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Official Magazine of the Denver Bar Association

West to the 32nd Meridian: Colorado Executive Branch Pt. 1—Executive Orders

 

The executive branch of government enforces Colorado law. Art. IV of the Colorado Constitution establishes the executive branch and its officers and provides for their selection and authority. Sec. 1 directs that “[t]hey shall perform such duties as are prescribed by this constitution or by law,” and Sec. 2 vests “supreme executive power . . . in the governor, who shall take care that the laws be faithfully executed.” In 1966, a new section 22 was added to Art. IV by referred amendment. With limited exceptions, Sec. 22 requires that the structure of the executive branch be divided in such a way that the functions, powers, and duties of no more than twenty principal departments be allocated, by law, separately from the offices of the governor and the lieutenant governor. That amendment was codified in the Administrative Organization Act of 1968, L. 68: p. 73, § 1; C.R.S. 1963: § 3-28-2; CRS 2014: 24-1-101, et seq.

To the extent that the Colorado General Assembly has delegated rulemaking authority to these principal departments, they are defined as “agencies” under the State Administrative Procedure Act. As such, they are subject to all of the rule-making and licensing procedures required in that Act. The rules that are adopted by the agencies are published in the Code of Colorado Regulations, and we refer to them as administrative law. Part 2 of this article will examine the rulemaking process in more detail. Decisions of Colorado administrative law judges constitute the remainder of our State’s administrative law. They will be discussed in a future article on the Colorado Judiciary.

Art. IV, Sec. I of the original Colorado Constitution required executive department officers to “keep the public records, books and papers.” The papers of Colorado’s early governors were bound into journals and denominated the “Executive Record.” Today, the State Archivist refers to them as the “Governors’ Papers.” Like the Public Papers of the Presidents, the official records of the governor’s office include public documents. Some official documents created by the governor’s office are ceremonial. However, the majority are legal in nature and are created pursuant to the governor’s constitutional and statutory duties. Some records are required to be made accessible to the Governor-elect for continuity of government during the transition period, see C.R.S. 2014, § 24-8-103. Others, like Executive Orders, are required to be archived according to a published retention schedule, the most recent of which was established in 2006. See Department of Personnel & Administration, State Archives and Public Records, Records Disposition Schedule (2006). The remainder of a governor’s materials can be destroyed, gifted, or personally retained according to his or her wishes.

Part 1 of this article focuses on executive orders. To streamline the process of researching executive orders in Colorado, we address the following issues: form and function, authority and verification, access and preservation, and current applicability.

Form and function

Black’s Law Dictionary defines an “executive order” as that which is “issued by or on behalf of the [Executive], usu. intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.” As such, an executive order is more than a mere “proclamation,” or “formal public announcement made by the government.” Nevertheless, in Colorado the title “executive order” was originally used as the top-level descriptive term for all formal statements emanating from the governor’s office with an additional word or phrase included below the title to specify the exact nature of the directive. This practice has been modified over time. Today the executive order in Colorado functions, among other purposes, as a tool for appointments, creating governmental bodies, and designating policy initiatives.

Since 1979, letters, chronological numbers, and year abbreviations have been used to distinguish one type of executive order from another. Currently, A orders are used for appointments, B orders establish or modify boards and other governmental bodies, and D orders declare policy. For example, A 001 03 signifies the first appointment made by the Governor in 2003.

For the researcher, two variations are especially important. First, Governor Ritter used C orders to grant clemencies in 2010 and 2011, but to the authors’ knowledge no other administrations have used the C designation. These types of orders are most often found in the D category. Second, Governor Hickenlooper modified the numbering system by reversing the item number and year and expanding the year reference to four digits. To illustrate, A 2013 031 signifies the thirty-first appointment entry in 2013. The letter and sequential numbers are assigned by the Governor’s Office of Boards and Commissions or the Governor’s Office of Legal Counsel prior to the public announcement of each new order.

Authority and verification

Identifying executive order type is an important step in determining the legal validity of gubernatorial actions. For example, ceremonial orders have n o legal effect, while supervisory orders can result in penalties for noncompliance. However, “gubernatorial ordinances—orders that go beyond the administration of government and call for action that would affect private citizens—have the force of law.” See OLLS Memorandum, Scope of Governor’s Power to Issue Executive Orders, September 29, 2014. The Colorado Attorney General’s Office has determined that “the Governor may take whatever actions he deems necessary, including issuance of executive orders, to execute the laws of the state and run his office so long as he does not infringe upon the legislative or judicial branches of government.” Colorado Attorney General Opinion AG File No 1979 WL 34468 (Colo. A.G. Aug. 13, 1979).

While executive orders are presumed to be constitutional, it is important to understand that they cannot violate the separation of powers doctrine. The careful researcher should also verify that the original executive order was signed and dated by the governor and that an appropriate seal (in recent times, embossed gold) was affixed.

Access and preservation

Currently, when an executive order is issued, it is posted on the governor’s website, and it remains there at least for the duration of the administration. Thereafter, the page is digitally preserved by the State Archives. Print originals are periodically transferred from the governor’s office to the Secretary of State, which scans the individual orders and holds them for three years. After three years, the originals are deposited with the State Archives for permanent access and preservation.

Current applicability

Determining whether an historical Colorado executive order is still in effect can be tricky and time-consuming. Colorado executive orders exist variously in print and electronic formats, and there is no one index or database that can be searched for a complete answer. Technology certainly exists that could combine all existing orders into one searchable digital set; however, the compilation process is not exclusively one of migrating data. In addition to format differences—print versus electronic, hand-written versus typed copy, differing sizes and arrangements of books, as well as databases of differing ages and code languages—there are also practical and legal barriers that must be overcome. One practical issue involves how specific governors have chosen to locate amendments, replacements, and revocations to prior executive orders across letter designations. In other words, changes to previous B orders are sometimes placed in the D order category, etc. Such anomalies place a premium on compiling everything before cross-referencing it which will take some time. It will also require authorization and legal acumen to certify an official digital set. Until the time when such a set is completed, determining the currency of an existing executive order is at least a two-step process. First, one must consult the current governor’s website to search for recent changes. Second, one must visit the State Archives to view the historical collection to look for changes or revocations during the time period in question. Should you have additional questions, the reference and research staff at the Colorado Supreme Court Library is available to assist you in your search.

Sources of Information:

  • The authors wish to thank the professional staff of the following offices for their expert assistance: the Governor’s Office of Legal Counsel, the Governor’s Office of Boards and Commissions, the Secretary of State’s Office, the Colorado State Archives, the Legislative Council of the Colorado General Assembly, and the Office of Legislative Legal Services.
  • For a cross-reference to legislative oversight of Colorado’s principal departments within the executive branch, see article 7 of title 2 of the Colorado Revised Statutes.
  • Gov. John Hickenlooper, Executive Orders: colorado.gov/cs/Satellite/GovHickenlooper/CBON/1251616203275
  • Administrative Organization Act of 1968, C.R.S. § 24-1-101, et seq. (2014).
  • State Administrative Procedure Act, C.R.S. § 24-4-101, et seq. (2014).
  • C.R.S. §24-8-103. Access to information (2014).
  • Black’s Law Dictionary (10th ed., 2014).
  • OLLS Memorandum, Scope of Governor’s Power to Issue Executive Orders, September 29, 2014: tornado.state.co.us/gov_dir/leg_dir/olls/PDF/Scope%20of%20Governor%27s%20Power%20to%20Issue%20Executive%20Orders.pdf
    Colorado State Archives: colorado.gov/archives
  • Department of Personnel & Administration, State Archives and Public Records, Records Disposition Schedule: colorado.gov/pacific/sites/default/files/07-14Elections_0.PDF
  • Colorado Attorney General Opinion AG File No 1979 WL 34468 (Colo. A.G. Aug. 13, 1979).

 

By Dan Cordova and Chris Hudson. Dan Cordova is the Colorado Supreme Court Librarian. Chris Hudson is the Deputy Colorado Supreme Court Librarian. They can be reached at (720) 625-5100 or library@judicial.state.co.us.

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