Protection from Unfunded Mandates: A Unifying Principle of All Counties eCounty Lines | November 2020

There are various protections in place for local governments from unfunded mandates, both in state statute, as well as the execution of laws by the Governor and his departments. However, there is no absolute protection. Collectively, commissioners—assisted by Colorado Counties Inc.—are the strongest defense against unfunded mandates.

A statute enacted in 1991 prohibits unfunded mandates, with some exceptions. “No new state mandate or an increase in the level of service…shall be mandated by the general assembly or any state agency on any local government unless the state provides additional moneys to reimburse such local government for the costs …such mandate or increased level of service for an existing state mandate shall be optional on the part of the local government” (CRS 29-1-304.5).

The Colorado Taxpayers Bill of Rights (TABOR) took this statute a step further by allowing local governments to end their participation in a program, if funding was inadequate. “Except for public education through grade 12 or as required of a local district by federal law, a local district may reduce or end its subsidy to any program delegated to it by the general assembly for administration” (Article X, Section 20(9)).

Unfortunately, in 1995 these two provisions were defeated twice via State Supreme Court decisions.

In the first case, Weld County attempted to withhold their portion of payments towards a public assistance program administered through the county. However, the court did not find this payment to be a subsidy (as referenced in TABOR) and declared that as an arm of the state, counties were essentially part of the state and therefore could not subsidize themselves, so the exemption was not allowed [Romer v. Board of Commissioners, Weld County, Colorado].

In the second case, when Mesa County attempted to avoid upgrading security at their local courthouse. The State Court determined counties may not reduce or eliminate their responsibility to provide court facilities because, if one county did so and other counties followed suite, it would negatively impact the effectiveness of the judicial branch of government [State v. Board of Commissioners, Mesa County, Colorado].

So, while there are protections in place, there are still loopholes. Apart from protections in the Colorado Constitution and state statute, governors can also create a culture and sensitivity about unfunded mandates in executive orders (directives). These are not enforceable by law and any future governor can supersede the order.

In 2011, Governor John Hickenlooper signed an Executive Order to foster an environment that avoids unfunded mandates by encouraging agencies to consult with local governments before enacting new regulations, saying “local governments should have more flexibility to design solutions to problems without excessive interference or oversight, or unnecessary regulation, from state government” (Executive Order D 2011-005).

Hickenlooper’s executive order directed state departments to avoid creating regulations on local governments unless it is required by federal or state law; consult with the local government prior to enacting departmental rules and regulations that create unfunded mandates; and provide necessary funding and resources to implement requirements. In addition, he encouraged the solicitation of input from local officials and the use of waivers in some scenarios during the process of enacting new regulations.

The most effective way to avoid unfunded mandates is through proactive discussions with lawmakers and state leaders.

Colorado Counties Inc. is committed to this work which is reflected in our policy statement, “CCI strongly supports the provision of adequate funding for any future state or federally imposed mandates upon local government” (2021 CCI Policy Statement).

Together, in partnership with county commissioners, we make the case for success which includes adequate financial resources so communities can meet the expectations of the state.

LINKS/CITATIONS https://codes.findlaw.com/co/title-29-government-local/co-rev-st-sect-29-1-304-5.html https://law.justia.com/constitution/colorado/cnart10.html https://law.justia.com/cases/colorado/supreme-court/1995/94sc140-0.html https://law.justia.com/cases/colorado/supreme-court/1995/94sa334-0.html https://spl.cde.state.co.us/artemis/goserials/go4213internet/go42132018021internet.pdf http://ccionline.org/download/2021-CCI-Policy-Statement-.pdf