To: Honorable Mayor and Members of Town Council
Through: David L. Corliss, Town Manager
From: Michael J. Hyman, Town Attorney
Lisa Anderson, Town Clerk
Title
Discussion/Direction: Ordinance Repealing and Reenacting Chapter 2.01 of the Castle Rock Municipal Code Regarding the Conduct of Town Elections
Body
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The Town Attorney’s Office, working with outside counsel Geoff Wilson with the law firm of Wilson Willliams Fellman Dittman, has prepared a draft ordinance revising the Town’s Election Code. The following memorandum discusses the approach we have taken in drafting the Code and the reasons why we are recommending these changes.
Article I - Election Codes in General
The Town’s election laws are found in Chapter 2.01 of the Castle Rock Municipal Code. Articles II through IV address mail ballot, coordinated, and polling place elections, while Articles VI and VII address election controversies and offenses. A review of these laws, however, reveal that they are virtually identical to the corresponding State statutes.
Because these five articles do nothing more than echo State law, it is my opinion that they can be repealed in their entirety. As an alternative, Article I of Chapter 2.01 will be amended to provide for the adoption by reference of the Uniform Election Code of 1992 (UEC) to govern the Town’s regular elections and the Municipal Election Code of 1965 (MEC) to govern the Town’s special elections. Indeed, it should be noted that Section 4-1 of the Town Charter already requires Town elections to be conducted in accordance with the UEC.
Practically speaking, the provisions of these two codes serve primarily as a resource for the Town Clerk in her capacity as the Town’s designated election official, rather than for the general public. In addition, given the frequency of changes made by the Colorado legislature, local provisions that echo State laws require constant attention, in order to maintain consistency.
Incorporation by reference prevents this headache. To aid both citizens and candidates, many municipalities have developed “election manuals,” which explain the requirements germane to candidate elections and campaign finance reporting obligations, thereby saving candidates trying to find the law and facilitating timely filing of various documents with the Town Clerk.
Article I also sets forth the role of the Election Commission, establishes the rules governing write-in candidates and the cancellation of elections, and outlines the process by which the Town Council authorizes the Douglas County Clerk and Recorder to conduct coordinated elections. Of particular note, the deadline for write-in candidates to file an affidavit of intent to run for Town office is changed from 32 days to 63 days before the election. Likewise, in the event that there are not more candidates than offices to be filled, the deadline for the cancellation of the election is pushed back from the 29th day to the 61st day before the election. In each instance, these two changes are necessary for the Town to comply with the timeline approved by the Colorado Secretary of State for all coordinated elections.
Article II - Campaign Finance Reporting Requirements
Article XXVIII of the Colorado Constitution and the provisions of the Fair Campaign Practices Act (FCPA), Section 1-45-101, et seq., C.R.S., regulate campaign finance. Section 7 of article XXVIII governs disclosure requirements and adopts by reference the requirements of the FCPA codified at Section 1-45-108. Both article XXVIII and the FCPA provide various penalties for violation of their requirements. See Colo. Const. Art. XXVIII, §10; §1-45-111.5(1.5)(c), C.R.S. The Secretary of State is empowered to receive complaints alleging violations of article XXVIII or of the FCPA and must refer them to an Administrative Law Judge. Colo. Const. art. XXVIII, § 9(2)(a).
As relevant to the Town, however, the FCPA also provides that the requirements of Article XXVIII and the FCPA “shall not apply to ... home rule municipalities that have adopted charters, ordinances, or resolutions that address the matters covered by article XXVIII and [the FCPA].” § 1-45-116, C.R.S. Article II of Chapter 2.01 is designed to take advantage of this exception by addressing the disclosure of election campaign expenditures and contributions in Town elections. It also sets forth a detailed process for the Town Clerk to follow in processing complaints alleging violations of Article II, ensuring that such complaints are resolved at the local level rather than through the Secretary of State.
It should be noted that the revised Article II includes several amendments to the existing Article V. Among these amendments are sections that govern the registration of and reporting by political committees and small-scale issue committees and the regulation of independent expenditures. On the other hand, several important features of the existing code are retained, most importantly the absence of any restrictions on individual and aggregate contributions to candidate and ballot issue campaigns.
Article III - Reserved Powers
In the Colorado Constitution, four powers are expressly “reserved” to the voters of a home rule municipality. They are the power to:
• Initiate ordinances;
• Reconsider ordinances through referendum;
• Recall elected officials; and
• Initiate home rule charter amendments.
Each of these “reserved powers” is exercised through a citizen petition process, which, if successful, results in the matter being presented to voters at an election.
The four reserved powers are located in various articles of the Colorado Constitution. Likewise, the manner in which these powers may be exercised are located in various locations throughout the Colorado Revised Statutes. The statutes relating to the reserved powers set forth processes that are similar, but not necessarily the same, and vary widely in degrees of detail.
As a consequence, voters who wish to exercise their reserved powers, are obliged to locate, navigate and reconcile a wide variety of laws, which laws are located in multiple locations and are, at times, inconsistent. Various petition forms and processes may apply. The opportunity for omissions and other inadvertent mistakes abounds. Fortunately, for the Town, a home rule municipality, it does not have to be this way.
The purpose of Article III is to simplify and standardize the exercise of the reserved powers by Town voters. For example, Article III:
• Creates a separate Code section for each reserved power;
• Creates a standard petitioning process for all of the reserved powers, superseding the multiple petition forms found in State statutes;
• Incorporates all major language from the Charter relating to each of the reserved powers into the relevant Code section;
• Provides that the Town Clerk will supply templates for each petition form
• Clarifies the role of petition proponents as to the development of petition sections.
The principal object is to make it easier for voters to find the law that applies to whichever reserved power they are interested in, and to present in the Code a standardized petitioning process for each reserved power.
If you have any questions or comments concerning the draft ordinance or this memorandum, please feel free to contact me. If you would like me to arrange a meeting with Mr. Wilson for a more in-depth conversation regarding the ordinance, I would be happy to do so.
Attachments
Attachment A: Draft Ordinance