Colorado LegiSource

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

Author: olls

  • Election Year Precautions – Part 2

    by Bob Lackner

    In our previous article on election year precautions, we looked at whether legislators may hold another public office. In this article, we’ll look at the use of state resources.

    Use of House and Senate legislative staff, equipment, and resources

    Perennial questions arise concerning the possible use of state equipment or state buildings and the use of staff time for political purposes, namely a member’s reelection efforts and related advocacy activities on behalf of the member’s political party or other candidates for partisan office. These questions naturally tend to be more pressing in election years when legislators are often pulled between their official legislative duties and critical political tasks necessary to ensure reelection for themselves or other candidates of their political party.

    There is not much law that provides clarity on most questions in this area. The most concrete guidance is a statute that prohibits, among other things, a state agency, including the General Assembly, from making any contribution in campaigns involving the nomination, retention, or election of any person to public office.[1] A violation of this section subjects the offender to sanctions including an order directing the person making the contribution to reimburse the fund of the state from which the moneys were diverted for the amount of the contribution.[2] Over the years, the Office of Legislative Legal Services (Office) has recommended that the wisest default position for legislators, partisan staff, and House and Senate employees is to avoid, to the greatest extent practicable, the use of Capitol office space, public resources, or staff time for political campaign activity of a partisan nature. Following this advice may avoid an ethics complaint being filed. We have come to publicize this advice in terms of the “Three Nos.” Specifically:

    • No Capitol space: With one limited exception as noted below, rooms in the Capitol building, including private offices, should not be used to carry out political campaign activity.
    • No equipment: State-funded equipment and other related resources for the use of members of the General Assembly and their staff in fulfilling their official duties, including desktop and laptop computers, tablets, telephones, fax machines, copier machines, paper products, office supplies, and internet connectivity, should not be used to carry out political campaign activity.
    • No staff: Staff for elected officials should not be using their time for which they are paid to assist the member in carrying out the member’s official legislative duties to carry out political campaign activity. Staff is permitted, however, to engage in political campaign activity in their free time while “off the clock”, outside the Capitol building, and without the use of state resources.

    With respect to the Capitol building, there has been an accepted practice over many years of legislators using photographs of the legislator from inside the building for use in campaign materials. A popular setting for the use of such a photograph is from the House or Senate floor. In more recent years, the photograph is often displayed on the candidate’s website or for use in social media. As long as the photograph does not include the state seal or the seal of either the State Senate or the State House of Representatives, this practice has been permitted as a narrow exception to the general rule against political activity within the state Capitol.

    Some of the other perennial questions in this area include:

    • May House or Senate legislative staff, equipment, or resources be used during regular business hours to arrange “town hall” meetings on behalf of a member of the General Assembly? Legislative staff, equipment, or resources may be used during regular business hours to arrange “town hall” meeting on behalf of a member of the General Assembly as long as the meeting relates exclusively to the legislator’s official duties—that is, legislation, a discussion of state issues, policymaking, etc.,—and the legislator or staff do not engage in political activity relating to the election of a candidate. Similarly, staff may use state equipment during business hours to communicate with constituents on legislative matters on behalf of members as long as the communications are not for campaign or political purposes.
    • May political literature be handed out at a town hall meeting held in connection with a member’s official duties? This practice is not advisable. If the town hall meeting is held for the purpose of communicating with the public about legislative business, it should not be coupled with any activity, such as handing out campaign literature, that suggests a political purpose.
    • May House or Senate legislative staff maintain a legislator’s website that is predominantly devoted to legislative activities but that also contains some content that could be characterized as political or campaign-related? Nevertheless, the member and staff should remain conscious of the fact that the line between what is legislative and what is political in the context of written or electronic communications oftentimes becomes blurred. Accordingly, when staff uses state time or resources to generate materials that appear, or might be construed, to be created or used for a campaign or political activity or purpose, the likelihood of a complaint is greater.

    May House or Senate partisan staff undertake political activity on the weekend or at night when the staff person may also be engaged in work on official legislative business? Yes. The boundary between time that may be spent on official legislative duties and time spent on political activity is essentially governed by the staff person’s official legislative work schedule. The staff person needs to refrain from undertaking political activity while on the legislative clock.

     

     

    [1] § 1-45-117 (1)(a)(I), C.R.S.

    [2] § 1-45-117 (4)(a), C.R.S.

  • Election Year Precautions – Part 1

    by Bob Lackner

    2022 is an election year, which means that most of the members of the General Assembly will be running for reelection (or sometimes another office). Running for office can become an all-consuming endeavor, which can cause legislators who are also candidates to forget or lose sight of some of the legal restrictions on legislators who may also be candidates. This article, the first in a two-part series, discusses whether legislators may hold another public office. The second part of this series will cover the use of state resources.

    Holding dual offices

    One issue members may confront during their tenure in the General Assembly is the ability to hold another public office at the same time they are serving in the General Assembly. Perhaps they were serving in another office when elected to the General Assembly and would like to continue in that role. Or, maybe an opportunity arises for a sitting member of the General Assembly to seek another state or local office.

    The Colorado Constitution provides that “[n]o senator or representative shall, while serving as such, be appointed to any civil office under this state; and no member of congress, or other person holding any office (except of attorney-at law, notary public, or in the militia) under the United States or this state, shall be a member of either house during his continuance in office.”[1] Colorado court decisions suggest the use of the following general guidelines in applying this constitutional section[2]:

    • During their term of office, no member of the General Assembly can be appointed to a civil office in state government.
    • Because the Colorado courts have not had occasion to specifically address the prohibition against holding other state elective office and because of separation of powers concerns and possible conflicts of interest, perceived or real, it is less clear whether a member of the General Assembly could simultaneously hold another elected office in state government.
    • It is clear that a member of the General Assembly may hold an elected or appointed office in a local government.
    • Legislators may also be employed by the state or a local government. An “appointment,” as contrasted with an “appointment to a civil office,” exists as long as the person is not required to exercise independent decision-making authority and is not entrusted with the sovereign power of the state.

    Although these guidelines indicate that a legislator may serve in certain other civil offices, most electors decide not to serve in other public offices during their tenure in the General Assembly because of the time demands of being a legislator, concerns about the possible appearance of a conflict of interest, and the need to abstain from voting when a conflict exists.[3] The potential exists for many potential conflicts of interest between votes and positions taken as a member of the General Assembly while simultaneously holding another public office. In evaluating whether to hold another public office while serving as a member of the General Assembly, it may be of benefit to consider the degree to which the state affects the other government’s activities and the potential for conflicts between the members’ roles. For example, there may be a higher likelihood of conflict between large cities and counties than for other types of governmental entities such as small (statutory) towns or special districts.

    On a related note, section 1-4-501 (2), C.R.S., prohibits any person from being an eligible candidate for more than one office at one time.[4] Therefore, assuming a member of the General Assembly is also permitted to hold an elected office in a local government, the legislator cannot run for a legislative seat and that other office in the same election.[5]

     

     

    [1] Colo. Const. Art. V,  § 8.

    [2]Carpenter v. People ex. El. Tilford, 8 Colo. 116, 5 P. 828 (1884) and Hudson v. Annear, 101 Colo. 551, 75 P. 2d 587 (1938). A civil office is an office in which its holder is required to take an official oath or to give bond. Hudson, 101 Colo. at 555-556, 75 P.2d at 588-589.

    [3] See Colo. Const. Art. V § 43 and § 24-18-107, C.R.S., and House Rule No. 21 (c) and Senate Rule No. 17 (c).

    [4] § 1-4-501 (2), C.R.S.

    [5] The material in this section of the article is taken from a memorandum from the Office of Legislative Legal Services to Interested Persons dated November 29, 2021, entitled “Legislators Holding Other Offices”.

  • Statutory Revision Committee Continues Scrubbing the Statutes

    by Jessica Wigent

    Since its (re)creation in 2016, the Statutory Revision Committee (SRC), codified in part 9 of article 3 of title 2, C.R.S., has introduced more than 100 bills that have repealed and refreshed Colorado’s laws, clearing conflicts, glitches, and outdated provisions from hundreds of pages of statutory text and bringing the Colorado Revised Statutes into the 21st century.

    During hearings held during the 2021 legislative session and, most recently, on February 11, 2022, committee members heard memo presentations and testimony on issues including:

    • Repealing the capitol dome restoration fund, as that capitol dome project, which you can climb up into, is complete, and the statute is now obsolete;
    • Repealing a tax credit that only applied in 1999 – when the first (we’re now on the fourth!) Matrix movie was in theaters;
    • Repealing two advisory committees whose work was completed or taken over by another agency; and
    • Making technical updates to the marijuana codes.

    Membership

    The SRC consists of eight legislators (two appointed by the majority and minority leadership in each house) and two nonlegislators who are nonvoting attorney members appointed by the Committee on Legal Services. Per the statute that created the SRC, the chair and vice-chair elected in the 2021 legislative session, Representative Valdez and Senator Kirkmeyer, have switched positions. The membership now includes:

    Senator Barbara Kirkmeyer, Chair

    Senator Donald Valdez, Vice-chair

    Representative Mike Lynch

    Senate Majority Leader Dominick Moreno

    Representative Andres Pico

    Representative Steven Woodrow

    Senator Rob Woodward

    Senator Rachel Zenzinger

    Patricia Ho, attorney, nonlegislative member

    Andrew Toft, attorney, nonlegislative member

    Executive branch agencies, the judicial branch, interested Colorado residents, legislators, and nonpartisan staff from a number of agencies in and around the Capitol have brought issues for the SRC to consider. Initially, staff considers these requests and whether they fall within the charge of the SRC and then prepares a memo detailing the requested change, often with a bill draft attached for the SRC to consider.

    In addition, the statutory charge of the SRC includes examining “current judicial decisions.” To that end, the SRC has asked staff to review current statutes that are found by an appellate court to be unconstitutional. Staff routinely prepares memos for the SRC to bring attention to these provisions.

    An affirmative vote from at least five of the legislative SRC members is needed to introduce proposed legislation, and the SRC regularly considers more draft bills than it approves. All proposed bill drafts, including those not approved for introduction, are publicly available on the SRC’s website and in the committee’s annual report submitted to the General Assembly. You may also email staff for more information.

    The SRC plans to meet again on Friday, March 11, at 7:30 a.m. in House Committee Room 112. Join the SRC mailing list to be notified when the agenda, memos, and draft bills are available for that meeting.

    Know of any antiquated, redundant, or contradictory laws? Please contact the SRC staff via email:
    statutoryrevision.ga@coleg.gov All meetings are public, and everyone is encouraged to attend or to propose issues to the SRC staff.

  • CCUSL Approves Several Uniform Acts for Introduction

    by Patti Dahlberg and Yelana Love

    The Colorado Commission on Uniform State Laws (CCUSL) is Colorado’s delegation to the national Uniform Law Commission (ULC). The ULC is comprised of more than 300 commissioners appointed by all 50 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico. The CCUSL meets each year to identify a preliminary legislative agenda of approved uniform acts for potential introduction in Colorado. The CCUSL then typically hosts two or three public meetings at the state capitol to discuss its proposed legislation, listen to interested parties, and finalize its legislative agenda. The CCUSL sends advance notice of the meetings held in the capitol to interested parties, posts meeting information on the General Assembly and the CCUSL websites, encourages public testimony at the meetings, and broadcasts the meetings over the internet.

    The CCUSL held meetings to discuss its legislative agenda on August 25, 2021, December 3, 2021, and January 14, 2022, and approved seven uniform acts for introduction as commission bills during the 2022 legislative session. The links to the acts provided below are to the ULC version of the uniform acts (unless identified with a bill number), and uniform acts are routinely amended prior to introduction. Links to the Colorado versions of uniform acts will be available on the CCUSL Additional Information page as the bills are introduced. Four of the uniform acts approved for introduction were ULC acts newly approved at the 2021 annual meeting and the other three acts were ULC-approved acts from prior years. The seven uniform acts approved for introduction in 2022 in Colorado are:

    Amendments to the Uniform Probate Code (2019). Colorado first enacted the Uniform Probate Code (UPC) in 1973 and then enacted various updates and additions throughout the years as the opportunity arose, most recently the 2008 UPC Amendments. The 2019 Amendments to the UPC continue to modernize the law by providing a more consistent formula for determining intestate shares within blended families and removing outdated terminology.

    Uniform Cohabitants’ Economic Remedies Act. States have no consistent approach for addressing whether and how cohabitants can enforce contract and equitable claims against each other when the relationship ends. This act does not create any special status for cohabitants. In most instances, it defers to other state law governing contracts and claims between individuals. The act enables cohabitants to exercise the usual rights of individual citizens of a state to contract and to maintain contract and equitable claims against others in appropriate circumstances. It affirms the capacity of each cohabitant to contract with the other and to maintain claims with respect to “contributions to the relationship” without regard to any intimate relationship that exists between them and without  requiring them to address issues that would not be faced by litigants of similar claims.

    Uniform College Athlete Name, Image, or Likeness Act. Until recently, college student athletes were not allowed to receive compensation for the use of their name, image, or likeness (NIL) while still maintaining eligibility. This act allows college athletes to earn compensation for the use of their NIL while also providing protections to educational institutions, athletic associations, and conferences. It provides a uniform framework for states to allow college athletes to earn compensation for the use of their NIL while maintaining a level playing field across state lines.

    Uniform Prevention of and Remedies for Human Trafficking Act (2013). This act provides three components to reduce human trafficking: comprehensive criminal penalties; protections for human-trafficking victims; and public awareness and prevention methods. Uniformity in this area may improve coordination and collaboration across state lines in the investigation and prosecution of human trafficking and would allow national and regional victim-advocates organizations to better advise and assist victims across the country.

    Uniform Restrictive Employment Agreement Act. This act regulates restrictive employment agreements, which are agreements that prohibit or limit an employee or other worker from working after the work relationship ends. The act addresses the enforceability of these agreements, notice and other procedural requirements, choice of law issues, and remedies. The act does not say anything about an agreement monitoring what a worker can or cannot do while employed.

    Uniform Unregulated Child Custody Transfer Act. In some cases, parents find that, after the birth or adoption of their child, they experience considerable difficulty or even inability in caring for or effectively managing the child’s behavior, which sometimes leads to families transferring custody of a child to another person without the involvement of the courts and the child welfare system. Without specific regulations directed at these types of unregulated transfers, a transfer of custody might go unnoticed within the child welfare system. This act addresses the transfer of children in these types of cases.

    Uniform Voidable Transactions Act (2014).  The amendments in the Uniform Voidable Transactions Act (UVTA) strengthen creditor protection by providing remedies for certain transactions by a debtor that are arguably unfair to the debtor’s creditors. The 2014 amendments to the UVTA address a small number of narrowly defined issues and are not a comprehensive revision of the act. Colorado adopted the original act, formerly known as the Uniform Fraudulent Transfer Act, in 1991.

    For more information concerning the ULC and CCUSL, check out these articles:

  • Bone-Dry Laws: The Sobering Truth of Colorado’s Prohibition Era

    by Alana Rosen and Nate Carr

    If you have ever tasted a Gin Rickey, a Sidecar, or an Old Fashioned, then you have sampled a popular cocktail created during the Prohibition Era. The Prohibition Era, which lasted as a federal ban from January 17, 1920, until December 5, 1933, is remembered for the underworld nightlife of jazz clubs, flappers, and bootleggers and is now, over 100 years later, often romanticized.[1] Recently, the glamorization of the Prohibition Era has even inspired a resurgence of speakeasies, Roaring ’20s costume parties, and the modern-day film interpretation The Great Gatsby with heartthrob Leonardo DiCaprio. Despite the fascination with this era, Prohibition was propelled by more sober reasoning.

    The Temperance Movement was a driving political force to pass prohibition legislation. In Colorado and across the country, the Temperance Movement included a number of diverse organizations, such as the Women’s Christian Temperance Union, religious leaders, itinerant preachers, suffragists, and progressive-minded community members. Temperance reformers believed alcohol was the cause of social problems, and with its eradication, “America would be fully cleansed of sin”.[2] In Colorado, women gained the right to vote in statewide elections in 1893, and many women advocated to ban alcohol because of the link between drinking and domestic violence at home. As early as 1907, temperance reformers in Colorado celebrated the passage of anti-saloon legislation.

    In 1907, the Colorado General Assembly passed the first bone-dry law, an act allowing political territories to vote to outlaw the sale of alcohol within the territory.[3] By 1910, 20 out of 25 counties that voted on the question of whether to become anti-saloon territories, chose to become anti-saloon territories. Denver was among the five holdouts. Despite fervent efforts, temperance reformers were unsuccessful in convincing the electorate to add a prohibition amendment to the Colorado Constitution. But that all changed in 1914.

    In 1914, Colorado voters passed a constitutional amendment limiting alcohol in the state except for medicinal or sacramental reasons by a vote of 129,589 to 118,017.[4] The constitutional amendment, Article XXII, took effect on January 1, 1916. Under Article XXII, no person, association, or corporation could manufacture for sale or gift, or keep for sale or gift, any intoxicating liquor, except in limited situations.[5]

    The City and County of Denver, however, disagreed with Article XXII and continued to issue licenses to businesses to sell intoxicating liquors under its home-rule authority found in Article XX of the Colorado constitution. This disagreement resulted in the Colorado Supreme Court case, People ex rel. Carlson v. City Council of Denver.[6] The Court held that Denver was not exempt from the Article XXII, and the city was required to cancel issued liquor licenses.

    In 1915, the Colorado General Assembly went a step further and passed Senate Bill 80 (S.B. 80), which enacted laws against the possession, distribution, and advertising of intoxicating liquors. S.B. 80 also outlined law enforcement’s duty to search, seize, and destroy intoxicating liquors. If an officer had personal knowledge or reasonable information that intoxicating liquors were kept in any place, the officer could search a business with or without a warrant. The law, however, exempted private residences from these searches. It was reported that on the last night of legal alcohol, December 31, 1915, the New Year’s Eve passed quietly, more like a wake than a celebration to ring in a new year.

    Later, in 1917, the Colorado General Assembly passed House Bill 164 (H.B. 164), which further limited the importation of intoxicating liquors, reduced the amount of alcohol each household could possess, and created a permit system that made enforcement of the law more efficient.[7] Under H.B. 164, it was unlawful for any person to receive at any one time more than two quarts of intoxicating liquor other than wine or beer, except in circumstances when the intoxicating liquor was consumed for medicinal or sacramental purposes, six quarts of wine, or 24 quarts of beer.

    Finally, on November 5, 1918, the Colorado General Assembly adopted an all-encompassing prohibition on intoxicating liquors.[8] The new law strictly limited possession of intoxicating liquors to druggists and broadened the search and seizure powers of law enforcement, including the ability to seize any device used to carry liquor, including automobiles.

    Meanwhile, despite the goal to reduce public drunkenness, arrests for drunken disorderly conduct increased during this period. Local crime organizations brewed, transported, and distributed intoxicating liquors. Parents even made bootleg liquor at home to ensure their children would not be poisoned by bad liquor made by underground organizations, though improperly brewed homemade distillations could contain highly toxic methanol or traces of lead from the still. Ingesting such impurities could lead to abdominal pain, anemia, renal failure, hypertension, blindness, and death.

    Although Coloradans were imbibing intoxicating liquor behind closed doors, Colorado’s bone-dry laws did not repeal until December 1933. The repeal followed approval of the 21st Amendment to the United States Constitution, which repealed the 18th Amendment, the constitutional provision that prohibited the manufacture, sale, or transportation of intoxicating liquors. There was a final push by temperance reformers to maintain the bone-dry laws, but in 1933 Colorado voters passed Amendment Seven, finally repealing Prohibition in Colorado.

     

    [1] The 18th Amendment to the Constitution prohibited the “manufacture, sale, or transportation of intoxicating liquors…” The states ratified the 18th Amendment on January 16, 1919. On October 28, 1919, Congress passed the Volstead Act, which provided for the enforcement of the 18th Amendment. Prohibition ended on December 5, 1933, with the ratification of the 21st Amendment.

    [2] PBS, Roots of Prohibition, https://www.pbs.org/kenburns/prohibition/roots-of-prohibition/ (accessed November 2, 2021).

    [3] 1907 Colo. Sess. Laws 495.

    [4] Dick Kreck, High, Dry Times as Prohibition Era Sobered Denver, Denver Post (July 3, 2009).

    [5] Colo. Const. of 1915, art. XXII, § 1.

    [6] People ex rel. Carlson v. City Council of Denver, et al, 60 Colo. 370, 153 P. 690 (Colo. 1915).

    [7] 1917 Colo. Sess. Laws 280.

    [8] 1919 Colo. Sess. Laws 461.

     

  • The Office of Legislative Workplace Relations: Neutral, Nonpartisan, Confidential

    by Ben FitzSimons and Michael Pearsall

    In 2019, the Colorado General Assembly voted to create an office to provide human resources services within the Capitol. (§ 2-3-511, C.R.S.) This office was designed to serve anyone working, volunteering, testifying, or visiting the Capitol complex. This includes, but is not limited to, state legislators, legislative aides and interns, legislative branch staff (both partisan and nonpartisan), Capitol building staff, and some third parties including lobbyists, members of the media, and individuals testifying before legislative committees.

    The mission of the Office of Legislative Workplace Relations (OLWR) is to provide neutral, nonpartisan, and confidential support in conflict and complaint resolution within the work environment. The OLWR was developed after considerable research and feedback from experts, consultants, and an interim legislative committee.

    Located in Room 026, in the northwest quadrant of the Capitol basement, the OLWR is currently led by the office director, Ben FitzSimons, with the assistance of legislative support specialist, Michael Pearsall. Both Ben and Michael are committed to the office’s mission of providing professional conflict resolution and support in a neutral, nonpartisan, and confidential manner.

    The OLWR provides a number of specialized services within the Colorado General Assembly. These include:

    • Confidential consultation, facilitation, and resolution planning for workplace issues and concerns. This includes working with legislators and supervisors to help resolve concerns or issues with their staff members and working with staff members (including aides, interns, partisan and nonpartisan staff, and volunteers) to help resolve questions or concerns about the work environment or their supervisors.
    • Confidential consultation regarding corrective/disciplinary action and planning. In addition, the OLWR can review or draft documents related to performance management and resolution of personnel issues.
    • Harassment complaint intake, investigation, and resolution. Any person who is covered by the Colorado General Assembly’s Workplace Harassment or Workplace Expectations policies may speak confidentially with the OLWR regarding questions or concerns about behaviors that may fall under the policy. The OLWR will help to assess concerns to determine which policy they may fall under, discuss what options may be available for resolving the concerns, talk through what the various options may look like, and manage or coordinate any resolution processes pursuant to the policies under which the concerns fall.
    • Workplace training, including:
      • Annual workplace harassment and expectations training for all legislators, staff, and third parties;
      • Manager/Supervisor training – this includes topics like coaching, providing effective feedback, and effective meeting management; and
      • Other professional development training – this includes topics like effective training skills, introduction to project management, leadership, and workplace ethics.
    • Other employee relations services, including:
      • Employee engagement – working with management to brainstorm and implement programs and practices designed to ensure that staff feel connected and committed to their roles and agencies;
      • Succession planning – working with management to brainstorm and implement plans for providing their staff with the necessary skills, knowledge, and experience to fill high-level internal positions as the individuals in those roles retire or move on;
      • Personnel policy reviews and recommendations – this includes reviewing for best practices, legal compliance, and consistency; and
      • Exit interviews for departing staff – this includes collecting feedback confidentially and reporting data back to agencies without providing the individual identities of those interviewed.
    • Organizational development services, including:
      • Provision or coordination of organizational development services to teams or agencies;
      • Team or individual coaching;
      • Customized team-building programs or exercises; and
      • Team-based leadership development training and projects.
    • General Assembly Coordinator for Americans with Disabilities Act accommodation. The OLWR:
      • Serves as the initial point of contact for members of the public seeking accommodation in order to participate in or observe the legislative process; and
      • Oversees the formal and informal processes for grievances filed under the policy.

    Please feel welcome to contact the OLWR with any questions or concerns regarding any of the processes listed above. Both Ben and Michael would be more than happy to assist in any way possible.

    You may contact the OLWR by email at olwr.ga@coleg.gov or call (303) 866-3393. You may also visit the office in person in Room 026 of the basement level of the Capitol building.

  • A Holiday Message

    Wishing you a safe and happy holiday season!

     

  • Santa Claus, Safety Clause, or Petition Clause?

    by Julie Pelegrin

    ‘Tis the season. Children are working on their letters to Santa; legislators are working on their bills, diligently meeting with drafters, lobbyists, and stakeholders, trying to craft effective policy to address the state’s issues. Once the policy is worked out, a legislator may figure, “That’s it; all done drafting. Finally I can get that holiday baking done!” But wait – the bill drafter will be pestering legislators with one last question: “Do you want a safety clause or an act-subject-to-petition clause on your bill?”

    Here’s a little background information to use in making this important decision.

    When first approved in 1876, the Colorado Constitution placed the legislative power of the state solely in the hands of the elected members of the Colorado House and Senate. And that’s where it stayed for almost 35 years. But by the early twentieth century, many people had become disillusioned with government; they no longer trusted elected officials to act solely in the public interest. The progressive movement arose, and the people started demanding a role for themselves in making the laws. They wanted to put the “demo” back in democracy. At the general election held in 1910, Colorado voters adopted an amendment to the Colorado Constitution—placed on the ballot by the General Assembly—that put the power to make laws directly in the hands of the people through the twin powers of initiative and referendum.

    Using the power of initiative, any individual may propose a change to the constitution or to statute by collecting and submitting to the Secretary of State a sufficient number of signatures on a petition. To place an initiative on the 2022 ballot, an individual must collect at least 124,632 signatures (5% of the total number of votes cast for the office of Secretary of State in the previous general election). The initiative is a positive power, empowering the people to create, change, or repeal law.

    In contrast, the referendum power is a negative power, empowering the people only to rescind all or part of an act passed by the General Assembly. By collecting the same number of signatures required for an initiative and submitting those signatures to the Secretary of State, an individual may place all or part of an act on the ballot for the electorate’s approval or disapproval. But the time for rescinding an act is limited; the signatures must be filed with the Secretary of State within 90 days after the end of the legislative session in which the General Assembly passes the act.

    There are two exceptions to the power of referendum. The people cannot refer an act to the ballot if: 1) The act is “necessary for the immediate preservation of the public peace, health, or safety”; or 2) the act is an appropriation to support a state agency or institution. Deciding whether an act is an appropriation is relatively straightforward. If all it does is appropriate money, and it does not enact any actual changes to the law, it is likely an appropriation and therefore not subject to the referendum power. But who decides whether an act is necessary for the immediate preservation of the public peace, health, or safety?

    The General Assembly does by including what’s called a “safety clause” at the end of the act: “The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety.”

    The Colorado courts have held that the General Assembly alone is authorized to determine whether that declaration is appropriately included in an act. While legislators may certainly debate whether to use a safety clause in a bill, once the General Assembly decides that question, the decision stands; the court will not overturn it. In Van Kleeck v. Ramer in 1916, the Colorado Supreme Court held that, in deciding whether an act is necessary for the immediate preservation of the public peace, health, or safety, the General Assembly “exercises a constitutional power exclusively vested in it, and hence, such declaration is conclusive upon the courts in so far as it abridges the right to invoke the referendum.”

    Deciding whether to include a safety clause in a bill is often a matter of timing. If an act is subject to the power of referendum, because it does not include a safety clause, that act cannot take effect for at least 90 days after the end of the legislative session in which it is passed. As previously explained, a citizen has 90 days after the session ends to collect enough signatures to place the act on the ballot. During that time, rather than risk implementing a law that the voters may reverse, the act is held in limbo; it cannot take effect until the time for collecting signatures expires. And if someone does collect enough signatures to put the act on the ballot, it cannot take effect until the Governor declares the vote after the next general election. General elections occur only in even-numbered years, so if an act passes in a legislative session held in an odd-numbered year and is referred to the ballot by petition, the act won’t take effect—if it even takes effect—until roughly 18 months after the end of the legislative session.

    The last act referred to the ballot was Senate Bill 19-042, which addressed an agreement among the states to elect the President of the United States by national popular vote. The General Assembly passed the act February 22, 2019, the Governor signed it March 15, 2019, but, because it was referred to the ballot, it did not take effect until December 31, 2020.

    In contrast, an act that passes with a safety clause may take effect as soon as the Governor either signs it or allows it to become law without signature.

    So if the bill sponsor thinks the bill makes a necessary policy change, and it’s important that the change take effect sooner than 90 days after the end of the legislative session, the bill will need a safety clause.

  • Statutory Powers to Address Epidemics

    by Jery Payne

    It’s a little known fact, but being a smart audience, you may have heard that an epidemic engulfed the nation and the world, which makes the epidemic a pandemic. It’s commonly known as “COVID-19,” which is a shortening of the phrase “Corona Virus Disease of 2019.”

    In 2020, the governor of Colorado declared an emergency and invoked emergency powers to address the spread of the virus. The state required people to stay at home as much as possible, mandated people wear masks, and implemented many other mandates. Local health agencies also issued mandates. This led many people to wonder, “Can they do that?” And like any good lawyer, I’m going to say, “It depends.”

    The Department of Public Health and Environment and local health agencies have many powers to control epidemics. First, the department has many statutory powers to protect public health, including the power to:

    • Close theaters, schools, and other public places, and to forbid gatherings of people;
    • Establish and approve laboratories;
    • Conduct laboratory investigations and examinations;
    • Establish and enforce standards for diagnostic tests by laboratories;
    • Purchase and distribute to licensed physicians, with or without charge, vaccines and other therapeutic products as necessary for the protection of public health;
    • Establish and enforce sanitary standards for the operation of just about any place used for public gatherings; and
    • Determine if there is a shortage of drugs critical to the public safety of the people of Colorado and declare an emergency to prevent the practice of unfair drug pricing.

    In addition, the department has several statutory powers specific to addressing epidemics, including the power to:

    • Investigate and control the causes of epidemic and communicable diseases affecting public health;
    • Require any person who has epidemic information to report the information to the State Board of Health, without patient consent, of occurrences of the epidemic or disease;
    • Access patient medical, coroner, and laboratory records relating to epidemic and communicable diseases determined to be dangerous to public health;
    • Investigate and monitor the spread of epidemic;
    • Establish and enforce isolation and quarantine, and, for this purpose only, exercise physical control over property and the people necessary for the protection of public health; and
    • When a specific place is a continuing source of an epidemic, make it stop, and if necessary, eliminate it.

    Together, these state statutes give the department broad powers to address epidemics.

    Local public health agencies, including county, municipal, and district agencies, also have statutory powers, granted by state law, to control epidemics within their jurisdictions. Local public health agencies have the power to:

    • Carry out the public health laws and rules of the state board;
    • Administer and enforce the orders, rules, and standards of state health agencies;
    • Investigate and control the causes of epidemic or communicable diseases;
    • Establish and enforce isolation and quarantine, and, for this purpose only, exercise the physical control over property and the people necessary for the protection of public health;
    • Close schools and public places and prohibit gatherings of people when necessary to protect public health;
    • When a specific place is a continuing source of an epidemic, make it stop, and if necessary, eliminate it;
    • Establish and approve laboratories;
    • Conduct laboratory investigations and examinations;
    • Purchase and distribute to licensed physicians, with or without charge, approved therapeutic products the agency determines is necessary to protect public health;
    • Initiate and carry out health programs consistent with state law; and
    • Make necessary sanitation and health investigations and inspections for matters affecting public health.

    Local boards of health are the policy-setting bodies for local health agencies. They develop policies and procedures to address epidemics and to administer and enforce the powers granted to local health agencies. This includes adopting rules and orders. Specifically, local boards of health have the statutory power to:

    • Develop and promote the public policies needed to secure the conditions necessary for a healthy community;
    • Determine general policies to be followed by the public health director;
    • Issue orders and adopt rules necessary for the proper exercise of the powers and duties vested in the local public health agency;
    • Accept and, through the public health director, use, disburse, and administer all aid for purposes that are within the functions of the local agency; and
    • To make agreements that may be required to receive money or other assistance.

    A person who is negatively affected by a decision, which can be a rule or order of a state or local health board, department, or agency, may seek judicial review. The person must bring the case within 90 days after the decision is publicly announced. The court may affirm the decision or may reverse or modify it if the rights of the person have been prejudiced because the decision is:

    • Contrary to constitutional rights or privileges;
    • In excess of the statutory authority or jurisdiction of a state or local health board or agency;
    • Affected by any error of law;
    • Made or promulgated upon unlawful procedure;
    • Unsupported by substantial evidence in view of the entire record; or
    • Arbitrary or capricious.

    Except in certain types of cases, judicial review of a board decision is conducted by the court without a jury. Even when statutory authority exists, a decision that violates the Colorado Constitution or the United States Constitution will be struck down if challenged. If a particular mandate is challenged, the court will review the record to determine whether to uphold or overturn the mandate based on whether the mandate is a reasonable use of the authority to protect public health.

    Although my guess is that not many people have flipped through these statute pages for a mighty long spell, you can bet that they have certainly been flipped through a lot lately. These statutes are useful guides as we wend our way through these weird times.

  • Happy Thanksgiving!

    Happy Thanksgiving from the Office of Legislative Legal Services

    A view of the capitol dome through orange leaves