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Commentary and Analysis Regarding Colorado Law

Executive Authority In Plain View During COVID-19 Pandemic

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Article IV, Section 2 of the Colorado Constitution states that “The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed.” Perhaps no other time in recent memory has this authority been wielded more rapidly, widely, and with such impact to members of the public than in the current pandemic created by the novel coronavirus. This impact has come through the Governor’s use of executive orders to control everything from the ability to move freely in the State (Stay at Home, D 2020-017, and Safer at Home, D 2020-044), to the operation of ski areas (D 2020-004), and the ability to have an elective or non-essential surgery (D 2020-09), to name a few.Put simply, executive orders allow the Governor to create law without the normal legislative process the General Assembly goes through to enact statutes. Under normal circumstances, the General Assembly (as the legislative branch) is charged with making the laws through the approval of bills, while the Governor holds approval authority over the bills passed by the legislature before they can become law (the judiciary, as the third branch of government is charged with interpreting the constitution and laws of the state). In effect, executive orders are intended to allow for more flexibility in specific times of need, so that quick actions can be taken outside of the context of the normal three-branch system of government. [In case anyone needs a refresher on our three-branch system, I would direct you to the following scholarly overview: Schoolhouse Rock (I will leave the irony of the “three-ringed circus” analogy up to the reader)].

Executive orders are usually limited to directing how the executive branch of government functions. However, with prior approval from the legislative branch, executive orders can become more wide-reaching, which is what we have seen in the current pandemic circumstances.

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Open Records and Personnel Files

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Most, if not all, government employees are aware of the general proposition of “open records.”  The general premise is that information related to the functions of government should be open to public inspection.  In Colorado, this general premise is codified in the Colorado Open Records Act, § 24-72-200.1, et seq., C.R.S. (“CORA”).  CORA applies to all local governments within Colorado including, but not limited to school districts and special districts.  At the beginning of CORA, the state General Assembly provides the following declaration on the intent of the law:

“It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as provided in [CORA] or as otherwise specifically provided by law.”[1]

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What is the Gallagher Amendment?

Amendments

In 1982, Colorado voters passed the Gallagher Amendment to the Colorado Constitution.  The Amendment got its name from Dennis Gallagher, the state legislator that proposed the action.  The primary concern of the Gallagher Amendment was to set a specific policy for determining actual value and assessed value of property in relation to the collection of property taxes within the State of Colorado. 

More specifically, the Gallagher Amendment set a fixed ratio for the amount of revenues collected through property tax and divided those revenues into two major categories: Non-residential and Residential.  Residential, as it suggests, is the property tax revenue generated from the ownership of homes.  Non-residential includes everything else, from commercial properties and farms, to oil and gas properties.  The Gallagher Amendment requires that Non-residential property tax revenues make up 55% of total property tax revenues, leaving Residential to account for the remaining 45%.  Significantly, the Gallagher Amendment also fixed the Non-residential Assessment Rate at 29% and requires the Residential Assessment Rate to fluctuate in order to maintain the 55%-45% ratio between the two sources of revenue.  The combination of the 55%-45% ratio and the floating Residential Assessment Rate has resulted in a consistent “ratcheting down” effect for the Residential Assessment Rate between 1982 and the present. 

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