FAQ

The following questions are frequently asked of the SDA Staff. The answers were formulated by the SDA Executive Director, with frequent reference to the SDA Board Member Manual, drafted by the law firm of Collins Cockrel and Cole, P.C.

• Competitive Bidding
• Disposing of Property
• Condemnation
• Exclusion
• Municipal Annexation
• Public Meetings
• Public Records
• Recall
• Donations

• Impact Fees
• Governmental Immunity
• Rules of Order
• TABOR Amendment
• Campaign Limitations
• Severance Agreements for District Employees
• Adding New Territory to a Special District
• Special District Election Dates
• Board Attendance
• Approval of Minutes
• Executive Session

FAQ 1

Competitive Bidding:

Question

What rules and procedures must a special district follow in purchasing and contracting?

Answer:

There are no specific purchasing provisions which apply to special districts. Districts are not required to advertise, take proposals or bids, or purchase from the lowest bidder. Districts should remember, however, that they operate in the public trust, and have a fiduciary duty to make sure that district funds are being spent in the most responsible manner possible. This means that proper precautions should be taken to assure that the district is getting fair value for its purchases. It also means that there should be no conflicts of interest or self-dealing in determining whom to deal with or what price to be paid.

With regard to contracts, the only contracts which must be competitively bid are construction contracts for work and/or material involving an expense of $60,000 or more. 32-1-1001(1)(d), C.R.S . It is usually good practice, however, to bid whenever there are more than one vendor or contractor who could do the work, or to find out what the availability and interest of vendors or contractors might be. Districts should always be aware of the criticism and possible legal challenges that might arise if it appears that there was any unfairness involved in determining the vendor, or if it appears that the district could have gotten the goods or services cheaper from another source.

It should also be noted that in bid situations, the award does not always go to the lowest bidder, but it can go to the lowest responsible bid, which allows the district to add judgments such as reputation or quality of work along with price. It is also possible for the district to reject all bids and re-bid, or negotiate a job and price.

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FAQ 2

Disposing of Property:

Question:

We are disposing of some used property. What requirements must we meet?

Answer:

For and on behalf of the special district, the board has the power to acquire, dispose of , and encumber real and personal property?necessary to the functions or the operation of the special district; except that the board shall not pay more than fair market value and reasonable settlement costs for any interest in real property? CRS 32-1-1001(1)(f)

There is no specific procedure for disposing of district property, except for the prohibition against giving away or making grants to private parties (Article XI, Sec. 2, Colorado Constitution), but the board's fiduciary responsibility dictates that reasonable procedures should be followed to make sure that the district receives fair value, and that the disposal of property does not benefit or enrich any individual or company. For instance, giving the property to a manager, staff, board member or family of any of them, when there is a market value in the property would probably not protect the assets of the district, as board members are obligated to do.

There is not a requirement to take bids, sealed or otherwise, but if there is a market or demand for the property, or the property is of significant value, the district avoids the appearance of favoritism, poor stewardship, or other wrongdoing by taking a more formal bidding process. If a bidding process is used, the district should be sure that it is completely fair and above board, and will withstand the scrutiny of the local investigative reporter when the unsuccessful bidder complains that he was not treated fairly and that the district gave the property away for less than it was worth.

If the property is fully depreciated, or otherwise of no value or use to the district, it can be sold or given away, but the district should be sure to not give preferred treatment to a private party when there may be others who would like the opportunity to purchase the property.

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FAQ 3

Condemnation:

Question:

Our district needs to acquire a parcel of property, and the owner is unwilling to sell (or; the owner is willing to sell, but at a price we consider to be too high.) Can we condemn the property? If so, what is the general procedure?

Answer:

If the District is unable to negotiate and effectuate the purchase of a needed parcel of real property, it has the power of condemnation expressly granted by law Art. II, Sect. 15, Colo. Const.; §38-1-101 et seq., C.R.S .

Prior to any district condemning property, a district must show that there is public need and necessity for the acquisition of land, and that there has been a failure of good faith negotiations with the landowner.

An appraisal is required at district's expense if the property to be condemned has an estimated value of at least $5,000. §38-1-121, C.R.S

Park and recreation districts are restricted in condemnation powers to the taking of property for purposes of televion relay and translator facilities, easements and rights-of-way. §38-1-114, C.R.S.

Fair compensation, which is neither too little nor too great, must be given for the condemned property.

Water rights are not subject to condemnation by Districts

FAQ 4

Exclusion:

Question:

A large landowner does not want to pay the mill levy of the district, and wants to have his property excluded from the district. What procedures are available, and what rights do the landowner and the district have?

Answer:

The landowner, or any number of landowners, can petition the district to have his property excluded from the district, pursuant to 32-1-501 C.R.S. The procedure is as follows:

1. Petition for Exclusion:

The exclusion (de-annexation) process can only be initiated by a petition for exclusion submitted by the fee owner(s) of 100% of any real property in the District §32-1-501, C.R.S .

The petition is to be accompanied by a deposit of money sufficient to pay all costs of the exclusion proceedings §32-1-501(1), C.R.S .

The Board shall hear the petition for exclusion at a public meeting after publication of notice of the hearing §32-1-501(2), C.R.S

The Board shall order the petition granted or denied after consideration of the following §32-1-501(3), C.R.S. :

a. The best interests of the property seeking exclusion, the District, and the County;

b. Cost/benefit analysis of exclusion;

c. District's liability to provide service to all property within the District;

d. Cost at which the District is able to provide service compared to that of other entities.

e. Effect that denying the petition would have on employment and economic conditions within the District;

f. Economic impact on the District, the region and State;

g. Whether an economically feasible alternative of service is available; and

h. Additional cost to be levied on non-excluded property.

No election is required or allowed. The determination is to be made by the Board §32-1-501(4)(a), C.R.S . The court will then enter an order of exclusion based upon the decision of the Board §32-1-501(4)(b), C.R.S . A denial of any petition for exclusion by the Board may be appealed to the Board of County Commissioners §32-1-501(5)(b), C.R.S. The decision of the Board of County Commissioners may be appealed to the district court §32-1-501(5)(c), C.R.S.

There must be justification for the decision based upon the above criteria.

FAQ 5

Municipal Annexation:

Question:

A part of our district may soon be annexed by a neighboring city. What impact will this have on the district?

Answer:

A city can annex land which is within the boundaries of a special district, even if the territory is already being served by the district. Frequently this will have no impact on the district, since the city may be content to allow the district to continue serving the territory. A city may, however, unilaterally exclude territory from a special district. 32-1-502(1). The city must be able to show that it can provide the same services to the area, and it must compensate the district for facilities which are within the city. The city and the district must work out a plan for the orderly transition of service from the district to the city, which must be approved by the court.

FAQ 6

Public Meetings:

Question:

What procedures must our Board go through to hold a specialmeeting?

Answer:

The Board must designate and post the time and place for all Board meetings §32-1-903(1), C.R.S . The Board must pass a resolution at the first regular meeting of each year as to the posting place of the 24-hour agenda notice §24-6-402(2)(c), C.R.S . Once the time and place for Board meetings is set and posted, any meeting called that is different from that schedule is a special meeting. Special meetings, however, are subject to the same posting and notification requirements as regular meetings.

Board meetings must be at the time and place designated, unless a proposed change appears on the agenda of a meeting, and a resolution is adopted stating the reason for change in time or place §32-1-903(1), C.R.S .

1. Notice to Directors:

All Directors must be notified of any regular or special meeting of the Board §32-1-903(1), C.R.S .

2. Notice to public:

a. Three-day notice:

Notice of the time and place of designated regular or special meetings shall be posted in at least three public places within the boundaries of the District and in the office of the county clerk and recorder at least three days prior to said meeting §32-1-903(2), C.R.S .

b. Twenty-four hour notice:

In addition to the three-day notice requirement, notice of all meetings of a quorum of the Board at which any public business is discussed must be posted in a designated public place within the District no less than 24 hours prior to said meeting. The 24-hour posted notice must include specific agenda information when possible §24-6-402(2)(c), C.R.S .

c. Requested notice:

The District must keep a list of all persons requesting notice of meetings, and provide reasonable advance notice to such persons. Once a person has requested individualized notice, they are to be included on the list for two years. What constitutes reasonable notice is left to the discretion of the District. Inadvertent failure to provide notice to a listed person will not invalidate the meeting or actions taken at such meeting.

Question: What must we do to hold an executive session?

Answer: An executive or closed session may only be called at a regular or special meeting of the Board (not at a study session) by an affirmative vote of two-thirds of the quorum present §24-6-402(4), C.R.S .

Executive sessions should be noted on the agenda for all meetings whenever possible.

The Chairman of the Board must announce, and the minutes reflect, one of the following topics of discussion for a valid executive session:

1. Purchase, acquisition, lease, transfer or sale of any property interest;

2. Conferences with the District's attorney regarding legal advice on specific legal questions;

3. Confidential matters pursuant to State or Federal law;

4. Security arrangements or investigations;

5. Negotiations;

6. Personnel matters;

7. Items concerning mandatory nondisclosure; or

8. Discussion of individual students where public disclosure would adversely affect the person.

If the topic of executive session is confidential due to State or Federal law, a specific citation to the applicable law must be announced §24-6-402(4)(c), C.R.S.

Minutes should reflect the topic of discussion, the time executive session is opened, and the time adjourned. No minutes should be kept during executive session so as to destroy the necessary confidentiality.

No formal action (vote) may be taken while in executive session §24-6-402(4), C.R.S.

The District must retain the record of any executive session for at least 90 days §24-6-402(2)(d.5)(I)(E), C.R.S.

FAQ 7

Public Records:

Question:

A local citizen has asked us for all our records of maintenance and repairs on a particular part of our district operation. What must we do?

Answer:

Colorado statutes have established as public policy that all public records should be open for inspection by any person at reasonable times §24-72-201, C.R.S .

Public records is broadly defined so as to include most documentation maintained by the District §24-72-202(6), C.R.S.

The official custodian (the District officer or employee responsible for the maintenance, care and keeping of public records) may establish rules and regulations regarding the inspection procedures for such records. Such rules and regulations are advisable to maintain a manageable order regarding records and inspection.

The person requesting inspection is entitled to copies or printouts of the District's public records. A fee not to exceed $1.25 per page, unless actual costs exceed that amount, may be assessed §24-72-205, C.R.S . If the copying or printout is generated from a computer system, which may have been expensive to design, the cost of that system may be offset by charging a reasonable allocation to the inspecting person §24-72-205(4), C.R.S.

Statute permits the District custodian to deny public access and disallow inspection of certain documents or under certain circumstances §24-72-204(2)(a), C.R.S. The determination of whether a document falls within an enumerated exception can be a difficult task. If denial of access is based upon injury to the public interest, the District must apply to the court for an order permitting the District to restrict disclosure §24-72-204(6), C.R.S .

Any person denied access may request a written statement of the grounds for denial §24-72-204(4), C.R.S . Such person may also apply to the court for an order compelling inspection §24-72-204(5), C.R.S.

Willful or knowing violation of the public right of access is a possible criminal misdemeanor, carrying a possible $100 fine and 90 days imprisonment §24-72-206, C.R.S.

If a person denied access successfully obtains a court order compelling inspection, the District may be subject to pay court costs and attorney fees if the denial was found to be arbitrary and capricious §24-72-204(5), C.R.S.

FAQ 8

Recall:

Question:

An upset citizen has threatened to recall some of our board members. Can special district board members be recalled, and what is the procedure?

Answer:

Any Director who has held office for at least six months may be subject to recall §32-1-906, C.R.S . and §1-12-102(1), C.R.S. In order to recall a Director, a recall petition signed by 300 or 40% of electors entitled to vote for a successor (whichever is less), must be filed asserting the grounds for recall and a recall election must then be held §32-1-906, C.R.S . The election of a successor shall be held at the same time as the recall election §1-12-118(1), C.R.S.

FAQ 9

Donations:

Question:

Our fire district has been asked to make a significant donation to a local community cause. Are there restrictions we should be aware of?

Answer:

A special district is not permitted by the Colorado Constitution to make any donation or grant to or in aid of a private individual or entity. Art. XI, Sect 2, Colorado Constitution. If district resources are expended, there should be value received in return. It may be possible under some circumstances to prove that making a community donation is a justified public outreach or community relations effort, but even as such, the expenditure should be small and incidental to the purposes of the district.

FAQ 10

Impact Fees:

Question:

We are facing problems keeping up with facility needs caused by rapid growth in part of our district. We hear talk about impact fees. What are impact fees, and can they be adopted by a special district?

Answer:

All special districts have authority to charge fees in one form or another, if adopted as part of their rules and regulations. Impact fees, however, generally mean fees charged of developers or builders, and are based in some way upon the new building in a given area. For instance, a homebuilder would be charged a fee for each house built within a given area, with the fees going to pay for new facilities in order to provide service to that area.

Unfortunately, there is no authority in law for a special district, on its own power, to impose such impact fees. Cities have authority to require land to be dedicated by builders for such purposes, and to require the payment of cash in lieu of land. Counties have some similar powers. In a few cities and counties, the city government or the county government has agreed to use its powers to collect impact fees on behalf of the special district, and turn the proceeds over to the special district for building facilities necessary to provide services to the area. The success of such an arrangement depends upon a strong working relationship with the city or county within which the area is located.

FAQ 11

Governmental Immunity:

Question:

I am confused over the liability of water or sanitation district when a home-owner is damaged by a break or backup in the district's lines. If it is our lines, and the homeowner was not at fault, then we must be liable, right? And I have heard that there are some circumstances under which our liability insurance will not cover the homeowner's loss. How can this be?

Answer:

1. Under the doctrine of sovereign immunity, the law did not recognize liability on behalf of governmental entities. However, sovereign immunity has been statutorily modified in Colorado to make governmental entities, including special districts, liable for damages caused by their negligence in certain activities, including the operation of water and sanitary systems.

2. There are over 200 municipalities and 500 water and/or sanitation districts in Colorado, serving over a million households. Each of these municipalities and service districts carries liability insurance, which covers any loss or liability resulting from the negligence, or fault, of the entity. Thus, when a homeowner suffers damage from a water break or sewer backup which was caused in any way by the negligence of the city or district, the entity's liability insurance will cover the cleanup and loss.

3. However, when forces out of the entity's control, such as vandalism, negligence of other parties or forces of nature cause the backup, the entity is not negligent, thus not liable, and its liability insurance will not provide coverage for the homeowner.

4. Many homeowners are shocked to find out that their homeowner's policy does not cover water or sanitary sewer damages, and it is practically, if not totally, impossible to buy such coverage in Colorado today. Thus, if damage results from causes other than the negligence of the public entity, the homeowner is left with no protection.

5. Some districts maintain a reserve specifically to cover homeowner damages that are not otherwise covered, as a public relations tool, and as a cost of doing business, recognizing that there are bound to be some mishaps that cause damage.

FAQ 12

Rules of Order:

Question:

The following questions frequently arise among special district boards:

•  Are special district boards required to use Robert's Rules of Order?

We have been told that the Chairman of the Board is only to facilitate the board meetings, and should not enter into discussion, or vote except in case of a tie. Is this true?

Answer:

1. Robert's Rules of Order is a system of parliamentary procedure, or procedures for the formal and efficient conduct of various meetings. Most people are at least vaguely familiar with parts of the procedures, but relatively few people are well informed and skilled in all the procedural aspects of Robert's Rules. Nothing in special district law specifies that any particular rules of procedure be used. Many special districts have adopted by-laws or other policy guidelines, which state that meetings will be conducted by Robert's Rules. Many other special districts have not adopted any specific rules, or have adopted other procedural rules or guidelines.

Robert's Rules are somewhat formal, and unless all members of the board have had some exposure or training in their use, they can become confusing or restrictive. The rules are frequently ignored until a controversy arises, and then often misquoted or used wrongly. Many attorneys for special districts recommend against the formal adoption of Robert's Rules. A clearly drafted set of by-laws or operating procedures can be as effective and simpler to use.

2. The notions that the Chairperson of a Board should not enter into discussion, and should only vote in case of a tie, are offshoots of Robert's Rules of Order, which were devised to conduct a variety of meetings. These rules overlook a basic fact of special district meetings, which is that all members of a special district board are elected equally, and the Chairperson has no more and no less authority than any other member. Each member has an obligation to those who elected the member, to exercise full and best efforts and judgment on behalf of the district. Most advisors to special districts agree that this includes an obligation to discuss and vote on each issue except where appropriate circumstances (such as a conflict of interest) warrant an abstention from voting.

The issue of the Chairperson voting, however, is largely irrelevant, since the only time the Chairperson's vote would make a difference is in case of a tie.

FAQ 13

TABOR Amendment:

Question:

I am new on the Board, and I don't understand all the ramifications of the TABOR Amendment. Could you explain the various provisions of this amendment?

Answer:

All the ramifications of TABOR are too many to cover in this format, but the following explanation of the provisions of TABOR is taken from Chapter XV of the SDA Board Member Manual, drafted by the law firm of Collins Cockrel and Cole, P.C.:

A. Introduction:

TABOR, which amended the Colorado Constitution by the addition of Article X, Section 20, has had a tremendous impact on all Colorado local governments, including special districts. The interpretation and application of TABOR remains uncertain in many respects and continues to evolve through legislative and judicial interpretations. The General Assembly has attempted to clarify some of the confusion by adopting several laws interpreting the terms and provisions of TABOR. The Colorado Supreme Court has also attempted to resolve certain issues by delivering an opinion to interrogatories propounded by the General Assembly. The Colorado Court of Appeals and Colorado Supreme Court have determined certain TABOR issues. The validity of the TABOR related legislation, as well as other interpretive issues, will only be conclusively determined by future decisions of the Colorado appellate courts. Neither this Chapter nor any other reference within this Manual is intended to be a comprehensive legal analysis of TABOR. You are strongly encouraged to seek the assistance of qualified counsel regarding legal issues related to TABOR.

B. Financial Limitations :

1. Mill Levies:

TABOR requires voter approval to:

a. Increase mill levies above the current mill levy, except in certain instances for debt service on general obligation bonds, pension payments and final court judgments. A Supreme Court decision has held that an election is not required to increase mill levies in order to make payments on outstanding debt, approved by electors prior to the passage of TABOR.

•  Increase property tax revenue over taxes collected in the prior year by more than the allowable rate of growth (rate of inflation + annual local growth). The Supreme Court has validated a ballot question that exempts future revenue from TABOR limitations under the proper circumstances City of Aurora v. Acosta, 892 P.2d 264 (Colo. 1995) .

2. Spending:

TABOR prohibits the District from increasing its spending from the prior year by more than inflation plus local growth, unless exempted by the passage of the proper ballot question. This spending limitation is indirectly a revenue limitation because of refund requirements. Spending does not include refunds in the current or next fiscal year, gifts, federal funds, collections for another government, pension contributions by employees and pension fund earnings, reserve transfers or expenditures, damage awards and property sales.

The statutory limitation that operational mill levy revenue may not be increased more than 5½% annually (with certain adjustments) will still apply (i.e. in instances when inflation is greater than 5½%, property tax revenues for operations may still only be increased by 5½%).

3. Debt:

TABOR requires advance voter approval to create new District debt or financial obligations that extend beyond the current fiscal year, including general obligation and revenue bonds.

Voter approval is not required for refinancing debt at a lower interest rate, obligations with adequate present cash reserves pledged irrevocably and held for payments in future fiscal years, and qualifying lease-purchase agreements.

C. Election Requirements:

TABOR limits the dates on which ballot issue elections may be held to the state general election, biennial local District election, or on the first Tuesday in November of odd-numbered years.

The Court of Appeals has held that TABOR's election provisions apply only to fiscal matters of tax, spending, or revenue. Non-fiscal ballot questions are not subject to the date or notice provisions of TABOR.

TABOR ballot issues must be coordinated by mail notice, in packet form, to all registered voters.

All comments for and against a TABOR ballot issue shall be received on or before 30 days prior to the election. The designated election official shall compile a summary of all comments received and provide that summary to elector. Only comments addressing a specific ballot issue received from persons eligible to vote must be summarized.

D. Multiple Fiscal Year Financial Obligations:

TABOR prohibits incurring multiple fiscal year financial obligations without voter approval. This greatly impacts the existing and future contractual relationships of the District. Interpreted most conservatively, all multi-year contracts (including employment contracts) requiring the expenditure of District funds would require voter approval unless adequate cash reserves exist to finance the obligation.

The Court of Appeals has determined that a properly structured lease/purchase agreement without voter approval or adequate cash reserves does not violate TABOR Board of County Commissioners of Boulder County v. Dougherty, Dawkins, 890 P.2d 199 (Colo. App. 1994) . A clause making the lease/purchase obligation dependent on annual appropriations will, in many cases, prevent a TABOR violation.

E. Enterprise Exemption:

An Enterprise is expressly excluded from the coverage of TABOR.

An Enterprise is defined as:

1. A government owned business;

2. Authorized to issue its own revenue bonds; and

3. Receiving less than 10 percent of annual revenue in grants from all state and local governments combined.

Water service activities including the water and/or wastewater service of a special district, are considered Water Activity Enterprises under §37-45.1-101 et seq., C.R.S.

There have been case law decisions by the Colorado appellate courts on the subject of Enterprises. The Courts applied the three-part test set forth above. The Colorado Supreme Court found that the E-470 Highway Authority was not an Enterprise and, therefore, was not exempt from the TABOR limitations because it had the power to tax (although the power was not being exercised) Nicholl v. E-470 Public Highway Authority, 896 P.2d 859 (Colo. 1995) . In ruling upon interrogatories promulgated by the State, the Supreme Court found that the Great Outdoors Colorado Trust Fund Board was not an Enterprise, because it did not have the authority to issue its own revenue bonds Interrogatories .

FAQ 14

Campaign Limitations:

Question:

Our District Board has decided to put a bond issue question on the next election ballot. What restrictions are on the use of district funds or resources to promote the passage of the bond issue?

Answer:

Under the Campaign Reform Act §1-4.5-101et seq., C.R.S. , Districts may not make contributions or contributions in kind to campaigns involving the nomination, retention, or election of any person to any public office, or to urge electors to vote in favor of or against any issue before the electorate.

A Board member may expend not more than $50 of District funds on letters, telephone calls, or other activities incident to making statements or answering questions concerning the issue.

Districts may, however, expend public monies or make contributions in kind to dispense fair and balanced information on any issue of official concern before the electorate. This information must be factual, must include arguments both for and against the proposal, and cannot contain a conclusion or opinion in favor of or against any issue addressed.

The statutes do not prohibit a public employee or Board member from working on a campaign or speaking out on an issue on his or her own time, or spending his or her own funds to urge electors to vote in favor of or against any issue before the electorate.

The statutes also restrict the activities of campaign committees and require the filing of certain reports.

FAQ 15

Severance Agreements for District Employees:

Question:

Our district board is concerned that the district may be taken over by a city, and in order to protect our employees, we want to adopt a policy that would pay each of the district's employees six months salary if they are terminated in a city takeover. Can we do this?

Answer:

This raises several issues. First, the so-called Golden Parachute legislation (24-19-101-109), adopted in 1993, prohibits the payment of post employment compensation beyond three months of salary. Although the law appears to apply to local governments, including special districts, section 24-19-108 exempts any employee employed by a unit of local government whose governing body is directly elected by the electors of such local government.

Second, Article XI, Sections 1 and 2 of the Colorado Constitution have commonly been interpreted to prohibit grants or gifts of public funds or property. If the severance payment appears to be gratuitous, or payment where no consideration or benefit is received in return by the district, it could be considered a gift in violation of this provision. However, if the payment can be considered payment for loyalty, valuable service, or other benefits to the district, it probably will pass.

The third consideration would be to structure the commitment in such a way that it is a debt of the district that must be discharged before the takeover party can complete the takeover.

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FAQ 16

Adding New Territory to a Special District:

Question:

We have received questions lately about the procedure for annexing new territory to existing special districts. Can you describe this procedure for us?

Answer:

In the first place, special district statutes do not refer to annexing, but rather use the term inclusion for taking in or adding new property to a special district.

The procedure is described in 32-1-401 et.seq., Colorado Revised Statutes, which is printed in full in Tab 5 of the SDA Laws Notebook. In summary, the procedure must be initiated by a landowner petition. If the petition is submitted by one hundred percent of the landowners in the territory to be included, the District Board must hear the petition at a public meeting for which notice has been properly published. After the hearing, the Board shall grant or deny the petition, with or without conditions. If the Board grants the petition, they shall make an order and file with the clerk of the Court, which shall then issue an order making the property a part of the district.

If one hundred percent of the landowners in the territory to be included do not sign the petition, and then it must be signed by not less than twenty percent, or two hundred landowners, whichever is less. The Board shall hear the petition at a properly publicized public meeting, and shall grant or deny the petition by a resolution. This resolution will then be submitted to the district court, which will then order an election of the eligible voters in the area to be included. If the election passes, the court will issue an order that the land will be included within the district.

The procedures for objections to the inclusion, the contents of the petition, the notification of landowners, and other specific details of the procedure, are included in the above-referenced statutes.

FAQ 17

Special District Election Dates:

Question:

Our district has considered a ballot question to raise a mill levy and authorize a bond issue, but we have decided not to put the issue on the ballot this November. What other dates are available for special district elections?

Answer:

The election of special district directors, known as the biennial local district election, occurs on the first Tuesday of May in every even numbered year. Ballot issue questions, which includes essentially anything of a financial nature which is required by the TABOR Amendment to be decided in an election, can only be voted on in a state general election (November of even years), biennial local district election (first Tuesday in May of even numbered years), or on the first Tuesday in November of odd-numbered years. (Article X, Section 10, (3)(a)). In addition, a 2007 change to the Special District Act requires that special districts conduct elections on TABOR ballot issues either as part of a coordinated election or as a mail ballot election.

TABOR questions include any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district. TABOR questions also include the creation of any multi-fiscal year debt, or any other financial obligation for the district, as well as increases in revenue and spending limits and questions commonly known as de-Brucing.

Certain election questions, such as the organization or dissolution of districts, or the inclusion of property to a district, if not accompanied by a taxation or debt question as described above, can be set by the district court on dates other than the dates described above.

FAQ 18

Board Attendance:

Question:

A Colorado special district asked, We have a board member who frequently misses board meetings. We have heard that a board seat can become vacant after a certain number of absences. Is this correct?

Answer:

A Director's office shall be deemed to be vacant if the person who was duly elected or appointed fails to attend three consecutive regular meetings of the Board, without the Board having entered upon its minutes an approval for an additional absence; except that such additional absence or absences shall be excused for temporary mental or physical disability or illness. ( CRS 32-1-905(g)).

This statute does not require further action to declare the position vacant. The position is vacant upon the third consecutive unexcused absence, and the Board can proceed to fill the vacancy.

The same statute provides that a vacancy on the Board shall be filled by appointment of the remaining directors, to serve until the next regular election, at which time the vacancy shall be filled by election for any remaining unexpired portion of the term.

If, however, the remaining members of the Board fail to appoint a new director to fill the vacancy within sixty days, the Board of County Commissioners can appoint a director to fill the vacancy.

FAQ 19

Approval of Minutes:

Question:

Can a board member who was not present at a meeting approve the minutes for the meeting from which he was absent?

Answer:

There is no legal requirement that only those board members present at a meeting be the ones who vote to approve the minutes of that meeting at the next regularly held meeting of the board. The minutes are the method of documenting the action taken at a Board meeting, and are reviewed and approved at a subsequent meeting to assure that the written minutes accurately reflect the Board actions. Those Board members who were present at the meeting reflected in a set of minutes should review for accuracy, and suggest corrections if needed. It is then appropriate for all Board members to vote to approve the minutes for inclusion in the official records of the District. It should be noted that approval of the minutes is not an opportunity to review and change the actions that were taken by changing the minutes.

If Board members who were present at the meeting reflected in the minutes are not present at the meeting in which the minutes are to be approved, the Board can elect to approve the minutes at a subsequent meeting where the Board members which were present can be present to approve the minutes. There is no requirement that the minutes be approved at the very next Board meeting.

FAQ 20

Executive Session:

Question:

How to call an executive session and the rules governing it?

Answer:

The following is a summary for an executive sesssion:

1. Calling the Executive Session:

•  Announce the topic for discussion in the Executive Session in the motion, and cite the specific Statute that authorizes the Executive Session. Those Statutes are provided further down on this page.

•  Describe the matter to be discussed, but not with so much detail as to compromise the purpose of being in Executive Session.

•  An affirmative vote of two-thirds (2/3) of the quorum present must vote to go into Executive Session.

•  An Executive Session can only be called at a regular or special meeting.

2. Conducting the Executive Session:

•  No formal action may take place.

•  The discussion must be limited to the reasons for which the Executive Session was called.

•  Discussions that occur in an executive session must be electronically recorded. 24-6-402(2)(d.5)(II), C.R.S. Preserve the recordings for at least 90 days.

•  No electronic recording is necessary to be kept if, in the opinion of the public body’s attorney, who is present, all or a portion of the discussion constitutes attorney-client privileged communications. The attorney must either state on the record that the discussion constituted a priviledged attorney-client communication or sign a statement to the same effect.

3. Afterwards:

•  You must retain the record for ninety days. We recommend you have a policy to destroy or erase the record after that ninety day period.

•  If someone petitions for a review by the Court, the Judge will privately listen to the tape or review the Minutes, and make a determination as to whether it was a proper Executive Session.

•  If the Judge rules it was improper in some way, those parts of the Executive Session Minutes shall be open to public inspection if the Court finds: (1) substantial discussion on matters not authorized by the Executive Session Law, or (2) a policy, position, resolution, rule, regulation or formal action in the Executive Session was adopted.

•  We do not believe anything prohibits the development of a negotiating position or voting on direction to negotiators in the Executive Session.

Executive Session Laws:

Your announcement must include one of the following citations to the specific provision(s) of §24-6-402(4), C.R.S. (paragraphs (a) - (h)) that authorize the executive session:

(a) §24-6-402(4)(a), C.R.S., “The executive session concerned the purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest.”

(b) §24-6-402(4)(b), C.R.S., “Conferences with an attorney for the public entity for the purposes of receiving legal advice on specific legal questions.”

Note: If your public attorney, present at the executive session, believes all or part of the discussions constitute attorney-client/privileged communications, you do not have to keep a record of those portions of the discussion.

If the minutes are electronically recorded, the attorney must state on the record that no record of the unrecorded portions of the executive session was kept because such discussion constituted privileged attorney-client communication.

If the minutes are in written form, there should be attached a signed statement from the attorney attesting that the unrecorded portion of the executive session constituted, in the attorney’s opinion, privileged attorney-client communications.

The minutes must also include a signed statement from the Chair of the executive session attesting that the discussion in the unrecorded portion of the session was confined to the topic or topics for which the executive session is authorized pursuant to the Open Meetings Law.

(c) §24-6-402(4)(c), C.R.S., “Matters required to be kept confidential by Federal or State law or rules or regulations (citing the specific statute or rule).”

(d) §24-6-402(4)(d), C.R.S., “Specialized details of security arrangements or investigations.”

(e) §24-6-402(4)(e), C.R.S., “Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators.”

(f) §24-6-402(4)(f), C.R.S., “Personnel matters except if the employee who is the subject of the executive session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees must request an open meeting.”

Note: The law provides expressly that such matters do not include discussion of members of a local public body, including any elected official, nor the appointment of any person to fill a vacancy on such body, including in an elected position. Discussion of personnel policies that does not require discussion of matters personal to a particular employee is also expressly not a “personnel matter.”

(g) §24-6-402(4)(g), C.R.S., “Consideration of any documents protected by the mandatory nondisclosure provisions of the Public Records Act.”