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TC Ord. No. 2008-03 Calling a special muni election to be held on Tuesday May 6,2008 to submit a ballot question concerning the approval of an amendment to the home rule charter of the TOA;TOWN OF AVON, COLORADO ORDINANCE NO. 08-03 SERIES OF 2008 AN ORDINANCE CALLING A SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY MAY 6, 2008, TO SUBMIT A BALLOT QUESTION CONCERNING THE APPROVAL OF AN AMENDMENT TO THE HOME RULE CHARTER OF THE TOWN OF AVON; APPROVING THE FORM OF THE BALLOT TITLE; AND PROVIDING FOR OTHER MATTERS RELATED THERETO. WHEREAS, the Town of Avon (the "Town"), is a municipal corporation duly organized and existing as a home rule municipality under Article XX of the Colorado Constitution ("Article XX") and laws of the State of Colorado (the "State") and the Town's Home Rule Charter (the "Charter"); and WHEREAS, Section 18.6 of the Charter provides that the Charter may be amended at any time in the manner provided by statute; and WHEREAS, Section 9(3) of Article XX provides that the provisions of Article XX, as they relate to procedures for the amendment of existing home rule charters, may be superseded by statute; and WHEREAS, the Municipal Home Rule Act of 1971 (the "Home Rule Act"), codified at Title 31, Article 2, Part 2 of the Colorado Revised Statutes ("C.R.S.") expressly supersede the requirements of Article XX as they relate to procedures for the amendment of existing home rule charters; and WHEREAS, Section 31-2-210(1)(b) of the Home Rule Act provides that the Council may, by ordinance, submit a proposed amendment. to the Charter to a vote of the registered electors of the Town; and WHEREAS, Section 31-2-210(1)(b) of the Home Rule Act further provides that such ordinance shall also adopt a ballot title for the proposed amendment; and WHEREAS, Section 3.1 of the Charter and Section 31-2-211(1) of the Home Rule Act call for a Town election on a proposed amendment to the Charter to be conducted pursuant to the Colorado Municipal Election Code of 1965 (the "Election Code"), codified at Title 31, Article 10, C.R.S.; and WHEREAS, Section 31-10-108 of the Election Code provides that the Town may call a special election on any Tuesday designated by ordinance or resolution of the Council; and WHEREAS, the Council has determined that the interests of the Town and its residents will be best served by giving the Council greater flexibility to enter into property transactions that are consistent with the stated planning objectives of the Town, will provide the Town with consideration with a value that is substantially equal to or greater than the value of the consideration the Town will convey, and will provide a long-term economic, cultural or social community benefit for the Town, as described in the proposed amendment to Section 18.3 of the Charter (the "Proposed Amendment"), which is attached hereto as Exhibit A; and WHEREAS, the Council has determined that the interests of the Town and its residents requires a special election to be held on Tuesday, May 6, 2008, to submit the Proposed Amendment to the registered electors of the Town in accordance with Article XX, the Home Rule Act and the Election Code; and WHEREAS, it is necessary to set forth certain procedures concerning the conduct of the special municipal election. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. The Council hereby calls for a special election (the "Election") to be held within the Town on Tuesday, May 6, 2008, at which the Proposed Amendment shall be submitted to the registered electors of the Town. The Town shall utilize the requirements and procedures of the Election Code with respect to the Election. Section 2. All action heretofore taken (not inconsistent with the provisions of this Ordinance) by the Town and the officers thereof, directed towards the Election and the objects and purposes herein stated is hereby ratified, approved and confirmed. Section 3. Unless otherwise defined herein, all capitalized terms shall have the meanings defined in Article XX, the Home Rule Act, or the Election Code. Section 4. The Council hereby designates the Town Clerk to act as the designated election official with respect to the Election and the Town Clerk is hereby authorized and directed to proceed with any action necessary or appropriate to effectuate the provisions of this Ordinance and of Article XX, the Home Rule Act, the Election Code, or other applicable laws. Without limiting the generality of the foregoing, the designated election official shall appoint election judges as necessary, appoint the canvass board, arrange for the giving of any required notices of Election, arrange for printing of ballots, and direct that all other appropriate actions be accomplished. Section 5. The ballot title for the ballot question to be submitted to the registered electors of the Town at the special municipal election shall be in substantially the following form: Question 2A: Authorizing an Amendment to the Avon Town Charter regarding Town property transactions. Shall Section 18.3 of the Charter of the Town of Avon be amended to provide as follows: 2 Section 18.3 Municipally-Owned Real Property (a) The Town may sell, exchange, lease or dispose of any interest in real property or buildings of the Town to or with any person, firm or corporation, or other public or private entity. Any such sale, exchange, lease or disposition shall be approved by ordinance after a public hearing thereon. (b) Any ordinance adopted pursuant to subsection (a) of this Section shall contain findings by the Council that: 1. the transaction will be consistent with the stated planning objectives of the Town; 2. the appraised value of the interest in real property or buildings or the value of other consideration to be received by the Town is substantially equal to or greater than the appraised value of the interest in real property or buildings or the value of other consideration to be given by the Town; and 3. the transaction will provide a long-term economic, cultural or social community benefit for the Town. (c) Any legal or equitable action brought with respect to the transaction shall be commenced within 30 days after adoption of the ordinance. Section 6. Pursuant to Section 31-2-210(6) of the Home Rule Act, if a majority of the registered electors of the Town voting thereon vote for the Proposed Amendment, the Proposed Amendment shall be deemed approved and incorporated into the Charter. If so approved, the Town Clerk shall file a certified copy of the Charter, as amended, with the Colorado Secretary of State and shall record a certified copy of the Charter within the official records of the Town within twenty days of the approval of the Proposed Amendment. Section 7. Pursuant to Section 31-10-1308 of the Election Code, any election contest arising out of a ballot issue or ballot question election concerning the order of the ballot or the form or content of the ballot title shall be commenced by petition filed with the proper court within five days after the title of the ballot issue or ballot question is set or within five days after the ballot order is set. Pursuant to Section 31-2-218 of the Home Rule Act, no proceeding contesting the adoption of the Proposed Amendment shall be brought unless commenced within forty-five days after the Election. Section 8. In addition to any notices required by the Election Code, the Town Clerk shall, within thirty days of the date of adoption of this Ordinance, publish notice of the Election, which notice shall contain the full text of the Proposed Amendment in accordance with Section 31-2-210(4) of the Home Rule Act. Section 9. If any section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall in no mariner affect any remaining provisions of this Ordinance. 3 Section 10. All ordinances or parts of ordinances inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any ordinance or part of any ordinance heretofore repealed. Section 11. Pursuant to Section 6.4 of the Charter, this Ordinance shall take effect seven days after public notice following final passage. [The remainder of this page is left intentionally blank] 4 INTRODUCED, READ BY TITLE, APPROVED ON FIRST READING, AND ORDERED PUBLISHED IN FULL at a regular meeting of the Town Council of the Town of Avon, Colorado, on February 12, 2008. N OF A TOWN VON, COLORADO (SEALti S E A L y G COLOR Ronald C. Wolfe, Ma or ATTEST: INTRODUCED, FINALLY APPROVED AND ORDERED PUBLISHED BY TITLE ONLY at a regular meeting of the Town Council of the Town of Avon, Colorado, on February 26, 2008. (S TOWN OF'AVON. COLO Ronald C. Wolfe, Mayor ATTEST: 4attc envy, To rk 5 Exhibit A Proposed Amendment Section 18.3 of the Charter, which currently reads as follows: Section 18.3 Restrictions on Sale of Municipally-Owned Real Property. The Town shall not sell or dispose of municipally-owned buildings or real property in use for public purposes without first obtaining the approval of a majority of the electors voting thereon. would be replaced in its entirety by the following: Section 18.3 Municipally-Owned Real Property (a) The Town may sell, exchange, lease or dispose of any interest in real property or buildings of the Town to or with any person, firm or corporation, or other public or private entity. Any such sale; exchange, lease or disposition shall be approved by ordinance after a public hearing thereon. (b) Any ordinance adopted pursuant to subsection (a) of this Section shall contain findings by the Council that: 1. the transaction will be consistent with the stated planning objectives of the Town; 2. the appraised value of the interest in real property or buildings or the value of other consideration to be received by the Town is substantially equal to or greater than the appraised value of the interest in real property or buildings or the value of other consideration to be given by the Town; and 3. the transaction will provide a long-term economic, cultural or social community benefit for the Town. (c) Any legal or equitable action brought with respect to the transaction shall be commenced within 30 days after adoption of the ordinance. A-1 STATE OF COLORADO ) COUNTY OF EAGLE ) SS. TOWN OF AVON ) I, Patty McKenny, the duly elected, qualified and acting Town Clerk of the Town of Avon, Colorado (the "Town") do hereby certify: 1. That the foregoing pages are a true, correct, and complete copy of an ordinance (the "Ordinance") concerning the submission of a proposed amendment to the charter of the Town (the "Charter") to the registered electors of the Town by the Town Council (the "Council"), duly adopted at a regular meeting of the Council held at the Town Municipal Building on February 26, 2008. 2. The Ordinance was introduced, read by title, and approved on first reading at an open, regular meeting of the Council on Tuesday, February 12, 2008 by an affirmative vote of the majority of the membership of the entire Council as follows: Name "Yes" "No" Absent Brian Sipes ✓ Richard Carroll ✓ Dave Dantas Kristi Ferraro ✓ Amy Phillips ✓ Tamra Nottingham Underwood ✓ 3. The Ordinance was published in full on February , 2008, by posting in at least three public places within the Town in addition to posting at the office of the Town Clerk in accordance with Section 6.7 of the Charter. Such notice additionally set forth the day, hour and place set for a public hearing to be held by the Council on the Ordinance. 4. Following a public hearing thereon, the Ordinance was finally approved on second reading at an open, regular meeting of the Council on Tuesday, February 26, 2008, by an affirmative vote of the majority of the membership of the entire Council as follows: Name "Yes" "No" Absent Brian Sipes ✓ Richard Carroll Dave Dantas ✓ Kristi Ferraro ✓ Amy Phillips ✓ Tamra Nottingham Underwood ✓ 5. After final passage, the Ordinance was published by title on February 7-1, 2008, by posting in at least three public places within the Town in addition to posting at the office of the Town Clerk in accordance with Section 6.7 of the Charter. 6. The Ordinance has been signed by the Mayor, sealed with the corporate seal of the Town, attested by me as Town Clerk, and duly recorded in the official records of the Town; and that the same remains of record in the official records of the Town. 7. Notices of the regular meetings of February 12, 2008, and February 26, 2008, in the forms attached hereto as Exhibit 1, were posted in a designated public place within the boundaries of the Town no less than twenty-four hours prior to such meetings. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Town this 2lot% day of 2008. 'To erk ~OLORPO~a-;-' 2 EXHIBIT I (Attach Notices of Meetings) s • • Conclusion Staff recommends that the ordinance be adopted to submit the Charter amendment • Sherman & Howard L.L.C. To: Avon Town Council From: Randy D. Funk / Date: February 6, 20,0 8 ATTORNEYS & COUNSELORS AT LAW 633 SEVENTEENTH STREET, SUITE 3000 DENVER, COLORADO 80202 TELEPHONE: (303)297-2900 FAX: (303)298-0940 OFFICES IN: COLORADO SPRINGS PHOENIX • RENO - LAS VEGAS MEMORANDUM Re: Ordinance Calling Special Election on Charter Amendment Section 18.01 of the Avon Town Charter states that the Town may not sell or dispose of municipally-owned buildings or real property in use for public purposes without approval from the Town's voters at an election. Current development plans call for the Town to exchange property it currently owns for other property currently owned by private parties. This type of exchange can assist economic development within the Town and provide the Town with property that is more suited to its needs. However, the current charter provision would require each such exchange or any similar transaction to be approved at an election, which can be expensive and time-consuming. The proposed ordinance would submit an election question to the Town's electors asking them to amend the Town Charter so that an election is no longer required for Town land transactions. Instead, the Council would be authorized to sell, exchange, lease or dispose of Town property interests so long as it holds a public hearing on the transaction and finds that: (1) the transaction will be consistent with the,stated planning objectives of the Town; (2) the Town will receive property or other payment with an appraised value equal to or greater than the property or other payment it gives as part of the transaction; and (3) the transaction will provide a long-term economic, cultural or social community benefit for the Town. This new provision will retain significant public input in Town land transactions while making. the process' more flexible than the full election requirement. to the Town electors. 001024000\PUB FIN\7747211 TOWN OF AVON ORDINANCE NO. 08-03 • SERIES OF 2008 AN ORDINANCE CALLING A SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY MAY 6, 2008, TO SUBMIT A BALLOT QUESTION CONCERNING THE APPROVAL OF AN AMENDMENT TO THE HOME RULE CHARTER OF THE TOWN OF AVON; APPROVING THE FORM OF THE BALLOT TITLE; AND PROVIDING FOR OTHER MATTERS RELATED THERETO. WHEREAS, the Town of Avon (the "Town"), is a municipal corporation duly organized and existing as a home rule municipality under Article XX of the Colorado Constitution ("Article XX") and laws of the State of Colorado (the "State") and the Town's Home Rule Charter (the "Charter"); and WHEREAS, Section 18.6 of the Charter provides that the Charter may be amended at any time in the manner provided by statute; and WHEREAS, Section 9(3) of Article XX provides that the provisions of Article XX, as they relate to procedures for the amendment of existing home rule charters, may be superseded by statute; and WHEREAS, the Municipal Home Rule Act of 1971 (the "Home Rule Act"), • codified at Title 31, Article 2, Part 2 of the Colorado Revised Statutes ("C.R.S.") expressly supersede the requirements of Article XX as they relate to procedures for the amendment of existing home rule charters; and WHEREAS, Section 31-2-210(1)(b) of the Home Rule Acf provides that the Council may, by ordinance, submit a proposed amendment to the Charter to a vote of the registered electors of the Town; and WHEREAS, Section 31-2-210(1)(b) of the Home Rule Act further provides that such ordinance shall also adopt a ballot title for the proposed amendment; and WHEREAS, Section 3.1 of the Charter and Section 31-2-211(1) of the Home Rule Act call for a Town election on a proposed amendment to the Charter to be conducted pursuant to the Colorado Municipal Election Code of 1965 (the "Election Code"), codified at Title 31, Article 10, C.R.S.; and WHEREAS, Section 31-10-108 of the Election Code provides that the Town may call a special election on any Tuesday designated by ordinance or resolution of the Council; and WHEREAS, the Council has determined that the interests of the Town and its residents will be best served by giving the Council greater flexibility to enter into property transactions that the Council determines, following a public hearing, will be consistent with the, stated planning objectives of the Town, will provide the Town with consideration with a value • P that is substantially equal to or greater than the value of the consideration the Town will convey, • and will provide a long-term economic, cultural or social community benefit for the Town, as described in the proposed amendment to Section 18.3 of the Charter (the "Proposed Amendment"), which is attached hereto as Exhibit A; and WHEREAS, the Council has determined that the interests of the Town and its residents requires a special election to be held on Tuesday, May 6, 2008, to submit the Proposed Amendment to the registered electors of the Town in accordance with Article XX, the Home Rule Act and the Election Code; and WHEREAS, it is necessary to set forth certain procedures concerning the conduct of the special municipal election. . NOW, THEREFORE, BE.IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. The Council hereby calls for a special election (the "Election") to be held within the Town on Tuesday, May 6, 2008, at which the Proposed Amendment shall be submitted to the registered electors of the Town. The Town shall utilize the requirements and procedures of the Election Code with respect to the Election. Section 2. All action heretofore taken (not inconsistent with the provisions of this Ordinance) by the Town and the officers thereof, directed towards the Election and the • objects and purposes herein stated is hereby ratified, approved and confirmed. Section 3. Unless otherwise defined herein, all capitalized terms shall have the meanings defined in Article XX, the Home Rule Act, or the Election Code. Section 4. The Council hereby designates the Town Clerk to act as the designated election official with respect to the Election and the Town Cleric is hereby authorized and directed to proceed with any action necessary or appropriate to effectuate the provisions of this Ordinance and of Article XX, the Home Rule Act, the Election Code, or other applicable laws. Without limiting the generality of the foregoing, the designated election official shall appoint election judges as necessary, appoint the canvass board, arrange for the giving of any required notices of Election, arrange for printing of ballots, and direct that all other appropriate actions be accomplished. Section 5. The ballot title for the ballot question to be submitted to the registered electors of the Town at the special municipal election shall be in substantially the following form: Question 2A: Authorizing an Amendment to the Avon Town Charter regarding Town property transactions. Shall Section 18.3 of the Charter of the Town of Avon be amended to provide as follows: • 2 3 i Section 18.3 Municipally-Owned Real Property (a) The Town may sell, exchange, lease or dispose of any interest in real • property or buildings of the Town to or with any person, firm or corporation, or other public or private entity. Any such sale, exchange, lease or disposition shall be approved by ordinance after a public hearing thereon. (b) Any ordinance adopted pursuant to subsection (a) of this Section shall contain findings by the Council that: 1. the transaction will be consistent with the stated planning objectives of the Town; 2. the appraised value of the interest in real property or buildings or the value of other consideration to be received by the Town is substantially equal to or greater than the appraised value of the interest in real property or buildings or the value of other consideration to be given by the Town; and 3. the transaction will provide a long-term economic, cultural or social community benefit for the Town. (c) Any legal or equitable action brought with respect to the transaction shall be commenced within 30 days after adoption of the ordinance? Section 6. Pursuant to Section 31-2-210(6) of the Home Rule Act, if a majority of the registered electors of the Town voting thereon vote for the Proposed Amendment, the Proposed Amendment shall be deemed approved and incorporated into the Charter. If so approved, the Town Clerk shall file a certified copy of the Charter, as amended, with the Colorado Secretary of State and shall record a certified copy of the Charter within the official • records of the Town within twenty days of the approval of the Proposed Amendment. Section 7. Pursuant to Section 31-10-1308 of the Election Code, any election contest arising out of a ballot issue or ballot question election concerning the order of the ballot or the form or content of the ballot title shall be commenced by petition filed with the proper court within five days after the title of the ballot issue or ballot question is set or within five days after the ballot order is set. Pursuant to Section 31-2-218 of the Home Rule Act, no proceeding contesting the adoption of the Proposed Amendment shall be brought unless commenced within forty-five days after the Election. Section 8. In addition to any notices required by the Election Code, the Town Clerk shall, within thirty days of the date of adoption of this Ordinance, publish notice of the Election, which notice shall contain the full text of the Proposed Amendment in accordance with Section 31-2-210(4) of the Home Rule Act. Section 9. If any section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall in no manner affect any remaining provisions of this Ordinance. C7 3 Section 10. All ordinances or parts of ordinances inconsistent herewith are • hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any ordinance or part of any ordinance heretofore repealed. Section 11. Pursuant to Section 6.4 of the Charter, this Ordinance shall take effect seven days after public notice following final passage. [The remainder of this page is left intentionally blank] • 1~] 4 C5 INTRODUCED, READ BY TITLE, APPROVED ON FIRST. READING, AND ORDERED PUBLISHED IN FULL at a regular meeting of the Town Council of the • Town of Avon, Colorado, on February 12, 2008. TOWN OF AVON, COLORADO (SEAL) Ronald C. Wolfe, Mayor ATTEST: Patty McKenny, Town Clerk INTRODUCED, FINALLY APPROVED AND ORDERED PUBLISHED BY TITLE ONLY at a regular meeting of the Town Council of the Town of Avon, Colorado, • on February 26, 2008. TOWN OF AVON, COLORADO (SEAL) Ronald C. Wolfe, Mayor ATTEST: Patty McKenny, Town Clerk • 5 6 D Exhibit A Proposed Amendment Section 18.3 of the Charter, which currently reads as follows: Section 18.3 Restrictions on Sale of Municipally-Owned Real Property. The Town shall not sell or dispose of municipally-owned buildings or real property in use for public purposes without first obtaining the approval of a majority of the electors voting thereon. would be replaced in its entirety by the following: Section 18.3 Municipally-Owned Real Property (a) The Town may sell, exchange, lease or dispose of any interest in real property or buildings of the Town to or with any person, firm or corporation, or other public or private entity. Any such sale, exchange, lease or disposition shall be approved by ordinance after a public hearing thereon. (b) Any ordinance adopted pursuant to subsection (a) of this Section shall contain findings by the Council that: 1. the transaction will be consistent with the stated planning objectives of the Town; 2. the appraised value of the interest in real property or buildings or the value of other consideration to be received by the Town is substantially equal to or greater than the appraised value of the interest in real property or buildings or the value of other • consideration to be given by the Town; and 3. the transaction will provide a long-term economic, cultural or social community benefit for the Town. (c) Any legal or equitable action brought with respect to the transaction shall be commenced within 30 days after adoption of the ordinance. .7 A-1 STATE OF COLORADO ) COUNTY OF EAGLE ) SS. TOWN OF AVON ) I, Patty McKenny, the duly elected, qualified and acting Town Clerk of the Town of Avon, Colorado (the "Town") do hereby certify: 1. That the foregoing pages are a true, correct, and complete copy of an ordinance (the "Ordinance") concerning the submission of a proposed amendment to the charter of the Town (the "Charter") to the registered electors of the Town by the Town Council (the "Council"), duly adopted at a regular meeting of the Council held at the Town Municipal Building on February 26, 2008. 2. The Ordinance was introduced, read by title, and approved. on first reading at an open, regular meeting of the Council on Tuesday, February 12, 2008 by an affirmative vote of the majority of the membership of the entire Council as follows: Name "Yes" "No" Absent Brian Sipes Richard Carroll Dave Dantas Kristi Ferraro Amy Phillips Tamra Nottingham Underwood Ronald C. Wolfe 3. The Ordinance was published in full on February , 2008, by posting in at least three public places within the Town in addition to posting at the office of the Town Clerk in accordance with Section 6.7 of the Charter. Such notice additionally set forth the day, hour and place set for a public hearing to be held by the Council on the Ordinance. 4. Following a public hearing thereon, the Ordinance was finally approved on second reading at an open, regular meeting of the Council on Tuesday, February 26, 2008, by an affirmative vote of the majority of the membership of the entire Council as follows: • • 0 • Name "Yes" "No" Absent Brian Sipes Richard Carroll Dave Dantas Kristi Ferraro Amy Phillips Tamra Nottingham Underwood Ronald C. Wolfe 5. After final passage, the Ordinance was published by title on February 2008, by posting in at least three public places within the Town in addition to posting at the office of the Town Clerk in accordance with Section 6.7 of the Charter. 6. The .Ordinance has been signed by the Mayor, sealed with the corporate seal of the Town, attested by me as Town Clerk, and duly recorded in the official records of the Town; and that the same remains of record in the official records of the Town. 7. Notices of the regular meetings of February 12, 2008, and February 26, 2008, in the forms attached hereto as Exhibit 1, were posted in a designated public place within the boundaries of the Town no less than twenty-four hours prior to such meetings. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Town this day of , 2008. (SEAL) Town Clerk • 2 1 EXHIBIT 1 001024000\PUBFIN\774670.3 (Attach Notices of Meetings) • • • to • Sherman & Howard.L.L.C. January 2008 GUIDANCE FOR COLORADO GOVERNMENTS IN COMPLYING WITH THE FAIR CAMPAIGN PRACTICES ACT In most situations, the use of government money or resources to influence an election in Colorado is against the law. The Fair Campaign Practices Act, Colorado Revised Statutes, Section 1-45-101, et seq. (the "FCPA") and Article XXVIH of the Colorado Constitution govern, among other things, the use of public moneys in a campaign involving the election of any person to any public office or involving any election question. The purpose of this memorandum is to help explain the types of conduct that are allowed and not allowed under the FCPA. This memorandum does not address every situation that might occur, but it covers many of the questions that arise most frequently. The FCPA's restrictions apply to any agency, department, board, division, bureau, commission, or council of the State of Colorado. The same restrictions also apply to any political subdivision of the State, including counties, cities, towns, school districts and special districts. Throughout this memorandum, the term "Government" includes all the governments covered by the • FCPA. Prohibited Uses of Government Money and Resources The FCPA prohibits a Government from (1) making any contribution in a campaign involving the nomination, retention, or election of any person to any public office; and (2) expending any public moneys from any source to urge electors to vote for or against any state-wide ballot issue, local ballot issue, referred measure, or measure for the recall of any officer. See Section 1-45- 117(1)(a)(1). Therefore, in most cases, the employees and officials of a Government must not use any Government money or resources to support a candidate's campaign or to attempt to convince voters to vote for or against an election question, including questions that have been placed on the ballot by the Government itself. For example, after calling for a bond election, a special district may not use district money to pay for fliers and visual aids that support the bond issue. See Skruch v. Highlands Ranch Metropolitan Districts Nos. 3 and 4,107 P.3d 1140 (Colo. App. 2004). Likewise, a school district may not post information on its website advocating the passage of a bond issue that it has referred to voters. See Wimsatt v. Jefferson County Public Schools, District R-1, Agency Decision, Case No. OS 2004-018. It is important to note that a Government may violate this law without specifically asking voters to "vote for" or "vote against" an election question. See Skruch v. Highlands Ranch Metropolitan Districts Nos. 3 and 4, 107 P.3d 1140 (Colo. App. 2004). Any communication • -1- discussing an election subject to the FCPA that favors one position will violate the FCPA. See Brown v. City of Littleton, Agency Decision, Case No. OS 2006-023. Also, the FCPA restrictions do not apply only to the use of Government money, but also to other Government resources such as the use of copiers, vehicles, computers, facilities, telephones or newsletters. In addition, the FCPA restrictions apply to Government employees' time during work hours. Therefore, if a city creates a flier that improperly urges voters to vote for or against an election question, it violates the FCPA not only by using city money to pay for postage for the flier, but also by using city letterhead and the staff time of city employees to prepare the flier. Brown v. City of Littleton, Agency Decision, Case No. OS 2006-0023. Likewise, if a Government allows outside groups to use its facilities, it must treat groups that support all candidates or both sides of an election question equally in all significant respects, including facility scheduling and fees. Exceptions The FCPA's prohibition on the use of Government money and resources described above does not apply in all cases. Some exceptions to the rule are described below. Time Period The FCPA only restricts the use of Government money and resources during a certain time period leading up to an election. The restrictions do not begin with respect to a state or local ballot issue until the issue has been submitted to have a ballot title fixed or has had a ballot title fixed, and do not begin with respect to a referred measure until the measure has been referred to the • voters. Thus, a school district can spend district money on a flier speaking positively about a potential bond issue before it refers the actual bond question to the voters. See Coan v. Weld County School District Re-3J, Agency Decision, Case No. OS 1996-006. Likewise, a special district will not violate the FCPA by distributing materials encouraging citizens to support the construction and financing of a new recreation center if the district never actually submits a bond or tax question to the voters. See Serra v. Montrose Recreation District, Agency Decision, Case No. OS 2006-022. However, it is important to note that once an issue has been submitted to have a ballot title fixed or has had a title fixed or a referred measure has been referred to the voters, the FCPA restrictions apply to any expenditure of public money or resources. This includes making payments for materials or services provided before the Government took official action to submit the question. For this reason, several metropolitan districts violated the FCPA by paying for materials promoting their bond issues after the district boards had passed resolutions submitting the bond questions, even though the materials themselves had been distributed before the resolutions were passed. - See Skruch v. Highlands Ranch Metropolitan Districts Nos. 1-5, Agency Decision, Case No. OS 2002-019, which was upheld by the Colorado Court of Appeals in Skruch v. Highlands Ranch Metropolitan Districts Nos. 3 and 4,107 P.3d 1140 (Colo. App. 2004), 2. Factual Summary Section 1-45-117(1)(b)(I) of the FCPA permits a Government to use Government money and resources to discuss an election if the Government is providing "a factual summary, -2- l~- which shall include arguments both for and against the proposal." The summary may not include a • conclusion or opinion in favor of or against any particular issue, and a Government may only prepare a summary regarding an issue that will appear on the ballot within its jurisdiction. It is important to note that a communication can fail to qualify for this exception even if it is called a "factual summary" and has an "arguments for" and "arguments against" section. A permitted factual summary must not express any opinion on an issue and its description of both sides of the issue must be balanced and even-handed. However, if a summary is balanced and even- handed, it will qualify for the exception even if the arguments against the proposal are not the most persuasive arguments or do not reflect opponents' input. See Bruce v. City of Colorado Springs, Agency Decision, Case No. OS 2003-005. 3. Personal Opinions Section 1-45-117 (1)(b)(Il) of the FCPA permits members of the governing body of a Government, such as a city council or board of directors, and other elected Government officials to publicly voice their personal opinion about an issue. The FCPA does not limit the right of public officials and employees to speak out on a matter before the voters. However, in expressing their personal opinions, officials and employees may not use Government money or resources. Government employees and officials may urge electors to vote in favor of or against any issue and may participate in political campaigns, however they must do so during their personal time, not during work hours. Likewise, Government employees and officials may spend money on materials that discuss elections covered by the FCPA, so long as that money is their personal money, and not • Government money. For example, a city council member will not violate the FCPA by publishing a newsletter discussing a local ballot issue if she pays for the newsletter using her personal funds instead of using city funds. See Tyler v. Boigon, Agency Decision, Case No. OS 2007-001. Any Government employee or official who uses his or her personal time or money to participate in a campaign as described in this section should be sure to keep sufficient records to show that he or she did not use any Government time or money in the effort. 4. Answering Questions Section 1-45-117(1)(a)(II) of the FCPA allows a Government employees and officials to respond to questions about a ballot issue or referred measure, so long as the question was not solicited by the Government. 5. Fifty-Dollar Exception If a Government employee or official has policy-making responsibilities, then he or she may use not more than $50 of Government money in the form of letters, telephone calls or other activities related to expressing his or her opinion on a ballot question. Section 1-45-117(1)(a)(II). It is important to note that this exception only applies to ballot issues, not to contributions made to a candidate campaign. Therefore, a city mayor will violate the FCPA by spending only $2.35 on a letter supporting a candidate. Muller v. Burkholder, Agency Decision, Case No. OS 2002-012. In addition, the fifty-dollar exception is an individual exception only. So five members of a city council • -3- ►3 may not combine their $50 exceptions to jointly spend $250 of public moneys incidental to expressing their opinions on an issue. See Brown v. City ofLittleton, Agency Decision, Case No. OS • 2006-0023. 6. Resolutions. Section 1-45-117(1)(b)(IR) of the FCPA authorizes the governing body of a Government to formally take a position with respect to an election question by passing a resolution urging citizens to vote for or against the question. Passage of such a resolution may be reported or distributed through the established, customary means that the Government uses to inform the public of its proceedings. For example, if a Government regularly sends out a newsletter, the passage of the resolution may be reported in the newsletter. However, extraordinary methods of distribution, such as paid advertising or a one-time newsletter for this specific purpose, may not be used. Enforcement Any person who believes that a violation of the FCPA has occurred may file a written complaint with the secretary of state no later than one hundred eighty days after the date of the alleged violation. The secretary of state is required to refer the complaint to an administrative law judge within 3 days of filing. If the judge determines that a violation has occurred, the judge may issue an order or sanction as authorized by the FCPA or Article XXVII of the Colorado Constitution. The judge's decision may be reviewed by the Colorado Court of Appeals. Penalties • The original provision providing penalties for FCPA violations has been repealed; however judges continue to levy sanctions against those who violate the FCPA. Currently, there is no clear standard for determining the sanction that will be imposed. In one case, a judge concluded that it was appropriate to impose a penalty of double the amount spent by the Governnnent, using guidance from Article XXVIII, Section 10 of the Colorado Constitution. See Tippett v. Town of Snowmass Village, Agency Decision, Case No. OS 2005-032. Another judge imposed a fine of $500 for a violation involving $157.85. The judge explained that even though the amount of Government money spent in the case was relatively insignificant, the violation of the FCPA was not. See Brown v. City of Littleton, Agency Decision, Case No. OS 2006-0023. Campaig i Permitted Activities for Public Entities Appended to this Memorandum is a list of permissible activities for Governments, their officials and their employees based on recent decisions of ALJs. -4- 0 IL" CAMPAIGN PERMITTED ACTIVITIES • A. "Can Do's" 1. The Board may adopt a resolution taking a position of advocacy on a state- wide ballot issue that has been submitted to the secretary of state for having a title fixed, any local ballot issue that has been submitted to the legislative body of the municipality for having a title fixed, a referred measure, or a recall measure. This resolution may include a recitation of the facts and/or arguments in favor of the Board's position. As a resolution adopted by the Board, it is available for public inspection and becomes a part of the public minutes of the meeting. Distributing the resolution or reporting on its passage may be accomplished only through established, customary means. For example, if your Government regularly sends out a newsletter, the passage of the resolution may be reported in this newsletter. However, extraordinary methods of distribution or posting, such as paid advertising or distribution of a newsletter when such was not a prior practice, may not be used. 2. The Board may authorize the expenditure of public moneys and may make contributions to disseminate a "factual summary" on such issue, which must include arguments both for and against the proposal, on any issue of "official concern" before the electorate in the jurisdiction. The summary shall not contain a conclusion or opinion in favor of or against any particular issue. An issue of official concern shall be limited to issues that appear on an election ballot in the jurisdiction. • 3. A Board member or Government employee may respond to questions about election issues during working time, so long as the Government has not solicited the question. The responses should not contain partial conclusions or otherwise tend to urge a favorable or unfavorable vote on the issue. Accordingly, employees should not volunteer opinions during work time speculating about the anticipated effects of passage or defeat of the ballot question. A recent ALJ opinion held that a Government employee could answer questions, posed at a public meeting where he was invited to speak, about how a proposed issue would affect his department so long as that employee did not expressly urge electors to vote one way or the other. 4. A Board member or Government employee with policy-making responsibilities may spend up to $50 of public moneys in the form of letters, telephone calls, or other activities incidental to expressing his or her opinion on the issue. 5. Elected officials may express a personal opinion on an election issue at any time and place (so long as the time and place does not indirectly constitute a contribution by the Government or a use of Government resources). 6. A Government employee may "endorse" an election issue on his or her personal time. A Board member or Government employee may expend personal fields, make contributions, or use personal time to urge electors to vote for or against an election issue. All employees should be asked to keep records substantiating that any time spent campaigning for the LI -5- 15 election issue was on personal or unpaid time, time outside of working hours, compensatory time, or vacation time. 7. The Board may allow interested groups, including proponents and opponents of candidates or of issues before the electorate, to rent space in its facilities as long as the opportunity is provided on an even-handed basis. The method of communicating the invitation, the access given, and the opportunity to disseminate information must be substantially the same for all interested groups. B. "Can't Do's" 1. Public funds, facilities, supplies, equipment or bulk mail permits may not be expended or used by the public entity to urge a vote in favor of or against the issue, even when the cost is reimbursed. 2. The Government may not allow others who are advocating a position on any issue before the electorate to use these resources. Nevertheless, groups that have organized.to discuss or otherwise to promote or urge defeat of the election issue may be allowed to rent facilities pursuant to an adopted policy, but all such groups must be treated even-handedly and must be allowed similar access. Preferential treatment in scheduling and fees charged must not be given. 3. Employees or paid members of the Government cannot work on a campaign during working hours and may not use public facilities or equipment for a campaign. During work time, the information that members or employees dispense to the community must be limited to providing copies of the "factual summary" and to responding to unsolicited questions. Employees • must restrict their "campaigning" to personal time. 4. The Government may not require employees or other staff members to work for an election issue (other than on the "factual summary"). 5. The Board may not contribute to other organizations and political committees that maybe organized to raise any funds and make any expenses concerning advocacy of the election issue. 6. The Government should not accept cash or any other contributions from citizens for use by the govermnent in connection with any election. 7. The Government must not release the addresses or telephone numbers of employees, or past or present users of public utilities, public facilities, or recreational or cultural services which are owned and operated by the state or a political subdivision thereof, regardless of whether the group seeking the information supports or opposes the election, unless the employee, user or person has given express consent to the release of such information for purposes of the election or as part of a directory that is otherwise available to the public. -6- • l(01