from the OLLS staff and from the agency and takes public testimony. At the conclusion of the rule review hearing, the Committee votes as to whether the rule should or should not be extended in the Rule Review Bill. The Committee bases its decision on the legal question of the authority of the rule — not on whether the rule in question is a good or bad policy for the state. After the Rule Review Bill passes, the OLLS staff transmits the bill to the Secretary of State’s office, which removes any expired rules from the Colorado Code of Regulations.

    Sometimes the underlying problem with a rule is that the statute should be clarified, and the agency may seek legislation to give it specific statutory authority for the rule. Under its policies, the Committee will not introduce corrective legislation to fix rule issues. The executive branch agency must find a legislator to sponsor a bill to change the statutes and authorize the agency to adopt the rule.

    Another legislative oversight function that the OLLS carries out relates to tracking legislation that requires or authorizes executive branch agencies to adopt rules. In 2013, the General Assembly enacted Senate BillRules Apply 13-030 to help answer the perennial question of bill sponsors: “Did the agency ever adopt rules to implement my bill?” Section 24-4-103 (8) (e), C.R.S., requires the OLLS to identify these rules and notify sponsors and cosponsors when the agency adopts the rules required or authorized by the new legislation. This requirement applies to legislation enacted during the 2013 legislative session and sessions thereafter. An earlier article (SB 13-030 in Action: Improved Communication between Rule-making Agencies and Legislators) explained how the OLLS will notify legislators.

    But what if you want to know whether an agency ever adopted rules to implement a bill you heard in a committee of reference? Or what if you no longer have the e-mail notice sent to you? Any one can look up rule implementation information at any time on the OLLS’s homepage under a new tab entitled Rule Review. The OLLS is maintaining a chart, organized by committees of reference, that shows each bill for which rules are adopted. The chart also provides a link to the rule information that each agency files during the rule adoption process. Click here for a link to the current chart.

    Section 24-4-103 (8) (e), C.R.S., also requires the OLLS to notify the current members of the applicable committees of reference when these rules are adopted. Beginning January 2015, and each January thereafter, the OLLS will send an annual email notice to the committees of reference with the chart of rules that the OLLS has compiled.