October 20, 2017

Public Comment Period Open for 2018 10th Circuit Local Rules

On Tuesday, September 5, 2017, the Tenth Circuit Court of Appeals released its 2018 local rules for public comment. Comments will be accepted through October 31, 2017. A final version of the new rules will be posted on the Tenth Circuit’s website on December 1, 2017, and the rules will be effective January 1, 2018. A memo describing the changes to the local rules is available here, and a redline of the rule change is available here.

Effective December 31, 2017, two changes will be made to the Federal Rules of Appellate Procedure. Rule 4(a)(4)(B)(iii) will be changed to re-insert a sentence confirming that no fees are due when an amended notice of appeal is filed. Additionally, Rule 28.1(e)(3) will be deleted to correct a scrivener’s error; the rule should have been deleted last year.

Comments regarding the rule change may be submitted to the court clerk via email.

Colorado Court of Appeals: Internet has Made Some Aspects of Independent Contractor Test Obsolete

The Colorado Court of Appeals issued its opinion in Varsity Tutors LLC v. Industrial Claim Appeals Office on Thursday, July 27, 2017.

Employee—Independent Contractor–Unemployment Taxes.

Varsity Tutors LLC (Varsity) provided an online platform that connected tutors with students. Varsity had individual contracts with tutors, who advertised their services on Varsity’s website. Students who were interested in working with particular tutors contacted Varsity. Varsity then put the tutors and students together by providing contact information. Students and tutors then contacted one another to arrange tutoring sessions. Varsity and tutors agreed to an hourly rate that Varsity would pay them for tutoring, and Varsity generally charged students about twice that rate.

In 2014 the Division of Unemployment Insurance Employer Services—Integrity/Employer Audits for the Colorado Department of Labor and Employment (Division) audited Varsity’s 2013 books and decided that at least 22 tutors were Varsity’s employees for purposes of the Colorado Employment Security Act (CESA). The Division determined that Varsity owed $133.73 in unemployment taxes on the amounts it had paid the tutors. Varsity claimed that the tutors were independent contractors and it was thus not obligated to pay unemployment insurance taxes on wages it paid to them. A hearing officer and a panel of the Industrial Claim Appeals Office (Panel) decided the tutors were in “covered employment” and ordered Varsity to pay delinquent unemployment insurance taxes.

On appeal, Varsity asserted that the tutors were independent contractors and the Panel erred in concluding that Varsity was required to pay unemployment taxes. Varsity argued that the Panel erred by not applying the totality of the circumstances test.  CESA provides that a business can show that a worker is an independent contractor by proving by a preponderance of the evidence that the worker was (1) “free from control and direction in the performance of the service” under any “contract for the performance of the service” and “in fact”; and (2) “customarily engaged in an independent trade, occupation, profession, or business related to the service performed.” Both the panel and the hearing officer found the first part of this test was met. The second part of the test is guided by a totality of the circumstances analysis under Industrial Claim Appeals Office v. Softrock Geological Services, Inc. Alternatively, a business can establish that its workers are independent contractors by a written document signed by the business and the worker, documenting that the business did not do nine things listed in CRS § 8-70-115(1)(c). Such a document creates a rebuttable presumption of an independent contractor relationship as long as it also contains a disclosure in specific font that the worker as an independent contractor “is not entitled to unemployment insurance benefits” unless the worker or “some other entity” provides them and the worker must “pay federal and state income tax on any moneys paid pursuant to the contract relationship.”

Varsity’s contracts did not create a rebuttable presumption that the tutors were independent contractors. As to the second part of the CESA test, the contracts with the tutors stated in bold, “Independent Contractor Agreement for Services.” The disclosures in the contract are indicative that the tutors were independent contractors. The term “independent contractor” appears at least 16 times in the contract. The contract does not provide the tutors with training and provides minimal oversight of the tutors’ work, and does not establish a curriculum or require tutors to use specific materials. Applying the Softrock totality-of-the-circumstances test, the Court of Appeals found that the undisputed evidence in the record established that Varsity satisfied its burden of proving that the tutors were independent contractors because they were customarily engaged in independent businesses in 2013 that were related to the tutoring services they were performing.

The order was reversed.

Summary provided courtesy of The Colorado Lawyer.

Discovering Discovery: Building Your Case, Deposition Tips, Expert Witnesses, and More

“Reduced to its essence, discovery is the process of identifying, collecting, producing and/or receiving relevant, nonprivileged materials in connection with pending or reasonably foreseeable litigation. With the advent of notice pleading, civil discovery provides access to the relevant information that litigants and their counsel require to make informed decisions about the merits of their case and the potential for settlement.” -Magistrate Judge Craig B. Shaffer

Discovery is a crucial component of every litigation case. In the last 10 years, civil litigation has changed significantly. The proliferation of electronic data and new rules on both the state and federal level create increasingly difficult challenges for preserving, managing, and producing electronically stored information. Conducting discovery outside Colorado has become mainstream as civil litigation has become more national—even global.

This Friday, CBA-CLE will debut the newest title in our litigation library, Discovery in Colorado, at a full-day program, “Discovering Discovery.” Discovery in Colorado is a practical guide to discovery that brings to life the application of the Colorado and Federal Rules of Civil Procedure governing the discovery process. Discovery in Colorado was written by a variety of different practitioners, overseen by Magistrate Judge Nina Y. Wang and Natalie Hanlon Leh, Esq. Attorneys and judges with backgrounds in private, in-house, and government practice authored individual chapters.

Learn different approaches to discovery and hear distinct perspectives from some of the most experienced trial attorneys and judges in Colorado. Each class attendee receives Discovery in Colorado, 1st Edition, as course materials. Explore the ever-changing state of discovery through this valuable course and companion book. Register using the links below, or call (303) 860-0608.

 

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CLE Program: Discovering Discovery

This CLE presentation will occur on Friday, July 28, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from 8:30 a.m. to 4:45 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — Video OnDemandMP3 Audio

Tenth Circuit: Case Law Does Not Support EEOC’s Request for Broad Subpoena

The Tenth Circuit Court of Appeals issued its opinion in Equal Employment Opportunity Commission v. TriCore Reference Laboratories on February 27, 2017.

The Equal Employment Opportunity Commission (EEOC) is empowered to investigate charges of discrimination and enforce both Title VII, which prohibits employers from discriminating based on sex, including pregnancy, and the Americans with Disabilities Act of 1990 (ADA) which prohibits employers from discriminating against employees on the basis of their disability and requires employers to make “reasonable accommodations” to qualified individuals. When investigating charges of discrimination, the EEOC may obtain evidence that relates to unlawful employment practices covered by Title VII and is relevant to the charge under investigation. If the employer refuses to comply, the EEOC may issue a subpoena compelling production. If the employer does not respond to the subpoena, the EEOC may apply to a federal district court for an order compelling the employer to comply.

Kellie Guadiana worked for TriCore Reference Laboratories as a phlebotomist, which is someone who draws blood. She requested accommodations due to her rheumatoid arthritis, which was exacerbated by her pregnancy. TriCore’s human resource department determined Ms. Guadiana could not perform the essential functions of her position safely. The HR department offered her the opportunity to apply to other positions within the company. When Ms. Guadiana did not apply to a new position, TriCore terminated her.

Ms. Guadiana filed a charge of discrimination with the EEOC alleging that TriCore discriminated against her due to her disability (rheumatoid arthritis) and sex (pregnancy). TriCore explained to the EEOC that it had provided reasonable accommodations by offering her the chance to apply to a new position within the company. EEOC explained that this was a violation of the ADA because the ADA required TriCore to reassign Ms. Guadiana rather than merely provide her with the opportunity to apply to a new position. TriCore statement led the EEOC to suspect that TriCore had a company policy or practice of refusing to provide reassignment as a reasonable accommodation. Due to this, the EEOC informed TriCore in a letter that it was expanding the scope of its investigation to include the failure to accommodate persons with disabilities and failure to accommodate women with disabilities due to pregnancy.

The EEOC sent TriCore another letter requesting a complete list of TriCore employees who had requested an accommodation for disability and a complete list of TriCore employees who had been pregnant while at TriCore and whether they sought or were granted accommodations. TriCore refused to comply. The EEOC subpoenaed the information. When TriCore refused to comply, the EEOC submitted an application to the US District Court for the District of New Mexico requesting an order to show cause why the subpoena should not be enforced. The district court denied the EEOC’s application noting that the EEOC’s real intent in requesting the information was difficult to pin down.

The issue on appeal was whether the district court erred in declining to enforce the EEOC’s subpoena. The Tenth Circuit reviewed the district court’s decision for abuse of discretion. The Tenth Circuit held that the district court did not abuse its discretion in denying the enforcement of either the disability request, which the EEOC asserted was relevant to its investigation into whether TriCore had a policy of discrimination (i.e., pattern-or-practice evidence), or the pregnancy request, which EEOC asserted was relevant to the investigation whether TriCore treated Ms. Guadiana less favorably than similarly situated employees (i.e., comparator evidence).

Under U.S.C. §2000e, the EEOC is empowered to investigate charges of discrimination. But the EEOC has the burden to demonstrate the relevancy of the information sought in a subpoena. The Tenth Circuit referenced the Supreme Court’s decision in University of Pennsylvania v. EEOC, when stating the law that the EEOC does not need to provide a “specific reason” for requesting the information. However, the Tenth Circuit further cites that case for the law that the EEOC still bears the burden of showing the relevancy of the subpoenaed information. To do so, the Tenth Circuit held that the EEOC must show that it has a realistic expectation that the information requested would advance the investigation. The EEOC must also establish a link between the EEOC’s investigatory power and the charges of discrimination.

The Tenth Circuit held that the EEOC’s intent was difficult to pin down. With regard to the pattern-or-practice evidence, the Tenth Circuit held that the district court did not abuse its discretion in denying the EEOC’s request. The Tenth Circuit held that TriCore’s admission that it did not reassign Ms. Guadiana did not justify the EEOC’s expanded investigation beyond its initial investigation into Ms. Guadiana’s individual case. The Tenth Circuit held that the EEOC’s letter informing TriCore of its expanded investigation did not constitute a “charge” of discrimination, which is required under §2000e-8 for the EEOC to seek information about alleged discrimination. The EEOC had not alleged anything suggesting a pattern or practice of discrimination by TriCore. Therefore, the Tenth Circuit held that the district court did not abuse its discretion in finding TriCore’s alleged violation of the ADA, without more, was insufficient to warrant the EEOC’s expanded investigation. The EEOC did not satisfy its burden to justify its expanded investigation.

Next, the Tenth Circuit held that the EEOC waived the disability request part of its comparator-evidence argument on appeal. This was due to the fact that the EEOC limited its comparator-evidence argument on appeal to the pregnancy request. Therefore, the Tenth Circuit considered only the pregnancy request.

The Tenth Circuit held that the EEOC’s pregnancy request could seek information that was potentially relevant to Ms. Guadiana’s charge, which could tend to prove she was denied an accommodation on the basis of her disability. However, the EEOC did not present those relevance arguments in district court. Therefore, the Tenth Circuit held that the EEOC failed to meet its burden of explaining how the pregnancy request would offer information relevant to Ms. Guadiana’s charge. The Tenth Circuit held that the district court did not abuse its discretion.

The Tenth Circuit affirmed the district court’s holding.

Colorado Supreme Court: Inquiry into Unemployment Claimant’s Mental Condition Beyond Scope of Simplified Administrative Proceedings

The Colorado Supreme Court issued its opinion in Mesa County Public Library District v. Industrial Claim Appeals Office on Monday, June 26, 2017.

Unemployment Compensation—Fault or Misconduct—Illness or Physical Disability of Employee.

The supreme court held that where the Division of Unemployment Insurance determines a claimant was mentally unable to perform assigned work under C.R.S. § 8-73-108(4)(j) of the Colorado Employment Security Act, C.R.S. §§ 8-70-101 to 8-82-105, neither the text of C.R.S. § 8-73-108(4)(j) nor related case law contemplates further inquiry into the cause of the claimant’s mental condition, and such an inquiry is beyond the scope of the simplified administrative proceedings to determine the claimant’s eligibility for benefits. Here, the court concluded that the Division’s hearing officer erred in determining that claimant committed a volitional act to cause her mental incapacity and thus was at fault for her separation from employment and was disqualified from receiving unemployment benefits. The court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: District Court Did Not Abuse Discretion in Refusing to Enforce Subpoena

The Tenth Circuit Court of Appeals issued its opinion in Equal Employment Opportunity Commission v. TriCore Reference Laboratories on February 27, 2017.

The Equal Employment Opportunity Commission is empowered to investigate charges of discrimination and enforce both Title VII, which prohibits employers from discriminating based on sex, including pregnancy, and the Americans with Disabilities Act of 1990, which prohibits employers from discriminating against employees on the basis of their disability and requires employers to make “reasonable accommodations” to qualified individuals. When investigating charges of discrimination, the EEOC may obtain evidence that relates to unlawful employment practices covered by Title VII and is relevant to the charge under investigation. If the employer refuses to comply, the EEOC may issue a subpoena compelling production. If the employer does not respond to the subpoena, the EEOC may apply to a federal district court for an order compelling the employer to comply.

Kellie Guadiana worked for TriCore Reference Laboratories as a phlebotomist. She requested accommodations due to her rheumatoid arthritis, which was exacerbated by her pregnancy. TriCore’s human resource department determined Ms. Guadiana could not perform the essential functions of her position safely. The HR department offered her the opportunity to apply to other positions within the company. When Ms. Guadiana did not apply to a new position, TriCore terminated her.

Ms. Guadiana filed a charge of discrimination with the EEOC alleging that TriCore discriminated against her due to her disability (rheumatoid arthritis) and sex (pregnancy). TriCore explained to the EEOC that it had provided reasonable accommodations by offering her the chance to apply to a new position within the company. EEOC explained that this was a violation of the ADA because the ADA required TriCore to reassign Ms. Guadiana rather than merely provide her with the opportunity to apply to a new position. TriCore statement led the EEOC to suspect that TriCore had a company policy or practice of refusing to provide reassignment as a reasonable accommodation. Due to this, the EEOC informed TriCore in a letter that it was expanding the scope of its investigation to include the failure to accommodate persons with disabilities and failure to accommodate women with disabilities due to pregnancy.

The EEOC sent TriCore another letter requesting a complete list of TriCore employees who had requested an accommodation for disability and a complete list of TriCore employees who had been pregnant while at TriCore and whether they sought or were granted accommodations. TriCore refused to comply. The EEOC subpoenaed the information. When TriCore refused to comply, the EEOC submitted an application to the US District Court for the District of New Mexico requesting an order to show cause why the subpoena should not be enforced. The district court denied the EEOC’s application noting that the EEOC’s real intent in requesting the information was difficult to pin down.

The issue on appeal was whether the district court erred in declining to enforce the EEOC’s subpoena. The Tenth Circuit reviewed the district court’s decision for abuse of discretion. The Tenth Circuit held that the district court did not abuse its discretion in denying the enforcement of either the disability request, which the EEOC asserted was relevant to its investigation into whether TriCore had a policy of discrimination (i.e., pattern-or-practice evidence), or the pregnancy request, which EEOC asserted was relevant to the investigation whether TriCore treated Ms. Guadiana less favorably than similarly situated employees (i.e., comparator evidence).

Under 42 U.S.C. § 2000e, the EEOC is empowered to investigate charges of discrimination. But the EEOC has the burden to demonstrate the relevancy of the information sought in a subpoena. The Tenth Circuit referenced the Supreme Court’s decision in University of Pennsylvania v. EEOC, when stating the law that the EEOC does not need to provide a “specific reason” for requesting the information. However, the Tenth Circuit further cites that case for the law that the EEOC still bears the burden of showing the relevancy of the subpoenaed information.  To do so, the Tenth Circuit held that the EEOC must show that it has a realistic expectation that the information requested would advance the investigation. The EEOC must also establish a link between the EEOC’s investigatory power and the charges of discrimination.

The Tenth Circuit held that the EEOC’s intent was difficult to pin down. With regard to the pattern-or-practice evidence, the Tenth Circuit held that the district court did not abuse its discretion in denying the EEOC’s request. The Tenth Circuit held that TriCore’s admission that it did not reassign Ms. Guadiana did not justify the EEOC’s expanded investigation beyond its initial investigation into Ms. Guadiana’s individual case. The Tenth Circuit held that the EEOC’s letter informing TriCore of its expanded investigation did not constitute a “charge” of discrimination, which is required under § 2000e-8 for the EEOC to seek information about alleged discrimination.  The EEOC had not alleged anything suggesting a pattern or practice of discrimination by TriCore. Therefore, the Tenth Circuit held that the district court did not abuse its discretion in finding TriCore’s alleged violation of the ADA, without more, was insufficient to warrant the EEOC’s expanded investigation. The EEOC did not satisfy its burden to justify its expanded investigation.

Next, the Tenth Circuit held that the EEOC waived the disability request part of its comparator-evidence argument on appeal. This was due to the fact that the EEOC limited its comparator-evidence argument on appeal to the pregnancy request.  Therefore, the Tenth Circuit considered only the pregnancy request.

The Tenth Circuit held that the EEOC’s pregnancy request could seek information that was potentially relevant to Ms. Guadiana’s charge, which could tend to prove she was denied an accommodation on the basis of her disability. However, the EEOC did not present those relevance arguments in district court. Therefore, the Tenth Circuit held that the EEOC failed to meet its burden of explaining how the pregnancy request would offer information relevant to Ms. Guadiana’s charge. The Tenth Circuit held that the district court did not abuse its discretion.

The Tenth Circuit affirmed the district court’s holding.

Bills Signed Adding Water Right for Industrial Hemp, Amending Collections of Delinquent Taxes on Mobile Homes, Changing Election Laws, and More Signed

Though the legislative session is over, the governor continues to sign bills. He signed two bills on Friday, May 19; three bills on Saturday, May 20; three bills on Sunday, May 21; six bills on Monday, May 22; six bills on Tuesday, May 23; four bills on Wednesday, May 24; 28 bills on Thursday, May 25; one bill on Friday, May 26; and one bill on Tuesday, May 30. To date, the governor has signed 285 bills and vetoed one bill this legislative session. The bills signed since May 19 are summarized here.

Friday, May 19, 2017

  • HB 17-1354“Concerning the Collection of Delinquent Taxes on Certain Mobile Homes,” by Rep. KC Becker and Sens. John Kefalas & Kevin Priola. The bill modifies the county treasurer’s duties in connection with the collection of delinquent taxes on mobile or manufactured homes that are not affixed to the ground.
  • SB 17-305“Concerning Modifications to Select Statutory Provisions Affecting Primary Elections Enacted by Voters at the 2016 Statewide General Election to Facilitate the Effective Implementation of the State’s Election Laws, and, in Connection Therewith, Making an Appropriation,” by Sens. Stephen Fenberg & Kevin Lundberg and Reps. Patrick Neville & Mike Foote.

Saturday, May 20, 2017

  • HB 17-1113“Concerning Electronic Participation in Committee Meetings During the Legislative Interim,” by Reps. Yeulin Willett & Jeni Arndt and Sen. Ray Scott. The bill gives the executive committee of the legislative council the ability to consider, recommend, and establish policies regarding electronic participation by senators or representatives in committee meetings during the legislative interim.
  • HB 17-1258“Concerning Renaming Delta-Montrose Technical College to Technical College of the Rockies,” by Reps. Millie Hamner & Yeulin Willett and Sens. Kerry Donovan & Don Coram. The bill changes the name of ‘Delta-Montrose Technical College’ to ‘Technical College of the Rockies’.
  • SB 17-280“Concerning Extending the Repeal Date of the Colorado Economic Development Commission, and, in Connection Therewith, Making an Appropriation,” by Sen. Jack Tate and Reps. Dan Thurlow & Tracy Kraft-Tharp. The bill extends the Colorado economic development commission by changing the repeal date of its organic statute to July 1, 2025.

Sunday, May 21, 2017

  • HB 17-1003“Concerning a Strategic Action Plan to Address Teacher Shortages in Colorado,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill requires the Department of Higher Education in partnership with the Department of Education to examine recruitment, preparation, and retention of teachers and to prepare a strategic plan to address teacher shortages in school districts and public schools within the state.
  • HB 17-1077“Concerning the Useful Public Service Cash Fund,” by Rep. Donald Valdez and Sen. Don Coram. The bill creates the useful public service cash fund in the judicial branch to facilitate the administration of programs that supervise the performance of useful public service by persons who are required to perform such service pursuant to a criminal sentence.
  • SB 17-117“Concerning Confirmation that Industrial Hemp is a Recognized Agricultural Product for Which a Person with a Water Right Decreed for Agricultural Use may Use the Water Subject to the Water Right for Industrial Hemp Cultivation,” by Sen. Don Coram and Reps. Donald Valdez & Marc Catlin. The bill confirms that a person with an absolute or conditional water right decreed for agricultural use may use the water subject to the water right for the growth or cultivation of industrial hemp if the person is registered by the Department of Agriculture to grow industrial hemp for commercial or research and development purposes.

Monday, May 22, 2017

  • HB 17-1104“Concerning the Exclusion from State Taxable Income of the Monetary Value of any Medal Won by an Athlete while Competing for the United States of America at the Olympic Games, so long as the Athlete’s Federal Adjusted Gross Income does not Exceed a Specified Amount,” by Rep. Clarice Navarro and Sen. Kevin Priola. The bill specifies that for the purpose of determining the state income tax liability of an individual, income earned as a direct result of winning a medal while competing for the United States of America at the olympic games is excluded from state taxable income.
  • HB 17-1283“Concerning the Creation of a Task Force to Examine Workforce Resiliency in the Child Welfare System,” by Reps. Jonathan Singer & Dan Nordberg and Sens. John Cooke & Leroy Garcia. The bill creates a task force to organize county-level versions of and guidelines for child welfare caseworker resiliency programs modeled on national resiliency programs.
  • HB 17-1289“Concerning a Requirement that the State Engineer Promulgate Rules that Establish an Optional Streamlined Approach to Calculate the Historical Consumptive Use of a Water Right,” by Reps. Donald Valdez & Chris Hansen and Sens. Larry Crowder & Don Coram. The bill directs the state engineer to promulgate rules that take into account local conditions that an applicant can use to calculate historical consumptive use.
  • SB 17-074“Concerning the Creation of a Pilot Program in Certain Areas of the State Experiencing High Levels of Opioid Addiction to Award Grants to Increase Access to Addiction Treatment, and, in Connection Therewith, Making an Appropriation,” by Sen. Leroy Garcia and Rep. Daneya Esgar. The bill reates the medication-assisted treatment (MAT) expansion pilot program, administered by the University of Colorado College of Nursing, to expand access to medication-assisted treatment to opioid-dependent patients in Pueblo and Routt counties.
  • SB 17-105“Concerning Consumers’ Right to Know their Electric Utility charges by requiring investor-owned electric utilities to provide their customers with a comprehensive breakdown of cost on their monthly bills,” by Sen. Leroy Garcia and Reps. Daneya Esgar & KC Becker. The bill requires an investor-owned electric utility to file with the public utilities commission for the commission’s review a comprehensive billing format that the investor-owned electric utility has developed for its monthly billing of customers.
  • SB 17-153“Concerning Establishment of the Southwest Chief and Front Range Passenger Rail Commission to Oversee the Preservation and Expansion of Amtrak Southwest Chief Rail Service in Colorado and Facilitate the Development and Operation of a Front Range Passenger Rail System that Provides Passenger Rail Service In and Along the Interstate 25 Corridor,” by Sens. Larry Crowder & Leroy Garcia and Rep. Daneya Esgar. The bill replaces the existing southwest chief rail line economic development, rural tourism, and infrastructure repair and maintenance commission, the current statutory authorization for which expires on July 1, 2017, with an expanded southwest chief and front range passenger rail commission.

Tuesday, May 23, 2017

  • HB 17-1248“Concerning the Funding of Colorado Water Conservation Board Projects, and, in Connection Therewith, Making Appropriations,” by Rep. Jeni Arndt and Sens. John Cooke & Jerry Sonnenberg. The bill appropriates the following amounts from the Colorado Water Conservation Board construction fund to the CWCB or the Division of Water Resources for certain projects.
  • HB 17-1279“Concerning the Requirement that a Unit Owners’ Association Obtain Approval Through a Vote of Unit Owners Before Filing a Construction Defect Action,” by Reps. Alec Garnett & Lori Saine and Sens. Lucia Guzman & Jack Tate. The bill requires that, before the executive board of a unit owners’ association (HOA) in a common interest community brings suit against a developer or builder on behalf of unit owners based on a defect in construction work not ordered by the HOA itself, the board must notify the unit owners, call a meeting of the executive board, and obtain approval of a majority of unit owners.
  • HB 17-1280“Concerning Conforming Colorado Statutory Language Related to Disability Trusts to the Federal ’21st Century Cures Act’,” by Reps. Dafna Michaelson Jenet & Dave Young and Sen. Bob Gardner. The bill conforms Colorado statutory language relating to the creation of a disability trust to conform to the language established in the federal ’21st Century Cures Act’. Specifically, it clarifies that the individual who is the beneficiary of a disability trust can also be the person who establishes such trust.
  • HB 17-1353“Concerning Implementing Medicaid Initiatives that Create Higher Value in the Medicaid Program Leading to Better Health Outcomes for Medicaid Clients, and, in Connection Therewith, Continuing the Implementation of the Accountable Care Collaborative and Authorizing Performance-based Provider Payments,” by Rep. Dave Young and Sen. Kevin Lundberg. The bill authorizes the Department of Health Care Policy and Financing to continue its implementation of the medicaid care delivery system, referred to as the accountable care collaborative (ACC).
  • SB 17-209“Concerning Access to the Ballot by Candidates,” by Sen. Kevin Priola and Rep. Mike Weissman. The bill makes various changes to the laws governing access to the ballot.
  • SB 17-232“Concerning Continuation under the Sunset Law of the Bingo-Raffle Advisory Board, and, in Connection Therewith, Implementing the Recommendations of the 2016 Sunset Report of the Department of Regulatory Agencies,” by Sen. Stephen Fenberg and Rep. Paul Rosenthal. The bill The bill implements the recommendations of the sunset review and report on the licensing of bingo and other games of chance through the Secretary of State.

Wednesday, May 24, 2017

  • HB 17-1155“Concerning the Ability to Cure Campaign Finance Reporting Deficiencies Without Penalty,” by Rep. Dan Thurlow and Sen. Bob Gardner. The bill requires the Secretary of State to give notice to the particular committee by e-mail of deficiencies alleged in a complaint pursuant to the campaign finance provisions of the state constitution or the ‘Fair Campaign Practices Act’ (FCPA).
  • HB 17-1317“Concerning the Authority of the State Historical Society to Dispose of Real Property Located on the Former Lowry Air Force Base,” by Reps. Daneya Esgar & Chris Hansen and Sens. John Kefalas & Randy Baumgardner. The bill grants the state historical society the authority to sell a vacant cold storage facility located on the former Lowry Air Force base.
  • HB 17-1342“Concerning Authorization for a County to Submit a Ballot Question for a County Public Safety Improvements Tax at a Biennial County or November Odd-year Election,” by Rep. Adrienne Benavidez and Sen. Larry Crowder. The bill authorizes a county to submit a ballot question at a biennial county election or an election held in November of an odd-numbered year.
  • HB 17-1356“Concerning the Temporary Authority of the Colorado Economic Development Commission to Allow Certain Businesses to Treat Specific Existing Income Tax Credits Differently,” by Reps. Crisanta Duran & Daneya Esgar and Sens. Leroy Garcia & Jack Tate. The bill allows the Colorado economic development commission to allow certain businesses that make a strategic capital investment in the state, subject to a maximum amount, and subject to the requirements of the specified income tax credits, to treat any of the following income tax credits allowed to the business as either carryforwardable for a five-year period or as transferable under certain circumstances.

Thursday, May 25, 2017

  • HB 17-1072: “Concerning Human Trafficking for Sexual Servitude,” by Reps. Lois Landgraf & Polly Lawrence and Sen. John Cooke. The bill amends the language defining the crime of human trafficking for sexual servitude to include that a person who knowingly advertises, offers to sell, or sells travel services that facilitate activities defined as human trafficking of a minor for sexual servitude commits the offense of human trafficking of a minor for sexual servitude. ‘Travel services’ are defined in the bill.
  • HB 17-1190“Concerning the Limited Applicability of the Colorado Supreme Court’s Decision in St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015),” by Rep. KC Becker and Sen. Jerry Sonnenberg. The bill provides that the decision in the St. Jude’s Co. case interpreting section 37-92-103(4) does not apply to previously decreed absolute and conditional water rights or claims pending as of July 15, 2015. The interpretation of section 37-92-103 (4) in St. Jude’s Co. applies only to direct-flow appropriations, without storage, filed after July 15, 2015, for water diverted from a surface stream or tributary groundwater by a private entity for private aesthetic, recreational, and piscatorial purpose.
  • HB 17-1209“Concerning Peace Officer Designation for the Manager of the Office of Prevention and Security Within the Division of Homeland Security and Emergency Management in the Department of Public Safety,” by Reps. Jovan Melton & Terri Carver and Sens. Rhonda Fields & John Cooke. The bill designates as a peace officer the manager of the office of prevention and security within the division of homeland security and emergency management in the department of public safety.
  • HB 17-1223“Concerning the Creation of a Fraud Reporting Hotline to be Administered by the State Auditor, and, in Connection Therewith, Establishing Referral and Reporting Processes and State Auditor Investigative Authority,” by Reps. Lori Saine & Tracy Kraft-Tharp and Sens. Cheri Jahn & Tim Neville. The bill requires the state auditor to establish and administer a telephone number, fax number, email address, mailing address, or internet-based form whereby any individual may report an allegation of fraud committed by a state employee or an individual acting under a contract with a state agency. This system is referred to in the bill as the ‘fraud hotline’ or ‘hotline’ and any report to the hotline as a ‘hotline call’.
  • HB 17-1238“Concerning the Nonsubstantive Relocation of Laws Related to Debt Management and Collection Services from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Pete Lee and Sen. Chris Holbert. The bill relocates the laws related to debt management and collection services from articles 14, 14.1, 14.3, and 14.5 of title 12.
  • HB 17-1239“Concerning the Nonsubstantive Relocation of Laws Related to Private Occupational Schools from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Cole Wist and Sen. Lucia Guzman. The bill creates a new article 64 in title 23 of the Colorado Revised Statutes and relocates the repealed provisions of article 59 of title 12 of the Colorado Revised Statutes to that article 64 and repeals article 59 of title 12 of the Colorado Revised Statutes.
  • HB 17-1240“Concerning the Nonsubstantive Relocation of the Laws Related to the Department of Public Health and Environment from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Cole Wist and Sen. John Cooke. The bill relocates Article 29.3 of title 12 to part 6 of article 1.5 of title 25 and Article 30 of title 12 to article 48 of title 25.
  • HB 17-1243“Concerning the Nonsubstantive Relocation of the Laws Related to Wholesale Sales Representatives from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Yeulin Willett and Sen. Lucia Guzman. The bill relocates article 66 of title 12, which relates to wholesale sales representatives, to title 13.
  • HB 17-1244: “Concerning the Nonsubstantive Relocation of the Laws Related to Cemeteries from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill relocates article 12 of title 12, which relates to cemeteries, to title 6.
  • HB 17-1245“Concerning the Nonsubstantive Relocation of the Laws Related to Public Establishments from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Mike Foote and Sen. Daniel Kagan. The bill relocates parts 1 and 3 of article 44 of title 12, which relate to public establishments, to title 6.
  • HB 17-1251“Concerning the Scheduled Repeal of Reports by Higher Education Agencies to the General Assembly,” by Rep. Dan Nordberg and Sen. Dominick Moreno. The bill addresses the reporting requirements of higher education agencies.
  • HB 17-1255: “Concerning the Scheduled Repeal of a Report by the Board of Veterans Affairs to the General Assembly,” by Rep. Dan Nordberg and Sen. Andy Kerr. The bill continues indefinitely a reporting requirement of the board of veterans affairs.
  • HB 17-1257: “Concerning the Scheduled Repeal of Reports by the Department of Natural Resources to the General Assembly,” by Rep. Jeni Arndt and Sen. Jack Tate. The bill continues indefinitely reporting requirements of the Department of Natural Resources that were scheduled to repeal according to section 24-1-136(11)(a)(I).
  • HB 17-1265“Concerning an Increase in the Total Employer Contribution for Employers in the Judicial Division of the Public Employees’ Retirement Association,” by Reps. KC Becker & Dan Nordberg and Sens. Andy Kerr & Kevin Priola. For the calendar year beginning in 2019, for the judicial division only, the bill increases the AED to 3.40% of total payroll and requires the AED payment to increase by 0.4% of total payroll at the start of each of the following 4 calendar years through 2023.
  • HB 17-1267“Concerning the Scheduled Repeal of Reports by Educational Agencies to the General Assembly,” by Rep. Jeni Arndt and Sen. Dominick Moreno. The bill addresses the reporting requirements of educational agencies.
  • HB 17-1295“Concerning the Repeal of the Governor’s Office of Marijuana Coordination,” by Rep. Bob Rankin and Sen. Dominick Moreno. The bill repeals the office of marijuana coordination, effective July 1, 2017.
  • HB 17-1298: “Concerning the Date by Which the State Personnel Director is Required to Submit the Annual Compensation Report,” by Rep. Millie Hamner and Sen. Kevin Lundberg. The bill changes the deadline for submission of the state personnel director’s annual report to September 15 of each year beginning with the 2017 report.
  • HB 17-1346“Concerning the Sale of More Than Fifteen Acres of Land at the Colorado Mental Health Institute at Fort Logan to the United States Department of Veterans Affairs for the Expansion of Fort Logan National Cemetery,” by Rep. Susan Lontine and Sen. Owen Hill. The bill grants the Department of Human Services authority to execute a land sale, at fair market value, to sell 51 additional acres, or up to 66 acres. The bill specifies that the proceeds of the sale of the additional 51 acres to the United States department of veterans affairs must be credited to the Fort Logan land sale account in the capital construction fund.
  • SB 17-222“Concerning the Nonsubstantive Relocation of the Laws Related to Fireworks from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. John Cooke and Rep. Yeulin Willett. The bill relocates article 28 of title 12, which relates to fireworks, to a new part 20 of article 33.5 of title 24, which title pertains to the department of public safety.
  • SB 17-225“Concerning the Nonsubstantive Relocation of Laws Related to Farm Products from Title 12 of the Colorado Revised Statutes as Part of the Organizational Recodification of Title 12,” by Sen. John Cooke and Rep. Yeulin Willett. The bill relocates part 2 of article 16 of title 12, the ‘Commodity Handler Act’, to article 36 of title 35; and part 1 of article 16 of title 12, the ‘Farm Products Act’, to article 37 of title 35.
  • SB 17-228“Concerning the Nonsubstantive Relocation of the Laws Related to Licenses Granted by Local Governments from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Bob Gardner and Rep. Cole Wist. The bill relocates article 18 of title 12, which relates to dance halls, to title 30, which pertains to counties; article 25.5 of title 12, which relates to escort services, to title 29, which relates to local governments; and relocates article 56 of title 12, which relates to pawnbrokers, to title 29.
  • SB 17-242“Concerning Modernizing Terminology in the Colorado Revised Statutes Related to Behavioral Health,” by Sen. Beth Martinez Humenik and Reps. Kim Ransom & Joann Ginal. The bill updates and modernizes terminology in the Colorado Revised Statutes related to behavioral health, mental health, alcohol abuse, and substance abuse.
  • SB 17-243“Concerning the Continuation under the Sunset Law of the Motorcycle Operator Safety Training Program by the Director of the Office of Transportation Safety in the Department of Transportation, and, in Connection Therewith, Transferring the Operation of the Program to the Chief of the State Patrol Beginning in 2018,” by Sens. Nancy Todd & Randy Baumgardner and Rep. Dominique Jackson. The bill continues the motorcycle operator safety training program for 3 years, until 2020.
  • SB 17-279“Concerning Clarification of the Applicability Provisions of Recent Legislation to Promote an Equitable Financial Contribution Among Affected Public Bodies in Connection with Urban Redevelopment Projects Allocating Tax Revenues,” by Sens. Beth Martinez Humenik & Rachel Zenzinger and Reps. Matt Gray & Susan Beckman. The bill clarifies the applicability provisions of legislation enacted in 2015 and 2016 to promote an equitable financial contribution among affected public bodies in connection with urban redevelopment projects allocating tax revenues.
  • SB 17-291“Concerning Continuation of the School Safety Resource Center Advisory Board,” by Sen. Beth Martinez Humenik and Rep. Jeff Bridges. The bill implements the recommendations of the sunset review and report on the school safety resource center advisory board by eliminating the repeal date of the board and extending the board through September 1, 2022.
  • SB 17-293“Concerning Updating the Reference to a National Standard Setting Forth Certain Specifications Applicable to the Type of Paper Used to Publish the Colorado Revised Statutes,” by Sen. Daniel Kagan and Rep. Pete Lee. The bill updates the statutory reference to the current applicable alkaline minimum reserve requirements and acidity levels for uncoated paper as established by the American national standards institute and the national information standards organization.
  • SB 17-294“Concerning the Nonsubstantive Revision of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Imperfect, and Inoperative Law to Preserve the Legislative Intent, Effect, and Meaning of the Law,” by Sen. Bob Gardner and Rep. Pete Lee. The bill amends, repeals, and reconstructs various statutory provisions of law that are obsolete, imperfect, or inoperative. The specific reasons for each amendment or repeal are set forth in the appendix to the bill.
  • SB 17-304“Concerning the Authority of the Joint Technology Committee,” by Sens. Angela Williams & Beth Martinez Humenik and Reps. Dan Thurlow & Jonathan Singer. The bill adds definitions of ‘cybersecurity’ and ‘data privacy’ for the purposes of the joint technology committee. In addition, the bill modifies the definition of ‘oversee’ for the purposes of the committee to be consistent with other statutory provisions.

Friday, May 26, 2017

  • SB 17-254“Concerning the Provision for Payment of the Expenses of the Executive, Legislative, and Judicial Departments of the State of Colorado, and of its Agencies and Institutions, For and During the Fiscal Year Beginning July 1, 2017, Except as Otherwise Noted,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill provides for the payment of expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2017, except as otherwise noted.

Tuesday, May 30, 2017

  • SB 17-267“Concerning the Sustainability of Rural Colorado,” by Sens. Lucia Guzman & Jerry Sonnenberg and Reps. KC Becker & Jon Becker. The bill creates a new Colorado healthcare affordability and sustainability enterprise (CHASE) within the Department of Health Care Policy and Financing (HCPF), effective July 1, 2017, to charge and collect a healthcare affordability and sustainability fee that functions similarly to the repealed hospital provider fee. Because CHASE is an enterprise for purposes of the Taxpayer’s Bill of Rights (TABOR), its revenue does not count against the state fiscal year spending limit.

For a list of the governor’s 2017 legislative actions, click here.

Bills Closing Torrens Title, Allowing Electronic Preservation of Plats by Clerk & Recorder, Adopting Revised Uniform Notorial Acts Law, and More Signed

Although the legislative session is over, the governor continues to sign bills. This week, he signed one bill on Monday, May 15; four bills on Wednesday, May 17; and 13 bills on Thursday, May 18. To date, he has signed 231 bills and vetoed one bill this legislative session. The bills signed this week are summarized here.

Monday, May 15

  • HB 17-1204“Concerning Juvenile Delinquency Record Expungement, and, in Connection Therewith, Making an Appropriation,” by Rep. Pete Lee and Sen. John Cooke. The bill restricts access to juvenile delinquency records by making certain records public only after a court orders that a child be charged as an adult, consistent with recent changes to the direct file statute, and by eliminating the requirement that the prosecuting attorney notify the school principal of minor offenses.

Wednesday, May 17

  • HB 17-1248“Concerning the Funding of Colorado Water Conservation Board Projects, and, in Connection Therewith, Making Appropriations,” by Rep. Jeni Arndt and Sens. John Cooke & Jerry Sonnenberg. The bill makes certain appropriations from the Colorado Water Conservation Board (CWCB) construction fund to the CWCB or the Division of Water Resources.
  • HB 17-1301“Concerning Protecting Colorado Citizens who are Engaged in an Act that is Protected by the Colorado Constitution from Outside Agencies,” by Rep. Steve Lebsock and Sen. Tim Neville. The bill prohibits a state agency from aiding or assisting a federal agency or agency of another state in arresting a Colorado citizen for committing an act that is a Colorado constitutional right; or violating a Colorado citizen’s Colorado constitutional right.
  • SB 17-129“Concerning the Electronic Preservation of a Plat Recorded by a County Clerk and Recorder,” by Sen. Jerry Sonnenberg and Reps. Jon Becker & Jeni Arndt. The bill permits a county clerk and recorder to preserve an original plat in an electronic format. If an electronic filing system is established, then the board of county commissioners is authorized to provide additional funding and space suitable for a county surveyor or any other appropriate local government official to store original mylar, paper, or polyester sheets of subdivision plats and land survey plats.
  • SB 17-140“Concerning the Torrens Title Registration System,” by Sen. Jerry Sonnenberg and Reps. Jon Becker & Jeni Arndt. The bill closes the Torrens title registration system to new applications to register land title in this state, effective January 1, 2018.

Thursday, May 18

  • HB 17-1162“Concerning Action that can be Taken Against an Individual Based on the Individual’s Failure to Pay for a Traffic Violation, and, in Connection Therewith, Making an Appropriation,” by Rep. Matt Gray and Sen. Bob Gardner. The bill decreases the penalty for driving under restraint to a class A traffic infraction if the basis of the restraint is an outstanding judgment.
  • HB 17-1201“Concerning Authorization for Granting a High School Diploma Endorsement in the Combined Disciplines of Science, Technology, Engineering, and Mathematics,” by Rep. James Coleman and Sens. Kevin Priola & Rachel Zenzinger. The bill authorizes a school district, board of cooperative services, district charter high school, or institute charter high school to grant a high school diploma endorsement in science, technology, engineering, and mathematics (STEM) to students who demonstrate mastery in STEM. To obtain the endorsement, a student must complete the high school graduation requirements at a high level of proficiency, successfully complete 4 STEM courses selected by the local education provider in addition to the high school graduation requirements in these subjects, achieve a minimum score specified in the bill on one of several specified mathematics assessments, and successfully complete a final capstone project.
  • HB 17-1211“Concerning Professional Development for Educators Regarding Disciplinary Strategies for Young Students,” by Rep. James Coleman and Sen. Kevin Priola. The bill creates the discipline strategies pilot program to provide money to school districts, boards of cooperative services, and charter schools for professional development for educators in the use of culturally responsive methods of student discipline for students enrolled in preschool through third grade and developmentally appropriate responses to the behavioral issues of students enrolled in preschool through third grade.
  • HB 17-1214“Concerning Efforts to Encourage Employee Ownership of the State’s Existing Small Businesses,” by Rep. James Coleman and Sen. Jack Tate. The bill requires the Colorado Office of Economic Development to engage the services of a local nonprofit organization that supports and promotes the employee-owned business model to educate the staff at the office on the forms and merits of employee ownership in order for the office to promote employee ownership as part of its small business assistance center.
  • HB 17-1227“Concerning an Extension of Demand-Side Management Goals for Investor-Owned Utilities as Set by the Public Utilities Commission,” by Reps. Faith Winter & Polly Lawrence and Sens. Stephen Fenberg & Kevin Priola. The bill extends programs establishing electricity goals for investor-owned utilities until 2028.
  • HB 17-1246“Concerning Implementation of the STEMI Task Force Recommendations Relating to Reporting Confirmed Heart Attack Incidents in the State,” by Rep. Tracy Kraft-Tharp and Sens. Leroy Garcia & Jack Tate. The bill implements recommendations of the STEMI task force regarding hospital reporting of heart attacks.
  • HB 17-1266“Concerning Allowing Persons who were Convicted of Misdemeanors for Marijuana-Related Behaviors that are No Longer Illegal to Petition for the Sealing of Criminal Records Relating to Such Convictions,” by Reps. Edie Hooten & Jovan Melton and Sens. Vicki Marble & Stephen Fenberg. The bill allows persons who were convicted of misdemeanors for the use or possession of marijuana to petition for the sealing of criminal records relating to such convictions if their behavior would not have been a criminal offense if the behavior had occurred on or after December 10, 2012.
  • HB 17-1354“Concerning the Collection of Delinquent Taxes on Certain Mobile Homes,” by Rep. KC Becker and Sens. Kevin Priola & John Kefalas. The bill makes the process to enforce the collection of delinquent taxes on mobile or manufactured homes that are not affixed to the ground permissive, and therefore gives the county treasurer more flexibility to enter into partial payment agreements with the owners of such mobile or manufactured homes. The bill authorizes the county treasurer to declare tax liens on mobile or manufactured homes that are not affixed to the ground as county-held to address title deficiencies in conjunction with the collection of taxes.
  • SB 17-132“Concerning Enactment of the ‘Revised Uniform Law on Notarial Acts’ as Amended,” by Sen. Bob Gardner and Reps. Jovan Melton & Cole Wist. The bill enacts the Revised Uniform Law on Notarial Acts, and creates a working group to study and make recommendations by December 1, 2017, regarding electronic remote notarization. The Secretary of State must promulgate rules regarding electronic remote notarization, after which notaries may perform a notarial act by electronic remote notarization in compliance with the rules.
  • SB 17-193“Concerning the Establishment of the ‘Center for Research into Substance Use Disorder Prevention, Treatment, and Recovery Support Strategies’ at the University of Colorado Health Sciences Center, and, in Connection Therewith, Making an Appropriation,” by Sens. Kevin Lundberg & Cheri Jahn and Reps. Bob Rankin & Brittany Pettersen. The bill establishes the Center for Research into Substance Use Disorder Prevention, Treatment, and Recovery Support Strategies at the University of Colorado Health Sciences Center.
  • SB 17-207“Concerning Strengthening Colorado’s Statewide Response to Behavioral Health Crises, and, in Connection Therewith, Making an Appropriation,” by Sens. John Cooke & Daniel Kagan and Reps. Lang Sias & Joseph Salazar. The bill clarifies the intent of the General Assembly for establishing a coordinated behavioral health crisis response system. The crisis system is intended to be a comprehensive, appropriate, and preferred response to behavioral health crises in Colorado. By clarifying the role of the crisis system and making necessary enhancements, the bill puts systems in place to help Colorado end the use of jails and correctional facilities as placement options for individuals placed on emergency mental health holds if they have not also been charged with a crime and enhances the ability of emergency departments to serve individuals who are experiencing a behavioral health crisis.
  • SB 17-297“Concerning Revising Higher Education Performance Requirements,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill repeals a performance-based funding plan for institutions of higher education that was included in the master plan for Colorado postsecondary education. The performance-based funding plan was not implemented.
  • SB 17-305“Concerning Modifications to Select Statutory Provisions Affecting Primary Elections Enacted by Voters at the 2016 Statewide General Election to Facilitate the Effective Implementation of the State’s Election Laws, and, in Connection Therewith, Making an Appropriation,” by Sens. Stephen Fenberg & Kevin Lundberg and Reps. Patrick Neville & Mike Foote. At the 2016 general election, the voters of the state approved 2 initiated measures affecting primary elections: Proposition 107, which restored a presidential primary election, and Proposition 108, which allows participation by unaffiliated voters in primary elections. The bill makes several modifications to some of the statutory provisions that were affected by Propositions 107 and 108 for the purpose of facilitating the effective implementation of the state’s election laws.

For a complete list of the governor’s 2017 legislative actions, click here.

Bills Signed Adding Disabilities to Bias-Motivated Harassment, Clarifying Vehicle Title Transfers on Death, and More

On Wednesday, May 3, 2017, the governor signed 14 bills into law. To date, the governor has signed 209 bills and vetoed one bill this legislative session. Some of the bills signed Wednesday include a bill to clarify the process for vehicle title transfers on death, a bill adding disabilities to bias-motivated harassment laws, a bill allowing mandatory reporters access to reports of abuse, a bill extending the agricultural water leasing pilot project, and more. The bills signed Wednesday are summarized here.

  • HB 17-1150“Concerning Disallowing a Court from Granting Bail After Conviction to Offenders who have Committed Certain Felony Crimes,” by Rep. Clarice Navarro and Sen. Owen Hill. The bill adds to the list of crimes for which bail is not allowed a second or subsequent conviction for stalking that occurs within 7 years after the date of a prior offense for which the person was convicted; stalking when there was a protection order, injunction, or condition of bond, probation, or parole or any other court order in effect that protected the victim from the person; and any offense that includes an act of domestic violence if the defendant at the time of sentencing has been previously convicted of three or more prior offenses that included an act of domestic violence.
  • HB 17-1185“Concerning Reports of Suspected Child Abuse or Neglect,” by Rep. Jonathan Singer and Sen. Jim Smallwood. The bill adds officials and employees of county departments of health, human services, or social services to the list of mandatory reporters and specifies that if a mandatory reporter continues to be involved with the child for whom he or she has filed a report, the reporter is entitled to access to records and reports of the abuse or neglect.
  • HB 17-1188“Concerning Bias-Motivated Harassment,” by Rep. Mike Foote and Sens. Dominick Moreno & Don Coram. The bill adds physical or mental disability and sexual orientation to the categories described in the harassment statute to make the statute consistent with Colorado’s law concerning bias-motivated crimes.
  • HB 17-1213“Concerning the Transfer of a Vehicle Title Upon the Death of the Vehicle’s Owner,” by Rep. Kevin Van Winkle and Sen. Chris Holbert. The bill amends the law regarding transfers of vehicle titles on death by clarifying that the Division of Motor Vehicles shall oversee the process, and clarifying that a personal representative or successor is not liable for obtaining a new certificate of title or for transferring title to the vehicle absent actual knowledge of the existence of a valid, unrevoked beneficiary designation form.
  • HB 17-1217“Concerning the Governance Structure of the State Historical Society,” by Reps. Faith Winter & Lori Saine and Sens. Jim Smallwood & Kerry Donovan. The bill repeals certain obsolete provisions of the statutes governing the structure of the State Historical Society and changes the language from establishing the council to allowing the board to establish the council.
  • HB 17-1219“Concerning an Extension of the Agricultural Water Leasing Pilot Program Administered by the Colorado Water Conservation Board,” by Reps. Jeni Arndt & Barbara McLaughlin and Sens. Kerry Donovan & Larry Crowder. The bill extends the agricultural water leasing pilot program.
  • HB 17-1233“Concerning Protection of the Historical Consumptive Use Analysis of a Water Right Involved in a Water Conservation Program,” by Rep. Jeni Arndt and Sen. Larry Crowder. The bill applies a rule statewide that provides that the reduced water usage that results from participation in a government-sponsored water conservation program will not be considered in analyzing the historical consumptive use of the water right.
  • SB 17-148“Concerning the Continuation of the Office of Boxing in the Division of Professions and Occupations in the Department of Regulatory Agencies, and, in Connection Therewith, Implementing the Recommendations of the 2016 Sunset Report of the Department of Regulatory Agencies and Making an Appropriation,” by Sen. Kevin Priola and Rep. Alec Garnett. The bill continues the Office of Boxing and vests the Director of the Division of Professions and Occupations with licensing authority.
  • SB 17-214“Concerning the Creation of the Voluntary Firefighter Cancer Benefits Program,” by Sens. Leroy Garcia & Jim Smallwood and Reps. Brittany Pettersen & Tony Exum. The bill allows an employer to participate in a voluntary firefighter cancer benefits program, as a multiple employer health trust to provide benefits to firefighters by paying contributions into the established trust.
  • SB 17-227: “Concerning the Nonsubstantive Relocation of Laws Related to Attorneys-at-Law from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen.  Bob Gardner and Rep. Mike Foote. The bill relocates Article 5 of Title 12, “Attorneys-at-Law,” to a new Article 93 in Title 13, Colorado Revised Statutes.
  • SB 17-247“Concerning the Qualifications of Electricians, and, in Connection Therewith, Allowing Only persons who have Passed the Written Residential Wireman’s Examination to Act as Residential Inspectors and Waiving the Continuing Education Requirement During the First License Period for an Electrician who Passed the Appropriate Written Examination,” by Sen. Kevin Priola and Rep. Don Coram. The bill waives the continuing education requirement, otherwise applicable upon every renewal or reinstatement of an electrician’s license, for the first renewal or reinstatement of the license of an electrician who passed the appropriate written examination in connection with his or her initial license application.
  • SB 17-258“Concerning the Use of Open Educational Resources in Public Institutions of Higher Education, and, in Connection Therewith, Making an Appropriation,” by Sen. Kevin Lundberg and Rep. Bob Rankin. The bill creates the Open Educational Resources Council in the Department of Higher Education. The bill directs the Department to contract with an entity to evaluate the existing use of open educational resources by public institutions of higher education.
  • SB 17-259“Concerning a Transfer of Money from the General Fund to Cash Funds Administered by State Departments for the Protection of the State’s Natural Resources,” by Sen. Kevin Lundberg and Rep. Bob Rankin. The bill requires the state treasurer to transfer money from the general fund to certain state departments.
  • SB 17-268“Concerning an Increase in the Number of Pharmacy Technicians a Pharmacist may Supervise,” by Sens. Andy Kerr & Jim Smallwood and Reps. Joann Ginal & Kim Ransom. The bill allows a pharmacist to supervise up to 6 pharmacy technicians.

For a list of all of the governor’s 2017 legislative decisions, click here.

Tenth Circuit to Upgrade CM/ECF System

The Tenth Circuit Court of Appeals announced that it will upgrade its CM/ECF system to the Next Generation CM/ECF system (NextGen), beginning on Friday, May 12 at noon and finishing by Monday, May 15 at 7 a.m. CM/ECF will not be available during the upgrade. Frequently asked questions about the NextGen system are available here. There are also electronic learning modules available for the PACER NextGen; they are available here. For more information about the upgrade and NextGen, click here.

Colorado Court of Appeals: Administrative Fire Chief Engaged in Fire Protection Duties Under FPPA

The Colorado Court of Appeals issued its opinion in Dolan v. Fire & Police Pension Association on Thursday, April 20, 2017.

FirefighterInjuryOccupational Disability BenefitsFire and Police Pension AssociationPolicemen’s and Firemen’s Pension Reform ActFire ChiefAmended Complaint.

Dolan joined North Metro Fire Rescue in 1986, and in 2007, he sustained an injury that prevented him from passing the physical tests for firefighting duties. After approximately two years of attempted rehabilitation, North Metro terminated Dolan. Dolan promptly filed for occupational disability benefits with the Fire and Police Pension Association (FPPA).

While working for North Metro, Dolan also worked for the Elk Creek Fire Protection District: he was Elk Creek’s paid fire chief from 1998 through 2003; he returned as a volunteer in 2008; and in 2010, he was again hired as a paid fire chief.

Dolan initially received disability benefits, but these were later revoked based on a finding that because his position at Elk Creek had involved fire protection, he was ineligible for benefits under the Policemen’s and Firemen’s Pension Reform Act (the Act). A hearing officer recommended that Dolan repay the benefits he received after he signed his employment contract with Elk Creek in 2010, and the FPPA’s Board of Director’s (Board) affirmed the recommendation. Dolan filed for C.R.C.P. review of the Board’s decision in district court and also asserted several common law claims against FPPA. The district court affirmed the Board’s decision. Dolan then moved to amend his complaint, which was denied as untimely, and a trial was held on his remaining common law claims. The court found for FPPA and entered final judgment against Dolan.

On appeal, Dolan argued that the Board and the district court misapplied the law in discontinuing his disability benefits because, since his termination from North Metro, he was never re-employed in a position directly involved with the provision of fire protection under the Act. Re-employment in a full-time salaried position that directly involves the provision of fire protection precludes a firefighter from collecting disability benefits. Because Dolan acted in a command capacity at the scenes of fires and accidents, the hearing officer concluded it was not necessary to find that he was involved in “hands on” firefighting or medical care to conclude that his position was directly involved with the provision of fire protection. The Board adopted the hearing officer’s conclusions of fact and law that Dolan’s duties as Elk Creek fire chief directly involved fire protection. Because nothing in the Act suggests that re-employment at a position directly involved with the provision of fire protection must be limited to physically fighting fires, the district court and the Board did not misapply the law in determining that Dolan was no longer eligible for disability benefits after re-employment at Elk Creek.

Dolan also argued that the district court erred in denying his motion to amend his complaint when it determined his claim was untimely. Dolan sought leave to amend his complaint on August 30, 2013, approximately one year after he filed his initial complaint, seven months after the district court initially found in favor of the FPPA, and four months after the district court finalized its C.R.C.P. 106 order. Because Dolan presented the district court with an as-applied challenge to the FPPA regulations, the court correctly determined that claim was time barred by C.R.C.P. 106(b). Further, even if Dolan’s claim presented a facial challenge to the FPPA regulations, the court’s denial of his claim was not error because Dolan failed to show that his delay in bringing the claim was justified.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Bills Delaying Accrual of Property Tax Abatement Refund Interest, Encouraging Mental Health Treatment for Peace Officers, and More Signed

On Monday, April 24, 2017, the governor signed eight bills into law. To date, the governor has signed 166 bills this legislative session. Some of the bills signed Monday include a bill delaying the accrual date of the property tax abatement refund interest, a bill expanding consumer options in fingerprint-based background checks, and a bill allowing campus liquor licenses for on-campus consumption of alcoholic beverages. The bills signed Monday are summarized here.

  • HB 17-1049“Concerning the Elimination of Refund Interest Related to a Property Tax Abatement,” by Reps. Dan Thurlow & Matt Gray and Sen. Don Coram. If property taxes are levied erroneously or illegally and a taxpayer has not protested the valuation within the time permitted by law, then the taxpayer has 2 years from the start of the property tax year to file a petition for abatement or refund with interest. The bill delays the start of the refund interest so that it accrues from the date a complete abatement petition is filed, with the exception of an abatement or refund for taxes paid as a result of omitted property being added to the assessment roll.
  • HB 17-1115“Concerning the Establishment of Direct Primary Health Care Agreements to Operate without Regulation by the Division of Insurance,” by Reps. Perry Buck & Joann Ginal and Sens. Jack Tate & John Kefalas. The bill establishes parameters under which a direct primary care agreement may be implemented. An agreement may be entered into between a direct primary health care provider and a patient for the payment of a periodic fee and for a specified period of time. The provider must be a licensed, registered, or certified individual or entity authorized to provide primary care services.
  • HB 17-1120“Concerning the Designation of a Campus Liquor Complex on the Campus of an Institution of Higher Education that is Licensed to Serve Alcohol Beverages for Consumption on the Licensed Premises to Allow the Institution to Obtain Permits to Serve Alcohol Beverages at Other Facilities Within its Campus Liquor Complex, and, in Connection Therewith, Making an Appropriation,” by Rep. Yeulin Willett and Sen. Don Coram. The bill allows a higher education institution that has a license to serve alcohol beverages for on-premises consumption to apply for designation as a campus liquor complex, thereby allowing the institution to designate multiple facilities on the campus as locations for serving alcohol beverages.
  • HB 17-1184“Concerning Developing Additional Resources for Modern Technology Education in Public Schools,” by Rep. Crisanta Duran and Sen. Kevin Grantham. The bill directs the State Board of Education, in the course of revising the academic standards, to incorporate into the standards for each subject skills relating to the use of information and communications technologies to find, evaluate, create, and communicate information.
  • HB 17-1215“Concerning Mental Health Support for Peace Officers,” by Rep. James Coleman and Sens. Daniel Kagan & Bob Gardner. The bill encourages each sheriff’s office and each municipal police department to adopt a policy whereby mental health professionals, to the extent practicable, provide on-scene response services to support officers’ handling of persons with mental health disorders, and counseling services to officers.
  • SB 17-108“Concerning Continuation of the Regulation of Speech-Language Pathologists by the Director of the Division of Professions and Occupations, and, in Connection Therewith, Implementing the Recommendations of the 2016 Sunset Report of the Department of Regulatory Agencies,” by Sen. Larry Crowder and Rep. Janet Buckner. The bill extends the automatic termination date of the “Speech-language Pathology Practice Act” to September 1, 2022.
  • SB 17-189“Concerning Elimination of the Requirement that a Law Enforcement Agency is the Only Entity Authorized to Take Fingerprints for Purposes of a Background Check,” by Sen. John Cooke and Rep. Mike Foote. The bill removes the statutory requirement that a law enforcement agency is the only authorized entity able to take fingerprints for background checks. If an approved third party takes the person’s fingerprints, the fingerprints may be electronically captured using Colorado bureau of investigation-approved or federal bureau of investigation-approved livescan equipment.
  • SB 17-190“Concerning Prohibiting a Carrier from Setting Fees for a Dental Service that is Not Paid For by the Carrier,” by Sens. Dominick Moreno & Larry Crowder and Rep. Matt Gray. The bill prohibits a contract between a carrier and a dentist from requiring a dentist to provide services to a covered person at a fee set by, or subject to the approval of, the carrier unless the services are covered services under the person’s policy and the carrier provides payment for the service under the person’s policy in an amount that is reasonable and not nominal or de minimis.

For a complete list of the governor’s 2017 legislative decisions, click here.