Commentary and Analysis Regarding Colorado Law

Lyons Gaddis COVID-19 Alert

This Alert is one in a collection of articles created by Lyons Gaddis in our effort to get important information to our clients regarding the effect of the novel coronavirus (COVID-19) outbreak in the United States.  This Alert focuses on small business owners who are dealing with closures and other challenges in response to recommended or mandated social distancing measures in the wake of the spreading coronavirus 

Some of the most contested lawsuits pit neighbor against neighbor, arguing over who owns what small strip of seemingly valueless land. Sometimes one neighbor argues the fence is a foot over the lot line; other times, a neighbor puts up a fence in the middle of the night. Tensions flare, and weeks later, everyone is at the lawyers’ offices armed for bear.  Many months and thousands of dollars later, a District Court Judge decrees where the true lot line rests.  Maybe a fence moves, maybe it doesn’t, maybe a deed gets recorded.  Whether you win or lose, everyone spent a fortune and no one is happy.  

From the outside, boundary disputes seem like the most petty, unreasonable lawsuits you could imagine. However, sometimes they’re legitimate. Most Colorado towns were founded in the 1800’s.  Original surveys were often made using large, heavy chains to measure distances. Old surveys frequently marked boundaries as starting at the “large cottonwood tree” or “the stone fence post,” features that have long-since vanished. Survey chains were particularly bad at measuring over uneven  terrain, let alone foothills or mountains. Further uncertainty comes with modern surveying tools, such as GPS and laser scanning, called lidar.  Applying such accurate modern techniques to the verbiage of legal descriptions from the 1800’s is sometimes comical. Some towns, such as Leadville, find errors so great that one person’s house might be located on another person’s lot.  

Eve Canfield is a board member of Safe Shelter of St. Vrain Valley.  She wrote an amicus brief on behalf of five nonprofit organizations in support of a victim of domestic violence that left her home state and came to Colorado with their child, in Parocha v. Parocha, No. 17SC406. The amicus brief contributed to the Supreme Court’s Opinion on May 21, 2018, which established a major advancement in the protections available for victims of domestic violence and their families. 

A permanent protection order was granted by county court, but the District Court reversed, stating there were insufficient contacts to establish jurisdiction over the non-resident husband.  The Supreme Court considered whether and when a civil protection order is available to a victim of alleged domestic abuse who comes to Colorado seeking refuge from a non-resident partner.

Many local governments have determined within the past few weeks to send a ballot issue or question to their voters in the November 2016 election.  This act of setting the ballot language for the issue or question triggers the application of the Colorado Fair Campaign Practices Act (“FCPA”) (§ 1-45-117, C.R.S.)  For the local governments, this means that they are expressly prohibited from expending public funds to support/oppose any candidate for public office and any ballot issue before the voters.  This include a prohibition on contributions of public funds and contributions of “in kind” public services.

However, the FCPA does permit the expenditure of public funds/resources and the use of public employees' time/resources only for the printing of a factual balanced and fair summary which includes arguments both for and against a proposal on any issue of official concern before an electorate.  The summary cannot urge a vote in a particular manner (“VOTE YES”).  It should be noted that unless the matter is referred to your voters by your board, it is not of “official concern” and therefore funds could not be used to prepare arguments for or against a statewide ballot issues.  Of further note is that this is in addition to the TABOR comments which are received from the public in support or opposition to a tax measure.

Lyons Gaddis is pleased to announce that Cameron A. Grant has been elected as the firms’ new Managing Shareholder, effective July 1, 2016.  Mr. Grant succeeds Anton V. Dworak, who served as Managing Shareholder for 8 years, and joins his colleague, Catherine A. Tallerico, on the firm’s Management Committee.  During Mr. Dworak’s tenure he oversaw the expansion of the firm’s services, the opening of a Louisville office and the construction of an addition to the firm’s Longmont offices.

Mr. Grant returned to the firm three years ago.  Prior to rejoining Lyons Gaddis, Mr. Grant served as Managing Partner of Grant, Grant & Goiran and of Donelson, Ciancio and Grant, where he built his regional practice focusing on real estate development, transactions and business matters.  His real estate work involves the representation of real estate developers, investors, contractors and owners in connection with the acquisition, development and management of real estate projects, including residential subdivisions, condominiums, master-planned communities and office buildings. Cameron’s business work involves transactions of all sizes, including joint ventures, business structure and strategy, and general corporate counseling.

TIME FOR EMPLOYER’S TO REVIEW “USE IT OR LOSE IT” VACATION POLICIES

Submitted by Catherine Tallerico.

On January 1, 2015, a new Colorado Wage Protection Act (“Act”) went into effect, expanding wage claims under the Colorado Wage Act.  The Act gives the Colorado Department of Labor & Employment, Division of Labor (DOL) new enforcement authority to adjudicate complaints for unpaid wages, including earned vacation time.  The DOL’s authority to adjudicate vacation pay claims arises from the Wage Act’s definition of “wages” to include “vacation pay earned in accordance with the terms of an agreement.” Additionally, “if an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.” Colo. Rev. Stat. § 8-4-101.

Last summer, the DOL made statements indicating an intent to find “use it or lose it” vacation policies in violation of the Act.  Such statement would have constituted a change in the DOL’s prior position in which it had permitted such policies so long as the risk of forfeiture was clearly set forth in an agreement.

Our enterprising (and athletic) attorneys find a variety of ways to keep working despite the major snowstorm to hit the Colorado front range this week.  Some work from home, others test their snow tires, but a brave and healthy few turn the storm into the first official Lyons Gaddis Ski to Work Day.

Photo and snowbound fun courtesy of Madoline Wallace-Gross and Matthew Machado.

So, Now You Are a Winner?

Submitted by Cameron Grant.

Do not deny it.  You have already thought through (at least briefly) what you would do if you won the estimated $1,500,000,000 PowerBall jackpot.  Yes, that is $1.5 BILLION.  Would you start by buying yourself some new toys?  That Ferrari?  A new house?  Heck, how about an island?  My eldest son is currently working on college scholarship applications and I let him know that if I win PowerBall he can tear up those essays because I will simply buy him Georgetown University.  But, seriously, what should you do if you win?  In his post on the subject, Texas Tech law professor Gerry W. Beyer offers some practical suggestions for What To Do After Winning the Lottery.  Professor Beyer recommends the following:

Submitted by John Wade Gaddis.

Bob Dylan was right, “The times they are a-changing.”  When I first started handling estates forty years ago, the big unknown was the contents of the decedent’s safe deposit box. Typically, we had to contact the State Inheritance Tax Office and make an appointment to have one of the State’s employees meet us at the bank to inventory the box. It was usually a moment that was fraught with drama and surprises. There were unexpected documents, rogue personal property and secrets in virtually every box. That process has been relegated to history as there is no current obligation to contact the State to open a safe deposit box.

But now, there is a vast amount of private information (and surprises) kept online and/or on a personal computer. Everyone wants to safeguard his/her passwords (and some people have more than a hundred passwords). Passwords are typically memorized and in some events written down and kept in a “safe” place.

Submitted by Catherine Tallerico.
The Pregnancy Discrimination Act (PDA) requires that a covered employer treat women affected by pregnancy, childbirth or related medical conditions the same as other applicants or employees who are similarly situated in their ability or inability to work.  The PDA covers all aspects of employment, including hiring, firing, promotions and fringe benefits.  Pregnant workers are protected from discrimination based on current pregnancy, past pregnancy and potential pregnancy.

The United States Supreme Court decided the Young v. UPS case in March 2015.  UPS had a light duty policy which only applied to those injured on the job or those suffering from a disability as defined by the Americans with Disabilities Act.  A pregnant woman who had lifting restrictions due to her pregnancy was therefore not entitled to light duty work.  The Court held that UPS’s practice could be discriminatory in that it failed to provide light duty to the pregnant employee even though other workers who were similar in their ability or inability to work were permitted light duty work.  The Court sent the case back to a lower court for trial.

Submitted by Blair Dickhoner.

We are all familiar with the age-old philosophical question – “If a tree falls in a forest and no one is around to hear it, does it make a sound?”

Dick Lyons recently had the honor of presenting a $500 college scholarship to Ms. Alessandra Chavez.  Ms. Chavez was given the award by the Hispanic Education Foundation.  Alessandra graduated from Longmont High School and will attend the University of Northern Colorado to major in biology or chemistry.  The Firm is proud to support the Hispanic Education Foundation in its efforts to create education opportunities, enrich lives, and enhance the St. Vrain Valley community.

The scholarship awards banquet was discussed in more detail in a recent article in the Longmont Times Call.  “We’re a small organization, but we’re a lot of committed individuals and members of the community who care about the future of Longmont and the St. Vrain Valley,” said Longmont resident and Boulder firefighter Matt Zavala, who serves on the board.

Lyons Gaddis water lawyers have been asked by several of the firm’s clients to advise them on providing water to marijuana-related businesses cultivating marijuana in “grow operations.”  These matters are complicated by the fact that the cultivation and sale of marijuana remains illegal under federal law. Under the aiding and abetting doctrine of criminal law, persons or entities providing water to these businesses could be subject to a federal prosecution.

Lyons Gaddis attorneys Jeff Kahn and Matt Machado recently spoke to state and local bar associations regarding the legal and ethical implications of providing legal representation to water providers in negotiating sales or leases of water for grow operations.  Mr. Kahn’s presentation to the Colorado Bar Association, Water Law Section (available here) covered topics including the lack of clear direction provided by the Cole Memorandum and the Bureau of Reclamation policy regarding the use of reclaimed water for activities prohibited by the Controlled Substances Act.  Matt Machado participated in a panel at the Boulder County Bar Association Bench Bar Retreat, and discussed ethical requirements for lawyers representing marijuana-related businesses.  This is a new area of the law that continues to evolve rapidly.  If you have questions in this area of water law, please contact , Jeff Kahn or Matt Machado.

Submitted by Eve Canfield Spot is my neighbor’s dog. There are few people Spot doesn’t want to bite. Because I fostered her as a rescue puppy, I am one of the lucky and very few humans that she loves unconditionally. If anything happened to Spot’s family, she would be welcomed into my home. She knows the way quite well. For a large number of the over 2.7 million animals euthanized in the U.S. every year, there is no home to go to when their owner (or “guardian” in Boulder) dies. Apparently we can partially thank Leona Helmsley, according to an article in the UMKC Law Review, for the establishment of enforceable Pet Trusts in Colorado and 37 other states. Leona left $12 million for the care of her dog, Trouble, in trust. In a legal sense, dogs and cats are personal property and are left to heirs or beneficiaries, who may or may not want to or be able to, care for a relative’s pet. It often takes weeks to resolve issues of personal property, but you can’t just store a pet with the silver until somebody makes a decision. A Pet Trust, however, can take immediate effect upon death to provide for your pet’s care.
Trusts are typically established with designated property for specific people. Some trusts are established for a particular purpose, such as a charitable trust. Pet Trusts are often called “honorary trusts.” This is because the pet can’t enforce the provisions of a trust to take them for a walk or to give a good scratch (although many pet owners might disagree). Colorado Revised Statute § 15-11-901, provides for an enforceable trust for the care of a designated domestic animal or pet and any of the offspring in gestation. It is interesting and unusual that this statute exempts a Pet Trust from the application of the rule against perpetuities (worthy of a separate explanation) and it also specifically allows extrinsic evidence to be admitted in the event a court has to interpret a Pet Trust and determine the intent of the person who transferred property into a trust for the pet’s care. There are several options available to provide for the future care of a pet, such as a simple provision in your will for a designated person to care for your pet and with a designated amount of money. You can also set up a separate trust with a formal trust document and designate property to fund it. You can also obtain a life insurance policy to fund the trust upon your death. So if you don’t have $12 million like Leona Helmsley or a neighbor who also loves your dog, like Spot does, you can still provide for the care of your pet when you’re gone.

Submitted by John Gaddis

Even with the ups and downs of oil prices, the oil and gas boom in Colorado is continuing. However, if you own land that has an existing oil and gas lease but there is no development of the minerals on your property, what do you do? Does a landowner have any recourse to require the lease holder to explore, develop and produce the minerals? Can the landowner seek to cancel the existing lease and negotiate a new one?

Medical Payments Coverage in Colorado

In the last two newsletters (Are You Putting Yourself at Risk by Saving on Your Car Insurance – Part 1, Part 2) I wrote about how it is important to have enough liability coverage and uninsured/underinsured motorist coverage to protect you from the harm you may cause or the harm you may incur when involved in an auto collision. Both of these auto coverages protect you in the long run, but are almost never paid until medical treatment is complete. Even though you may have plenty of insurance to reimburse you for damages incurred, medical bills start coming almost immediately after the accident. If you don’t have health insurance this can create real problems.

Under Colorado law an automobile insurance company is required to offer up to $5,000 of medical payments coverage when you initially purchase your auto insurance policy. Medical payments coverage pays up to the limit of coverage for every person in your vehicle and it pays on an ongoing basis. There are no deductibles and no co-payments, and it pays regardless of who is at fault for the collision. Many carriers offer medical payments coverage up $25,000 per person and some will offer as high as $100,000 per person.

Submitted by Jeff Kahn

On November 19th, Longmont’s Sean Cronin testified before the Senate Committee on Finance, Subcommittee on Taxation and IRS Oversight’s hearing entitled “Tax Relief after Disaster: How Individuals, Small Businesses, and Communities Recover.”  Mr. Cronin is the Executive Director for the St. Vrain and Left Hand Water Conservancy District.  (Watch Mr. Cronin’s testimony) He spoke to the challenges faced by farmers and mutual ditch companies as they work to rebuild important water infrastructure damaged by the 2013 flooding and the benefits that would be offered by adoption of the National Disaster Tax Relief Act of 2014., currently under review in the House and Senate. The full text of Mr. Cronin’s testimony is available here.

Submitted by Adele L. Reester

Has your local government received requests for access to and copies of public records? Have you wondered whether it is legal to charge a research fee for the time that it takes your staff to locate the records? Legislation signed by Governor Hickenlooper on May 2, 2014 provided clarification in response to recent court decisions holding that “reasonable” fees could be charged for research and retrieval time spent in response to an open records request. While the courts stated that such fees are permissible, they had not defined the amount of a “reasonable” fee. This new law, which became effective July 1, 2014, requires that if a local government (including school districts and special districts) is going to charge a fee for research and retrieval time it must have adopted a public records policy and posted it to the records custodian’s website or otherwise published it prior to receiving the request. This policy must contain the procedures for requesting and obtaining public records and it must specify the amount of the research and retrieval fee which the legislature determined should not be greater than $30.00 per hour. Every five years this maximum charge will be adjusted for inflation. Additionally, local governments may not charge at all for the first hour of time devoted to research and retrieval of records

Submitted by Blair M. Dickhoner

Many special districts take a “set it and forget it” approach to their insurance policies. In an environment where the legal landscape, exposure to risk and policies are changing regularly, this approach can create a great deal of exposure for special districts.

The Firm is excited about our new branch office in Louisville. Located at 363 Centennial Parkway, Suite 110, our Louisville office will provide greater flexibility for current and new clients from Louisville, Superior, Erie, Lafayette, Broomfield and surrounding communities near the Highway 36 corridor, as well as those from the Boulder and Denver metropolitan areas.

We are also excited that our three attorneys who live in Louisville, Steve Jeffers, Matt Machado and Madoline Wallace-Gross, will work on a regular basis in the Louisville office, allowing them to be more active in their hometown community. Steve has lived in Boulder County since 1977 and called Louisville home for the past 28 years. Matt and Madoline have also lived in Louisville for a number of years. All three attorneys look forward to new opportunities to be involved in the Louisville community. The Firm’s Louisville branch office will include office space for resident attorneys Steve, Matt, and Madoline, and additional office and conference space for other attorneys to work and to meet with clients, expert witnesses and consultants. All of the Firm’s attorneys are available to meet by appointment in either the Longmont office at 515 Kimbark Street, 303-776-9900 or in the Louisville office at 363 Centennial Parkway, 720-726-3670.