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1-45-117. State and political subdivisions – limitations on contributions

Overview of Statute

No agency, department, board, division, bureau, commission, or council of the state or any political subdivision of the state can contribute to any campaign involving the nomination, retention, or election of any person to public office. They also cannot donate to any other person for the purpose of making an independent expenditure, or otherwise donate money in order to influence voting on ballot issues or other policy questions. Other restrictions also apply to the donation of money on other related types of initiatives.

These entities and their employees, however, may respond to any inquiries presented to them related to the issues and expend public money to assist in providing relevant factual summaries. If acting in a personal capacity, employees also may also engage in activities otherwise prohibited by this statute.

Additional regulations also highlight how candidates currently serving in an official capacity must handle the separation of public money from received campaign contributions. These regulations incorporate restrictions imposed by the state constitution, and include the procedure for when a candidate must reimburse the government for campaign expenses.

Statute

(1) (a) (I) No agency, department, board, division, bureau, commission, or council of the state or any political subdivision of the state shall make any contribution in campaigns involving the nomination, retention, or election of any person to any public office, nor shall any such entity make any donation to any other person for the purpose of making an independent expenditure, nor shall any such entity expend any moneys from any source, or make any contributions, to urge electors to vote in favor of or against any:

(A) Statewide ballot issue that has been submitted for the purpose of having a title designated and fixed pursuant to section 1-40-106 (1) or that has had a title designated and fixed pursuant to that section;

(B) Local ballot issue that has been submitted for the purpose of having a title fixed pursuant to section 31-11-111 or that has had a title fixed pursuant to that section;

(C) Referred measure, as defined in section 1-1-104 (34.5);

(D) Measure for the recall of any officer that has been certified by the appropriate election official for submission to the electors for their approval or rejection.

(II) However, a member or employee of any such agency, department, board, division, bureau, commission, or council may respond to questions about any such issue described in subparagraph (I) of this paragraph (a) if the member, employee, or public entity has not solicited the question. A member or employee of any such agency, department, board, division, bureau, commission, or council who has policy-making responsibilities may expend not more than fifty dollars of public moneys in the form of letters, telephone calls, or other activities incidental to expressing his or her opinion on any such issue described in subparagraph (I) of this paragraph (a).

(b) (I) Nothing in this subsection (1) shall be construed as prohibiting an agency, department, board, division, bureau, commission, or council of the state, or any political subdivision thereof from expending public moneys or making contributions to dispense a factual summary, which shall include arguments both for and against the proposal, on any issue of official concern before the electorate in the jurisdiction. Such summary shall not contain a conclusion or opinion in favor of or against any particular issue. As used herein, an issue of official concern shall be limited to issues that will appear on an election ballot in the jurisdiction.

(II) Nothing in this subsection (1) shall be construed to prevent an elected official from expressing a personal opinion on any issue.

(III) Nothing in this subsection (1) shall be construed as prohibiting an agency, department, board, division, bureau, commission, or council of the state or any political subdivision thereof from:

(A) Passing a resolution or taking a position of advocacy on any issue described in subparagraph (I) of paragraph (a) of this subsection (1); or

(B) Reporting the passage of or distributing such resolution through established, customary means, other than paid advertising, by which information about other proceedings of such agency, department, board, division, bureau, or council of the state or any political subdivision thereof is regularly provided to the public.

(C) Nothing in this subsection (1) shall be construed as prohibiting a member or an employee of an agency, department, board, division, bureau, commission, or council of the state or any political subdivision thereof from expending personal funds, making contributions, or using personal time to urge electors to vote in favor of or against any issue described in subparagraph (I) of paragraph (a) of this subsection (1).

(2) The provisions of subsection (1) of this section shall not apply to:

(a) An official residence furnished or paid for by the state or a political subdivision;

(b) Security officers who are required to accompany a candidate or the candidate’s family;

(c) Publicly owned motor vehicles provided for the use of the chief executive of the state or a political subdivision;

(d) Publicly owned aircraft provided for the use of the chief executive of the state or of a political subdivision or the executive’s family for security purposes; except that, if such use is, in whole or in part, for campaign purposes, the expenses relating to the campaign shall be reported and reimbursed pursuant to subsection (3) of this section.

(3) If any candidate who is also an incumbent inadvertently or unavoidably makes any expenditure which involves campaign expenses and official expenses, such expenditures shall be deemed a campaign expense only, unless the candidate, not more than ten working days after the such expenditure, files with the appropriate officer such information as the secretary of state may by rule require in order to differentiate between campaign expenses and official expenses. Such information shall be set forth on a form provided by the appropriate officer. In the event that public moneys have been expended for campaign expenses and for official expenses, the candidate shall reimburse the state or political subdivision for the amount of money spent on campaign expenses.

(4) (a) Any violation of this section shall be subject to the provisions of sections 9 (2) and 10 (1) of article XXVIII of the state constitution or any appropriate order or relief, including an order directing the person making a contribution or expenditure in violation of this section to reimburse the fund of the state or political subdivision, as applicable, from which such moneys were diverted for the amount of the contribution or expenditure, injunctive relief, or a restraining order to enjoin the continuance of the violation.

(b) If a board of county commissioners is found to have made a contribution or expenditure in violation of this section, an individual member of the board who voted in favor of or otherwise authorized the contribution or expenditure may be ordered to reimburse an amount pursuant to paragraph (a) of this subsection (4) as long as the amount does not exceed the amount ordered to be reimbursed by any other individual of the board who voted in favor or otherwise authorized the contribution or expenditure.

 

 

Source: Initiated 96: Entire article R&RE, effective upon proclamation of the Governor, January 15, 1997.L. 2002: (4) added, p. 280, § 1, effective August 7.L. 2008: (4) amended, p. 350, § 3, effective April 10.L. 2010: IP(1)(a)(I) amended, (SB 10-203), ch. 269, p. 1237, § 8, effective May 25.L. 2015: (4) amended, (HB 15-1074), ch. 89, p. 256, § 1, effective August 5.

 

Editor’s note: This section is similar to former § 1-45-116 as it existed prior to 1996.

Cross references: For the legislative declaration in the 2010 act amending the introductory portion to subsection (1)(a)(I), see section 1 of chapter 269, Session Laws of Colorado 2010.
 
ANNOTATION

Annotator’s note. Since § 1-45-117 is similar to § 1-45-116 as it existed prior to the 1997 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

The purpose of this section is to prohibit the state government and its officials from spending public funds to influence the outcome of campaigns for political office or ballot issues. Colo. Common Cause v. Coffman, 85 P.3d 551 (Colo. App. 2003), aff’d, 102 P.3d 999 (Colo. 2004).

This section must be strictly construed. It is an established principle that statutes regarding the use of public funds to influence the outcome of elections are strictly construed. Coffman v. Colo. Common Cause, 102 P.3d 999 (Colo. 2004).

Moneys in fund administered by the Colorado compensation insurance authority that consisted primarily of premiums paid into the fund by employers constituted “public moneys” for purposes of this section. Denver Area Labor Fed’n v. Buckley, 924 P.2d 524 (Colo. 1996).

While the term “public moneys” is not defined, the all-inclusive language “from any source” indicates that the general assembly intended an expansive definition of the phrase. Thus, the term “public moneys” may not be construed to refer only to sums realized from the imposition of taxes. Denver Area Labor Fed’n v. Buckley, 924 P.2d 524 (Colo. 1996).

Although moneys collected by the political subdivision were not derived from state-imposed sales, use, property, or income taxes, those moneys may be spent by the political subdivision only for authorized public purposes. The general assembly has in essence declared that the expenditure of moneys in the fund for purposes prohibited by this section are not authorized expenditures for public purposes. Denver Area Labor Fed’n v. Buckley, 924 P.2d 524 (Colo. 1996).

This section prohibits the use of “public moneys from any source,” not the use of “public funds”. The general assembly thus selected a phrase not previously construed in seeking to limit the expenditure of funds by various governmental entities for certain purposes. Denver Area Labor Fed’n v. Buckley, 924 P.2d 524 (Colo. 1996).

This section tends to promote public confidence in government by prohibiting the use of moneys authorized for expenditure by political subdivisions for specified public purposes to advance the personal viewpoint of one group over another. A political subdivision’s use of moneys that were authorized for expenditure for the benefit of an insured to oppose the passage of an amendment proposed by an insured is the type of conduct the general assembly intended to prohibit by the enactment of this section. Denver Area Labor Fed’n v. Buckley, 924 P.2d 524 (Colo. 1996).

Subsection (4), and not § 10(1) of article XXVIII of state constitution, provides basis for sanctions against special district that allegedly violated subsection (1)(b)(I) by urging voters to support ballot issue. Plaintiff’s sole argument to ALJ was that special district violated subsection (1)(b)(I) by urging voters to support ballot issue. Plaintiff made no argument that expenditure violated a contribution or spending limit nor did plaintiff make any other argument concerning the amount district spent. Sherritt v. Rocky Mtn. Fire Dist., 205 P.3d 544 (Colo. App. 2009).

No abuse of discretion by administrative law judge (ALJ) in refusing to sanction special district at higher amount requested by plaintiff. Under subsection (4), ALJ had discretion to determine “any appropriate order or relief”. In sanctioning district, ALJ cited district’s attempt to comply with the law and the absence of prior violations. ALJ found that public funds would be used to satisfy the penalty and, therefore, a large fine would compound the problem. In exercising his or her discretion, ALJ properly considered needs of the public. Additionally, ALJ’s findings have record support and were neither arbitrary, capricious, unsupported by the evidence, nor contrary to law. Sherritt v. Rocky Mtn. Fire Dist., 205 P.3d 544 (Colo. App. 2009).

What is of “official concern” to school district board of education is to be determined by reference to the official powers and duties delegated by the general assembly in the school laws. Mountain States Legal Found. v. Denver Sch. Dist. No. 1, 459 F. Supp. 357 (D. Colo. 1978).

A matter of official concern is one which at the very least involves questions which come before the officials for an official decision. Campbell v. Joint Dist. 28-J, 704 F.2d 501 (10th Cir. 1983).

Proposed constitutional amendment not of official concern. A proposed amendment to the state constitution on a general election ballot is not a matter of official concern. Campbell v. Joint Dist. 28-J, 704 F.2d 501 (10th Cir. 1983).

Not determined solely by board. The characterization of a campaign issue as being of “official concern” is not a judgment which can be made solely by the board of education; such an interpretation of this section would give unlimited discretion to the school board to use school funds and school facilities whenever it suited the personal preference of the majority of the members. Mountain States Legal Found. v. Denver Sch. Dist. No. 1, 459 F. Supp. 357 (D. Colo. 1978).

This section allows an employee with policy-making responsibility to expend public funds up to the $50 limit in expressing an opinion about a pending ballot issue. Regents of the Univ. of Colo. v. Meyer, 899 P.2d 316 (Colo. App. 1995).

Paid staff time is a contribution in kind for purposes of this section. Time spent by the state treasurer’s staff during work hours on a non-volunteer basis preparing and disseminating press releases expressing the state treasurer’s opposition to a statewide ballot issue therefore violated this section to the extent that the value of that time exceeded $50. Coffman v. Colo. Common Cause, 102 P.3d 999 (Colo. 2004).

State treasurer’s press conference and press releases opposing a statewide ballot issue violated this section. The press releases were not balanced factual summaries of the ballot issue and were not resolutions because they were not formal expressions of a voting body. The state treasurer expended more than $50 in preparing the press releases and was not permitted to expend more than that to take a position of advocacy. Colo. Common Cause v. Coffman, 85 P.3d 551 (Colo. App. 2003), aff’d, 102 P.3d 999 (Colo. 2004).

Public school payroll deduction system for teachers’ union dues, a portion of which was given by the union to a political action committee, did not constitute a “contribution in kind” because it did not support a specific “issue” or “candidate” that the political action committee supported or opposed during the time that the district made the payroll deductions. Mountain States v. Secretary of State, 946 P.2d 586 (Colo. App. 1997) (decided under law in effect prior to 1997 amendment).

Brochure mailed by metropolitan districts explaining proposed improvements violated this section. The brochure, when read in its entirety, did not present arguments for and against the issue. In fact, it took a position exclusively in favor of the issue, presented no contrary arguments, and expressly advocated the passage of the bond initiative that was titled only days after the mailing of the brochure. Thus, it urged voters to vote for the initiative. Skruch v. Highlands Ranch Metro. Dists., 107 P.3d 1140 (Colo. App. 2004).

Although brochure did not mention ballot initiative by name, administrative law judge appropriately concluded that the language of this section does not require that level of specificity. The section prohibits “the urging of electors to vote a certain way.” Skruch v. Highlands Ranch Metro. Dists., 107 P.3d 1140 (Colo. App. 2004).
Annotation: April 22, 2016 5:14 pm

Duvall v. Elbert County Bd. Of Comm’rs et al., Case No. 2014CA312 (Colo. Ct. App.)
An alleged violation of 1-45-117(1)(a)(i)(b), C.R.S. — The ALJ found that (1) the county is a political subdivision and that the Board of County Commissioners (BOCC) is its governing body; (2) ballot issue 1c was a local ballot issue that had its title fixed pursuant to 31-11-111, C.R.S.; and (3) by majority vote, the BOCC referred ballot issue 1c to the electorate and by unanimous vote used public money to contract with Buchanan for the purpose of, among other things, presenting public meetings to educate voters about the county’s financial status. The ALJ further found that the BOCC spent that money with the intent to “urge” voters to support ballot issue 1c. Commissioner Robert Rowland was ordered to reimburse the county general fund the amount of $1,000 within 30 days of the date of mailing of the decision.

Definition [Expenditure]

Any purchase, payment, distribution, loan, advance, deposit, or gift of money by any person for the purpose of expressly advocating the election or defeat of a candidate or supporting or opposing a ballot issue or ballot question. An expenditure is made when the actual spending occurs or when there is a contractual agreement requiring such spending and the amount is determined.

(b) “Expenditure” does not include:

(I) Any news articles, editorial endorsements, opinion or commentary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party;

(II) Any editorial endorsements or opinions aired by a broadcast facility not owned or controlled by a candidate or political party;

(III) Spending by persons, other than political parties, political committees and small donor committees, in the regular course and scope of their business or payments by a membership organization for any communication solely to members and their families;

(IV) Any transfer by a membership organization of a portion of a member’s dues to a small donor committee or political committee sponsored by such membership organization; or payments made by a corporation or labor organization for the costs of establishing, administering, or soliciting funds from its own employees or members for a political committee or small donor committee.

Section 2(8) of article XXVIII of the state constitution.

Definition [Contribution]

(a) (I) The payment, loan, pledge, gift, or advance of money, or guarantee of a loan, made to any candidate committee, issue committee, political committee, small donor committee, or political party;

(II) Any payment made to a third party for the benefit of any candidate committee, issue committee, political committee, small donor committee, or political party;

(III) The fair market value of any gift or loan of property made to any candidate committee, issue committee, political committee, small donor committee or political party;

(IV) Anything of value given, directly or indirectly, to a candidate for the purpose of promoting the candidate’s nomination, retention, recall, or election.

(b) “Contribution” does not include services provided without compensation by individuals volunteering their time on behalf of a candidate, candidate committee, political committee, small donor committee, issue committee, or political party; a transfer by a membership organization of a portion of a member’s dues to a small donor committee or political committee sponsored by such membership organization; or payments by a corporation or labor organization for the costs of establishing, administering, and soliciting funds from its own employees or members for a political committee or small donor committee.

Section 2(5) of article XXVIII of the state constitution.

 

C.R.S. § 1-45-103 further adds:

(b) “Contribution” includes, with regard to a contribution for which the contributor receives compensation or consideration of less than equivalent value to such contribution, including, but not limited to, items of perishable or nonpermanent value, goods, supplies, services, or participation in a campaign-related event, an amount equal to the value in excess of such compensation or consideration as determined by the candidate committee.

(c) “Contribution” also includes:

(I) Any payment, loan, pledge, gift, advance of money, or guarantee of a loan made to any political organization;

(II) Any payment made to a third party on behalf of and with the knowledge of the political organization; or

(III) The fair market value of any gift or loan of property made to any political organization.

C.R.S. § 1-45-103.

Definition [Appropriate officer]

The individual with whom a candidate, candidate committee, political committee, small donor committee, or issue committee must file pursuant to section 1-45-109(1), C.R.S., or any successor section. Section 2(1) of article XXVIII of the state constitution.

Definition [Political subdivision]

A governing subdivision of the state, including counties, municipalities, school districts, and special districts. C.R.S. § 1-7.5-103.

Definition [Independent expenditure]

An expenditure that is not controlled by or coordinated with any candidate or agent of such candidate. Expenditures that are controlled by or coordinated with a candidate or candidate’s agent are deemed to be both contributions by the maker of the expenditures, and expenditures by the candidate committee. Section 2(9) of article XXVIII of the state constitution.

Definition [State]

A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.

Definition [Ballot]

(a) A federal write-in absentee ballot;

(b) A ballot specifically prepared or distributed for use by a covered voter in accordance with this article; or

(c) A ballot cast by a covered voter in accordance with this article.

(2) “Covered voter” means:

(a) A uniformed-service voter defined in paragraph (a) of subsection (9) of this section who is a resident of this state but who is absent from this state by reason of active duty and who otherwise satisfies this state’s voter eligibility requirements;

(b) An overseas voter who, before leaving the United States, was last eligible to vote in this state and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements;

(c) An overseas voter who, before leaving the United States, would have been last eligible to vote in this state had the voter then been of voting age and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements; or

(d) An overseas voter who was born outside the United States, is not described in paragraph (b) or (c) of this subsection (2), and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements if the last place where a parent, legal guardian, spouse, or civil union partner of the voter was, or under this article would have been, eligible to vote before leaving the United States is within this state.

C.R.S. § 1-8.3-102.

Definition [Person]

Any natural person, partnership, committee, association, corporation, labor organization, political party, or other organization or group of persons. Section 2(11) of article XXVIII of the state constitution.

Definition [Election]

Any election under the “Uniform Election Code of 1992” or the “Colorado Municipal Election Code of 1965”, article 10 of title 31, C.R.S. C.R.S. § 1-7.5-103.

Definition [Donation]

(a) (I) The payment, loan, pledge, gift, or advance of money, or the guarantee of a loan, made to any person for the purpose of making an independent expenditure;

(II) Any payment made to a third party that relates to, and is made for the benefit of, any person that makes an independent expenditure;

(III) The fair market value of any gift or loan of property that is given to any person for the purpose of making an independent expenditure; or

(IV) Anything of value given, directly or indirectly, to any person for the purpose of making an independent expenditure.

(b) “Donation” shall not include a transfer by a membership organization of a portion of a member’s dues for an independent expenditure sponsored by such membership organization.

C.R.S. § 1-45-103.

Definition [Spending]

Funds expended influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any state or local public office in the state and includes, without limitation, any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value by any political organization, a contract, promise, or agreement to expend funds made or entered into by any political organization, or any electioneering communication by any political organization. C.R.S. § 1-45-103.

Definition [Secretary]

The Colorado secretary of state. C.R.S. § 1-1.5-102.

Definition [Committee]

The committee of signers described in section 1-12-108(2). C.R.S. § 1-12-100.5.

Definition [Candidate]

Any person who seeks nomination or election to any state or local public office that is to be voted on in this state at any primary election, general election, school district election, special district election, or municipal election. “Candidate” also includes a judge or justice of any court of record who seeks to be retained in office pursuant to the provisions of section 25 of article VI. A person is a candidate for election if the person has publicly announced an intention to seek election to public office or retention of a judicial office and thereafter has received a contribution or made an expenditure in support of the candidacy. A person remains a candidate for purposes of this article so long as the candidate maintains a registered candidate committee. A person who maintains a candidate committee after an election cycle, but who has not publicly announced an intention to seek election to public office in the next or any subsequent election cycle, is a candidate for purposes of this article. Section 2(2) of article XXVIII of the state constitution.

Cases

colorado Cases

Case Name: Colo. Common Cause v. Coffman

Citation: 85 P.3d 551 (Colo. App. 2003)

Year: 2003

Case URL: https://www.ravellaw.com/opinions/a2c2cd8abd08c77f5e6c26bc9119c2da

Case Summary: Holding that the Administrative Law Judge (ALJ) did not err in finding that the state treasurer violated the law by expending more than $50 in public funds urging voters to defeat a measure and that the ALJ had authority to impose a monetary sanction for this violation.

Case Name: Denver Area Labor Fed’n v. Buckley

Citation: 924 P.2d 524 (Colo. 1996)

Year: 1996

Case URL: https://www.ravellaw.com/opinions/f0b5350d43fcef6bb52c2fc31aa41ee0

Case Summary: Holding that monies in a fund administered by the the Colorado Compensation Insurance Authority constitute “public monies” for purposes of the part of the Act prohibiting state and political subdivision entities from expending “public monies from any source” to urge electors to vote yes or no on issues before the electorate.

Case Name: Sherritt v. Rocky Mtn. Fire Dist.

Citation: 205 P.3d 544 (Colo. App. 2009)

Year: 2009

Case URL: https://www.ravellaw.com/opinions/52e13b0378bc708c92885dc25a4c6430

Case Summary: Holding that sanction for fire district that spent public funds to urge voters to vote in favor of a ballot measure was to be determined by the statute authorizing “any appropriate order or relief” and that the Administrative Law Judge did not abuse its discretion when it imposed a $400 fine on the fire district.

Case Name: Regents of the Univ. of Colo. v. Meyer

Citation: 899 P.2d 316 (Colo. App. 1995)

Year: 1995

Case URL: https://www.ravellaw.com/opinions/4546c4b190bfdeb9ebb23541640611e4

Case Summary: Holding that a challenge to a newsletter was properly limited to only one of two contested paragraphs and that there was no competent evidence in the record to support the Secretary of State's determination that public funds expended in connection with that contested paragraph exceeded the $50 statutory limit.

Case Name: Mountain States v. Secretary of State

Citation: 946 P.2d 586 (Colo. App. 1997)

Year: 1997

Case URL: https://www.ravellaw.com/opinions/e4e8019123fd7a359367356ac91f8efe

Case Summary: Holding that school district's collection of teachers' union dues, a portion of which were given to a political action committee (PAC), did not constitute a “contribution in kind” prohibited by the Campaign Reform Act.

Case Name: Skruch v. Highlands Ranch Metro. Dists.

Citation: 107 P.3d 1140 (Colo. App. 2004)

Year: 2004

Case URL: https://www.ravellaw.com/opinions/8e552475dd6d33d6e865ae7e2f1dba86

Case Summary: Holding that brochure urged electors to vote in favor of ballot measure; the definition of “expenditure” in Fair Campaign Practices Act did not apply to metropolitan districts; and an expenditure occurred if either actual payment was made or there was a contractual agreement and determined amount.

Out-of-State Cases

Federal Cases

Case Name: Mountain States Legal Found. v. Denver Sch. Dist. No. 1

Citation: 459 F. Supp. 357 (D. Colo. 1978)

Federal District Court: District of Colorado

Year: 1978

Case URL: https://www.ravellaw.com/opinions/11f4902bcada04c38c10a9a88f9fad72

Case Summary: Holding that preliminary injunction was appropriate when taking into account (1) plaintiffs' strong showing that they would prevail on the merits of their claim that resolution authorizing expenditure of funds to defeat proposed constitutional amendment was an illegal act and was contrary to state law and United States Constitution and (2) the irreparable injury that would result from refusal to stop the implementation of that resolution.

Case Name: Campbell v. Joint Dist. 28-J

Citation: 704 F.2d 501 (10th Cir. 1983)

Federal Circuit Court: 10th Circuit Court

Year: 1983

Case URL: https://www.ravellaw.com/opinions/82f678ab68283c73194465b304989cb8

Case Summary: Holding that school district and city expenditures related to referendum proposal regarding elector approval of new/increased taxes were not authorized by statute or by the provision of Campaign Reform Act governing contributions involving issues in which the state and political subdivisions have “official concern.”

Regulations & Guidance

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