Eye on the Legislature

February 27, 2017

Senate Bill 17-150, postponed indefinitely (killed) on February 16th, would have prohibited public officials from appointing, employing, promoting, advancing or advocating for a relative within the state agency in which they serve or control. The bill would not have prevented the relative of a public official from being employed or appointed, so long as the public official did not advocate for them and the employee was appointed or hired in compliance with state personnel rules. The executive director of the Department of Personnel is authorized to promulgate rules this issue in the event of natural disasters or other unforeseen events.

House Bill 17-1141: Legislators have decided to get tough with federal employees caught depriving a range allotment owner of any “property rights related to that allotment, including a denial of due process or a physical or regulatory taking without just compensation.”

The General Assembly’s findings with regard to the agriculture industry and federal range lands are the basis for HB 1142:

The livestock sector of the agriculture industry of the state is a critical and significant portion of the agriculture industry of the state and necessary for the continued health, prosperity and well-being of the people of the state;
A significant number of livestock within the state spend a significant part of their lives on federal range lands;
The United States Supreme Court has held that stockwater rights, range rights, right-of-ways, and improvements appurtenant to or associated with range allotments are property rights worthy of protection under the Fifth Amendment of the United States Constitution; and
Federal employees are required by the fifth amendment and Executive Order 2630 to consider the takings implications of their decisions and actions on the property rights of ranch or range allotment owners before taking those actions.

For malicious deprivation of constitutional rights, a person who is a federal employee acting under color of law commits deprivation of a range allotment owner’s constitutional rights when the person takes any of the following actions:

deprives that range allotment owner of any property right appurtenant, inherent or related to the range allotment, including the right to possess, use, dispose of, exclude other from or defend the range allotment; and
the deprivation offends due process or is a physical or regulatory taking without the payment of just compensation.

A federal employee who commits deprivation of a range allotment owner’s constitutional rights is deemed to be acting outside the scope of any federally delegated authority and, therefore, outside the protection of any federal immunity from prosecution, and the employee is subject to both a civil action and criminal punishment under the laws of the state.

Violation of said law is punishable as an unclassified felony carrying a fine of up to five hundred thousand dollars and up to five years imprisonment, or both, for each separate offense. If passed and enacted, HB 1141 makes available to a person whose rights are violated a private right of action against the federal employee responsible for the violation, and that person is entitled to damages.

Sponsors of House Bill 17-1141: Representative Kimmi Lewis (R-Baca, Bent, Crowley, Elbert, Kiowa, Las Animas, Lincoln, Prowers, Washington) 866-2398. No sponsor as yet in the Senate.

House Bill 17-1150: Stalking and domestic offenders will find that a court is prohibited from granting bail for individuals awaiting sentencing or appeal if they have been convicted of stalking or a felony for which an act of domestic violence was the underlying factual basis. No bail will be allowed for persons convicted of a crime of possession of a weapon by a previous offender.

Sponsors of House Bill 17-1150: Representative Clarice Navarro-Ratzlaff (R-Fremont, Otero, Pueblo) 866-2905. No sponsor as yet in the Senate.

Senate Bill 17-100: Titled “Concerning Qualified Immunity for Persons Performing Land Stewardship Activities on Public Lands,” SB 100 provides needed legal protections for volunteers and non-profits who perform land stewardship on public lands. With ever shrinking funding for maintenance and restorative efforts of Colorado’s public lands (federal and state), volunteers provide invaluable stewardship activities.

SB 100 includes these significant provisions:

Amends Colorado Recreational Trails System Act of 1971 to include legal protections for volunteers and non-profits who perform land stewardship on public lands;
Provides immunity from civil liability for volunteers for any act of omission that results in damage or injury if the volunteer was acting within the scope of her duties performing land stewardship activities under a grant, unless the damage or injury was caused by gross negligence or a willful and wanton act of omission;
Minimum basis for liability for a nonprofit organization or volunteer serving as an officer, director or trustee of a nonprofit organization is a willful or wanton act or omission; and
Immunity does not extend to the operation of a motor vehicle unless the operation of the vehicle is an integrated part of, and physically proximate to, a land stewardship activity and within the scope of the volunteer’s duties.

Volunteers involved in stewardship activities should keep in mind, “a grant, procurement contract or other agreement concerning the conduct of land stewardship activities cannot differentiate between construction and maintenance for liability purposes or require a nonprofit organization or volunteer to carry completed operations liability coverage.”

The Federal Volunteer Protection Act provides legal protection to nonprofit organizations’ and governmental entities’ volunteers for harm caused by their acts or omission on behalf of the organization or entity – exclusions for willful or criminal misconduct, gross negligence, reckless misconduct or a conscious flagrant indifference to the rights or safety of the individual harmed by the volunteer apply.

The Colorado Volunteer Service Act offers similar legal protection, with an exclusion for operation of a vehicle, but recovery by a plaintiff may not exceed the volunteers’ insurance limits.

For interested recipients such as local, county, state and federal government agencies, special recreation districts and nonprofit organizations, the Colorado Parks and Wildlife Trails program issues grants for a variety of activities including technical assistance and training on trail design, development and maintenance.

Sponsors of Senate Bill 17-100: Senator Jerry Sonnnenberg (R-Cheyenne, Elbert, Kit Carson, Lincoln, Logan, Morgan, Phillips, Sedgwick, Washington, Weld, Yuma) 866-6360. No sponsor as yet in the Senate.

The reader's comments or questions are always welcome. E-mail me at doris@dorisbeaver.com.