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Feb. 17

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In this issue:   Feb. 17, 2014
eLegislative Report from Michael Valdez

Welcome to the 2014 edition of the CBA e-legislative report. This CBA member benefit will be delivered to your Inbox on Monday afternoons and will recap legislation from the current legislative session and the role the CBA plays at the State Capitol.

In addition to updates on the positions taken by the CBA through our Legislative Policy Committee the e-leg report will highlight legislation that is of interest to the practicing bar.

We welcome your feedback. We welcome your questions. Or just drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at mavaldez@cobar.org.

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CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC did not meet on Friday, Feb. 14.

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At the Capitol—Week of Jan. 3

A scorecard of the committee and floor work follows.

In the House

Monday, Feb. 10

Passed 3rd Reading:

  • HB 14-1073. Concerning the recording of legal documents. Vote: 58 yes, 5 no, and 2 excused.
  • SB 14-7.Concerning authority for a board of county commissioners to transfer county general fund moneys to its county road and bridge fund after a declared disaster emergency in the county. Vote: 63 yes, 0 no, and 2 excused.

Tuesday, Feb. 11

Passed 3rd Reading:

  • HB 14-1022. Concerning alignment of the duration of the child care authorization notice with the child care assistance eligibility period for children participating in the Colorado child care assistance program. Vote 64 yes, 0 no, and 1 excused.
  • Supplemental Appropriations bills for various departments were approved on 3rd and final reading in the House: Agriculture, Corrections, Education, Governor, Health Care Policy & Financing, Higher Education, Human Services, Law (Attorney General), Local Affairs, Natural Resources, Personnel & Administration, Public Health & Environment, Public Safety, Revenue, State, Treasury, and the Judicial Branch.
  • HB 14-1252. Concerning funding for system capacity changes related to intellectual and developmental disabilities waiver services, and, in connection therewith, making and reducing appropriations. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1103. Concerning the criteria that certain securities must meet to qualify as legal investments for public funds. Vote 64 yes, 0 no, and 1 excused.
  • HB 14-1018. Concerning the requirement that the department of revenue prepare a tax profile and expenditure report every two years. Vote 64 yes, 0 no and, 1 excused.
  • HB 14-1112. Concerning limited authorization for a county clerk and recorder to redact the first five digits of a social security number from a public document recorded with the clerk and recorder at the request of the individual to whom the social security number is assigned. Vote 64 yes, 0 no, and 1 excused.
  • HB 14-1130. Concerning the disposition of moneys charged to borrowers for costs to be paid in connection with foreclosure. (See below for summary.) Vote 64 yes, 0 no, and 1 excused.

Wednesday, Feb. 12

Passed on 3rd Reading:

  • HB 14-1065. Concerning limits on indemnification provisions in motor carrier transportation contracts. Vote 41 yes, 23 no, and 1 excused.
  • HB 14-1099. Concerning prescription drugs in the practice of optometry. Vote 64 yes, 0 no, and 1 excused.

Thursday, Feb. 13

Passed on 3rd Reading:

  • HB 14-1110. Concerning procedures governing discussions by boards of education of school districts while meeting in executive session. Vote: 34 yes and 31 no.

Friday, Feb. 14

Passed on 3rd Reading:

  • HB 14-1122. Concerning provisions to keep legal marijuana from underage persons. (See below for summary.) Vote: 63 yes, 0 no, and 2 excused.

In the Senate

Monday, Feb. 10

Passed on 3rd Reading:

  • SB 14-83. Concerning reimbursement to be paid by a county to the state for costs incurred by the state in connection with the reappraisal of property in the county. Vote 34 yes, 0 no, and 1 excused.
  • SB 14-102. Concerning the addition of employment positions held at financial institutions to the circumstances under which an employer may use consumer credit information for employment purposes. (See below for summary.) Vote 34 yes, 0 no, and 1 excused.
  • SB 14-98. Concerning clarifications to statutory language on crimes against at-risk elders. (See below for summary.) Vote 34 yes, 0 no, and 1 excused.
  • SB 14-89. Concerning a prohibition for the state to enter into an agreement for a payment in lieu of taxes. Vote: 21 yes, 13, no and 1 excused.

Tuesday, Feb. 11

Passed on 3rd Reading:

  • HB 14-1020. Concerning the consolidation of two reports on taxable property that county assessors submit to their boards of equalization. Vote: 34 yes, 0 no, and 1 excused.
  • SB 14-95. Concerning the ability of a prescription drug outlet to compound drugs for distribution to a Colorado hospital. Vote: 34 yes, 0 no, and 1 excused.
  • SB 14-96. Concerning renaming state veterans nursing homes to veterans community living centers to more accurately reflect the wide array of services provided to state veterans. Vote: 34 yes and 0 no, and 1 excused.
  • HB 14-1164. Concerning nonpartisan elections not coordinated by a county clerk and recorder, and, in connection therewith, creating the “Colorado Local Government Election Code” for the conduct of such elections by special districts, harmonizing residency requirements for voter registration, modifying the “Colorado Municipal Election Code of 1965”, and clarifying when elections are coordinated by county clerk and recorders. Vote: 19 yes, 13 no, and 3 excused. (Notice of intent to reconsider final vote submitted.)

Wednesday, Feb. 13

Passed on 3rd Reading:

  • SB 14-21. Concerning the treatment of persons with mental illness who are involved in the criminal justice systems, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • SB 14-27. Concerning criminal history background checks for professionals who have the authority to appear in court, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • SB 14-109. Concerning the use of the prevention, early detection, and treatment fund, and, in connection therewith, eliminating the annual transfer of two million dollars from the fund to the department of health care policy and financing for medicaid disease management and treatment programs that address cancer, heart disease, and lung disease or risk factors associated with those diseases and increasing the amount annually appropriated from the fund to the prevention services division of the department of public health and environment for the cancer, cardiovascular disease, and chronic pulmonary disease prevention, early detection, and treatment program by two million dollars. Vote: 35 yes and 0 no.
  • SB 14-120. Concerning the continuous appropriation of certain amounts in the state employee workers’ compensation account in the risk management fund. Vote: 35 yes and 0 no.
  • SB 14-30. Concerning the fee charged to issue a special license plate to a person with a distinguished flying cross that was awarded for valor, and, in connection therewith, making an appropriation. Vote 32 yes and 3 no.
  • SB 14-62. Concerning reinstatement of the parent-child legal relationship. Vote: 35 yes and 0 no.

Friday, Feb. 14

Passed on 3rd Reading:

  • Upon a motion for reconsideration: HB 14-1164. Concerning nonpartisan elections not coordinated by a county clerk and recorder, and, in connection therewith, creating the “Colorado Local Government Election Code” for the conduct of such elections by special districts, harmonizing residency requirements for voter registration, modifying the “Colorado Municipal Election Code of 1965”, and clarifying when elections are coordinated by county clerk and recorders. Final Vote: 18 yes, 16 no, and 1 excused.

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10 Bills of Interest
House Bills

HB 14-1110. Concerning procedures governing discussions by boards of education of school districts while meeting in executive session.

By Rep. Peniston and Sen. Hodge

Under current law, the minutes of a meeting of a local public body during which an executive session is held are required to reflect the topic of the discussion at the executive session. In the case of a meeting of a local board of education (school board) during which an executive session is held, the bill additionally requires the minutes to reflect the amount of time each topic was discussed while the board was meeting in executive session.

Under current law, if, in the opinion of the attorney who is representing the local public body and who is in attendance at an executive session that has been properly announced, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording of the part of the discussion that constitutes a privileged attorney-client communication may be made. The bill eliminates this requirement for school boards. Accordingly, discussions occurring in an executive session of such body that must be electronically recorded include all or any part of the executive session that is claimed by the attorney representing the local public body either to constitute a privileged attorney-client communication or to be subject to protection as trial preparation material.

The bill additionally requires a school board to maintain a privilege log that will allow identification of each portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made. The privilege log is required to describe the topic of the communications not disclosed, and the approximate time in the executive session during which the communications not disclosed were discussed, in such manner that, without revealing information itself privileged or protected, other parties are enabled to assess the applicability of the privilege or right to protection. The bill further permits the school board to make a separate recording of that portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made.

The CBA LPC has voted to oppose the bill. The bill passed out of the House on Tuesday, Feb. 13, with a 34 yes and 31 no vote.

HB 14-1122. Concerning provisions to keep legal marijuana from underage persons.

By Rep. Kagan and Sen. Newell

Under current law, medical marijuana-infused products must be sold in either child-proof packaging or in packaging warning “medicinal product—keep out of reach of children”. The bill removes the option of selling the products in the packaging with the warning. The bill makes an exception to the child-proof packaging if the purchaser has a doctor’s note explaining he or she has a condition that makes opening the child-proof packaging difficult.

The bill gives a retail marijuana store the ability to confiscate a fraudulent identification and detain and question the person who provided the fraudulent identification. The bill makes selling marijuana to a person under 21 years of age at a retail marijuana store a class 1 misdemeanor and creates the various licensing penalties for selling to an underage person.

The bill was amended in the Judiciary Committee and on the House floor on 2nd Reading; the bill passed out of the House on Friday, Feb. 14 on a 63 yes, 0 no, and 2 excused vote.

HB 14-1130. Concerning the disposition of moneys charged to borrowers for costs to be paid in connection with foreclosure.

By Rep. McCann and Sen. Ulibarri

Current law is silent on when and how fees for court filings, published notices, and other costs of foreclosure are to be calculated and paid and, if overpaid, refunded. The bill specifies that all costs and fees charged to a borrower must be accurately accounted for and that any overpayments based on prepayments or estimates must be promptly refunded to the borrower.

The bill was amended in the Local Government Committee and on the House floor on 2nd Reading; the bill passed out of the House on Friday, February 11 on a 64 yes, 0 no, and 1 excused vote. The bill is assigned to the Senate Local Government Committee.

HB 14-1136. Concerning exempting a continuing professional education program that is approved by a state professional licensing board from regulation by the division of private occupational schools in the department of higher education.

By Rep. Primavera

Under existing law, the division of private occupational schools in the department of higher education regulates private occupational schools and the education programs they provide. The bill exempts a continuing professional education program from regulation if the program is approved by the applicable Colorado professional licensing entity for maintenance or renewal of a professional license and the organization that provides the course qualifies under federal law as a nonprofit corporation. Also, the program must be consistent with the purposes or requirements of the organization that provides the program. The bill is assigned to the Education Committee; the bill is scheduled for committee review on Wednesday, Feb.19 “Upon Adjournment.”

HB 14-1153. Concerning attorney fees when an action is dismissed prior to trial.

By Rep. Priola and Sen. Tochtrop

In any tort action filed as a result of death or injury to person or property, current law requires a court to award a defendant attorney fees if the case is dismissed on a motion to dismiss under Rule 12 (b) of the Colorado rules of civil procedure. The bill extends the requirement to pay attorney fees to all civil actions. The CBA LPC voted to oppose the bill. The bill is assigned to the Judiciary Committee; the bill is scheduled for committee review on Tuesday, Feb. 18 “Upon Adjournment.”

Senate Bills

SB 14-98. Concerning clarifications to statutory language on crimes against at-risk elders.

By Sen. Zenzinger and Rep. Shafer

As amended, the bill adds language that allows for “other thing of value” to the current definition of exploitation of at-risk elders, which currently includes “money, assets, or property”. Language is added to the definition of “abuse” to include “exploitation”. Language confining the action to someone “who exercises authority over an at-risk elder” is removed from the definition of “undue influence”.

Instead of referencing the crime of theft, the bill establishes a new crime of criminal exploitation of an at-risk elder. Reporting requirements related to the mistreatment, neglect, or exploitation of at-risk elders is modified so that the reports no longer have to be forwarded to the district attorney’s office, but rather to a local law enforcement agency or county department of social services.

The bill was amended in the Judiciary Committee and on the Senate floor on 2nd Reading; the bill passed out of the Senate on Friday, Feb. 10 on a 34 yes, 0 no, and 1 excused vote. The bill is assigned to the House Judiciary Committee.

SB 14-102. Concerning the addition of employment positions held at financial institutions to the circumstances under which an employer may use consumer credit information for employment purposes.

By Sen. Ulibarri and Rep. Gardner

Under current law, an employer may use consumer credit information for employment purposes if the information is substantially related to the employee’s current or potential job. “ubstantially related to the employee’s current or potential job” is defined in statute to mean when the position “[c]onstitutes executive or management personnel or officers or employees who constitute professional staff to executive and management personnel”.

Current law also governs circumstances under which an employer may require a credit report, including when the information is substantially related to the employee’s current or potential job, when the employer is a bank or financial institution, or when the report is required by law.

To ensure that a bank or financial institution authorized to require a credit report may then use the credit report, the bill allows bank or financial institution employers to use consumer credit information for employment purposes by amending the definition of “substantially related to the employee's current or potential job” to include positions held at banks or financial institutions.

The bill was approved by the full Senate on Friday, Feb. 10, on a 34 yes, 0 no, and 1 excused vote. The bill is assigned to the House Business, Labor, Economic, & Workforce Development Committee.

SB 14-103. Concerning the phase-out of the sale of certain low-efficiency plumbing fixtures.

By Sen. Guzman and Rep. Fischer

The bill defines a “watersense-listed plumbing fixture” as one that has been:

  • Tested by an accredited third-party certifying body or laboratory in accordance with the federal environmental protection agency’s WaterSense program;
  • Certified by such body or laboratory as meeting the performance and efficiency requirements of the program; and
  • Authorized by the program to use its label.

Current law requires water-efficient indoor plumbing fixtures in only three contexts:

  • Builders of new single-family detached residences must offer the buyers toilets, faucets, and showerheads that meet the current standards of the WaterSense program;
  • Tank-type water closets and flushometer toilets in new state buildings must meet certain standards that are either less stringent than or as stringent as the current WaterSense standards; and
  • New construction and renovation of residential structures and office, commercial, or industrial buildings must meet standards that are less stringent than the current WaterSense standards.

The bill prohibits the sale of lavatory faucets, shower heads, flushing urinals, tank-type toilets, and tank-type water closets on and after Sept. 1, 2016, unless they are a watersense-listed plumbing. The bill amends or repeals conflicting portions of current law.

On Feb. 13, the Agriculture, Natural Resources, & Energy Committee amended the bill and sent it to the full Senate for review on 2nd Reading.

SB 14-116. Concerning the range of initiative petition signatures that requires the Secretary of State to do a line-by-line verification.

By Sen. Steadman and Rep. May
Joint Budget Committee

For a statewide initiative to appear on the ballot, at least 5 percent of the registered electors in the state must sign the initiative petition. After gathering signatures, the initiative proponents submit the initiative petition to the secretary of state for verification. The secretary of state then verifies the petition through random sampling. If the random sampling establishes that a petition has less than 90 percent of the total required to be on the ballot, it is deemed insufficient. If it has more than 110 percent, it is deemed sufficient. But if the random sampling establishes that the number of valid signatures is more than 90 percent but less than 110 percent of the required total, the secretary of state examines and verifies each petition signature filed (line-by-line verification).

The bill reduces the range that prompts the line-by-line verification to 95 to 105 percent of the required total and makes corresponding changes to the percentage needed to be deemed sufficient or insufficient by random sampling alone.

The bill is assigned to the State, Veterans, & Military Affairs Committee; the bill is on the committee calendar for Monday, May 17 at 1:30 p.m.

SB 14-117. Concerning the reauthorization of the regulation of real estate appraisers by the board of real estate appraisers through a recreation and reenactment of the relevant statutes incorporating no substantive amendments other than those approved during the first regular session of the 69th General Assembly.

By Sen. Jahn and Rep. Fischer

Under Senate Bill 13-154, the general assembly purported to continue the board of real estate appraisers and its functions in regulating real estate appraisers through Sept. 1, 2022. However, due to an oversight, the July 1, 2013, repeal date in the statute that creates the board was not changed to reflect the legislative intent to extend the life of the board, and accordingly, the regulation of real estate appraisers repealed on July 1, 2013.

The bill corrects this oversight by changing the July 1, 2013, repeal date to Sept. 1, 2022, and reauthorizing the regulation of real estate appraisers by the board of real estate appraisers in the department of regulatory agencies.

On Feb. 21, the Business, Labor, & Technology Committee approved the bill and moved it to the Finance Committee.