The Colorado legislative session is finally over. This was, from our perspective, was one of the most difficult yet productive in many years. Unlike last year when we brought two bills on officer wellness and PTSD and were successful in gaining passage of both into law; this session we did not bring any new legislation from the FOP per se. Nevertheless, our lobbyists worked their tails off fighting for and against certain bills impacting our membership and profession.
The Colorado FOP is recognized as a resource and influential partner by many state legislators. Frontline Public Affairs is our lobbying firm. Our Lobbyist Adeline Hodge is an outstanding representative for us. We have no doubt that both our stature and success at the Legislature would not be possible without her hard work, knowledge of the issues at hand, and the respect legislators have for her and the arguments she presents on your behalf. Having waded in that swamp for 5 years without a professional lobbying firm, we know from personal experience just how hard that is and how invested in our profession one has to be to accomplish what she has accomplished the last two years on behalf of law enforcement and the FOP in Colorado.
The FOP is constantly approached by many legislators and stakeholders for our position or input on bills being drafted or introduced. The Colorado FOP involves itself on legislation in several areas. In each session we are involved on legislative changes to criminal statutes, sentencing standards, workplace labor issues, FPPA & PERA, and the annual run of “police reform” bills that would directly impact our membership and profession. This year we were involved in approximately 90 separate bills in either a position of support or opposition. We testified in several House and Senate committee hearings on specific bills flagged by us as most important and impactable to us and our profession.
We were successful in helping get passed or in helping defeat an overwhelming majority of the bills we took an “active” position on. Each session we spend far more time fighting to kill bills that are detrimental to our members and profession. For those negative bills that we are unable to defeat; we are generally successful in mitigating their impact through amendments and/or compromise on most of the concerns that we had.
We have attached to this article review the 2018 Frontline PA legislative report for the Colorado FOP highlighting all bills which we were actively involved in this session. It is in PDF format at the bottom of this article and can be opened online or downloaded. That publication is a complete review of our work, but we want to highlight here, in depth, some key legislative accomplishments by the FOP that will or would have had a significant impact on our profession. There is no doubt, that without the FOP fighting for our members and profession in Colorado, the bills most detrimental to Colorado’s LEO’s would have become law if not for our work. There is also no doubt that most of the bills that we actively supported would have struggled in gaining passage without the work we put in.
The following is an in-depth review of 4 bills of high importance, that we were heavily involved in and were successful in gaining passage or defeat. Each was a difficult fight and we can tell you that there is no doubt that our lobbyist’s hard work on each of these bills was the primary reason for our success:
• HB18-1020 was a bill we supported and testified on. It came close to being defeated in the Senate Committee, but the opposition was eventually overcome and the bill will become law. HB18-1020 establishes the Law Enforcement Assistance Grant Program to reimburse law enforcement agencies that conduct asset seizures for revenue lost based on a 2017 civil forfeiture reform bill, HB17- 1313. HB18-1020 also establishes the Law Enforcement Community Services Grant Program. This program is funded through proceeds received from a state forfeiture action. Reporting agencies must also now report on seizures related to local public nuisance law or ordinance. Under current law, the net balance of proceeds received from a forfeiture action are divided evenly between the governmental body of the seizing agency and the managed service organization providing behavioral health in the judicial district (MSO). The bill provides that the 50% that went to the MSO is now divided so that the MSO and the new law enforcement community services grant program fund each receive 25%.
• In the 2017 Legislative session we were successful in getting HB 17-1215 “Mental Health Support for Peace Officers” passed into law. That bill created the peace officers’ mental health support fund, which consists of gifts, grants, and donations and any other money that the general assembly may appropriate or transfer to the fund to provide grants of money to county sheriffs' offices and municipal police departments to help them engage mental health professionals. Unfortunately, there was no money set aside with passage that funded any grants. This session we worked very hard with members of the Senate and House to successfully introduce an amendment to HB 18-1322 “2018-19 Long Appropriation Act” that will provide 2 million dollars for the 2018-19 fiscal year in grant money to fund the grant program established last session under HB 17-1215. That $2 million dollars is now available for grants through July 2019.
• HB 18-1076 “Peace Officers Standards and Training Board Revoke Certification for Untruthful Statement” promoted and sponsored by the Colorado Chiefs of Police and introduced by Representative Joseph Salazar (D) – Thornton who is seeking the Democratic nomination for Attorney General. This was a poorly crafted, not well thought out, highly litigious, bad piece of legislation that reeked with the potential for unintended consequences.
It was a hard fight but we were successful in defeating this bill which potentially created an environment exposing every Colorado law enforcement officer unjustly in jeopardy. We testified in committee against the bill but were unsuccessful in gaining enough votes to defeat it in committee. HB 18-1076 passed the House Judiciary Committee and the House itself with bipartisan support. We did manage to water down the original bill with a couple of amendments mitigating some of the potential negative impact, but it was incumbent on us to do everything we could to kill the bill if possible. The House floor vote moved the bill to the Senate where we were finally able to kill it in the Senate Appropriations Committee on the last day of the legislative session. Our biggest legislative allies in getting this bill finally killed were Representative Terri Carver (R) Colorado Springs and Senator John Cooke (R) – Greeley.
Had it passed HB 18-1076 would have created unnecessary and unjust sanctions for front line peace officers. The bill would have failed to ensure an officer’s right to due process prior to stripping them of their ability to ever serve as a peace officer in the State of Colorado again. The bill would have required the Colorado Peace Officer Standards and Training Board (P.O.S.T. Board) to revoke the certification of a peace officer if the P.O.S.T. board received notification from a law enforcement agency that a peace officer knowingly made an untruthful statement concerning a material fact or omitted a material fact on a criminal justice record, while testifying under oath, or during an internal affairs investigation or comparable investigation. Law enforcement agencies would have been required to request that the P.O.S.T. board decertify an officer in any of these circumstances.
HB18-1076 would have created a false presumption that all law enforcement agencies have a “policy” with the same or similar administrative processes related to how officers are investigated and/or disciplined. This is simply not reality, and an “administrative process that is defined by a policy of the law enforcement agency” does not ensure any reliable standard of proof. Because the bill relied on the various policies set by each agency, all officers in the state would not have been treated the same. That raised serious concerns regarding equal protection under the law. That fact alone would undoubtedly have resulted in increased litigation in the courts.
The bill lacked proper safeguards relating to specific definitions of what constitutes evidence of truthfulness in an objective manner. That would have created a situation where abuses of authority and discrimination was wide open to managers. There was also no definition of what constituted a “material” fact, leaving another element of the bill open to interpretation and subject to potential abuses of power.
The bill did not provide for consideration regarding honest mistakes or omissions in statements in internal affairs investigations that occur based on real and honest lack of knowledge by an officer of the actions of other officers in the incident or event being investigated. In events and incidents involving numerous officers it is completely normal for an officer to be unaware of the actions of all other officers involved, and therefore to omit information from a report that may be contained in the reports of other officers. Even with an additional definition of the term “knowingly,” this would still have been determined by the subjectivity of each agency.
In cases where agencies have procedures for appealing administrative discipline, this bill would have allowed the agency to request a revocation of the POST certification while those appeals were pending. In the case that such appeal ultimately clears the officer of wrongdoing, the officer would have been deprived of his/her livelihood inappropriately by preventing his/her ability to be employed by another agency during the pending appeal process. The addition of allowing the officer to apply for reinstatement within 45 days after being cleared by a court didn’t address the officer being deprived of his or her livelihood while the appeal is pending and before a final determination was made.
• HB 18-1404 “Peace Officer Internal Investigation Open Records Act” promoted and sponsored by the ACLU and introduced by Representative James Coleman (D) – Denver. This bill would have made the internal investigation file of a peace officer subject to an open records request. This ACLU drafted bill was poorly crafted which (in our opinion) was brought for the purpose of enhancing civil lawsuits. Additionally, this highly litigious, bad piece of legislation reeked with the potential for abuse and unintended consequences.
Currently, there is a balancing test that provides custodian of records and ultimately the Court the ability to balance a law enforcement officer's right to privacy against a compelling state interest. Colorado and federal case law requires the showing of a compelling state interest prior to requiring the production of personal and internal affairs records. Denver Policeman’s Protective Ass’n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981); Martinelli v. Dist. Court of Denver, 612 P.2d 1083, 1092 (Colo. 1980); People v. Walker, 666 P.2d 113, 122 (Colo. 1983).
Law enforcement officers have a legitimate expectation of privacy in any materials or information that may exist within his or her personnel and internal affairs file. This bill would have negatively impacted Garrity advisements. As part of any non-criminal departmental internal investigations, officers are required to review and sign what is known as a Garrity advisement. See Garrity v. New Jersey, 385 U.S. 493 (1967). Typically, most agencies Garrity Advisement provides that “the statement shall be confidential and neither the statement nor any information contained therein, nor answers to questions shall be disclosed.” Under this bill those statements given under Garrity would have been accessible to the public.
The ACLU argument was that under current CORA (CRS 4-72-305) officers’ internal investigations files are not open for inspection and requests often denied. Through this legislation they sought to gain unfettered access to those files, first by a release of a summary and after inspection of the summary, if then requested, a full release of the files. The only exception would be if there was a criminal investigation in progress.
In essence HB-18-1404 sought to strip law enforcement officers of their expectation of non-disclosure & confidentiality. This ACLU promoted bill did NOT fix or repair anything. This bill would have eliminated one side of the scale such that the scale will always be tipped in favor of disclosure to the detriment of law enforcement officer’s right to privacy. HB 18-1404 would have been a significant expansion of the existing practices of releasing criminal justice records under current law. Officer safety, officer recruitment/retention, public safety, and other important policy considerations would have been compromised if the bill passed.
Again, this was a hard fight but we were successful in eventually defeating this bill which potentially created an environment exposing every Colorado law enforcement officer unjustly in jeopardy. We testified in committee against the bill but were unsuccessful in gaining enough votes to defeat it in committee. HB 18-1404 passed the House Judiciary Committee and the House itself with bipartisan support. We did manage to water down the original bill with a couple of amendments mitigating some of the potential negative impact, but it was incumbent on us to do everything we could to kill this bill if possible. The House floor vote moved the bill to the Senate where we were finally able to kill it when the primary Senate Republican sponsors acknowledged the bill was very flawed and asked the State Affairs committee to postpone the bill indefinitely. The committee in turn killed the bill. Our biggest legislative allies in getting this bill finally killed were Representative Terri Carver (R) Colorado Springs, Senator John Cooke (R) – Greeley, Senator Bob Gardner (R) – Colorado Springs, and Senator Kevin Lundberg (R) – Loveland.
The FOP’s legislative presence and work at the Capitol is to ensure that line officers in Colorado have an influential voice on legislation impacting them and their profession. Your dues pay for that ability. Without our presence you lose a strong advocate and voice for law enforcement officers. The work done to defeat both HB 18-1076 and HB 18-1404 are clear examples that literally saved the policing profession in Colorado from serious damage that would have negatively impacted the professional well-being and jobs of every line officer in this state, ultimately saving the Colorado FOP, municipalities, and individual officers literally thousands of dollars in additional legal defense and litigation costs. There is no doubt, that both of these bad pieces of legislation would have made it into law had it not been for the work of our lobbyists and legislative team.