KOPEL: GOCO 18 YEARS LATER
What’s the best time to fix GOCO errors??Answer: Before someone abuses them
When is the best time to revise a successful law? When it is framed in language that would entice some future appointee to seek to abuse the law. That is where the Great Outdoors Colorado Program sits.
Boulder attorney David Harrison chaired the successful initiative committee which adopted language provided in large part by former U.S. Sen. Ken Salazar. January 14, 2011 will mark the 18th anniversary of GOCO.
Too late in the game to do anything about it, Harrison told the Rocky Mountain News reporter Gary Gerhardt, “I hear (Jerry Kopel’s) concerns and would love to be able to fine-tune the wording, but it is too late now.” Harrison called the language as to staff and other items not adequately limited, the language being “soft.” That was in 1992 when the constitutional amendment passed.
Harrison also told the RMN, “We have to clean up the amendment now, or clean it up with litigation.”
A Lewis Carroll character once said, “When I use a word, it means just what I choose it to mean ... neither more nor less.” An example from GOCO:
Attempting to ensure the public would have a transparency program, GOCO states: “public access shall be no less restrictive than state laws applicable to state agencies.” Open meetings, open records?
The GOCO language should have stated “no more restrictive.” GOCO starts with state restrictions as the floor, not the ceiling. With no idea how restrictive board members decide on a future issue the decision on access can be prohibitive because there is no limit in the GOCO language.
The trust fund to handle the money received makes GOCO a powerful, almost unlimited fund. There are 17 members of the GOCO board. There are two members appointed by the governor, with the consent of the senate, from each congressional district. The State Board of Parks and the Wildlife Commission appoints one each. The Natural Resources department director is the 17th member.
The board has the following powers as well as other powers: (1) a public subdivision of the state but not an agency of government (2) funds are received and spent not subject to legislative appropriation (3) salaries and costs for members attending board meetings, set by the board members subject only to being “reasonable” for salaries and “actual” for expenses.
The board can make other spending considered necessary to accomplish the purposes of GOCO. That means detailed language in the powers, revenues and expenditures may be expanded by whatsoever the board considers “necessary and proper” to spend the money on.
The board can give certain state agencies money and the Legislature specifically has no control over how the agency spends the money. But by statute, the state Legislature now forbids such use. The state retains power over the fund-receiver.
Board members appointed by the governor can be removed, but only after the board member is proven incompetent, neglectful of duty, or malfeasant.
Rules and regulations adopted by the board are not subject to the Colorado Administrative Procedure Act. The only requirement is to allow the “public an opportunity to comment on the general policies of the board” and specific grant proposals.
The state Supreme Court responding to interrogatories from the Legislature said the best the court could decide was GOCO was essential governmental in nature.
Some resolution on the ballot providing some “fine-tuning” of the constitution language could be worked on in 2011 and passed in 2012.
Jerry Kopel served 22 years in the Colorado House.