May 24, 2017

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.

Bills Enacting Uniform Unsworn Declarations Act, Exemption from Mandatory Advisement Requirements, and More Signed

On Thursday, April 13, 2017, Governor Hickenlooper signed ten bills into law. To date, he has signed 147 bills into law this 2017 legislative session. Some of the bills signed Thursday include a bill adopting the Uniform Unsworn Declarations Act, a bill granting immunity to a person who renders emergency assistance to a person or animal in a locked vehicle, a bill exempting certain traffic violations from the mandatory advisement requirements for municipal judges, and more. The bills signed Thursday are summarized here.

  • HB 17-1021“Concerning an Employer’s Violation of Wage Laws,” by Rep. Jessie Danielson and Sen. John Cooke. The bill clarifies that information obtained by the Division of Labor Standards and Statistics that relates to a finding of a violation of wage laws is not confidential and shall be released to the public or for use in a court proceeding, unless the Director of the Division makes a determination that the information includes specific information that is a trade secret.
  • HB 17-1081“Concerning Authority to Offer In-state Tuition Classification at State-supported Institutions of Higher Education for Athletes Training in Colorado in Programs Approved by the United States Olympic Committee,” by Rep. Dan Nordberg and Sen. Stephen Fenberg. The bill allows a state-supported institution of higher education to charge in-state tuition to an athlete residing anywhere in Colorado and training in an elite level program in Colorado approved by the United States Olympic committee and the governing body of an Olympic, Paralympic, Pan American, or Parapan American sport.
  • HB 17-1083“Concerning an Exemption for Certain Traffic Violations of the Requirement that a Municipal Judge Inform a Defendant of Certain Rights,” by Rep. Larry Liston and Sen. Bob Gardner. The bill excludes cases involving traffic infractions or violations for which the penalty is only a fine and for which jail is not a possibility from the requirement that municipal judges inform defendants of certain rights.
  • HB 17-1125“Concerning Eliminating the Duty of the Division of Correctional Industries to Provide Certain Services for the State’s Correctional Facilities,” by Reps. Dan Nordberg & Faith Winter and Sens. Jim Smallwood & Cheri Jahn. The bill removes a requirement that the Division of Correctional Industries in the Department of Corrections establish programs for vehicle maintenance, physical plant and facility maintenance, and food and laundry services for each of the state’s correctional facilities.
  • HB 17-1144“Concerning Amendments to the Automatic Cash Fund Funding Mechanism for Payment of Future Costs Attributable to Certain of the State’s Capital Assets,” by Rep. Daneya Esgar and Sen. Randy Baumgardner. The bill requires the General Assembly to include an annual depreciation-lease equivalent payment line item payable from the cash fund that is the funding source for the capital construction appropriation in the operating section of the annual general appropriation act for each state agency.
  • HB 17-1145“Concerning Authorization for Amateur Winemakers to Enter Wines in Organized Events,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill authorizes amateur winemakers to enter their wine in organized events, such as contests, tastings, or judgings at licensed premises.
  • HB 17-1179“Concerning Immunity for a Person who Renders Emergency Assistance from a Locked Vehicle,” by Reps. Lori Saine & Joann Ginal and Sens. Lois Court & Vicki Marble. The bill provides immunity from civil and criminal liability for a person who forcibly enters a locked vehicle for the purpose of rendering assistance to an at-risk person or animal.
  • HB 17-1194“Concerning Technical Changes Relating to the Operation of Pathways in Technology Early College High Schools,” by Rep. Mike Foote and Sen. John Cooke. The bill amends the definition of a pathways in technology early college (p-tech) high school to include a p-tech program that operates within a host school.
  • HB 17-1196“Concerning Changes to the Training Requirements for Applicants for Licensure under the ‘Barber and Cosmetologist Act’,” by Rep. Jeni Arndt and Sen. Kevin Priola. The bill requires the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies to promulgate rules for applicants for cosmetologist or barber licensure to furnish proof of training, not to exceed 50 credits or 1,500 contact hours.
  • SB 17-154“Concerning  the ‘Uniform Unsworn Declarations Act’, by Sen. Bob Gardner and Rep. Cole Wist. The bill adopts in Colorado the Uniform Unsworn Declarations Act,expands the uniform law to include domestic unsworn declarations as contemplated, and clarifies that the act applies only to the use of unsworn declarations in state courts.

For a list of all Governor Hickenlooper’s 2017 legislative actions, click here.

Tenth Circuit: Random Drug Test for County Employee Acceptable When Employee Holds Safety-Sensitive Position

The Tenth Circuit Court of Appeals issued its opinion in Washington v. Unified Government of Wyandotte County, Kansas on February 6, 2017.

Roberick Washington was a lieutenant at the Wyandotte Country Juvenile Detention Center in Kansas City, Kansas. The position entailed Washington interacting with residents, conducting disciplinary hearings for residents, driving the County van to take juveniles to the intake assessment center, and being present if a fight broke out. Wyandotte County has a random drug testing policy that applies to employees in “safety sensitive positions.” The county’s Policy on Substance Abuse and Drug and Alcohol Testing lists Washington’s position, “juvenile lieutenant,” as a safety sensitive position. The policy states that a failed drug or alcohol test is grounds for discipline, including discharge.

Sheriff Donald Ash terminated Washington after he tested positive for cocaine following a random drug test. Pursuant to the Human Resource Guide, Washington Appealed Ash’s decision to the administrator of the Juvenile Detention Center. This grievance was denied, and Washington appealed to the County Administrator’s Office. After a hearing, an assistant county administrator upheld the termination. Washington claims that he sought an evidentiary hearing and a name-clearing hearing, but was denied both.

Washington alleged three violations of 42 U.S.C. § 1983, namely that the drug test was an illegal search in violation of his Fourth and Fourteenth Amendment rights, he was deprived of his property interest in continued employment without due process, and defendants failed to provide him with a name-clearing hearing. Additionally, Washington claimed the county breached an implied contract created by its written disciplinary policies in violation of state contract law. The district court granted summary judgment for the defendants on all counts.

The Tenth Circuit first addressed Washington’s § 1983 claims. Municipalities are not protected by qualified immunity, so to grant summary judgment in favor or a municipality, the pleadings and supporting materials must establish there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. A plaintiff must identify an unconstitutional policy that caused the claimed injury in order for a municipality to be liable under § 1983. A plaintiff must establish that the municipal employee causing the harm violated the plaintiff’s constitutional rights.

The Tenth Circuit first addressed Washington’s claim that the county’s random drug test violated the Fourth Amendment’s probable cause and warrant requirements. Ordinarily, a search must be based on individualized suspicion of wrongdoing. However, when the government asserts a special need beyond ordinary crime detection, the Tenth Circuit has found suspicionless drug testing reasonable if the government’s interests outweigh the individual’s privacy interests. Courts have held that when drug use among the individuals tested would threaten the workplace or public safety, the government’s concerns are real. Additionally, courts have held that random drug tests are effective at detecting and deterring drug use.

The Tenth Circuit held that the county had a legitimate special need because the random drug tests to juvenile lieutenants ensured the safety and welfare of the children housed in the juvenile detention center. The juvenile lieutenant position involved interactions with residents, and drug use would impair his ability to interact with the youth. Additionally, the random testing minimized the possibility that employees would evade detection and maximized deterrence. Therefore, the Tenth Circuit found a legitimate special need for the random drug testing.

The Tenth Circuit then weighed the special need against Washington’s privacy interests to determine if the tests were reasonable. The Tenth Circuit held that as a correctional employee, Washington’s expectation of privacy was diminished. Additionally, the drug testing was minimally invasive, as Washington provided a sample behind a closed door with no supervision.

Next, the Tenth Circuit held that the county presented two interests that were important enough to justify testing Washington. The first was that Washington was working with juveniles in an educational setting, and an employee’s illegal drug use presented a risk of harm to minors. Second, if an employee has law enforcement duties and access to direct contact with inmates, that employee’s illegal use of drugs presents a significant threat to inmates and the security of the facility. The Supreme Court has held that suspicionless drug testing of employees in certain safety sensitive positions was reasonable. In this case, the county’s policy lists “juvenile lieutenant” as a safety sensitive position. The Tenth Circuit held that this classification was reasonable to Washington’s position based on the duties that he performed. Therefore, the Tenth Circuit held that in this specific instance, the county’s interests were more important and outweighed Washington’s diminished privacy rights, and thus the random drug test was reasonable. Consequently, neither Sheriff Ash nor the county could be subject to § 1983 liability.

Next, the Tenth Circuit addressed Washington’s claim that the county’s personnel policies established he had a protected property interest in his continued employment at the Juvenile Detention Center. The Tenth Circuit stated a two-part inquiry to determine whether a plaintiff was denied procedural due process. First, the plaintiff must have a protected interest to which due process is applicable. The second inquiry is whether the plaintiff was afforded an appropriate level of due process.

Here, the Tenth Circuit looked to Kansas state law to determine if Washington had a protected property interest. The Tenth Circuit determined that Kansas law established that public employment is presumptively at-will, and that Washington did not provide evidence to rebut this presumption. The Tenth Circuit held that personnel policies alone were insufficient to create an implied employment contract. Therefore, the Tenth Circuit affirmed the district court’s grant of summary judgment on this claim.

The Tenth Circuit affirmed the district court’s grant of summary judgment for Washington’s claim that he was entitled to a name-clearing hearing because Washington’s pretrial order did not reference any damaged liberty interest.

Finally, the Tenth Circuit holds that because Washington failed to establish that there was an implied employment contract, the county was entitled to summary judgment on his breach of contract claim.

Electronic Court Notice Bill, Increase of Life Insurance Exemption Bill, Subpoena Clarifications Bill, and More Signed Monday.

On Monday, March 20, 2017, the governor signed 17 bills into law. To date, he has signed 80 bills this legislative session. Some of the bills signed Monday include a bill increasing the exemption amount for a cash surrender of life insurance, a bill authorizing the fiduciary of an endowment fund to distribute principal under a unitrust election, a bill allowing an attorney general or district attorney to issue a subpoena for people engaged in deceptive trade practices, a bill allowing court clerks to electronically notice parties, and a bill increasing the appropriation to the Department of Law for providing legal services to the Department of Education. The bills signed Monday are summarized here.

  • HB 17-1023“Concerning a Clarification of Procedures for Subpoenas for Deceptive Trade Practices,” by Reps. Tracy Kraft-Tharp & Cole Wist and Sens. Chris Holbert & Lois Court. The bill clarifies that the attorney general or a district attorney may issue a subpoena pursuant to C.R.C.P. 4 to a person whom he or she has reasonable cause to believe has engaged or is engaging in a deceptive trade practice in violation of Colorado statute.
  • HB 17-1039“Concerning Communication Issues Related to Restorative Justice,” by Rep. Pete Lee and Sen. Daniel Kagan. The bill allows the district attorney to consent to an assessment for suitability for participation in restorative justice practices, including victim-offender conferences, as part of a recommended sentence in a plea bargain.
  • HB 17-1041“Concerning Measures to Inform Students of Education Opportunities Leading to Jobs,” by Rep. Phil Covarrubias and Sen. Kevin Priola. The bill requires schools to inform students of military enlistment as a path to educational opportunities.
  • HB 17-1056“Concerning the Eligibility of a Veterans’ Service Organization to Accept Public Service Assignments Offered in Connection with Misdemeanor Sentencing,” by Rep. Michael Weissman and Sens. Bob Gardner & Andy Kefalas. The bill expands the criteria for organizations that may accept community or useful public service assignments to include veterans’ service organizations organized under 501(c)(4) or 501(c)(19) of the tax code, and specifies that the court or other entity making the assignment retains discretion to determine which organizations may be included in its program of community or useful public service.
  • HB 17-1061“Concerning Modification of the Class of Vehicles that is Subject to Regulation as Commercial Vehicles,” by Reps. Jon Becker & Jovan Melton and Sens. Nancy Todd & Ray Scott. The bill increases the minimum weight for classification as a commercial vehicle subject to the statutory and regulatory standards for commercial vehicles from 10,001 pounds to 16,001 pounds unless the vehicle is registered for use in interstate commerce.
  • HB 17-1093“Concerning an Increase in the Exemption for the Cash Surrender Value of Life Insurance,” by Rep. Kim Ransom and Sen. Daniel Kagan. The bill increases the exemption for cash surrender value of life insurance policies to $250,000.
  • HB 17-1096“Concerning Endowment Care Funds Administered for Cemetery Authorities,” by Rep. Larry Liston and Sen. Jim Smallwood. The bill authorizes the fiduciary of an endowment fund to distribute principal, such as capital gains, under a unitrust election.
  • HB 17-1135“Concerning the Portability of Employment Background Checks for a Child Care Worker who Works for the Same Common Ownership Entity,” by Rep. Jeff Bridges and Sen. Kevin Priola. The bill allows a child care worker who is employed in a licensed facility that is wholly owned, operated, and controlled by a common ownership group or school district to use a single completed fingerprint-based criminal history record check and a check of the records and reports of child abuse or neglect to satisfy the requirements of the necessary background checks if the employee also works for or transfers to another licensed facility.
  • HB 17-1142“Concerning Notices of Certain Court Proceedings,” by Rep. Dominique Jackson and Sen. Bob Gardner. The bill allows the clerk of the court to send notice by first-class mail or electronically using the e-filing system of the judicial department.
  • HB 17-1143“Concerning Audits of Correspondence Sent to Medicaid Clients,” by Rep. Lois Landgraf and Sen. Larry Crowder. The bill directs the Office of the State Auditor to conduct or cause to be conducted an audit of client correspondence, including letters and notices, sent to clients or potential clients in Medicaid programs.
  • SB 17-011“Concerning the Creation of a Technical Demonstration Forum to Study Solutions to Improve Transportation Access for People with Disabilities,” by Sen. Kent Lambert and Rep. Polly Lawrence. The bill creates a technical demonstration forum consisting of eight members to study and document how advanced technologies can improve transportation access for people with disabilities.
  • SB 17-041“Concerning Employment Contracts for Positions at Institutions of Higher Education that are Funded by Revenue Generated from Auxiliary Activities,” by Sen. Kevin Priola and Reps. Yeulin Willett & Edie Hooten. The bill exempts certain positions at institutions of higher education from limits for employment contract terms or amounts.
  • SB 17-060“Concerning Relocation of the Colorado Student Leaders Institute from the Office of the Lieutenant Governor to the Department of Higher Education, and, in Connection Therewith, Making and Reducing an Appropriation,” by Sen. Nancy Todd and Rep. James Wilson. The bill relocates the Colorado Student Leaders Institute to the Department of Higher Education with no changes to the program.
  • SB 17-077“Concerning the Eligibility of Certain Government Agencies to Apply for a Special Event Permit to Sell Alcohol Beverages,” by Sen. Cheri Jahn and Reps. Tracy Kraft-Tharp & Yeulin Willett. The bill authorizes certain agencies to obtain a special event permit to sell alcohol beverages for a limited period.
  • SB 17-109“Concerning the Use of Industrial Hemp in Products Designed for Consumption,” by Sen. Kerry Donovan and Rep. Jeni Arndt. The bill creates a group under the commissioner of agriculture to study the feasability of including hemp products in animal feed.
  • SB 17-196“Concerning the Improvement of the Department of Law’s Information Technology Security,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill increases the appropriation to the Department of Law to improve the Department’s information technology security based on an external auditor’s recommendations.
  • SB 17-197“Concerning the Provision of Legal Services for the Department of Education in the 2016-17 State Fiscal Year,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill increases the amount of reappropriated funds that are appropriated to the Department of Law for the purpose of providing additional legal services for the Department of Education.

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

Colorado Court of Appeals: 42 U.S.C. § 1983 is Not State Employers’ Liability Law

The Colorado Court of Appeals issued its opinion in City of Lakewood v. Safety National Casualty Corp. on Thursday, March 9, 2017.

42 U.S.C. § 1983—Indemnification—Defense Costs—Insurance—Employer Liability Law.

A City of Lakewood (City) police officer was killed by friendly fire, and his widow filed a lawsuit under 42 U.S.C. § 1983, alleging that the City and various fellow officers had violated the deceased officer’s rights under the U.S. Constitution. The City sought indemnification for its own defense costs and those of the officers named in the lawsuit, which the City has an independent statutory duty to cover. The insurance company, Safety National Casualty Corporation, denied coverage. The district court concluded that a § 1983 claim did not arise under an employer liability law of any state and granted summary judgment for the insurance company.

On appeal, the City contended that the district court erred in granting summary judgment to the insurance company because the policy unambiguously covers all defense costs incurred by the City in connection with the § 1983 lawsuit. Specifically, the City argued that the § 1983 municipal liability claim must be covered by the employers’ liability portion of the policy because it is a claim based on work-related injuries that falls outside the ambit of the workers’ compensation laws. However, this overstates the scope of the coverage under the policy. By the policy’s plain terms, the common law claims must arise under the laws of Colorado or “other State(s).” Section 1983 is not a law of Colorado or any other state. Therefore, the City’s defense costs, which were sustained because of liability imposed as a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employers’ liability law and were not covered by the policy.

Next, the City contended that it was entitled to reimbursement for amounts it paid to cover the fellow officers’ defense costs. The policy’s definition makes clear that the term “Employee” refers to the injured employee, not to an employee potentially responsible for the injury. “Loss” means payments by the City to the injured employee and the employee’s dependents. Therefore, the City’s indemnification payments to the officers named in the lawsuit do not qualify as losses under the policy and the City is not entitled to reimbursement from the insurance company.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Honest Belief Doctrine Allows Employee to Challenge Honesty of Employer’s Stated Reason for Termination

The Tenth Circuit Court of Appeals issued its opinion in Dewitt v. Southwestern Bell Telephone Company on Wednesday, January 18, 2017.

After her employment was terminated by Southwestern Bell Telephone Company (SWBTC) in 2010, Janna Dewitt filed a lawsuit against her former employer claiming unlawful discrimination and failure to accommodate her disability in violation of the American Disability Act, as well as a retaliation claim in violation of the Family Medical Leave Act (FMLA). The district court granted summary judgment in favor of SWBTC on all three claims, and Dewitt appealed.

Dewitt worked as a customer service representative in the call center of SWBTC. When Dewitt was hired she disclosed her diagnosis of Type I diabetes to her employer, who allowed her to take breaks as needed to eat and check her insulin levels. During Dewitt’s employment she took FMLA leave occasionally for health reasons, but generally avoided taking FMLA leave as it was looked upon unfavorably by SWBTC. After Dewitt violated SWBTC’s company policy for a second time by hanging up on two customers, SWBTC initiated a review and ultimately terminated Dewitt. Dewitt contends that she does not recall hanging up on the customers, as she was experiencing dangerously low blood sugar levels.

The court applied the burden-shifting framework first laid out in McDonnell-Douglas Corp. v. Green, which articulates a three-prong test for evaluating employment claims: (1) the claimant must show a prima facie case of retaliation or discrimination; (2) if the claimant presents a prima facie case, then if the employer can show a legitimate non-discriminatory reason for the action against the employee, the burden shifts back to the claimant to show that (3) there is a genuine issue of material fact as to if the employer’s reason for the action was merely pretext.

As to Dewitt’s first claim that SWBTC terminated her because of her disability, the court affirms the district court’s grant of summary judgment. The court looked to SWBTC’s process in evaluating the hang-ups, and stated that SWBTC’s termination was made based on their honest belief and in good faith due to Dewitt’s conduct, not because of her disability. Dewitt requests that the court decline to apply the honest belief doctrine, claiming that it “eviscerates the third prong of the McDonnell-Douglas test.” The court declines to do so, stating that the honest belief doctrine works to allow the employee to challenge the honesty of the employer’s stated reasoning for the action against the employee.

Next, Dewitt claims that SWBTC failed to accommodate her disability by not excusing the dropped phone calls. The court affirms the grant of summary judgment as to this claim as well, stating that an employer is not required to retroactively accommodate a disability where the employee has not previously requested an accommodation, and Dewitt never raised the concern prior to the incident with SWBTC that her diabetes could cause her to drop calls. The court added that the Equal Employment Opportunity Commission’s own guidance refutes Dewitt’s claim that her past conduct should be overlooked, as the guidance states “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.”

Finally, regarding Dewitt’s third claim of retaliation by SWBTC against her for taking FMLA leave, the court also affirms the district court’s grant of summary judgment in favor of SWBTC. The court held that because SWBTC offered a legitimate reason for terminating Dewitt, her hanging up on customers, Dewitt was required to show that this reason was mere pretext for firing her due to her disability. While Dewitt offered testimony that FMLA leave was discouraged and another supervisor disliked her, neither witness was involved in her actual termination. Therefore, the court determined that Dewitt’s evidence did not sufficiently establish a question as to if SWBTC’s stated reason for terminating her was merely pretext to terminate her employment due to her disability.

The court affirmed the district court’s grant of summary judgment on all three of Dewitt’s employment claims.

Colorado Supreme Court: Acknowledgment of Employer’s Vicarious Liability Bars Direct Negligence Claims Against Employer

The Colorado Supreme Court issued its opinion in In re Ferrer v. Okbamicael on Monday, February 27, 2017.

Tort—Respondeat Superior Liability—Direct Negligence.

In this original proceeding under C.A.R. 21, the Colorado Supreme Court reviewed trial court orders dismissing plaintiff’s direct negligence claims against an employer that acknowledged vicarious liability for its employee’s negligence, and denying plaintiff’s motion for leave to amend her complaint to add exemplary damages against the employer and the employee. The court adopted the rule articulated in McHaffie v. Bunch, 891 S.W.2d 19 822 (Mo. 1995), which held that an employer’s admission of vicarious liability for an employee’s negligence bars a plaintiff’s direct negligence claims against the employer. The court declined to adopt an exception to this rule where the plaintiff seeks exemplary damages against the employer. The court concluded that the trial court did not err in dismissing plaintiff’s direct negligence claims against the employer or in denying plaintiff’s motion for leave to amend the complaint to add exemplary damages. The court therefore affirmed the trial court orders and discharged the rule to show cause.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Economic Loss Rule Does Not Bar Civil Theft Claims

The Colorado Court of Appeals issued its opinion in Bermel v. BlueRadios, Inc. on Thursday, February 23, 2017.

Breach of Contract—Unjust Enrichment—Colorado Wage Protection Act—Civil Theft—Conversion—Economic Loss Rule—Attorney Fees.

Bermel entered into a “Contractor Agreement” with BlueRadios, Inc. under which he provided engineering services to BlueRadios. He also signed a “Proprietary Information and Inventions Agreement” (PIAA). The parties later ended their relationship. Anticipating that he might end up in litigation over unpaid wages, Bermel breached the PIAA by forwarding to his personal email account thousands of BlueRadios emails and attachments, some of which contained proprietary information. Bermel sent a demand letter to BlueRadios for unpaid wages, which BlueRadios paid. Bermel thereafter filed a lawsuit against BlueRadios asserting claims for breach of contract, unjust enrichment, and violation of the Colorado Wage Protection Act (CWPA). BlueRadios filed counterclaims against him, including breach of contract; civil theft, under C.R.S. § 18-4-405; and conversion. The court granted summary judgment in favor of BlueRadios on Bermel’s CWPA claim, and following trial, found Bermel liable on all of BlueRadios’ counterclaims.

On appeal, Bermel contended that the trial court erred when it denied his motion for summary judgment, in which he argued that the economic loss rule barred BlueRadios’ claim for civil theft. Because the economic loss rule is a judicial construct and a civil theft claim is a statutory cause of action, the economic loss rule does not preclude a cause of action under the civil theft statute.

Bermel also argued that the trial court erred in granting BlueRadios’ motion for summary judgment on his CWPA claim, contending that the court failed to apply the CWPA’s definition of “employee” when it concluded he was an independent contractor. The evidence attached to BlueRadios’ motion for summary judgment did not establish that Bermel was free from control and direction under his contract or that he was customarily engaged in an independent trade, occupation, profession, or business related to the service performed. Accordingly, BlueRadios failed to establish that no genuine dispute of material fact existed as to whether, under the parties’ contracts, Bermel was an employee for purposes of the CWPA.

Finally, BlueRadios was entitled to its appellate attorney fees under the civil theft statute.

The summary judgment on the CWPA claim was reversed, the judgment was otherwise affirmed, and the CWPA claim was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.