2016 Legislative Session Report

This report is a summary of key bills affecting Colorado’s nonprofit sector that we tracked during the 2016 legislative session. Special thanks to the firm of Aponté and Busam for representing us at the Capitol and to our Public Policy Committee, which provided invaluable guidance throughout the session. For more information, contact Mark Turner at (303) 813-4203 or [email protected]

CHARITABLE GIVING AND FUNDRAISING

HB 16-1089 Colorado Endowment or Institutional Fund Gift Tax Credit- SUPPORT

Thanks to the bill sponsors! Rep. (D-Commerce City) and Sen. (R- Parker).

Summary: 1089 proposes a new tax credit of 25 percent of the value of a donation of cash, securities, or property to an endowment fund held by a Colorado-based nonprofit or community foundation. The maximum credit amount is $25,000. The credit is not refundable and can be carried forward up to five years. Donors claiming this tax credit cannot claim other state tax credits for the same donation.

Implications for Nonprofits: We supported the creation of this endowment tax credit for several reasons: • It encourages increased charitable giving, allowing nonprofits and community foundations to support communities through sustained funding for programs and grant-making. • It introduces many donors to the option of giving to an endowment fund, which enables their gifts to grow in value over time. • It will help nonprofits benefit from generational wealth transfer by encouraging donors to make lifetime and estate gifts.

Final Status: Passed the House Finance Committee on March 22. Postponed indefinitely by the House Appropriations Committee on May 5.

Resources: • More information on the bill and laws in other states • Fiscal impact

HB 16-1051 Forms to Transfer Vehicle Ownership upon Death

Prime Sponsors: Rep. Kevin Van Winkle (R-Highlands Ranch) and Sen. Chris Holbert (R-Parker).

Summary: 1051 authorizes the Department of Revenue to create a beneficiary designation form. Upon death of the vehicle owner, a named beneficiary can use the form to request ownership of the vehicle’s title. This request must be accompanied by the notarized form, an application fee, and proof of the vehicle’s owner’s death. This transfer of ownership is exempted from requirements of the Colorado Probate Code.

Implications for nonprofits: Under Colorado law, probate court hearings are required if the net assets transferred upon an individual’s death exceed $64,000. An individual can use the form to bequest a vehicle to Serving nonprofits. Strengthening communities. 789 Sherman Street | Suite 240 | Denver, Colorado 80203-3530 | (303) 832-5710 | (800) 333-6554 | (303) 813-4210 | www.ColoradoNonprofits.org

a nonprofit organization prior to death. This bequest would reduce the value of the individual’s assets. Final Status: The Governor signed this bill on March 23.

Resources: Fiscal impact

SB 16-016 Modifications to the Scientific and Cultural Facilities District (SCFD)

Prime Sponsors: Reps. (D-Gunbarrel) and Polly Lawrence (R-Roxborough Park) and Sens. (D-Denver) and (R-Colorado Springs).

Summary: Under current law, 0.1 percent of sales and use tax in the seven county metro area is allocated to SCFD to fund scientific and cultural organizations. The current tax is scheduled to expire on June 30, 2018 and is estimated to provide $61 million of revenues in FY ’17-18. SB 16-016 would submit a ballot question to voters in the area renewing the tax through 2030. Additionally, the bill makes the following key changes:

• Allows Castle Rock and Larkspur to hold elections prior to 2025 to join SCFD. • Increases revenue allowed for SCFD’s administrative expenses from 0.75 percent to 1.5 percent. • Makes the following key changes for Tier 2 organizations: o Allows the SCFD board to consider income, attendance, and free days offered by Tier 2 organizations when determining distributions of funds. o Requires Tier 2 organizations to be in operation for seven years and demonstrate regional impact in their application for funding. • Makes the following key changes to Tier 3 organizations: o Disqualifies facilities from receiving Tier 3 funding if they already receive Tier 2 funding. o Requires that a facility be in operation for five years rather than three years. o Allows county cultural councils to consider a facility’s financial and organizational capacity to spend tax dollars to serve the public and achieve their organizational mission.

• Makes the following changes to funding allocations for tiers (from Legislative Council):

Current allocation First $38 million under Allocations above SB 016-016 $38 million Tier 1 65.5 percent 64.0 percent 57.0 percent Tier 2 21.0 percent 22.0 percent 26.0 percent Tier 3 13.5 percent 14.0 percent 17.0 percent

Implications for nonprofits: SCFD funds arts, cultural, and scientific nonprofits of various sizes in the seven county metro area. If voters approve the ballot measure to renew SCFD, the program will continue through 2030 and provide an estimated $65 million in FY ’18-19. If voters do not approve the measure, then the tax and funding formula will end in 2018.

Changes made by SB 16-016 will increase funding for SCFD’s administration, potentially expand the number of participating cities in Douglas County, and implement tighter criteria for funding of Tier 2 and 3 organizations. SB 16-016 also increases the overall funding percentages for Tiers 2 and 3 particularly of

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revenues in excess of $38 million. Final status: The Governor signed this bill on April 29.

Resources: Fiscal impact

CHARITABLE GAMING

HB 16-1189 Bingo-Raffle License Regulation

Prime sponsors: Rep. Cole Wist (R-Centennial) and Sen. (R-Durango).

Summary: 1189 makes the following changes to licensure for charitable bingo and raffle games:

• Requires an administrative review to occur within sixty days of denial of a bingo/raffle license. • Allows a licensee to manage more than five bingo/raffle licenses simultaneously. • Allows off-site use of equipment leased by a landlord of a bingo hall. • Allows a licensee to also award a consolation prize when a progressive prize is won. • Directs the Secretary of State to establish rules for when a license suspension can be overturned.

Implications for nonprofits: 1189 gives bingo/raffle licensees more flexibility in use of equipment, awarding of prizes, and the number of licenses they may hold simultaneously. It also clarifies processes for administrative review of a denied license and for challenging suspension of a license.

Final Status: The Governor signed this bill on April 15.

Resources: Fiscal impact

HCR 16-003 Operation of Raffles at Professional Sporting Events

Prime sponsors: Reps. Jonathan Singer (D-Longmont) and (R-Brighton) and Sens. Ray Scott (R- Grand Junction) and (D-Aurora).

Summary: Proposes a constitutional amendment to permit a nonprofit entity affiliated with a professional sports team to hold raffles for charitable purposes at a venue that seats at least 5,000 people if the entity holds a raffle license, has existed for at least three years continuously, and board members or volunteers manage the raffle. The resolution establishes additional rules for raffles at professional sporting events.

Implications for nonprofits: Would have allowed foundations affiliated with sports teams to hold raffles where 50 percent of the proceeds are awarded to the winner and the other 50 percent benefits the foundation. Unlike existing constitutional rules for raffles, these foundations could obtain a license three years after formation rather than five. Also, these raffles could be managed by volunteers rather than just members.

Final Status: Postponed indefinitely by the House State, Veterans, and Military Affairs Committee on May 2.

Resources: Fiscal impact Serving nonprofits. Strengthening communities. 789 Sherman Street | Suite 240 | Denver, Colorado 80203-3530 | (303) 832-5710 | (800) 333-6554 | (303) 813-4210 | www.ColoradoNonprofits.org

COLORADO CHARITABLE SOLICITATIONS ACT

HB 16-1129 Charitable Fraud Enhanced Enforcement Measures- SUPPORT

Thanks to the bill sponsors! Reps. Polly Lawrence (R-Roxborough Park) and Beth McCann (D-Denver) and Sens. Larry Crowder (R-Alamosa) and (D-Boulder).

Summary: This bill strengthens the Colorado Attorney General’s ability to enforce Colorado’s laws against charitable fraud and deceptive solicitations as follows: • Increases the maximum penalty from $2,000 to $10,000 per violation with a total cap of $3 million for a series of related violations; • Holds a nonprofit liable if it knows or should have known that a paid solicitor committed charitable fraud while soliciting funds for the nonprofit; • Requires a paid solicitor to obtain a surety bond, or have a savings account or certificate of deposit, valued at $15,000 or more; • Requires paid solicitors to state their compliance with Colorado’s conflict of interest law if they serve on the board, direct operations, or have financial interests in charities they represent; • Adds a new violation for membership organizations of law enforcement, firefighters, first responders or veterans who misrepresent their membership numbers from those groups; • Exempts businesses that provide services to nonprofits from registering as paid solicitors if they don’t directly solicit contributions.

Implications for Nonprofits: We supported 1129 because it is important to ensure that nonprofits exercise due diligence when working with paid solicitors and to deter bad actors from committing charitable fraud. Even occasional media stories on charitable fraud can undermine the public’s trust in nonprofits and generally discourage donors from giving to important causes. As a result, we support vigorous enforcement against fraud so Colorado’s donors are assured that they can trust the charities that ask them to give.

Final status: The Governor signed this bill on June 8.

Resources:

• Fiscal impact • Charitable Fraud Enhanced Enforcement Measures

HB 16-1318 Charitable Solicitations Regulation- SUPPORT

Thanks to the bill sponsors! Rep. Cole Wist (R-Centennial) and Sen. (D-Littleton).

Summary: This bill clarifies the Colorado Charitable Solicitations Act (CCSA) registration process and strengthens the ability of the Secretary of State’s office to ensure compliance with the law. This bill makes the following key changes:

• Declarations on the registration form are made under penalty of perjury rather than under oath; • Requires a charity to file a financial report for a year in which its registration is withdrawn or expires.

Serving nonprofits. Strengthening communities. 789 Sherman Street | Suite 240 | Denver, Colorado 80203-3530 | (303) 832-5710 | (800) 333-6554 | (303) 813-4210 | www.ColoradoNonprofits.org

• Requires an organization to report changes that materially affect its business identity within 30 days; • Allows a party to request an administrative hearing within 30 days of issuance of a suspension notice; • The Secretary may issue a cease and desist order if a person is soliciting without registering. The order may only be issued after the person has been notified and has the chance to request a hearing.

Implications for Nonprofits: We supported 1318 because it would increase compliance with CCSA. When charities are more transparent, this helps members of the public feel more confident when they give.

Final Status: Passed the House on April 14. Postponed indefinitely by the Senate Appropriations Committee on April 27.

Resources:

• Fiscal Impact • Charitable Solicitations Regulation

TAX CHECKOFFS

HB 16-1297 Re-establish Checkoffs Excluded from 2015 Tax Form- SUPPORT

Thanks to the bill sponsors! Rep. Lois Court (D-Denver) and Sen. Beth Martinez Humenik (R-Thornton).

Summary: Colorado taxpayers have the opportunity to donate some or all of their tax refunds to fifteen different “tax checkoff” funds. Typically, the General Assembly authorizes or renews funds for a five year period. After a two year grace period, the checkoff must raise $75,000 each year to remain on the form. In 2014, the number of donations dropped and six funds did not raise the required threshold amount and were dropped from the form. This bill expands the number of eligible funds from fifteen to twenty, restores the six checkoff funds that fell off the form in 2015, and reduces the revenue threshold to from $75,000 to $50,000.

Implications for Nonprofits: We supported 1297 because it provides more opportunities for nonprofits to participate in the tax checkoff program, makes it more likely that funds will meet the threshold amount, and levels the playing field for funds seeking re-establishment in 2016.

Final Status: The Governor signed this bill on April 14.

Resources:

• Fiscal Impact • HB 16-1297

HB 16-1349 Continue Military Family Relief Fund Tax Checkoff

Prime Sponsors: Reps. (D-Aurora) and (R-Colorado Springs) and Sen. (D-Aurora).

Serving nonprofits. Strengthening communities. 789 Sherman Street | Suite 240 | Denver, Colorado 80203-3530 | (303) 832-5710 | (800) 333-6554 | (303) 813-4210 | www.ColoradoNonprofits.org

Summary: Extends the Military Relief Fund Tax Checkoff for an additional 5 years until January 1, 2022. Money from the fund is used for emergency grants to members of the Colorado National Guard, reservists, and their families when military personnel are ordered to active military duty or deployed to a hostile fire zone.

Final Status: The Governor signed this bill on June 6. Resources: Fiscal Impact.

HEALTH CARE

HB 16-1420 Colorado Healthcare Affordability and Sustainability Enterprise- SUPPORT

Thanks to the bill sponsors! Rep. Dickey Lee Hullinghorst (D-Gunbarrel) and Sen. Larry Crowder (R- Alamosa).

Summary: This bill creates a Colorado Healthcare Affordability and Sustainability Enterprise (CHASE) responsible for the collection of a new Hospital Provider Fee (HPF). Revenues from the HPF are generated from fees paid by hospitals to draw down matching federal funds for hospitals. The HPF is subject to TABOR’s tax and spending limits on state and local governments. This bill also creates a new board to administer the enterprise, consisting of the existing HPF board and appointments made by the Governor with the Senate’s advice and consent. Revenues collected by enterprises are not subject to TABOR limits.

HB 16-1450 Allocate Additional Available State Revenue- SUPPORT

Thanks to the bill sponsors! Rep. Dickey Lee Hullinghorst (D-Gunbarrel) and Sens. Pat Steadman (D- Denver) and Lucia Guzman (D-Denver).

Summary: This bill is allocates an estimated $155.7 million of general fund revenue in excess of the TABOR limit in FY 2016-17 according to the following priority list:

• $50 million for transportation projects identified by CDOT; • $16 million to restore funds cut from state and local government severance taxes; • $40 million to restore funding cut from K-12 education funds due to the negative factor; and • $49.5 million to higher education institutions to increase financial aid and offset tuition increases.

For FY 2017-21 the bill allocates the full amount of TABOR rebates identified according to similar percentages. This bill will be repealed on July 1, 2022.

Implications for Nonprofits: We supported 1420 and 1450 because it gives Colorado the flexibility to spend the full amount of its income tax revenues to increase funding for transportation, K-12 education, and higher education. This ensures a high quality of life in Colorado and gives nonprofits the ability to develop and retain qualified professionals.

Final Status: Passed House on April 29. Postponed indefinitely by the Senate Finance Committee on May 10.

Serving nonprofits. Strengthening communities. 789 Sherman Street | Suite 240 | Denver, Colorado 80203-3530 | (303) 832-5710 | (800) 333-6554 | (303) 813-4210 | www.ColoradoNonprofits.org

Resources:

• 1420 Fiscal Impact • 1450 Fiscal Impact • Colorado Healthcare Affordability Act

EMPLOYMENT LAW AND BENEFITS

HB 16-1432 Personnel Files Employee Inspection Rights

Prime Sponsors: Rep. (D-Westminster) and Sen. Andy Kerr (D-Lakewood).

Summary: 1432 makes the following changes to laws on employees’ inspection of personnel files:

• Allows employees to inspect or obtain copies of their personnel files at least once a year. Former employees may make one inspection after termination of employment. • Inspection or copying of files must take place at the employer’s office at a time convenient for both parties. Employers may charge a reasonable cost for duplication of documents. • Employers may require that the employee who manages personnel data or another designated employee be present during access to the files.

Records subject to inspection include those used to determine qualification for employment, promotion, additional compensation, termination, or other disciplinary action. These records do not include:

• Records required to be placed in a separate file by federal or state law or rule; • Confidential reports from previous employers; • Records identifying a person who made a confidential accusation against the employee; or • Records related to investigations by the employer, law enforcement, or regulatory agencies.

This act does not create any new private right of action, new requirement for an employer to create a new personnel file on an employee or former employee, or new requirement to retain documents for any specified time period. Banks, trust companies, savings institutions, and credit unions are exempted.

Implications for Nonprofits: Nonprofit employees will be allowed to access their existing personnel files at least once a year. Employers may require that this access occur with an HR manager present and that employees pay the cost of duplicating documents. Employers are only required to share documents related to the employee’s employment qualifications, promotions and raises, termination or any disciplinary actions. The act does not create any new rights for employers or employees to file lawsuits or new recordkeeping requirements for employers.

Final Status: The Governor signed this bill on June 10.

Resources: Fiscal Impact

HB 16-1438 Employer Accommodations Related to Pregnancy

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Prime Sponsors: Rep. Faith Winter (D-Westminster) and Sen. Beth Martinez-Humenik (R-Thornton).

Summary: 1438 requires employers to make reasonable accommodations requested by an employee for conditions related to pregnancy or childbirth unless the accommodation would impose an undue hardship requiring significant difficulty or expense to the employer. If an employee requests such an accommodation, the employer must engage in good faith dialogue with the employee to determine an effective and reasonable accommodation.

Reasonable accommodations include, but are not limited to:

• More frequent or longer break periods; • More frequent restroom, food, or water breaks; • Acquisition of modification of equipment or seating; • Limitations on lifting or temporary transfer to a less strenuous or hazardous position if available; • Job restructuring or modified work schedule; and • Light duty or assistance with manual labor if available.

Reasonable accommodations may not require an employer to hire new employees, make undue changes to other employees’ positions, create new light duty positions, or provide more paid leave than to a similarly situated employee. If an employer provides a similar accommodation to other classes of employees, this creates a rebuttable presumption that the accommodation is not an undue hardship for the employer.

Employers may not take adverse action, deny employment opportunities, require the employee to take leave in lieu of another reasonable accommodation, or require the employee to accept an accommodation that was not requested or essential to the job. An employer may require that the employee provide a note from a health care provider stating the necessity of a reasonable accommodation.

It is a discriminatory or unfair employment practice to violate this act. Employers are required to post a written notice that employees have the right to be free from unfair employment practices. A court shall not award punitive damages in a legal action if the employer makes a good faith effort to make a reasonable and effective accommodation. This act does not change existing federal or state laws regarding pregnancy and childbirth.

Implications for Nonprofits: Nonprofits will need to develop processes to ensure reasonable accommodations for employees related to pregnancy and childbirth if their current practices do not comply with 1438.

Final Status: Signed by Governor on June 1.

Resources: Fiscal Impact

HB 16-1167 Colorado Family First Employer Act- SUPPORT

Thanks to the bill sponsors! Reps. Faith Winter (D-Westminster) and (D-Lakewood) and Sens. Nancy Todd (D-Aurora) and (D-Vail).

Serving nonprofits. Strengthening communities. 789 Sherman Street | Suite 240 | Denver, Colorado 80203-3530 | (303) 832-5710 | (800) 333-6554 | (303) 813-4210 | www.ColoradoNonprofits.org

Summary: This bill creates the “Colorado Family First Employer Program” in the Colorado Department of Labor and Employment (CDLE). It ensures that the CDLE can recognize and certify employers that meet certain criteria as Colorado Family First Employers. Such criteria include the following:

• All employees have equal opportunities for advancement to leadership positions and to participate in mentorship training; • Providing childcare facilities and paid leave for the birth or adoption of a child; • Prohibiting unequal pay for the same work performed except when the difference is based on legitimate factors (seniority, merit, or other legitimate reasons); and • Providing flexible work arrangements to accommodate family obligations

CDLE is required to establish procedures for applications and awarding the Family First designation annually.

Implications for Nonprofits: We supported this bill because it recognizes employers who create a family friendly environment in the workplace and provide equal opportunities for pay and advancement for women and minority groups.

Final Status: Passed the House on April 22. Postponed indefinitely by the Senate State, Veterans, and Military Affairs Committee on May 2.

Resources: Fiscal Impact

HB 16-1403 Colorado Secure Savings Plan- SUPPORT

Prime Sponsors: Reps. Brittany Pettersen (D-Lakewood) and (D-Aurora) and Sens. Nancy Todd (D-Aurora) and Kerry Donovan (D-Vail).

Summary: This bill establishes the Colorado Secure Savings Plan, a retirement savings plan for private- sector employees who are not offered a plan by their employer. This requirement applies to employers with one hundred or more employees in the first year and applies to employers with 5 or more employees by the third year of implementation.

Unless an employee opts out of the plan, a specified percentage of the employee’s wages is deducted and deposited into a retirement savings account. All employers must provide information to employees about the plan and make appropriate payroll deductions.

This bill also creates a Colorado Secure Savings Plan Board of Trustees, consisting of the state controller, the Director of the Governor’s Office of State Planning and Budgeting, and 7 additional trustees as appointed by the Governor and confirmed by the Senate.

Implications for Nonprofits: We supported 1403 because it ensures nonprofit professionals have access to a retirement plan even if the organization lacks the capacity to offer a retirement plan. The plan is also portable between jobs in Colorado, which addresses a variety of workforce dynamics. This bill increases the number of Coloradans enrolled in retirement savings plans, allowing more people a chance to invest in their futures.

Serving nonprofits. Strengthening communities. 789 Sherman Street | Suite 240 | Denver, Colorado 80203-3530 | (303) 832-5710 | (800) 333-6554 | (303) 813-4210 | www.ColoradoNonprofits.org

Final Status: Introduced in House on March 24. Postponed indefinitely by the House Finance Committee on May 4.

Resources: Fiscal Impact

NONPROFIT TRANSPARENCY

SB 16-038 Transparency of Community Centered Boards

Prime Sponsors: Reps. Dave Young (D-Greeley), Lang Sias (R-Arvada) and Sen. Irene Aguilar (D-Denver).

Summary: This bill requires the State Auditor to conduct a performance audit over the next five years of each community centered board (CCB) that receives more than 75 percent of its annual funding from federal, state, or local governments or any combination thereof. The performance audit will determine if the CCB is effective and efficient in fulfilling its statutory obligations. The Auditor may choose to request an additional audit following the five year period. CCBs are also subject to the requirements of the Local Government Audit Law. The Department of Health Care Policy and Financing is required to post its contracts with CCBs no more than thirty days after final approval.

Each CCB will also be required to do the following:

• Post the following on its website: o The date, time, and location of its board meeting at least fourteen days in advance and any emergency board meeting at least twenty four hours in advance. o The agenda and materials of its board meeting at least seven business days prior to the meeting date or twenty four hours prior to an emergency board meeting. o Minutes of board meetings and any board documents not posted prior to such meetings. o Audited financial statements and Form 990 no more than thirty days after board approval. o Names and direct email addresses for directors and officers of CCB boards. • Provide an opportunity for public comment at every board meeting • Make financial statements and other board materials available at the meeting to the public except for materials that require board approval for disclosure, materials that must be kept private by law, and documents to be discussed in executive session. • Financial statements must be prepared monthly, reflect accurate and current financial information, and be prepared according to Generally Accepted Accounting Principles (GAAP). In cases of emergency, they may be presented at the next board meeting but not less than once per quarter. • Persons performing financial audits of CCBs shall present and discuss audit findings at a board meeting at least once a year. • Train new board members on the duties of a board member, fiduciary responsibilities, the system of services to the developmentally disabled, and the business functions of a CCB. • Make the following documents available five business days after a reasonable request: o The annual budget at least thirty days after board approval; o An annual summary of revenues and expenditures appropriated by the state related to capacity building, family support services, general fund supported living, and early intervention services; o A description of financial controls.

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Implications for Nonprofits: SB 16-038 requires CCBs to undergo a performance audit once over the next five years and at the discretion of the Auditor thereafter. The bill increases transparency to the public and opportunities for the public to provide input to the boards of CCBs. The law requires CCBs to comply with transparency requirements that include posting board documents and audited financials online and making them available by request; allowing public attendance and commentary at board meetings; posting individual email addresses for board members online, and requiring trainings for board members on governance and CCBs’ services.

Final Status: The Governor signed this bill on June 11.

Resources: Fiscal Impact

CHARITABLE TRUSTS

SB 16-085 Uniform Trust Decanting Act

Prime Sponsors: Rep. Yeulin Willett (R-Grand Junction) and Sen. Pat Steadman (D-Denver).

Summary: This bill is recommended by the Colorado Commission on Uniform State Laws and allows a trustee to reform a trust document within reasonable limits, ensuring the trust will achieve the settlor’s original intent. This act prevents decanting - the distribution of assets from one trust into a second trust - in cases that would defeat a charitable or tax-related purpose of the settlor.

Implications for Nonprofits: Use of decanting has grown as trustees seek to modify the terms of an irrevocable trust due to unforeseen circumstances. This act is meant to provide clear rules to prevent abuses and protect both the intent of the original trust and the interests of beneficiaries. The act prohibits decanting of a trust held solely for charitable purposes or reduction or elimination of a determinable charitable interest when a decanting occurs. The Attorney General must be notified and may object to any decanting that undermines charitable interests.

Final Status: Signed by the Governor on June 6.

Resources:

• Fiscal Impact • Uniform Law Commission

Serving nonprofits. Strengthening communities. 789 Sherman Street | Suite 240 | Denver, Colorado 80203-3530 | (303) 832-5710 | (800) 333-6554 | (303) 813-4210 | www.ColoradoNonprofits.org