December 15, 2018

Archives for March 5, 2018

Bills Signed Allowing Alcohol to be Auctioned at Special Events, Amending Employer Ability to Access FPPA Plans, and More

On Thursday, March 1, 2018, Governor Hickenlooper signed 26 bills into law. To date, he has signed 29 bills this legislative session. Many of the bills signed Thursday were supplemental appropriations bills or bills moving statutes from Title 12, C.R.S., but among the rest were bills allowing the auctioning of alcohol in sealed containers at special events, amending an employer’s ability to access Fire and Police Pension Association plans, and adopting the Enhanced Nurse Licensure Compact. Summaries of the bills signed Thursday are available here.

  • HB 18-1022 – “Concerning a Requirement that the Department of Revenue Issue a Request for Information for an Electronic Sales and Use Tax Simplification System,” by Reps. Lang Sias & Tracy Kraft-Tharp and Sens. Cheri Jahn & Tim Neville. The bill requires the department of revenue to issue a request for information for an electronic sales and use tax simplification system that the state or any local government that levies a sales or use tax, including a home rule municipality and county, could choose to use that would provide administrative simplification to the state and local sales and use tax system.
  • HB 18-1031 – “Concerning Employer Entry into the Fire and Police Pension Association Defined Benefit System,” by Reps. Jovan Melton & Kim Ransom and Sens. John Cooke & Matt Jones. The bill allows an employer that provides a money purchase plan to apply to the board, with a single application, to cover some or all of the existing members of its money purchase plan in the defined benefit system. Current law requires the employer to apply to the board separately for each plan.
  • HB 18-1075 – “Concerning the Enactment of Colorado Revised Statutes 2017 as the Positive and Statutory Law of the State of Colorado,” by Reps. Pete Lee & Leslie Herod and Sens. Daniel Kagan & John Cooke. This bill enacts the softbound volumes of Colorado Revised Statutes 2017, including the corrected replacement volume consisting of titles 42 and 43, as the positive and statutory law of the state of Colorado and establishes the effective date of said publication.
  • HB 18-1079 – “Concerning a Requirement that the Works Allocation Committee Prepare Annual Recommendations for the Use of the Colorado Long-term Works Reserve,” by Rep. Susan Beckman and Sen. Larry Crowder. The bill requires the works allocation committee to annually submit to the executive director of the Department of Human Services, the governor, and the joint budget committee recommendations for the use of the money in the Colorado long-term works reserve for the upcoming state fiscal year.
  • HB 18-1144 – “Concerning Certain Publishing Requirements for the Department of Revenue’s ‘Disclosure of Average Taxes Paid’ Table,” by Rep. Dan Thurlow and Sen. Jack Tate. The bill updates language regarding mailing of tax tables, and refers in general to the department’s website and also requires the department to provide the table on the software platform that the department makes available to taxpayers to file individual income taxes rather than refer to the “NetFile” link.
  • HB 18-1159 – “Concerning a Supplemental Appropriation to the Department of Education,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Education.
  • HB 18-1160 – “Concerning a Supplemental Appropriation to the Offices of the Governor, Lieutenant Governor, and State Planning and Budgeting,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the offices of the governor, lieutenant governor, and state planning and budgeting.
  • HB 18-1161 – “Concerning a Supplemental Appropriation to the Department of Health Care Policy and Financing,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Health Care Policy and Financing.
  • HB 18-1162 – “Concerning a Supplemental Appropriation to the Department of Human Services,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Human Services.
  • HB 18-1163 – “Concerning a Supplemental Appropriation to the Judicial Department,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Judicial Department.
  • HB 18-1164 – “Concerning a Supplemental Appropriation to the Department of Personnel,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Personnel.
  • HB 18-1165 – “Concerning a Supplemental Appropriation to the Department of Public Safety,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Public Safety.
  • HB 18-1166 – “Concerning a Supplemental Appropriation to the Department of Regulatory Agencies,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Regulatory Agencies.
  • HB 18-1167 – “Concerning a Supplemental Appropriation to the Department of Revenue,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Revenue.
  • HB 18-1168 – “Concerning a Supplemental Appropriation to the Department of State,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of State.
  • HB 18-1169 – “Concerning a Supplemental Appropriation to the Department of the Treasury,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of the Treasury.
  • HB 18-1170 – “Concerning Funding for Capital Construction, and Making Supplemental Appropriations in Connection Therewith,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes supplemental appropriations for capital construction projects.
  • HB 18-1173 – “Concerning a Supplemental Transfer of Money from the General Fund to the Information Technology Capital Account of the Capital Construction Fund for the 2017-18 State Fiscal Year,” by Rep. Bob Rankin and Sen. Kent Lambert. For the 2017-18 fiscal year, the bill transfers $2,888,529 from the general fund to the information technology capital account of the capital construction fund.
  • SB 18-019 – “Concerning an Expansion of the Duration for which the Colorado Water Resources and Power Development Authority may Make a Loan Under the Authority’s Revolving Loan Programs,” by Sens. Kerry Donovan & Don Coram and Reps. Chris Hansen & Jeni James Arndt. Current law limits the duration of any water pollution control loan to 20 years; this bill removes the 20-year limitation.
  • SB 18-027 – “Concerning the Enactment of the ‘Enhanced Nurse Licensure Compact’, and, in Connection Therewith, Making an Appropriation,” by Sens. Jim Smallwood & Nancy Todd and Reps. Tracy Kraft-Tharp & Hugh McKean. The bill repeals the current ‘Nurse Licensure Compact’ and adopts the ‘Enhanced Nurse Licensure Compact’.
  • SB 18-030 – “Concerning the Nonsubstantive Relocation of Laws Related to Self-Propelled Vehicles from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sens. Chris Holbert & Daniel Kagan and Reps. Mike Foote & Yeulin Willett. The bill creates Title 44 in the Colorado Revised Statutes and relocates certain statutory sections to Title 44.
  • SB 18-032 – “Concerning the Nonsubstantive Relocation of Laws from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sens. Bob Gardner & John Cooke and Reps. Mike Foote & Leslie Herod. The bill relocates articles 26 and 26.1 from Title 12 to a new part in Title 18, and relocates the Uniform Unsworn Declarations Act to a new article in Title 13.
  • SB 18-034 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Gaming from Title 12, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Sens. John Cooke & Lucia Guzman and Reps. Cole Wist & Pete Lee. The bill creates a new Title 44 and relocates certain statutory sections to Title 44.
  • SB 18-035 – “Concerning the Nonsubstantive Relocation of Laws Related to Gambling Payment Intercept from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Sens. Bob Gardner & John Cooke and Rep. Cole Wist. The bill creates Title 44 of the Colorado Revised Statutes and relocates certain statutory sections to Title 44.
  • SB 18-041 – “Concerning the Ability of Operators of Sand and Gravel Mines to Use Water Incidental to Sand and Gravel Mining Operations to Mitigate the Impacts of Mining,” by Sens. Don Coram & Randy Baumgartner and Reps. Lori Saine & Jeni James Arndt. The bill specifies that the groundwater replacement plan or the plan of substitute supply and the permit may authorize uses of water incidental to open mining for sand and gravel, including specifically the mitigation of impacts from mining and dewatering.
  • SB 18-054 – “Concerning a Limitation on the Amount of an Increase in Fees Assessed Against Assisted Living Residences by the Department of Public Health and Environment,” by Sen. Larry Crowder and Rep. Larry Liston. Current law requires the State Board of Health to establish a schedule of fees for health facilities, including assisted living facilities. The bill applies an inflation rate limitation to the fees for assisted living facilities.
  • SB 18-067 – “Concerning the Ability of Certain Organizations Conducting a Special Event to Auction Alcohol Beverages in Sealed Containers for Fundraising Purposes under Specified Circumstances,” by Sens. Rachel Zenzinger & Kevin Priola and Reps. Tracy Kraft-Tharp & Kevin Van Winkle. The bill specifically allows certain organizations to bring onto and remove from the premises where an event will be held, whether licensed or unlicensed, alcohol beverages in sealed containers that were donated to or otherwise lawfully obtained by the organization and will be used for an auction for fundraising purposes as long as the alcohol beverages remain in sealed containers at all times and the licensee does not realize any financial gain related to the alcohol beverage auction.

For a list of the governor’s 2018 legislative decisions, click here.

Colorado Court of Appeals: Body-Worn Cameras Are Not “Personal Safety and Health Equipment” and Therefore Do Not Mandate Collective Bargaining

The Colorado Court of Appeals issued its opinion in Denver Police Protective Association v. City & County of Denver on Thursday, February 22, 2018.

Labor Relations—Collective Bargaining—Body-Worn Cameras—Summary Judgment.

The City and County of Denver (Denver) and the Denver Police Protective Association (DPPA) are parties to a collective bargaining agreement. That agreement implements the City and County of Denver Charter (Charter), which sets forth Denver’s obligations regarding collective bargaining with certain of its employees. A category in the Charter that is not required to be subject to collective bargaining is officer health and safety matters, except for personal safety and health equipment.

In 2015, the Denver Police Department (DPD) promulgated, without bargaining or consultation with DPPA, a policy regarding the use of body-worn cameras (BWCs). The policy required “patrol officers and corporals assigned to all six police Districts, the Gang Unit and Traffic Operations” to wear and use BWCs. DPPA immediately contended that this was a mandatory subject of collective bargaining and demanded that Denver bargain. Denver refused.

DPPA sued, alleging Denver violated the collective bargaining agreement by implementing the BWC policy without first bargaining in good faith with DPPA. The parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of DPPA and ordered Denver to bargain over the implementation of the BWC policy.

On appeal, the court of appeals considered whether the BWCs are “personal safety and health equipment” subject to collective bargaining as claimed by DPPA and agreed to by the district court, or if they are equipment that relates to “officer safety and health matters,” as Denver argued, and therefore are not a mandatory subject of collective bargaining.

Analyzing the Charter, the court concluded that it is reasonable to restrict the definition of “personal safety and health equipment” to equipment whose principal purpose is the safety of officers. The case thus turned on whether the principal purpose of BWCs is officer safety. While BWCs may incidentally impact officer safety, their principal purpose is not to increase the safety of the officer. The court therefore concluded that BWCs are not “personal health and safety equipment” under the Charter and are not a mandatory subject of collective bargaining.

The judgment was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: ICWA Notice Should be Sent to All Tribes in Ancestral Group if Only Ancestral Group Indicated

The Colorado Court of Appeals issued its opinion in People in Interest of L.H. on Thursday, February 22, 2018.

Dependency and Neglect—Indian Child Welfare Act—Notice Requirement.

In this dependency and neglect proceeding, mother initially denied Native American heritage but then informed the Jefferson County Department of Human Services (Department) that her biological brother is registered with “Navajo-Deni.” The Department sent six separate notices to the Navajo Nation at six different addresses. The Navajo Nation responded that there was no record of the family with the Navajo Nation, and therefore the child was not enrolled or eligible for enrollment with the Navajo Nation. Based on this response, at the termination hearing the trial court found that the Indian Child Welfare Act (ICWA) did not apply in this case.

Mother appealed the judgment terminating the parent–child legal relationship with her child. Based on its review of the record, the Court of Appeals could not determine whether the Department complied with the ICWA. A review of the Bureau of Indian Affairs (BIA) list of Tribal Agents by Affiliation shows that the Colorado River Indian Tribes are also tribes historically affiliated with the Navajo. The Court concluded that because mother had made a general reference to Navajo, and not just the Navajo Nation, the Department was required to also notify the Colorado River Indian Tribes. The notice to only the Navajo Nation was insufficient to satisfy the ICWA’s notice requirement.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Colorado River Indian Tribes.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/2/2018

On Friday, March 2, 2018, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Ferrell

United States v. Pflum

Seber v. Bank of America

United States v. Snisky

N8 Medical, Inc. v. Colgate-Palmolive Co.

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.