From the Colorado Bar Association - Department of Legislative Relations
Keeping you apprised of what the General Assembly and your state Bar Association are up to under the Gold Dome.
Follow the Colorado Legislature on their website: http://www.leg.state.co.us/
CBA Legislative Policy Committee (LPC)
The Legislative Policy Committee did not meet on Friday, April 9.
At the Capitol:
The Senate put its mark on the $18.2 Billion Budget Bill and the Budget Package Bills over the better part of the week of April 5. The Senate passed the Budget on Friday, April 9 before going home for the weekend. The final vote was divided largely upon party lines with all Democrats voting to pass the bill and only one Republican – Senator Al White, voting to pass the budget. Senator White is the lone republican who sits on the Senate side of the Joint Budget Committee. The budget bill will continue along its assigned route the week of April 12 – the Joint Budget Committee will sit as the conference committee over the next few days to iron out the differences between the two houses.
Since their turn with the Budget was over for the time being, the House was able to return to their regular workload while the Senate was working through the Budget bill. Though it was a relatively quiet week in the House here are a few highlights:
• SB 42 - Concerning prior consent for release of financial information to facilitate investigations of financial exploitation of at-risk adults passed on 3rd Reading on a 58-6-1 vote;
• SB 66 - Concerning the requirement that certain persons report child abuse or neglect passed on 3rd Reading on a 64-0-1 vote;
• SB 138 - Concerning the award of expenses in a proceeding to appeal the valuation of property for property tax purposes passed on 3rd Reading on a 43-21-1 vote;
• SB 152 - Concerning information relating to a referral of suspected child abuse by certain mandatory reporters passed on 3rd Reading on a 64-0-1 vote;
• HB 1334 - Concerning changes to indecency crimes passed on 3rd Reading on a 64-0-1 vote – The LPC previously voted to support this legislation;
• HB 1359 - Concerning change of venue in dependency and neglect proceedings, and, in connection therewith, clarifying the role of the county departments of social or human services when jurisdiction over a case is transferred between counties passed on 3rd Reading on a 64-0-1 vote;
• SB 43 - Concerning the repeal date of the office of the child’s representative passed on 3rd Reading on a 63-1-1 vote;
• On a final vote of 47-17-1 the House voted to adopt the Senate amendments to HB 1288 - Concerning the ability of a commercial real estate broker to secure payment of commissions earned, and, in connection therewith, enacting the “Commercial Real Estate Brokers Commission Security Act.” The LPC previously voted to oppose this legislation;
• The Health and Human Services Committee voted to postpone indefinitely HB 1371 - Concerning alternative practitioners of the healing arts, and, in connection therewith, enacting the "Colorado Health Freedom Act" to provide an exemption for unlicensed complementary and alternative practitioners of the healing arts;
• The House Judiciary Committee referred a “strike below” or completely new version of HB 1234 - Concerning the fair settlement of claims for benefits under an insurance policy to the full House for consideration on 2nd Reading. The Judiciary also voted to postpone indefinitely two bills: HB 1237 - Crime Information Enforcement Databases and 1283 - Patient Safety Issues.
• The House memorialized former Representative Betty McWilliams Chronic; and
• The House Business Affairs and Labor Committee voted to postpone indefinitely HB 1356 - Workers' Comp Policyholder Prot Act 2010;
• The House referred HB 1351 - Concerning the maximum authorized interest rate for a payday loan back to the Judiciary Committee for additional consideration; and
• On 2nd Reading, the House passed an amended SB 100 - Concerning greater financing flexibility for local districts organized for purposes related to energy;
• The Judiciary Committee amended and referred HB 1351 - Concerning the maximum authorized interest rate for a payday loan to the House for consideration on 2nd Reading. The Committee also voted to postpone indefinitely HB 1251 - Concerning file retention by attorneys of record in felony criminal cases.
• The Appropriations Committee referred an amended version of HB 1269 - Concerning the creation of remedies available in employment discrimination cases to the full House for consideration on 2nd Reading;
• The Appropriations Committee voted to postpone indefinitely HB 1280 - Concerning an incentive to create Colorado nonprofit jobs by establishing an income tax credit;
• The Appropriations Committee voted to support HB 1347 - Concerning misdemeanor penalties for persons who are convicted of multiple traffic offenses involving alcohol or drugs. The bill will go to the House for consideration on 2nd Reading;
• The Appropriations Committee voted to support HB 1352 - Concerning changes to crimes involving controlled substances. The LPC previously voted to support this bill;
Late Bills of Interest (and status):
In the House
HB 1391 - Concerning the elimination of the repeal of certain provisions requiring that the Colorado bureau of investigation deny the transfer of a firearm to a person if the bureau receives certain information about the person's criminal history in response to a search of a criminal history records database. By Rep. Rice and Sen. Boyd. The bill eliminates the July 1, 2010, repeal of certain provisions requiring that the Colorado bureau of investigation deny the transfer of a firearm to a person if the bureau receives certain information about the person's criminal history in response to a request transmitted to the national instant criminal background check system or a search of another database. Introduced on March 30, the bill is assigned to the Judiciary Committee.
HB 1393 - Concerning the information included in the web-based system that provides the public access to state financial information. By Rep. Nikkel and Sen. Kopp. In 2009, the governor issued an executive order to create a web-based system that allows public access to government revenue and expenditures data, which system is commonly known as the "transparency online project". The web-based system was thereafter modified by law.
The bill modifies the web-based system by:
Expanding the type of information that may be excluded from the web-based system and the type of information that may be aggregated;
Describing the information excluded from the web-based system and creating a process for challenging an exclusion;
Waiving liability of the chief information officer of the state and the state controller for the inclusion, based upon reasonable reliance on representations by a state agency, of any information in the web-based system; and
Clarifying that web-based system reports are to be made available for download.
The bill was introduced on March 30 and has been assigned to the State, Veterans, and Military Affairs Committee.
HB 1394 - Concerning professional liability insurance policies issued to construction professionals. By Rep. Rice and Sen. Scheffel. In General Security Indemnity Company of Arizona v. Mountain States Mutual Casualty Company, 205 P.3d 529 (Colo. App. 2009), the court excluded claims for certain construction defects claims and imposed no obligation to defend in a contractor's professional liability insurance policy. The bill imposes the following rules of contract construction to guide a court in such cases:
• A court should presume that:
1. Compliance with a construction professional's objective, reasonable expectations is intended;
2. The entire policy is to be effective and read as a whole;
3. A just and reasonable result is intended; ambiguity in a policy is to be construed in favor of coverage;
4. A result that renders a part of coverage illusory is not intended; and
5. The work of a construction professional that results in property damage is an accident unless the property damage is intended and expected by the insured.
When weighing conflicting provisions, the court should construe the contract to favor coverage.
• The insurer bears the burden of proving that a policy provision limits or bars coverage.
The bill prohibits a professional liability insurer from excluding or limiting coverage of acts arising before the policy was issued unless the insured knows of defects that have a likelihood to subject the insurer to damages and fails to disclose this to the insurer. A policy that conflicts the provision stated above is unenforceable.
The bill was introduced on April 1; on April 7, the Business Affairs and Labor Committee amended the bill and referred it to the full House for consideration on 2nd Reading.
HB 1395 - Concerning interlocutory appeals in civil cases. By Rep. B. Gardner and Sen. Steadman. The bill provides that the Colorado court of appeals shall have initial jurisdiction over interlocutory appeals from certified questions of law in civil cases. This bill is Bar Sponsored. The bill was introduced on April 1 and has been assigned to the Judiciary Committee. The bill is scheduled for committee review on Monday, April 15 at 1:30 p.m.
HB 1396 - Concerning the reduction in tax incentive revenue loss through the "Urban and Rural Enterprise Zone Act." By Rep. Judd. Currently, several income tax and sales and use tax credits are available to qualified taxpayers through the "Urban and Rural Enterprise Zone Act." The bill eliminates the credits available through the act as of January 1, 2011.
Specifically, the bill limits the following income tax credits allowed pursuant to the act to income tax years commencing prior to January 1, 2011:
The credit for contributions to enterprise zone administrators to implement economic development plans;
The credit for investment in property that is used solely and exclusively in an enterprise zone for at least a year;
The credit for an investment made in a qualified job training program;
The credit for hiring new business facility employees;
The credit for expenditures in research and experimental activities for the purpose of carrying out trade or business; and
The credit for an expenditure to rehabilitate a vacant building.
In addition, beginning on January 1, 2011, the bill eliminates the sales and use tax exemption for purchases of machinery or machine tools to be used solely and exclusively in an enterprise zone.
The bill was introduced on April 5 and assigned to the Finance Committee. On April 7, the Finance Committee heard testimony and continued the hearing to Wednesday, April 14 at 1:30 p.m. for action only. Amendments were offered at the April 7 committee hearing but those amendments were not adopted.
HB 1397 - Concerning the requirement that employers provide employee-earned paid sick time to their employees. By Rep. Peniston and Sen. Carroll. THE BILL WAS INTRODUCED ON APRIL 5 AND ASSIGNED TO THE BUSINESS AFFAIRS AND LABOR COMMITTEE. ON APRIL 7 THE BILL WAS POSTPONED INDEFINITELY (KILLED.)
The bill creates the "Healthy Families and Workplaces Act," which requires all private employers in Colorado to provide paid sick leave to their employees, accrued at one hour of sick leave for every 30 hours worked, subject to the following limits:
For employers employing 10 or more employees, the employer is not required to provide more than a total of 72 hours of paid sick leave in a 12-month period; and
For employers employing fewer than 10 employees, the employer is not required to provide more than a total of 40 hours of paid sick leave in a 12-month period.
An employee would start accruing paid sick leave when his or her employment begins and would be permitted to use his or her accrued paid sick leave as it is accrued.
Additionally, an employee would be allowed to carry forward and use in subsequent calendar years paid sick leave that is not used in the year in which it is accrued, subject to the caps on the total amount of leave allowed in a 12-month period.
Employees may use accrued paid sick leave to be absent from work for the following purposes:
• The employee has a mental or physical illness, injury, or health condition, needs a medical diagnosis, care, or treatment related to such illness, injury, or condition, or needs to obtain preventive medical care;
• The employee needs to care for a family member who has a mental or physical illness, injury, or health condition, needs a medical diagnosis, care, or treatment related to such illness, injury, or condition, or needs to obtain preventive medical care;
• The employee or family member has been the victim of domestic abuse, sexual assault, or stalking and needs to be absent from work for purposes related to such crime; or
• A public official has ordered the closure of the school or place of care of the employee's child or of the employee's place of business due to a public health emergency, necessitating the employee's absence from work.
The bill prohibits an employer from retaliating against an employee who uses his or her paid sick leave or otherwise exercises his or her rights under the act.
Employers are required to notify employees of their rights under the act by providing employees with a written notice of their rights and displaying a poster, developed by the division of labor in the department of labor and employment, detailing employees' rights under the act.
Employers must retain records documenting, by employee, the hours worked, paid sick leave accrued, and paid sick leave used and make such records available to the division to monitor compliance with the act.
The director of the division will implement and enforce the act and adopt rules necessary for such purposes. The bill treats an employee's information about his, her, or a family member's health condition or domestic abuse, sexual assault, or stalking case as confidential, and prohibits an employer from disclosing such information or requiring the employee to disclose such information as a condition of using paid sick leave.
Employers, including public employers that provide comparable paid leave to their employees and allow employees to use that leave as permitted under the act are not required to provide additional paid sick leave to their employees.
Employees covered by a collective bargaining agreement would not be entitled to sick leave under the act if the collective bargaining agreement expressly waives the requirements of the act and provides an equivalent benefit to covered employees.
HB 1399 - Concerning the authority of the Colorado Bureau of Investigation to assist a chief of a fire department in the investigation of a fire related to the crime of arson. By Rep. Weismann. If the chief of a fire department requests assistance from the Colorado bureau of investigation in investigating the cause and origin of a fire or in enforcing the laws related to the crime of arson, the bureau may provide such assistance, with the approval of the director of the bureau. The authority granted to the bureau to assist with investigations and enforcement related to the crime of arson shall not interfere with the authority of the sheriff or chief of police in such situations. The bill was introduced on April 8 and has been assigned to the Judiciary Committee. The bill is scheduled for committee review on April 12 at 1:30 p.m.
HB 1400 - Concerning refund anticipation loan facilitators, and, in connection therewith, requiring refund anticipation loan facilitators to be registered as electronic return originators with the federal internal revenue service and to make certain disclosures when facilitating refund anticipation loans. By Rep. Apuan and Sen. Johnston. A "refund anticipation loan" is a loan that is made to a taxpayer based on the taxpayer's anticipated income tax refund. Currently, Colorado does not regulate issuers of refund anticipation loans, commonly known as "refund anticipation loan facilitators."
In order to implement the recommendations of the "2010 Sunrise Review: Refund Anticipation Loan Facilitators" conducted by the department of regulatory agencies, the bill creates the "Refund Anticipation Loans Act," which:
• Requires a refund anticipation loan facilitator to be registered with the federal internal revenue service as an electronic return originator or directly employed by a person so registered;
• Specifies information that a refund anticipation loan facilitator is required to disclose to a consumer;
• Sets forth civil and criminal penalties for intentional violations of the act; and
• Requires the administrator of the "Uniform Consumer Credit Code" to enforce the act and applies to the act the same civil actions available to the administrator under the code.
The act is repealed on September 1, 2019, unless extended by bill.
The bill was introduce on April 8 and has been assigned to the Business Affairs and Labor Committee. The bill is scheduled for committee review on April 14 upon adjournment.
In the Senate
SB 189 - Concerning the suspension of the property tax exemption for qualifying seniors for specified property tax years. By Sen. White and Rep. Riesberg. The bill suspends the property tax exemption for qualifying seniors for the 2010 and 2011 property tax years and makes a nonstatutory legislative declaration regarding the intended use of any general fund savings resulting from the suspension. The declaration calls for any general fund savings resulting from the passage the bill to be used to provide a portion of the state share of funding for school districts' total program funding. The bill was introduced on April 8 and has been assigned to the Appropriations Committee.