Commentary and Analysis Regarding Colorado Law

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 a proposed Bill called the “Helping Open Properties Endeavor Act of 2020,” establishing a loan fund to avoid a wave of property foreclosures. 

HOPE Act: Early Thoughts on a Possible Rescue Plan for Real Estate

UPDATE: On June 1, 2020, Governor Polis issued an updated Executive Order, linked here, that extended the Safer-at-Home phase of the states COVID-19 pandemic response for thirty (30) days. That Order now only recommends rather than directs employers to accommodate employees with childcare needs or that live with a Vulnerable Individual. That Order also encourages Coloradans to explore the vast outdoors while practicing social distancing and wearing a face covering. In addition to this extended Order, the restaurant guidelines, although forbidding bars to open, has evolved based upon a loophole that a few bars and breweries have found. If a bar or brewery has a restaurant license and offers food items it can reopen. However, if a bar or brewery reopens under its restaurant license it must also follow the restaurant guidelines. Further discussion on bars and breweries reopening can be found here.

On April 27, 2020, Governor Polis issued an Executive Order, linked here, that transitioned the state from Stay-at-Home to Safer-at-Home in response to the COVID-19 pandemic. The Safer-at-Home Executive Order is one of three governmental response levels meant to protect public health. The three levels are Stay-at-Home, Safer-at-Home, and Protect-Our-Neighbors. A graphic of the levels can be found here. Each level provides differing business closures, testing requirements, and permitted density of gatherings based upon the prevalence of the virus in the state. The Governor will monitor the virus and shift his Orders accordingly. On May 25, 2020, Governor Polis extended the April 27, 2020, Executive Order, which was set to expire on May 27, 2020, to June 1, 2020. The extended Executive Order can be found here.

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.

May 15, 2020
Highlights from Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act)
By Brian L. Allard, Associate

On May 12, 2020, the Speaker of the House, Nancy Pelosi, introduced a $3 trillion bill, titled the HEROES Act, to provide further assistance to individuals, state and local governments, and public and private businesses impacted by the COVID-19 pandemic. The text of the bill can be found here. 

April 17, 2020
Grant Funds Available to Local Governments and Nonprofits
by Adele L. Reester, Shareholder

School and special districts throughout Colorado continue to make adjustments in conducting business operations and educating students during the COVID-19 worldwide pandemic, expending funds in response to the numerous public health orders and school closures.  Following the federal and state emergency disaster declarations, many of these local governments have executed their own emergency declarations to help navigate these uncharted waters.  While these emergency declarations may be useful in exercising powers to operate in the COVID-19 environment, they are also beneficial for applying to access state and federal grant dollars for the reimbursement of these unanticipated COVID-19-related expenses.  

April 15, 2020
COVID-19 ALERT: Beware of Scams
by Jennifer M. Spitz, Shareholder

During the COVID-19 pandemic, there are many examples of altruism and community support.  Unfortunately, though, not everyone has good intentions.  Some people use this difficult time to try to defraud others.  Below are some examples to watch out for.

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 provides a sample form for use by companies designated as “Essential Businesses and Operations” under Governor Polis' Executive Order D2020-017 (as amended) exempting certain critical services from the stay-at-home Order.

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 Colorado Governor Jared Polis’ recent Executive Order regarding paid sick leave.

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]

School and special districts, along with other governmental entities, are governed by many federal and state laws, including Colorado’s state laws related to public records and their record retention periods.  Section 24-80-101, C.R.S. and following, provide the statutory framework for the legal requirements for school boards of education and special district boards of directors to follow in order to determine what public records must be preserved as permanent records, along with what public records may be destroyed and when such destruction may occur.  Without having an adopted records retention schedule approved by the Colorado State Archives, no record may be destroyed.  This article provides an overview of how to create and adopt a records retention schedule for your local government entity so that records may then legally be destroyed, as well as reviews the benefits of establishing the retention schedule.

What is a records retention schedule?  A records retention schedule lists all records maintained by the school or special district, along with how long each record must be maintained.  The schedule sets forth which records must be retained permanently and which others can be destroyed once they have exceeded the minimum retention period. The records retention schedule acts as the legal authorization by the State Archives and State Auditor to then destroy the non-permanent records.

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. 

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.

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?”

Submitted by Blair M. Dickhoner

On February 18^th, Governor Hickenlooper signed into law the much anticipated Local Government Election Code, legislatively known as HB-1164.  HB-1164 was crafted to resolve several inconsistencies between special district election requirements and the new election provisions created by the passage of HB-1303 last year.  HB-1164, codified at Section 1-13.5-101 et seq., C.R.S., applies to any district, business improvement district, Title 32 special district, authority or political subdivision of Colorado that is authorized by law to conduct an election.  It does not, however, apply to counties, school districts, RTD or municipalities.

Special districts that are unable to cancel their election will be permitted to follow one of the following election options: (1) hold a coordinated election with the county (primarily for November elections); (2) conduct a polling place election; or (3) carry out an independent mail ballot election.  In circumstances where a special district opts to proceed with a non-coordinated polling place or independent mail ballot election, the new Local Government Election Code will govern the operation of that election.