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From the Colorado Bar Association - Department of Legislative Relations
Michael Valdez
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/
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Just another routine week under the dome . . .
How fitting is it that the House of Representatives has its own version of You Tube/C-Span that is available to people over the Internet from the legislature homepage (www.leg.state.co.us – click on the link near the top of the page to take you to the audio video page and choose to watch live video steaming of the House of Representatives or audio from the both the House and Senate chambers or committee rooms). The best part – it’s all free and you just never know what you might come across. Seriously, you are going to have to tune in because seeing truly is believing. And, the last word on the “kicking incident” – Rep. Bruce was censured by the full House for kicking a media photographer during the morning prayer on the day he was to be sworn in. The vote 61 yes, 1 no, 2 excused and 1 not voting (under House rules Rep. Bruce was not allowed to vote).
CBA Legislative Policy Committee (LPC) activity
This segment is a quick re-cap of positions taken by the CBA’s Legislative Policy Committee (LPC). The LPC meets weekly to consider request from sections and committees to take positions on pending legislation. This section will become a weekly feature of the e-legislative report.
The LPC voted to support HB 1089 - Nonprofit Corporation Board Action at its meeting on January 18; the bill aligns provisions in the Nonprofit Corporation Act with the Business Corporations Act regarding taking action upon written notice. Also on January 18, the LPC voted to offer amendments to HB 1173 – Uniform Prudent Management of Institutional Funds Act (UPMIFA). The bill is a modernization of the 35 year old Uniform Management of Financial Institutions Act (UMIFA) which has served the state well over the years, but now needs to be updated to accommodate today’s business practices.
On January 25, the LPC took up SB 54 – Judicial Performance Evaluations; this bill is the culmination of Herculean efforts by the bill sponsors – Sen. Brandon Shaffer and Rep. Terrance Carroll – to bring interested parties to the table to propose improvements to the judicial performance evaluation statute and program. SB54 is the product of several meetings hosted by the above mentioned legislators in their effort to bring forth a bill with as much consensus as possible – a largely successful effort. Prior to the Shaffer/Carroll meetings, the CBA had formed a task force in the spring and summer of 2007 to review and suggest improvements to the statute. The CBA effort produced the basis for what is now SB 54. However, after reviewing the introduced version of the bill, the CBA will continue to pursue amendments which are consistent with the final report issued by the Task Force, which was approved by the CBA Board of Governors. Also on the LPC’s docket last Friday was HB 1148 – Adverse Possession; this bill is in response to the much talked about adverse possession case out of Boulder. The Real Estate Section is working on amendments to deal with some of the questions raised by the introduced version of the bill. Finally, the LPC voted to support HB 1020 – Offer of Settlement; this is the 2008 version of a bill that the CBA supported in 2005. The bill amends the offer of settlement statute by allowing a plaintiff to recover actual costs that accrue prior to the time the defendant made the settlement offer if the plaintiff rejected a defendant’s settlement offer and recovers a final judgment that is less than the settlement offer.
10 BILLS OF INTEREST:
In the House
1. HB 1091 - Concerning the production of information to the department of revenue for purposes of establishing tax liability. By Rep. Judd and Sen. Veiga. Allows the department of revenue (department) to demand production or access to information necessary for determination of a tax liability by the issuance of an information document request (IDR) after a good faith negotiation with a taxpayer for the production or access to such information. Specifies requirements for the IDR.
Establishes that, if the taxpayer fails to produce or provide access to information requested pursuant to the IDR, the taxpayer is precluded from introducing the information into evidence in any subsequent administrative or court proceeding arising from the administrative action. The preclusion from introducing information into evidence does not apply:
- To resident individuals, nonresident individuals, or small businesses;
- If the taxpayer can demonstrate that the IDR was not issued correctly;
- If the taxpayer can demonstrate that it reasonably believed such information was not responsive to the IDR;
- If the taxpayer can demonstrate that the taxpayer's failure to provide such information was reasonable; or
- If the executive director of the department (executive director) or district court finds that the interests of justice requires the introduction of such information. Specifies that, if the taxpayer is required to introduce such information pursuant to this exception, the taxpayer may be subject to a penalty equal to a specified percentage of any reduction in tax liability resulting from the information introduced. Allows a taxpayer receiving an IDR to immediately appeal the issuance of the IDR directly to the executive director. The executive director may quash, modify, or uphold the issuance of the IDR.
Defines terms. Assigned to the Finance Committee.
2. HB 1101 - Concerning increased state funding for services for persons with developmental disabilities for the purpose of reducing waiting lists for such services, and making an appropriation therefor. By Rep. B. Gardner and Sen. Renfroe. Interim Committee on Long-term Health Care Services and Supports for Persons with Developmental Disabilities. Creates the developmental disabilities services cash fund. In each of the next 5 fiscal years, directs the general assembly to appropriate to the fund a specified percentage of the amount by which total general fund appropriations for the fiscal year may increase over the prior fiscal year in accordance with the statutory limit on general fund appropriations. Directs the general assembly to make annual appropriations from the fund to the department of human services for program costs for adult comprehensive services, adult supported living services, and family support services for persons with developmental disabilities. Makes legislative findings and declarations. Makes an appropriation. Assigned to the Health and Human Services and Appropriations committees.
3. HB 1104 - Concerning violations of traffic rights-of-way resulting in bodily injury or death. By Rep. Marostica and Sen. Brophy. Creates a new misdemeanor traffic offense, the "aggravated right-of-way offense", to apply when bodily injury or death has been proximately caused by a violation of traffic rights-of-way. Establishes a penalty for committing an aggravated right-of-way offense. Assigned to the Judiciary Committee.
4. HB 1115 - Concerning retaliation against a judge, and making an appropriation in connection therewith. By Rep. Liston and Sen. Renfroe. Creates a new class 3 felony if a person threatens, harasses, or harms certain individuals in retaliation or retribution against a judge. Makes a 5-year statutory appropriation. Assigned to the Judiciary and Appropriations Committees.
5. HB 1117 - Concerning the inclusion of restorative justice in the children's code. By Rep. Merrifield. Defines "restorative justice" as practices that emphasize repairing the harm to the victim and the community resulting from criminal acts. Directs the juvenile diversion program to integrate restorative justice practices into the program. Requires the court to advise a juvenile of restorative justice sentencing at the juvenile's first court appearance and when pleading guilty. Makes restorative justice a sentencing alternative for the court. Provides the court the option of ordering a restorative justice intake conference as a part of a sentence to probation. Assigned to the Judiciary Committee.
In the Senate
1. SB 83 - Concerning the verification of the work eligibility status of new employees through the federal electronic verification program. By Sen. Schultheis and Rep. Lundberg. Repeals the current requirements imposed on employers to examine, and retain records of examining, the legal work status of new employees and instead creates the "Fair and Legal Employment Act" (act), which requires all nongovernmental employers in the state to participate in the federal electronic verification program (e-verify program) for purposes of verifying the work eligibility status of all new employees hired by an employer. Establishes deadlines by which employers must start participating in the e-verify program, based on the number of employees of the employer, and requires the attorney general to impose fines on an employer for failure to participate in the e-verify program or to provide documentary proof of participation.
Prohibits an employer from intentionally or knowingly employing an unauthorized alien, and requires an employer to immediately terminate an employee for whom the employer receives a final notice of nonconfirmation of work eligibility through the e-verify program. Requires the attorney general or the county or city attorney, as appropriate, to investigate complaints of employer noncompliance. Requires the appropriate county or city attorney to bring a court action against the employer when an investigation shows a complaint has merit. Upon finding a violation, requires the court to order the employer to:
- Terminate the employment of all unauthorized aliens;
- Be subject to probation, during which the employer must submit quarterly reports of all newly hired employees to the county or city attorney;
- Submit a sworn affidavit attesting that the employer has terminated the employment of all unauthorized aliens.
For knowing violations, allows the court to order the suspension of the employer's business licenses. For intentional violations, requires the court to order the suspension of all business licenses for a minimum period. For a second violation, requires the revocation of all business licenses.
Requires the attorney general to maintain copies of, and provide access to, all court orders issued against employers and to maintain a database of employers with a first violation. Requires the department of revenue, in cooperation with the department of labor and employment, to provide a notice of the requirements of the act to employers obligated by law to withhold taxes for employees.
Creates the e-verify program cash fund, to consist of moneys collected as fines imposed on employers for failing to participate in the e-verify program. Authorizes the moneys in the fund to be used to cover the costs incurred by the attorney general, county attorneys, and city attorneys in administering and enforcing the requirements of the act. Requires contractors and subcontractors entering into public contracts for services with a state agency to participate in the e-verify program. Defines as a discriminatory or unfair employment practice the termination from employment of a United States citizen or permanent resident alien while retaining an unauthorized alien in the same type of job when the employer knew or should have known that the person was an unauthorized alien. Assigned to the State, Veterans, and Military Affairs Committee.
2. SB 86 - Concerning the prohibition of activities related to the creation of partnership agreements with the state by employee organizations for the benefit of state employees. By Sen. Mitchell and Rep. C. Gardner. Prohibits an employee organization from taking any action to become or from becoming the employee organization entitled to or responsible for exclusively representing all of the state employees in any occupational group or other categorization of state employees (state employees) regarding issues of mutual concern between state employees and the state as an employer or from collecting organizational membership dues from state employees by payroll deduction.
Prohibits state employees from selecting an employee organization to serve as the exclusive representative of all state employees.
Prohibits the director of the division of labor from accepting a petition from an employee organization to become the exclusive employee representative of state employees, certifying any employee organization as the exclusive representative of state employees, or acting as the agent of any employee organization.
Prohibits an employee organization from negotiating with the governor or the governor's designee to create an employee partnership agreement. Defines terms. Assigned to the State, Veterans, and Military Affairs Committee.
3. SB 90 - Concerning mail-order prescription drugs under the state medical assistance program. By Sen. Hagedorn and Rep. McGihon. Allows a Medicaid recipient to use a mail-order pharmacy for maintenance prescription drugs, but prohibits the pharmacy from charging the recipient more than the Medicaid copayment. Authorizes a mail-order pharmacy to bill the Medicaid program for the difference between the Medicaid copayment and the third party insurer's copayment or deductible. Assigned to the Health and Human Services Committee.
4. SB 94- Concerning modifications to the "Urban Renewal Law" to enable municipalities to create community development areas for the purpose of undertaking community development projects. By Sen. Bacon and Rep. Pommer. Amends the "Urban Renewal Law" (URL) to:
- Enable municipalities to create community development authorities.
- Enable authorities created under the URL to undertake community development projects and to submit community development plans.
- Require a community development project to advance a specified number of the following objectives:
- Creating ongoing employment opportunities;
- Strengthening the local tax base;
- Inducing private business to locate in or remain in the municipality;
- Utilizing renewable energy or clean energy;
- Mitigating environmental contamination of buildings or property;
- Providing affordable housing;
- Providing transit facilities; or
- Providing regional infrastructure that benefits the community as well as the area to be developed or redeveloped.
- Prohibit an authority from acquiring private property by eminent domain in connection with a community development project.
- Prohibit an urban renewal area from containing agricultural land unless certain conditions specified in the act have been satisfied.
- Prohibit an authority from commencing work on a community development project for a community development area unless certain conditions specified in the act have been satisfied. Prohibits the governing body of the municipality from approving a community development plan until a general plan for the municipality has been prepared. Prohibits an authority from acquiring real property for a community development project unless the local governing body has approved the community development plan in accordance with the provisions of the act.
- Require the governing body of the municipality, prior to its approval of a community development plan, to submit the plan to the planning commission of the municipality, if any, for its review and recommendations as to the conformity of the proposed community development plan with the general or master plan of the municipality. Requires the planning commission to submit its written recommendations on the proposed community development plan to the governing body. Requires the governing body to hold a hearing on the proposed community development plan. Specifies requirements applicable to the hearing.
- Specify requirements applicable to the approval or modification of a community development plan.
- Specify that, upon the approval by the governing body of a community development plan or a substantial modification to the plan, the provisions of the plan with respect to the land area, land use, design, building requirements, timing, or procedure applicable to the property covered by the plan are controlling with respect to such property. Authorize a community development plan to contain provisions allowing for tax increment financing subject to the conditions specified in the act.
- Clarify that the requirements of the act do not affect action undertaken prior to the passage of the act.
Defines terms. Makes legislative findings and declarations. Makes conforming amendments. Assigned to the Local Government Committee.
SB 96 - Concerning a change to the composition of the state agricultural commission to require the governor to appoint certain members from the state at large. By Sen. Isgar and Rep. Curry. Changes the composition of the state agricultural commission (commission). Requires that the governor appoint one member from each agricultural district and 5 members from the state at large. Preserves diversity in political party affiliation of the members of the commission. Assigned to the Agricultural, Natural Resources and Energy Committee.
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