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HomeMy WebLinkAboutAgenda - Full - Legislative Review Committee - 04/08/1994 - Regular Meeting0 0 oil dC Room 12.00 .m. 1.Proposed Rocky Mountain National Park Wilderness Bill 2.Finance Issues SB 69 -definition of real property. 3.Risk Management Is sues SB 199 -Worker’s Compensation Compromise Bill 4.Natural Resources Issues Federal,Senate Bill 1270 -Poudre River National Water Heritage Area 5.Bill Update 6.Motor Fuel Tax Proposal 7.Ballot Initiatives Governmental Business Election Reform Worker’s Choice of Care Water III &IV Discussion of LRC/City Actions 8.Other Business THE LEGISLATIVE REVIEW COMMIflEE MEETING WILL BE HELD IN THE COUNCIL INFORMATION CHAMBERS.MEETINGS OF THE LEGISLATIVE REVIEW COMMIflEE WILL BE CABLECAST UVE ON CHANNEL 27 FROM 12:00 -1:30 P.M.AND REPLAYED ON FRIDAY AT 8:00 P.M. 0 0 AdmC trative Services fE City of Fort Collins MEMORANDUM DATE:April 5,1994 TO:Representatives Reeves and Strom PROM:Peter K.Dallow,Dir.of Administrative Services RE:SB—69 Amendment 1 and Local Growth We’ve been following this bill for some time because it has significant impact on the City of Fort Collins and how we calculate the City’s revenue base and spending limit.The bill as it now stands includes the State Property Tax Administrator’s interpretation of how “local growth”should be calculated under Amendment 1.This interpretation EXCLUDES publicly owned property from the base.A rough estimate of the impact to Fort Collins is that exclusion of public property would mean a local growth component of about 2.8%.If this interpretation holds,then the base may grow by about 6.5%from 1992 to 1993.If the calculation INCLUDES public property in the valuation base,the City’s allowable growth will be about 4.3%.This means that about $351,000 of the money collected in 1993 would have to be refunded or the City would need to obtain voter permission to retain monies through a ballot measure in November. I ask that you support SB-69 in its present form and oppose any amendments that would reverse the State Property Tax Administrator’s interpretation of local growth.The City is not advocating an interpretation that would be seen as an “end around” Amendment 1,but since publicly owned property is excluded for purposes of taxation,it is unfair to include it in the growth limit. If you have any questions,please call Alan Krcmarik,Financial Officer,at #221—6788. 300 LaPorte Avenue •P.O.Box 580 •Fort Collins,CO 80522-0580 •(303)221-6790 0 Mayor _____________________________________________ sent to:Senators Bradley -Bingaman Akaka City of Fbrt Collins Shelby Welistone Murkowski Hatfield March 18,1994 Domenici Bennett Craig Specter U.S.Senator Craig,m Campbell Subcommittee on Public Lands,National Parks and Forests Bumpersthankyou to Senator Brown Washington,D.C.20510 for sponsoring this legislation. Dear Senator Craig: I am writing to encourage your support for Senate Bill 1270 to establish the Cache La Poudre River National Water Heritage Area in the State of Colorado. Since 1987,the City of Fort Coffins has worked in close partnership with federal agencies and many other entities in northern Colorado to achieve appropriate federal recognition of the significant historical,recreational,cultural,and natural resources of the Cache La Poudre River Basin.The study of management alternatives and demonstration project specified in this bill are important steps toward establishing the Cache La Poudre National Water Heritage Area to commemorate the unique history of western water management and the critical role water continues to play in agriculture,the environment,and social development in the western United States. There is widespread support for the Cache La Poudre National Water Heritage Area in northern Colorado.In addition to the Fort Collins City Council,the following groups have endorsed the proposal:Fort Collins Natural Resources Advisory Board,Greeley City Council,Greeley Water and Sewer Board,Loveland City Council,Larimer County Board of Commissioners,Northern Colorado Water Conservancy District,Colorado Governor Roy Romer,Colorado State University,Fort Collins Area Chamber of Commerce,Poudre River Trust,Fort Collins Historical Society,and the Fort Collins Audubon Society. A key aspect of the National Water Heritage Area proposal is the opportunity it affords for creative partnerships.In Fort Collins,we are committed to local initiative to protect and enhance the natural,recreational,and historic resources of the Cache La Poudre River.As examples -- o We recently implemented a demonstration project to enhance wetland habitat values in reclaiming a gravel mine.The project is a joint effort by Western Mobile,Colorado State University,the U.S.D.I.National Biological Survey and the City of Fort Collins. 300 LaPorte Avenue •P.O.Box 580 •Fort Coffins,CO 80522-0580 •(303)221.6505 0 Senate Bifi 1270 Page 2 of 2 o We are developing plans for converting the site of our first water treatment plant along the river into a state park with interpretive,recreational,and wildlife habitat uses. This project is a cooperative effort between ourselves,Colorado State Parks, Colorado Division of Wildlife,Larimer County,and the U.S.D.A.Forest Service. o The citizens of Fort Coffins recently passed a sales tax for the acquisition and management of key natural areas in our city,including the Cache La Poudre River drainageway. While we are maldng good progress through our own local programs,we believe that the initiatives of Senate Bill 1270 will further strengthen cooperation throughout northern Colorado to protect and enhance the significant historic,natural,and cultural values of the Cache La Poudre River Basin.We believe the creation of the Cache La Poudre River National Water Heritage Area will benefit people throughout the nation. Thank you very much for your consideration.I urge your support of Senate Bill 1270. Mayor Citizens for Balanced iCnsportation Bond Members M~n Powers,PresidentSupportingtheimplementationofamulti-modal altnnat,x Ira nspcrt ation System b for the Denver Metropolitan Re3,on and Colondo Front Range Comnwnitier Bru~~’Sectv. Edward 7ic&Embury,ChairmanFoundedJune19,1989 Edie Bryan P.O.Box 8623 Denver,CO 80201-8623 (303)665-3551 (303)934—1415 fax (303)355—3446 March 8,1994 To:County Cotrriissioners,Local Elected Officials,and Administrative and Managerial Off icers of County and Local Governments of Colorado. From:Citizens for Balanced Transportation (CBT),a volunteer citizen transportation advocacy group. Re:The Motor Fuels Sales Tax Proposal Action requested:Consideration and endorsement of the Proposal and a recommendation to the Legislature and the Governor that it be entered as a late bill and referred to the ballot at the November general election. Ladies and Gentlemen: We are sending you a copy of CBT’s Motor Fuels Sales Tax Proposal as we indicated we would in our letter of Feb.17th.It has been delayed to complete revisions we have made In light of further discussion with a number of coirgnissioners of several counties,officials of RTD and several legislators.We think the consultation with the variety of interests whose insights we have incorporated,make it a stronger and better proposal.We hope that you will give the proposal full and favorable consideration. (Unfortunately,because we are a volunteer group of private citizens without funds to mail copies to each official,we respectfully request that each jurisdiction make the necessary copies for this purpose.)We ask that you endorse the proposal and call upon the legislature to refer it to the November general election ballot.We believe that this proposal will do the job it needs to and that it can succeed in November.Most important,the only job this proposal can’t do,and which it is specifically designed ~ to do,Is to impose the large statewide Increases in fuel excise tax,and vehicle registration and license fees that we forsee being prepared for the fall of ‘95.By comparison,this proposal is a very modest statewide tax. That effort is being prepared for the ‘95 ballot and will likely include the amount of maintainence money for rural areas this proposal contains, but little or no money for rural transit services and needs.(Transit needs are to be handled by the RTD vote in the Denver metro area this fall,which is the only area many believe they are needed,although the money RTD can raise will not be sufficient for its own needs —given the funds they will be compelled to allocate to meet the requirements of the federal mandates of the Americans with Disabilities Act,and considering that right now,RTD is paying staff to devise a refund program that will satisfy the directives of the court,inspired by the “Bruce Amendment”,that they refund over $3 million).What it will likely also contain are the big statewide revenue increases that will be needed in order to fund a huge,enormously expensive expansion of the Denver metro highway system.CBT’s proposal before you is an attempt to save the rest of the state from that burden by eliminating it altogether,in favor of investment in alternative transportation in the Denver metro area,funded largely with the local motor fuels sales tax revenues permitted by our proposal,and imposed and collected in the metro This is a better approach to transportation development and land use than the current trend which we anticipate the tax plan in ‘95 will seek to perpetuate.It will be of significantlY greater benefit tO all of Colorado than it would be to continue the current trend,from the stand point of the fiscal health and the public health of Colorado.We believe action must be taken in this year’s election to minimize future tax increases and to deal with existing problems. We remind you that the ‘93 year—end assessment of statewide road surface ~~ndltlon5 indicates that presently,63%are in poor condition.In ‘92 that figure was 47%,and in ‘91 it was 42%,up from 28%in ‘90 and 18%In ‘89. This IS an unhealthy trend which can only mean that the longer we put off the job,the more difficult and more expensive it will be.If we wait until November of ‘95 to address the problem as the governor and the legislature seem to want to —how big a job will it be?Will the conditions deteriorate only another 5%as in ‘91-’92,or another 16%as they did from ‘92 -‘93,to 79%in ‘94.or will it be even worse than that?Can we afford to gamble on weather?If we do wait until November of ‘95,and ff we win that election ;mt~:w~~~r~a~e~~year delay will add greatlY to the expense.and what will the consequences De The fact that Colorado remains only one of six states which invest no state funds in public tran5P0rtat~0~~t (In fact the state actually ~M RID for some of its income!)may be a less dramatic issue but should be no less compellin9~given the level of need by the elderly and the physically disabled for transportation services,and the extent to which Colorado has historically failed to meet the need.All across the state the elderly and disabled are ~~coming more isolated as rural population declines and the average age of the population Increases —while rural medical services continue to retreat to more populated areas,putting their critically needed services farther and farther out of reach.These groups deserve the better treatment this proposal will enable us to provide them,and it is in everyone’s own self_interest as well. similarly,we see transportation source impacts on air quality appearing In more and more cities and towns all across the state,not just in the Denver area.This proposal gives those local governments some state assistance, the ability to raise local funds to ~~equatelY address their air quality problem5~and the ability to put in place at the local level,the full range of incentives and disincentives needed to restore air quality to healthful condition in affected areas.consider this problem with sufficient foresight to realize that given the volume of newly emerging medical evidence on the effect on public health,we cannot let air quality deteriorate to the extent to which we have permitted our roads tO deteriorate.Some state funds are needed,but more impOrtant~local governments need the funding mechanisms this proposal provides,to raise their own local funds to build the alternative systems they will need to solve the full range of their air quality problems.To understand this need it must be ~~cognized that the worst pollutants are produced by the physical motion of vehicles —particulate matter from tire wear,pavement wear (of which there is now more than ever)and road dust,all of which lodge In the lungs and do significant permanent damage -and not from2 C emissions,such as carbon monoxide and ozone which,while not good for you, can be purged from the lungs.Thus,only diverting trips to alternative modes will solve the full spectrum of air pollution problems.Because the needs for Investment in alternative transportation systems varies so widely across the state,it is important to give local revenue powers to jurisdictions with air quality problems,otherwise rural residents will have to pay a large statewide tax that is apportioned back to the affected areas for this purpose.This proposal is carefully constructed to ensure that that doesn’t occur.The ability to price gasoline as a disincentive to drive in areas with poor air quality and steer trips to alternatives is an important tool in making transit work.Doing so will reduce reliance upon flighway funds in urban areas for transportation needs,and minimize future funding needs statewide.- Given the magnitude of all these various needs,the certainty that the expenses will grow the longer we wait before acting (as inevitably we must),and given that,factoring in inflation and the present value of money,fuel prices are as cheap as they have ever been,there is no better time to act.While many legislators we have talked to agree with the need to act,they are reluctant to do so given their apprehension and that of their colleagues,that the voters will reject this as a call for “more taxes”—unless they can see a clear groundswell of support for this proposal and our call to have it referred by the legislature to this year’s general election ballot.We are committed to generating that support. Many of you may share their concern about the mood of the voters as it relates to tax questions.While we recognize that a signal was sent in the Amendment 1 vote and in other tax Issues,we do not agree that that opinion would extend to this proposal.We disagree because we feel that there is a general lack of awareness on the part of the public as to the seriousness of these problems,and that it would be fully within their intellectual ability to understand them,and in particular,to understand that further delay will only make them more expensive.The educational task required to build the level of awareness and support needed for this proposal is an entirely manageable campaign task.Clearly,this is a straight out ‘do the right thing —pay me now or pay me later’issue.It is not simply more taxes,it is a fiscally responsible move to protect a huge and essential investment that is in danger of near total collapse.And,it is an entirely affordable expression of compassion and common sense to provide for the legitimate needs of people all around us,and ultimately,for ourselves and for our children. This proposal would raise $80 million in state motor fuels sales tax revenues,based on current values and levels of consumption,and would “de— Bruce”the spending side of transportation taxes which are,or have been approved by the voters.The revenues would be divided between two funds, one for surface maintainence and one for alternative services and systems: —the 40%apportioned to the surface maintainence fund,$32 million,would equal 30%of the $105 million now used in the two major CDOT repair funds. It would be apportioned 60%to the state,the counties 22%,and the cities 18%.However,these funds would not be apportioned to any jurisdiction,or any part of any jurisdiction,where the air quality is substandard,unless the jurisdiction first imposed the local sales tax to solve air quality problems as the proposal’s statutory language requires.Therefore,most 3 areas of the state would receive significantly greater new surface maintainence funds until and unless the local taxes were imposed in the areas with poor air quality,i.e.,for the first year,likely longer. —the 60%apportIoned to the alternatives fund would make a significant contribution to this area of need.Our current federal funds for mobility services for the elderly and the handicapped are about $970,000,which averages out to less than $12,000 per county,statewide. Needless to say,because most cities and counties don’t have matching funds,they don’t even apply for use of these funds.And,for requests that are received,less than 30%of the funds requested are awarded.The federal funds for general public transit needs are not nearly enough either,and with the demise of interstate bus service through most rural areas, affordable public transit is non—existent in many areas.Finally,this proposal would provide some funds for public transit needs in areas with poor air quality that need them,but more important,it would provide those areas with the ability to raise local revenues for that need and even condition their access to the road surface monies upon their affirmative use of that tool and spur them to solve persistent air quality problems which will continue to worsen in the future. CBT is working to assemble the wide group of interests who have provided their opinion and insights to the formulation of this proposal Into a coalition to support our call for the legislature to refer.It to the ballot this November.We expect that coalition would include the county and local 9overnments who have needs that cannot wait for another two years,and also business,gaming and tourist interests who need good roads,and the way to raise additional local funds to provide transportation relief to areas heavily impacted by visitor traffic,and environmental groups that would be interested in the improvement in air quality and decreased demand for water the shift to higher density urban growth based on alternative transportation and less suburban sprawl would bring about. We know the legislative hour Is late but with your support it can still be done.So,what we are asking is that your action be taken on the proposal, that you endorse it and call for its referral to the ballot,and that you so notify your legislators and the governor’s office,We hope that you will give your support to this proposal.In any case,will you please send us some expression of the sense of your body so that we can continue to most effectively work for better transportation in Colorad?That Is an effort that we intend to remain involved in,regardless of the outcome of this matter.We would be happy to answer any questions you might have,and/or meet with you to discuss the proposal further.On behalf of my colleagues of Citizens for Balanced Transportation,I thank you for your consideration of this proposal and hope to work with you in solving these problems, Sincerely, Edward “Tico”Embury,Chairman,Citizens for Balanced Transportaton, 1915 S.Bryant St.,Denver,Co.80219,(303)934—1415 CML Colorado Municipal League 1660 Lincoln Street,Suite 2100 •Denver,Colorado 80264-2101 •Phone 303)831-6411,FAX 303)860-8175 MEMORANDUM To:CML Executive Board From:Geoff Wilson,General Counsel Re:Election Reform Amendment --Initial Outline of Provisions with Preliminary Comments Date:March 15,1994 The “Election Reform Amendment”(ERA)will appear on the November 1994 statewide general election ballot as Amendment No.12.This wide ranging proposal would create a new Section 2 in Article VII of the Colorado Constitution.Amendment 12 contains a hodgepodge of provisions addressing a myriad of issues;much in the proposal is subject to varied and uncertain interpretation. What follows is an introductory overview of the major provisions in Amendment 12,together with some preliminary observations.My object was not to address each and every aspect of the ERA,nor to anticipate all issues that may be presented by every provision.Further analysis will undoubtedly identify numerous additional issues,ambiguities and consequences of Amendment 12.I strongly suggest a close reading of every line of this complex amendment (attached). A.General Provisions (Subsection (1)) *The “required”application of the ERA “shall reasonably strengthen citizen control of government the most.All provisions are self-executing and severable and supersede conflicting state constitutional,state statutory,charter,or other state or local provisions.”The amendment would thus repeal by implication a wide array of constitutional and statutory provisions,particularly in the area of initiative,referendum and recall.Additionally,the amendment would supersede a variety of “home rule”municipal charter provisions that voters have adopted pursuant to their constitutionally reserved authority to govern their affairs locally as they see fit. *The amendment permits enforcement suits to be filed by individuals,classes,or districts,“within three years of an event.”Successful plaintiffs may recover costs and reasonable attorneys fees,but defendants may not unless the suit is ruled frivolous.Thus the amendment encourages private “enforcement”suits by permitting recovery of the private plaintiffs’litigation expenses.By contrast, 1 0 public litigation expenses,that is,the taxpayers’money that is spent defending against these enforcement suits,cannot be recovered unless the suit is found to be frivolous. B.Definitions (Subsection (2)) Subsection (2)of the amendment contains a number of important definitions.Several of these definitions are specifically referenced later in this memo as part of the discussion of the section of the amendment in which the defined term is used.However,a couple of the definitions in Subsection (2)deserve particular note here. *“Bailot issue”is defined as “ANY pending state or local referred measure or non- recall petition as soon as a ballot title is initially set;and on ANY SUBJECT OR SUBJECTS WHATSOEVER for purposes of this section and Article X,Section 20.”(Emphasis as set forth in the Amendment 12 text.)Read in conjunction with Section 20 (3)(a)of the TABOR Amendment,the effect of this definition will be to delay public votes and suspend community action on a wide variety of land use,public safety and other issues by eliminating all local government special elections on dates other than those specified in TABOR.Conversely,all amendments to the state constitution and statutes would be subject to elections held in November of odd numbered years,in addition to the scheduled general election in November of even-numbered years.The term “ballot issue’is also used throughout Amendment 12 including,notably,in Sections 5(a)and (b), which suppress public officials and employees discussion,analysis or other activity with respect to ballot issues and penalize organizations of public entities or employees that provide information concerning,or participate in campaigns with respect to ballot issues (see paragraphs F and G of this memo). *“District”is defined as “the state or any local government,including enterprises, authorities,and all its other activities.”The ERA definition of “district”is thus much broader than the now familiar TABOR Amendment definition of this term, which excludes “enterprises.”The Amendment provides no further elaboration of what is meant by “authorities”or “all its other activities”(for example,the antecedent of “its”in the foregoing clause is not at all clear).The term “district” is used throughout Amendment 12;thus the breadth of this definition will have profound importance for the reach of the Amendment,should it be adopted by the voters in November of 1994.For example,Subsection (6)(a)extends the initiative,referendum and recall power to “all districts as to district matters.” C.Limits on Elected Officials Compensation (Subsection (3),Entitled “Pay Raises”) *Subsection (3)provides in part that “[c]ompensation changed after 1994 may exceed its 1988 level only by district voter approval,or by inflation,as defined 2 r in Article X,Section 20,after 1994.Compensation first set,or voter approved, from 1989 to 1994 shall use that level and year as a base.A governing body shall use its combined compensation.” *“Compensation”is defined in Subsection (2)(c)as “the district cost in salary, payroll,fringe benefits and travel accounts,and any cash payments and reimbursements to an elected official.”Note that no allowance is made for circumstances where,for example,a sudden increase in travel expenses is legitimately incurred by a public entity’s elected officials. D.Income Tax Credit for “Donations”by “Human Beings”to Certain Political Committees (Subsection (4)(a)) *Subsection (4)(a)provides that “new”campaign committees may pledge to the Secretary of State to take donations only from “human beings.”The amendment then provides that “human beings”making cash gifts to such committees may claim a state income tax credit for the lesser of a specified dollar amount or the amount of the total annual cash gifts to all such committees.The credit may not carry forward to subsequent tax years nor exceed income tax liability.The credit “shall be listed on all future state income tax returns and adjust yearly for inflation or more.”Whereas the TABOR definition of “inflation”is referenced in Subsection (3),no definition of inflation is provided in Subsection (4).What is meant by the requirement that the credit adjust yearly for inflation “or more”? E.Limits on Acceptance of “Donations”from Specified Individuals or Groups (Subsection (4)(N) *The amendment provides that “district candidates or elected officials or their campaign committees shall not accept any donation with a retail value over $50 per calendar year per donor from any utility with rates or service regulated by that district,from any group receiving over 5%of its annual gross receipts from that district,or from a business group,corporation,employee group,union, political action committee other than a political party,or paid lobbyist who is not a relative.” *Note that,although Subsection (4)is entitled “Campaign Contributions,”it’s application may reach well beyond what are ordinarily considered campaign contributions.The language of Subsection (4)(b)restricts donations to “elected officials,”as well as “district candidates.”Thus,the limitations of Subsection (4)(b),arguably,are ~j restricted to “donations”incident to an election or re election effort. *“Donation”is defined in Subsection (2)(e)as “cash or cash equivalents,loans,or substitute purchases,but not contributions in kind or services.”The amendment does not define “cash equivalents,”“substitute purchases,”“contributions in kind,”or “services.”Note also that “donation”is not defined to encompass only contributions or gifts incident to an election or re-election campaign. *The campaign finance “reforms”in Amendment 12 are conspicuous for what is not covered.There is no restriction,for example,on the amount of money that district candidates or their campaign committees may accept from wealthy individuals.This omission,combined with the Amendment’s limitation on acceptance of donations from groups,will enhance wealthy individuals’ opportunity to “buy”elections.There are no dollar restrictions on acceptance of in-kind contributions from political committees or from any other source.The measure does not prevent contributions from being funneled through the political parties and does not include any reporting requirements or enforcement provisions concerning such contributions. F.Penalty for Organizations of Public Entities or Employees that Provide Information Concerning,or Participate in Campaigns with Respect to Ballot Issues (Subsection (5)(a)) *The amendment provides that no districts shall “belong or donate,directly or indirectly,to any organization of districts or district employees that hereafter uses its name,or its paid employee time,material,mailing or other resources with a retail value over $50 per calendar year,to support or oppose,or to create or distribute material discussing,a ballot issue.” *This provision is obviously intended to exclude a wide array of public entity and employee organizations from engaging in political speech concerning ballot issues.Note that,unlike Subsection (5)(b),this provision is not intended as a restriction on expenditure of public funds in ballot issue campaigns;rather,it is intended to exclude from the political debate a certain class of organizations. Presumably,the proponents of Amendment 12 would prefer that voters not see or hear the particular information or opinions that this type of organization might present. *Note also that these targeted organizations pay the membership penalty prescribed in Subsection (5)(a)even if they do not engage in advocacy;the penalty is imposed if these organizations merely “create or distribute material discussing” a ballot issue. *Since “ballot issue”is defined in Subsection (2)(a)as including any measure once the ballot title is set,this limitation will begin to apply quite early in the ballot issue process. 4 r *This portion of the amendment may have profound defects as a violation of the free speech and equal protection guarantees of the U.S.Constitution. G.Suppression of Public Officials and Employees Discussion,Analysis or Other Activity with Respect to Ballot Issues (Subsection (5Hb)and (c)) *The amendment provides that no elected official or district employee may use district paid employee time or materials with a retail value of over $50 per calendar year to “create or distribute material discussing a ballot issue,except for election or judicial processes or notices,for public meeting facility costs,or for legal duties other than ballot issue analysis.” *This prohibition could prevent any district analysis of and reports on ballot issues, even for the district’s own internal use,if such analysis or report is prepared at public expense (again,note the exceedingly broad definition of “district”in Subsection (2)(d)).This provision would make illegal preparation of materials such as the Legislative Council’s “Blue Book,”which gives a factual summary of ballot issues and contains arguments for and against the proposals.Thus,this prohibition would go well beyond the familiar restrictions in the Colorado Campaign Reform Act (1-45-101,C.R.S.~~on use of public funds for advocacy in connection with ballot issues.The impetus for this limitation is that analysis of pending ballot proposals prepared for internal use by government officials,as public documents,occasionally end up being reported in the newspapers.Since these newspaper stories are at times not favorable towards the ballot issue,the Amendment 12 proponents’“solution”to this “problem”is to simply prohibit any internal analyses of pending ballot proposals from being done in the first place. *No elected official shall vote for a resolution or statement “referring directly or indirectly”to a ballot issue.This practice is currently expressly authorized in the Colorado Campaign Reform Act at 1-45-116(1)(b)(Ill). H.Penalties;Limitation on Publicly Funded Defense of Alleged Violators (Subsection 5(d)) *Each “willful violator”of the limitation on receipt of “donations”in Subsection (4)(b)or the limitations in Subsection (5)shall be liable for “$5,000 each to the district and to the opposing campaign committees as a group,and jointly and severally liable to both for the retail value of district costs,savings by use of district resources,and illegal donations.” *The amendment further provides that “direct or indirect repayment or legal aid with district funds is also a violation.”Note that the prohibition of legal aid with district funds is not limited to those charged with “willful”violations of Sections (4)(b)or (5);~ny legal aid (which would,of course,include a publically funded defense)is stated as a separate violation of the Amendment.This remarkable provision would mean that public employees could not receive a publically funded legal defense even when they are subseouently found to have not committed the alleged offense.Apparently,whenever a complaint alleging a violation of ERA is filed,the public official would be obliged to retain counsel and pay for his or her own defense out of personal,private funds. *Since,under our system of justice,one is presumed innocent until proven guilty, this prohibition amounts to a ban on use of public funds to defend the innocent. This provision is apparently premised on the assumption that if one is accused, one must have done something wrong.Obviously,Subsection (5)(d)could have a profound adverse effect on the willingness of citizens to engage in public service in Colorado. *Finally,Subsection (5)(d)provides that the penalties set forth in the Subsection are “mandatory and not suspendable”and that “[o]beying a supervisor or elected official is no defense,nor is ignorance”of the requirements of the amendment. The latter limitation may prove to be particularly harsh,since ambiguity in many provisions of ERA makes good faith ignorance of its requirements a distinct possibility. Provisions Relating to Petition Procedures,Including Recall (Subsection 6) Over half of the total ERA text is taken up with a variety of proposed changes to initiative, referendum and recall procedures.This portion of the amendment contains some of the most dramatic changes proposed.Set forth below is a sampling and overview of some of these changes;however,as with the rest of ERA,there is no real substitute for a close reading of each and every line of this section of the amendment. Expanded Use of Tnitiative.Referendum and Recall Powers *“Petition powers”are extended to “all districts as to district matters.”Note that “petition”is defined in Subsection (2)(g)as including an initiative,referendum or recall process.This provision would thus extend the initiative and referendum power (presently possessed only by state and municipal voters)to school district, county and special district voters.These powers are further extended to a huge array of other entities,since “district”is defined in Subsection (2)(d)as including, in addition to the state and any local government,“enterprises,authorities”and all “other activities”of the foregoing (what “other activities”means or might encompass in this context is not at all clear). 6 r *Many of the entities that would be subject to initiative and referendum have heretofore neither conducted elections nor maintained voter lists.It is unclear how this new authority would be implemented in these jurisdictions,particularly since,under Section 6(d)of the amendment,changes in the initiative,referendum and recall laws to facilitate this new power would require voter approval.What happens if the voters don’t approve the requisite procedures?Whatever the answer to this and the many other questions presented by this section of the Amendment,it is clear that taxpayers will be expected to pay for a huge increase in ballot tide settings,title challenges,petition printing and validation,petition challenges,appeals,elections and other associated costs. *Amendment 12’s application of the initiative and referendum power to “district matters”could create ambiguity and uncertainty as to whether the initiative power will continue to extend only to “legislative”matters (as is presently the case)or will instead be extended to ~jjy district matter,including administrative or budget matters,for example.This uncertainty may be heightened by the fact that Section (6)(b)provides that “appropriations for district support and maintenance are exempt from referendum petitions.”Does this mean that all other “district matters”~subject to referendum (or initiative),and that appropriations could be initiated? Initiative Ballot Title Settina *The amendment prescribes a very tight timeframe for setting of initiative petition ballot titles and allows state district courts to set a ballot title for any petition. Initiative ballot titles may be appealed to the Supreme Court within five days after they are set and the amendment directs that the Supreme Court shall decide any such appeal within 10 days.With the initiative power being conferred on a huge new universe of “districts,”this portion of the amendment could result in large numbers of title challenges reaching the Supreme Court at certain times of the year.The extent to which this might impair the Court’s ability to conduct other business is uncertain. *Present law requires the Title Board for statewide ballot issues to prepare a “clear,concise summary”of the proposed law or constitutional amendment,and include in the summary an estimate of the state and local fiscal impact of the proposed measure.Amendment 12 would prohibit the Title Board from providing voters with these summaries and estimates of fiscal impact. 0 Taxuaver Fundin2 of Private Petitioners *Governments (i.e.taxpayers)are required to print and deliver “at their own expense”petitions in a quantity providing signature lines for at least twice the minimum required signatures within 10 days after a final title setting.Currently, petition advocates pay theft own printing expenses.Amendment 12 would force taxpayers to pick up additional initiative costs that are now borne by private party initiative proponents;Subsection (6)(c)provides that “[p]etitioners or their agents shall be charged no fee or bond for any process,requirement,or document related to their petition;nor for district documents or data,to be provided within two district business days of a written request,that may help restore any invalidated entry or petition.”The legalization of paid petition circulators in Colorado will result in the initiative process being increasingly used by well healed special interest groups to circumvent the deliberative process of state or local legislative bodies.These sections of Amendment 12 would mean that these special interest groups will receive considerable taxpayer support in their efforts. Petition SiEnature Requirements *Petition signature requirements are set at “5%of the number of district votes for all candidates for the Secretary of State in the last election for that office,except local recall signatures shall not exceed 8%in a represented area.”This is not a change in the signature requirement for ~tat~initiative and referendum petitions. However,it is a substantial reduction in the permitted signature number ceiling applicable to municipal initiatives and referenda,which under Article V,Section 1(9)of the Colorado Constitution may presently not exceed 10%of all registered electors for the referendum nor 15%of all registered electors in the jurisdiction for the initiative.As to recall of local or state officers,this signature requirement constitutes a dramatic change.The current signature requirement for such officers’recall is a number equal to 25%of the number of votes cast in the preceding election for all candidates for the office which the incumbent sought to be recalled occupies (see Sections 24-9.5-102 and 31-4-501,C.R.S.and Cob. Const.,Article XXI,Sections 1 and 4). *The amendment proposes a very short timeframe for any petition signature protest,and petitioners are then given up to 10 days after any final decision on a signature protest “to file corrections and new entries or petitions signed at any time”(thus,the “cure”signatures may be gathered vrior to the declaration of insufficiency as to those petitions already submitted).Further,the amendment provides that any petition upon which a signature protest is filed shall stay on the ballot during the pendency of the signature challenge. r *The ability to challenge and invalidate fraudulent signatures is dramaticaily impaired by Amendment 12.Petitions or signature entries may be found invalid by election officers only if “invalid on their face.”Districts and private protestors to signatures must itemize and file their protests within ten days of petition filing and have the “burdens of production and proof beyond a reasonable doubt.”A person signing a verified or notarized petition is presumed to be a registered elector whose signature is valid until disproven.The effect of these portions of the ERA will be to prevent state and local election officers from checking signatures on initiative,referendum or recall petitions against a registered voter list.Unless signatures are invalid on their face,such as the name “Mickey Mouse”(of course,this could be someone’s real name...)listing of a foreign address,or submission of signatures all written in the same handwriting,they must be presumed valid.The opportunity to check for fraudulent signatures will diminish and the ease with which initiative fraud can be used to corrupt the process will be dramatically increased. *The amendment provides that “affidavit errors .or other variances shall be liberally construed to aid petitions.” Recall of Judges,and Other Officials *No elected official shall undergo more than one recall election per term and no campaign reimbursement is permitted.Present constitutional provisions and statutes do not bar multiple recall elections during a term of office and permit reimbursement of municipal officials’election expenses if they are not recalled and reimbursement is provided for by local ordinance. *The amendment provides that “[jjustices and judges may be recalled,which would bar any future judicial position.”This new authority should be considered in the context of other ERA sections that dramatically reduce the recall petition signature requirement and permit no reimbursement to officers who are not recalled.Note that Amendment 12 contains no requirement that a judge’s recall be based on improper conduct in office.Thus,judges could be recalled over politically unpopular decisions that are entirely proper legally,such as decisions protecting the free speech rights of disfavored political minorities.Existing constitutional provisions already require periodic elections on retention of judges and permit discipline or removal ofjudges for,among other things,intemperance, willful misconduct or failure to perform duties. Mandated Delays and Limitation on Emeraencv Enactments *Only six district measures adopted in any calendar year may take effect immediately on adoption as “emergencies.”All other measures are subject to the requirement that “[s]tate measures open to referendum petition take effect no sooner than 91 days after that general assembly session finally adjourns,and such local measures no sooner than 91 days alter final publication.”In an emergency situation,jurisdictions pass numerous,statutes or ordinances that take effect immediately to address all manner of circumstances as they arise.What happens once a jurisdiction exhausts its six emergency authorizations? *The limitation that ordinances may not take affect until (in essence)three months after adoption will,in itself,dramatically impair elected officials’ability to respond promptly to the wishes of their constituents.Further,the 91 day delay in effective dates should be considered in conjunction with the provision (also in Section (6)(b)of the amendment)that “[a]petition with the required number of signatures filed before the 91st day delays the effective date until the election or a final decision of petition insufficiency.”Since the amendment effectively limits elections on any ballot issue to the biennial local election date,the state general election date and the first Tuesday in November of odd-numbered years,the amendment will enable 5%of the registered electors in a jurisdiction (a very small actual number in many communities)to use the referendum process to prevent an ordinance from taking effect for up to a year and three months. Assume,for example,that the effective date for a vicious dog ordinance in a statutory city is delayed for 91 days following publication,pursuant to the requirements of Amendment 12.If a referendum petition is filed by the local pit bull advocacy group on the 91st day alter publication,and that day occurs shortly before or after the city’s odd-year November election,the ordinance could not take effect until after the November election in the followin2 year.By contrast, present statutory municipal ordinance referendum procedures provide that a non- emergency ordinance takes effect 30 days after passage and publication,unless a referendum petition is submitted within that time.If a petition is submitted,the ordinance is suspended from taking effect and the governing body reconsiders its action in adopting the ordinance.If the ordinance is not repealed,the governing body will submit the ordinance to voters at an election held not less than 60,nor more than 150 days after the date on which the petition is filed. Calcification of Petition Laws and Measures Adonted or Reiected at an Election *Changes in state petition laws or regulations adopted after 1988 without voter approval are repealed.This broad provision would repeal substantial amendments to the state’s initiative and referendum statutes made since 1988,primarily in 1989 and 1993.For example,repealed statutes prohibit a person from knowingly signing more than one municipal petition for the same issue,signing a false name 10 r to a municipal petition,or knowingly signing a municipal petition when one iS not a registered voter of the municipality. 4’“Unless adopted as non-emergency measures within 90 days after the election approving this section,future state or local petition law or regulation changes require advance voter approval.”This provision will require voter approval (and the attendant taxpayer expense)for even the most technical and mundane changes to initiative,referendum or recall procedures. *“Unless allowed therein,past or future voter-approved petitions shall not hereafter be amended,superseded,or repealed by elected officials.”This provision could dramatically limit the opportunity governments have traditionally had to “flesh- out”ambiguities or omissions in voter approved measures. *The amendment provides that “measures or parts of measures”that have been rejected by voters may be fully or partially readopted only with voter approval. Miscellaneous Provisions *The amendment mandates that “[t]he 1988 state petition forms shall be used”in connection with any local district petition process,unless changed by district voters.As I am unaware of any 1988 state recall form,it is unclear what sort of recall form would be utilized at the local government level,should ERA be adopted. *The amendment provides that moving within a county shall not alter voter registration status.Does this mean that when a voter moves from,for example, one municipality to another in Jefferson County,that voter’s registration status as an elector in their municipality of origin may not be changed?This provision could wreak havoc with use of voter registration in the administration of elections as a means to avoid fraud. *“Any non-judicial district employee or elected official who willfully violates any petitioner right that is provided in [Subsection (6)of the ERA]shall be liable personally to the petition campaign committee for $5,000,as enforced in [Subsection (1)and (5)(d)of ERA].”Note that Subsection (5)(d)prohibits “legal aid with district funds”to anyone alleged to have violated ERA. r SUGGESTED GUIDELINES FOR MUNICIPAL OFFICIALS’AND EMPLOYEES’PARTICIPATION IN CAMPAIGNS FOR OR AGAINST MEASURES ON THE STATE GENERAL ELECTION BALLOT Prepared by Geoffrey Wilson,General Counsel,Colorado Municipal League,6/09/92 Participation by municipal officials or employees in campaigns for or against state general election ballot measures raises important issues concerning compiance with the Colorado Campaign Reform Act (CRA).These suggested guidelines were prepared in an effort to inform officials and employees in a general manner of CRA restrictions on public official activities as well as permissible activities.Local government offic(~is and personnel are encouraged to seek legal counsel for specific questions that may arise during any campaign. The CRA allows political subdivisions of the state to make contributions or contributions in kind of public monies to dispense “a factual summary,which shall include arguments both for and against the proposal”in campaigns involving only issues in which they have an “official concern.”C.R.S.1-45-116(1 )(b)(l). Although the statute does not define “official concern,”the federal district court has held that political subdivisions have an “official concern”only in those matters within the scope of their own powers and duties and which,at the very least,come before local officials for an official decision)Therefore,even though a proposed constitutional amendment or state statute may have a profound effect on the functioning of a local government,the courts have ruled that such measures are not matters of “official concern.”Accordingly,local governmental entities cannot use public funds even to dispense a “factual summary”of a statewide ballot issue because it is not of “official concern.” IT IS IMPERMISSIBLE under the CRA to do the following in campaigns in support of or in opposition to a proposed measure: 1.Use or expend public funds or supplies; 2.Allow employees or paid officers to work on a campaign during their working hours or use any public facility or equipment for the purposes of a campaign; 3.Provide transportation or advertising using public property or funds for the purpose of influencing,directly or indirectly,the passage or defeat of an issue; 4.Grant an employee or officer leave from his job or office with the local government,with pay,to work on a campaign. Mountain States Legal Foundation v.Denver School District No.1,4519 F.Supp.357 (Dist.Cob.,1978);Campbell v.Joint District 28-J,90 F.R.D.189 (Dist.Cob.,1981),aff’d, 704 F.2d 501 (10th Cir.1983). IT IS PERMISSIBLE to do the following: 1.The local governing body may take a position of advocacy on the issue.The governing body may pass a resolution and take a public stand urging the electorate to vote for or against any matter.Staff background research which leads up to passage of a resolution is also permissible. 2.A public official “who has policy-making responsibilities”may spend up to $50.00 of public money on phone calls,letters or other activities incident to making statements or answering questions concerning the issue. 3.Elected officials who are unpaid or who receive compansation only for attending meetings may speak out on the issues’pcesented by proposed constitutional amendments.There are no limitations in the CRA on the right of public officials to address any mater before the electorate;the limitation is on expenditure of public funds. 4.Public employees and paid elected officials may work on the campaign and speak out on the issues on their own time.Any public employee who becomes involved in the campaign should take whatever steps are necessary to document that the effort is done on his/her own time.If the public employee is on a recorded hour system,make sure the record reflects that the public employee took time off from public duties to engage in campaign activities. 5.If the local government has a policy of permitting public groups to use its facilities for community purposes,it is permissible to allow groups opposed to or supportive of the ballot proposition to use the facilities so long as the policy is applied in an even-handed fashion.The local government,however,cannot in any way be involved in organizing such events. 6.Public employees should be allowed to respond to requests for information about the impact of a proposed amendment on the operation and budget of the local government entity in a factual manner,but the local government should not produce such information for the purpose of influencing the passage or defeat of the issue.