J_LS_2022A 12/13/2022 09:06:28 AM Committee Summary PUBLICSTAFF SUMMARY OF MEETINGJOINT COMMITTEE COMMITTEE ON LEGAL SERVICES Date 12/13/2022 Attendance Bacon X Buckner X Carver X Cooke X Lee X Pico X Rodriguez X Snyder X Gardner X Weissman X Time 09:06:28 AM to 01:05:00 PM Place Old State Library This Meeting was called to order by Weissman This Report was prepared by Courtney Dunaway Hearing Items Action Taken hReview of new rules Committee Discussion Only hApproval and sponsorship of committee bills Committee Discussion Only hSocial media guidelines Committee Discussion Only hUpdate on litigation Committee Discussion Only hComp time policy recommendations Committee Discussion Only hUpdate on hiring Committee Discussion Only hOther business Committee Discussion Only Review of new rules - Committee Discussion Only 09:09:01 AM Megan McCall, Office of Legislative Legal Services, introduced the Office and the Office's rule review process then reviewed her recommendations for rule 39-30-105.1 concerning Enterprise Zone Business Facility Employee Credits to not be extended 09:10:00 AM Ms. McCall stated that the statute the rule is promulgated under is section 39-30-105.1 CRS and that the rule's definition of "business facility" conflicts with the statutory definition 09:12:22 AM Ms. McCall explained that in her legal interpretation the definition the Department of Revenue uses in their rule differs from the statutory definition because their rule exempts "temporary structures" from the definition, which results in the rule being more narrow and limited than the statute requires 09:14:19 AM Representative Snyder asked for more clarification on what is being contested and by whom 09:14:30 AM Ms. McCall explained that the Department of Revenue is contesting the Office's recommendation to not extend the rule by asking the committee to extend the rule 09:14:52 AM Representative Weissman, chair, expressed his thoughts on the two definitions and that the statutory definition does not require permanency of a business facility as the rule definition does 09:16:56 AM Ms. McCall responded clarifying that the way the terms are defined in the statute is broad and that some of the structures listed could be temporary, such as warehouses 09:18:12 AM Senator Lee asked if tents or canvas structures set up by businesses qualify under the definition for the tax credit 09:18:46 AM Ms. McCall explained that if the tent falls within the definition of facility in one of the enumerated categories then it's possible it could qualify for the tax credit but that it would need to also comport with all other requirements and components of the statute 09:19:26 AM Senator Lee asked for clarity on the purpose of the tax credit and if it was created to incentivize businesses to set up more permanent types of facilities in a community that won't be removed 09:20:02 AM Ms. McCall explained the tax credit is an enterprise zone tax credit and that the legislative intent for the enterprise zone tax credits is as Senator Lee described and that the tax credit is particularly for employees 09:21:57 AM Esther van Mourik, Department of Revenue, provided comments on the Department's rule making authority, describing it as broad. She explained that the reason it is broad is because a statute simply cannot cover all possible situations that will apply to it. Ms. van Mourik explained that in order to promulgate the rule, the Department needs to be able to apply it to any situation that comes up and fill in any gaps when a statute is silent for smooth administration 09:25:29 AM Anne Mangiardi, senior assistant attorney general representing the Department of Revenue, discussed the Department's interpretation of the language of the statute and that the definition needs to be read in the context of the whole statute, which would not allow for "building" to be read as something temporary 09:28:23 AM Ms. Mangiardi expressed the opinion of the Department that the statute is a silent statute on permanence or non-permanence and that it is the role of the Department to fill in the gaps when a statute is silent 09:29:47 AM Ms. Mangiardi discussed the legislative intent behind the enterprise zone tax credits set out in the legislative declaration in section 39-30-102 CRS and how a temporary job doesn't carry out those intents as well as a more permanent job does 09:33:14 AM Representative Pico explained what he has seen in his own experience with businesses building temporary facilities before building a permanent one while they're getting started in a new community 09:34:16 AM Ms. Mangiardi responded by saying that the legislative intent of the statute seems to exclude those situations from the credit but that if a business started up in a tent then moved to a permanent facility they would start receiving the tax credit then 09:35:09 AM Representative Pico explained that in his experience the tax credit is an incentive for a business to get started 09:35:44 AM Representative Weissman, chair, asked that, in the absence of the rule, what would happen when a tax-payer tried to claim the credit 09:36:53 AM Ms. van Mourik explained that the tax-payer can reach out to a representative to get information on the tax credit or call their call center 09:37:57 AM Representative Weissman, chair, brought up a similar court case in the past regarding Title 39 that relates and asked if there are other Colorado cases that may be helpful in interpretation 09:39:49 AM Ms. Mangiardi discussed "chevron deference" and explained that the rules that have gone through the formal rule making process get deference 09:40:38 AM Representative Weissman, chair, asked if the committee should find more judicial deference for the rules in the tax space 09:41:36 AM Ms. Mangiardi explained that for cases that have gone to the supreme court level the court seemed to see agency rule-making as valuable in the complex tax arena 09:42:33 AM Senator Gardner, vice chair, expressed that he agrees with the Office's recommendation and that the Department has engaged in a policy argument rather than a discussion on if the rule should be extended based on what the general assembly authorized in statute 09:44:36 AM Ms. McCall noted that the case law discussed is specific to judicial review and that case law does not require the committee to give deference 09:45:38 AM Ms. van Mourik explained that a broad interpretation would decrease revenue and not be in line with the original fiscal note 09:46:37 AM Representative Carver brought up the example of a warehouse and her concern that the proposed rule by the Department would be too narrow because she believes warehouses can be prefab and could be impermanent 09:49:01 AM Ms. van Mourik explained that there is a lot of nuance in the language they use when writing a rule and that the way the rule is written accounts for impermanent structures to be included in the definition if they are used in association with more permanent structures 09:51:16 AM Representative Carver expressed concern of the use of the phrase "more permanent" as it is not clear and that the rule seems to differ from the statute 09:53:14 AM Representative Weissman, chair, brought up modular housing and how sometimes factory built structures can be permanent and asked how evolving technology like the creation of modular housing would be handled under the rule 09:54:27 AM Ms. van Mourik explained that since technology changes and building codes change that's exactly the reason why the Department needs rule making authority so that they don't have to ask the general assembly for permission to interpret new situations on a weekly basis 09:56:08 AM Senator Lee asked which sorts of temporary facilities would not qualify for the credit under the rule and asked if a specific facility under section 39-30-104 CRS would or wouldn't 09:57:34 AM Ms. van Mourik explained that section 39-30-104 CRS concerns a different credit than the one the Department promulgated a rule for that is being discussed today 09:58:09 AM Senator Lee asked again what sort of temporary facility would not qualify under the actual rule 09:58:29 AM Ms. van Mourik explained that, given the definition in the rule, something like a tent not used in association with permanent structures would not qualify for the credit 09:59:48 AM Representative Bacon asked more about the legislative intent previously discussed and asked if the temporary nature of a structure is linked to the temporary nature of a business and if that is why the distinction is important 10:01:43 AM Ms. van Mourik explained that enterprise zone credits are unique because they are administered by the Department but in conjunction with the Office of Economic Development and that the Office of Economic Development questioned whether a temporary structure would meet the qualification of the credit, which is why the rule was written the way it was 10:04:06 AM Ms. Mangiardi explained that the reason why the Department believes the statute would require a structure at all, based on their interpretation of the legislative intent, is because the general assembly wanted to give a credit to businesses that had a permanent presence in a community rather than temporary 10:05:47 AM Ms. McCall discussed the legislative history of the statute and that the section broadened the scope to allow "any" business facility to qualify, not just new business facilities, and that the tax credit is specific to employees including seasonal employees, not just permanent employees, and that the credit also covers businesses that operate for less than a full year 10:08:39 AM Representative Weissman, chair, expressed his belief that the rule should be extended based on the committee discussion and the Department's reasoning 10:11:05 AM Committee recessed for discussion 10:28:10 AM The committee returned from recess 10:28:23 AM Motion I move to extend Rule 39-30-105.1 (1) of the rules of the Executive Director of the Department of Revenue Moved Snyder Seconded Lee Bacon Yes Buckner Yes Carver No Cooke No Lee Yes Pico No Rodriguez Yes Snyder Yes Gardner No Weissman Yes YES: 6 NO: 4 EXC: 0 ABS: 0 FINAL ACTION: PASS 10:30:24 AM Sarah Lozano, Office of Legislative Legal Services, introduced Regulation Number 19 Part A II.B.13 a (iii) concerning the control of lead hazards and the Office's recommendation to not extend the rule as it conflicts with statute 10:33:44 AM Michael Ogletree, Department of Public Health and Environment, introduced the role of the Department in limiting the risk of lead exposure for children and recommended aligning the relevant state statute with federal law 10:35:48 AM Laura Manyak, Department of Public Health and Environment, introduced herself and indicated she was present for any technical questions 10:36:17 AM Representative Bacon echoed the concern of lead exposure for children and clarified that the committee is not addressing lead dangers but instead whether the rule conflicts with statute 10:37:06 AM Representative Weissman discussed the importance of the Department and legislation to address the conflict between the rule and statute 10:38:28 AM Motion I move to extend Regulation Number 19 Part A II.B.13.a.(iii) of the rules of the Air Quality Control Commission Moved Snyder Seconded Lee Bacon No Buckner No Carver No Cooke No Lee No Pico No Rodriguez No Snyder No Gardner No Weissman No YES: 0 NO: 10 EXC: 0 ABS: 0 FINAL ACTION: FAIL 10:40:29 AM Brita Darling, Office of Legislative Legal Services, introduced rule 5.A. concerning the Colorado Student Loan Equity Act and the Office's recommendation to not extend the rule as the rule's requirements for a private education lender differ from statute 10:44:18 AM Ms. Darling explained that statute does not allow the administrator authority to grant private education lenders an exemption from reporting requirements 10:47:01 AM Senator Gardner, vice chair, requested a 17c prior to the motion 10:47:35 AM Motion I move to extend Rule 5.A. of the rules of the Administrator for the Uniform Consumer Credit Code and Commission on Consumer Credit Moved Snyder Seconded Lee Bacon No Buckner No Carver No Cooke No Lee No Pico No Rodriguez No Snyder No Gardner Excused Weissman No YES: 0 NO: 9 EXC: 1 ABS: 0 FINAL ACTION: FAIL Approval and sponsorship of committee bills - Committee Discussion Only 10:49:16 AM Jennifer Berman, Office of Legislative Legal Services, introduced the 2023 rule review bill for rules that would automatically expire unless extended by bill and discussed that the rule review bill will be a Senate bill and that the committee will serve as the committee of reference in both the Senate and House for the bill. Ms. Berman asked for permission to start drafting the rule review bill 10:51:09 AM Senator Lee commended the Office for their work in reviewing rules 10:52:24 AM Motion I move to grant the Office of Legislative Legal Services permission to draft the 2023 rule review bill Moved Weissman Seconded Lee Bacon Yes Buckner Yes Carver Yes Cooke Yes Lee Yes Pico Yes Rodriguez Yes Snyder Yes Gardner Yes Weissman Yes YES: 10 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS 10:53:21 AM The committee agreed that Representatives Weissman and Soper will sponsor the rule review bill for the House, and Senators Gardner and Rodriguez will sponsor for the Senate 10:54:40 AM The committee agreed that Representative Snyder and Senator Buckner will be cosponsors for the rule review bill 10:55:10 AM Jennifer Gilroy, Office of Legislative Legal Services, introduced the 2023 bill to enact the CRS 2022, including the voter approved changes supplement, and asked for permission to draft the bill 10:56:42 AM Motion I move to grant the Office of Legislative Legal Services permission to draft the 2023 bill to enact the CRS 2022 Moved Snyder Seconded Bacon Bacon Yes Buckner Yes Carver Yes Cooke Yes Lee Yes Pico Yes Rodriguez Yes Snyder Yes Gardner Yes Weissman Yes YES: 10 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS 10:57:43 AM The committee agreed that Representatives Bacon and Soper will sponsor the bill to enact for the House, and Senators Gardner and Rodriguez will sponsor for the Senate 10:58:10 AM The committee agreed that Representatives Snyder and Weissman and Senator Buckner will copsonsor the bill to enact 10:58:31 AM Ms. Gilroy asked if the bill to enact will be a Senate or House bill 10:58:54 AM Representative Weissman, chair, stated the bill to enact will be a House bill 10:58:58 AM Ms. Gilroy introduced the 2023 revisor's bill with a brief description of the bill's purpose of fixing nonsubstantive statutory errors and asked for permission to draft the bill 11:00:18 AM Motion I move to grant the Office of Legislative Legal Services permission to draft the 2023 revisor's bill Moved Snyder Seconded Lee Bacon Yes Buckner Yes Carver Yes Cooke Yes Lee Yes Pico Yes Rodriguez Yes Snyder Yes Gardner Yes Weissman Yes YES: 10 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS 11:01:03 AM The committee agreed that Representatives Snyder and Soper will sponsor the revisor's bill for the House, and Senators Gardner and Rodriguez will sponsor for the Senate 11:01:21 AM The committee agreed that Representative Weissman and Senator Buckner will cosponsor the revisor's bill 11:01:38 AM Ms. Gilroy discussed that LIS is changing the state employee email domain and that the revisor's office will correct all instances of the email domain in statute by revision rather than by revisor's bill 11:02:24 AM Ms. Gilroy discussed the different cover stock used for the 2022 CRS as compared to previous CRS books and that the new covers are recyclable 11:03:32 AM Senator Gardner, vice chair, expressed thanks for the explanation of the change in cover stock 11:04:00 AM Ms. Gilroy asked which chamber the revisor's bill will start in 11:04:14 AM Representative Weissman, chair, stated that the revisor's bill will be a House bill Social media guidelines - Committee Discussion Only 11:05:13 AM Ed DeCecco, Office of Legislative Legal Services, introduced the social media guidelines and asked if the committee would like to release a letter regarding the social media guidelines 11:06:19 AM Mr. DeCecco discussed the first amendment and how when a public official blocks a member of the public on social media it can result in a lawsuit 11:11:09 AM Mr. DeCecco walked through certain recommendations in the social media guidelines with the committee 11:13:38 AM Mr. DeCecco explained that the social media guidelines were given to new members during new member orientation but have not been given to current members yet 11:14:55 AM Mr. DeCecco detailed cases in which a first amendment social media issue has come up and how those cases have guided the Office in recommending social media guidelines 11:24:16 AM Senator Lee asked if the Colorado case took into account the fact that the congress woman was using a private account rather than a public one 11:24:34 AM Mr. DeCecco explained that, yes, it was a factor in the case and that since it was a private account it was not considered state action 11:26:02 AM Representative Weissman, chair, discussed one of the cases and asked Mr. DeCecco to expound on it 11:26:55 AM Mr. DeCecco explained that in that case the plaintiff failed to meet their burden of proof and the damages claim was dismissed 11:27:56 AM Mr. DeCecco outlined the takeaways from the cases and explained how courts might interpret certain cases regarding the use of campaign social media accounts versus other types of accounts 11:29:32 AM Mr. DeCecco explained that because the circuits are split at this point, the social media guidelines take that into account in their recommendations 11:30:50 AM Mr. DeCecco explained that the Office recommends sending out a letter advising members of the social media guidelines similar to the letter sent in a previous year 11:32:36 AM Representative Weissman, chair, expressed that any sort of litigation would be unwelcome and that caution is warranted when it comes to social media and expressed his being in favor of releasing the letter and suggested adding stronger language to the end of the letter explaining the consequences of not following the guidelines 11:35:34 AM Senator Buckner concurred with sending the letter to existing members so that they can have the reminder 11:36:02 AM Representative Snyder agreed with the chair in suggesting including some of the social media guidelines in the letter so that members can have a step-by-step guide on how to handle social media 11:37:16 AM Mr. DeCecco explained that the guidelines are more general because of all the different types of social media that exist 11:38:34 AM Mr. DeCecco asked if the committee would like the social media guidelines to be attached to the letter 11:39:07 AM Representative Snyder asked what determines whether a campaign account is actually a campaign account since legislators still campaign after becoming legislators for reelection 11:39:52 AM Mr. DeCecco stated that the recommended guideline is to not block anyone on a campaign account because it is difficult to prove what a campaign account is 11:41:08 AM Senator Buckner asked if the responsibility of following the guidelines would fall on a member and not their aide 11:41:32 AM Mr. DeCecco explained that the responsibility is on the member but that the social media guidelines are for aides as well so that they have the information and training on it too 11:42:11 AM Representative Weissman, chair, asked for Mr. DeCecco and the Office to update the letter, put the major points from the guidelines into the body of the letter, show the chair and vice chair the letter in draft form to finalize it, and then send it out to all legislators 11:44:24 AM The committee agreed with the chair Update on litigation - Committee Discussion Only 11:45:08 AM Sharon Eubanks, Director of the Office of Legislative Legal Services, gave an update on the litigation going on involving a lawsuit brought against members of state patrol, the secretary of the Senate, the office of the Senate president, and chamber sergeants in which individuals were denied access to the chambers due to the COVID-19 pandemic and alleged it imposed on their constitutional rights 11:48:00 AM Ms. Eubanks explained that the Committee previously agreed to retain counsel for Cindi Markwell, Senate secretary, and that the Office is awaiting rulings on the pending litigation and asked if the committee has any questions 11:49:18 AM Senator Lee asked if there have been any opinions on any of the motions 11:49:29 AM Ms. Eubanks stated there have not been, they are still pending Comp time policy recommendations - Committee Discussion Only 11:50:24 AM Ed DeCecco, Office of Legislative Legal Services, discussed what the Office's comp time policy currently is and when the last time the committee approved that policy was 11:55:04 AM Mr. DeCecco explained the reason behind the comp time policy as attracting and retaining quality employees 11:55:21 AM Mr. DeCecco explained that the Office formed a committee to review the Office's comp time policy and what the Office's committee's findings were 11:55:52 AM Mr. DeCecco mentioned that comp time is standard for other Offices in the state capitol 11:56:40 AM Mr. DeCecco explained that comp time helps the Office compete with private attorney firms who offer bonuses to attorneys 11:58:51 AM Mr. DeCecco addressed possible concerns of comp time and what the potential costs are for the Office for having a comp time policy 12:01:09 PM Jennifer Berman, Office of Legislative Legal Services, explained why the Office is recommending for the committee to continue the comp time policy as it allows employees a proper work-life balance equilibrium 12:03:28 PM Ms. Berman explained how comp time can supplement other types of leave, such as parental leave, and provide an important safety net for employees 12:04:15 PM Ms. Berman shared a personal story of how comp time supplemented her own personal leave during a family medical emergency in the past 12:05:10 PM Ms. Berman discussed that when the Office's committee asked employees, employees expressed that comp time was very important to them and an important factor for them in deciding to stay with the Office 12:06:34 PM Ms. Berman explained that, per NCSL, comp time is a standard among other comparable legislative bill drafting offices across the United States 12:08:12 PM Senator Cooke expressed his belief that professionals of any sort, particularly attorneys, should not receive comp time, but that his belief does not reflect on his gratitude for the work of the Office 12:10:08 PM Senator Cooke asked if employees punch a clock when they come in 12:10:16 PM Mr. DeCecco explained that employees don't physically punch a clock but that they account for every minute of time worked or not worked 12:10:54 PM Senator Cooke asked how the 15-minute increments of comp time round up 12:11:48 PM Mr. DeCecco explained that the 15-minute increments are typically rounded down 12:12:50 PM Mr. DeCecco explained what the comparable states that provide comp time's policies specifically include 12:15:56 PM Ms. Berman followed up explaining the federal law, the Federal Labor Standards Act, concerning which employees should receive overtime pay and which employees are considered "professionals" 12:16:51 PM Senator Cooke went over the federal law and which employees are included in the term "professionals" who should be exempt from overtime pay 12:18:20 PM Ms. Berman responded by explaining that the Office's comp time is not paid overtime as outlined in the Federal Labor Standards Act and that the act does not prohibit overtime for professionals in any way 12:20:00 PM Senator Cooke asked if there is a cap on comp time 12:20:55 PM Mr. DeCecco responded by explaining there is no cap but that all comp time is subject to a supervisor's approval and that historically a supervisor has never allowed a departing employee to use a bunch of comp time before leaving 12:23:49 PM Ms. Berman discussed measures the Office has implemented in order to prevent employees from accruing a lot of overtime, which include a skeleton crew policy and hiring more employees for increasing workloads 12:26:01 PM Senator Gardner asked Sharon Eubanks to come to the table, stated his respect for the Office's work, and asked Ms. Eubanks what the most comp time an employee has ever earned has been 12:27:54 PM Sharon Eubanks, Office of Legislative Legal Services, explained that comp time data is not compiled for individual employees but office-wide and that data for an individual employee would need to be taken from each one of their time records 12:28:20 PM Senator Gardner asked if the Office can get him data on individual employees 12:28:44 PM Ms. Eubanks stated they can see if that data can be collected 12:29:30 PM Senator Gardner asked what the differences in comp time policies between the agencies in the capitol are 12:30:00 PM Mr. DeCecco explained that legislative council caps comp time for employees combined with a cap for their vacation time and also pays out comp time for departing employees and that their comp time is earned after the first four qualifying hours of each month with a weekly accrual cap. Joint Budget Committee staff receive comp time as a whole office at the discretion of their director, it can carry forward up to a capped amount, and it's payable upon departure. Audit staff get comp time for each hour after 45 hours and after working a certain number of consecutive weeks with an accrual cap at 10 hours a week 12:34:08 PM Senator Gardner expressed the need to ask all agencies to come up with a common comp time policy among the agencies 12:37:01 PM Representative Carver stated that, given the nature of the legislative staff and the requirements for them to work long hours during session, she believes that a comp time policy is warranted but that it concerns her there is no restriction other than discretion of the supervisor 12:40:10 PM Senator Cooke expressed concerns on the Office having, potentially, the most lax comp time policy among the agencies 12:41:04 PM Ms. Berman explained that the other agencies offer payouts while the Office doesn't, so the Office policy may not be the most lax of the policies and also that while there are similarities among the agencies, each agency does perform different functions and operates differently so the differing comp time policies fit the nature of each agency 12:43:20 PM Mr. DeCecco mentioned that all the agencies also have differing leave time policies, not just comp time, as the agencies are all different 12:44:25 PM Representative Weissman, chair, explained that staff should not be pushed to work long overtime hours without pay in the way that members might push themselves to work long hours by choice of being in their role and that he believes the Office deserves a robust comp time policy to be able to perform their work without burning out. He also stated that looking at other agencies' policies is not a conversation for today but a valid conversation for the future Update on hiring - Committee Discussion Only 12:49:24 PM Sharon Eubanks, Office of Legislative Legal Services, gave an update on the hiring that took place in the Office in the last year as permitted by the committee 12:52:57 PM Ms. Eubanks described how hiring so many new employees has caused a spacing issue in the Office, so the Office has created a swing space to solve the issue 12:54:37 PM Senator Lee echoed Senator Gardner's comments on being appreciative of the level of competence among the staff in the Office and also added that if comp time motivates the employees then he is in favor of it Other business - Committee Discussion Only 12:58:00 PM Senator Gardner stated that he received a memo from the Office regarding limitations of liquor licenses and wants to bring it to the committee's attention for discussion at a future date 01:01:37 PM Senator Buckner gave her thanks and goodbyes for her last day on the committee 01:05:00 PM The committee adjourned.