Changing Colorado’s Minimum Wage Law

This year may be a different story

Twice before, the General Assembly has considered legislation that purported to allow local governments (municipalities and counties) in Colorado the ability to set a minimum wage different than the state minimum wage.  Each time, the legislation failed in a split legislature. In 2019, a different outcome is likely.

american bills business cheque

The premise behind the prior legislation was to repeal a statute enacted in 1998 that specifically preempts local governments from setting their own minimum wage. The Colorado Municipal League was neutral on both the 1998 preemption bill and the 2015 and 2018 attempts to repeal it.  When the preemption was enacted, prior Colorado Supreme Court decisions on wage regulation already seemed to clearly preempt any local variances, and the subsequent enactment of a minimum wage in the constitution clearly established the floor. In 2019, the minimum wage is $11.10 and it will rise to $12.00 in 2020. The attempts to repeal the preemption would not have changed prior case law or the minimum wage established in the constitution.

However, this year things may be different.  HB 19-1210 was recently introduced that both repeals the existing preemption and grants specific authority to local governments to set a higher minimum wage than the state. The grant of authority is the element that has been missing, and CML expects that the legislation will be fine-tuned even more on the authority granted to local governments.

Given the high degree of local control in the legislation, which seems destined to be enacted this year, CML has thrown support behind the bill. Yet, wage regulation is a tricky business, even at a statewide level, and the League’s support should be understood as support for the authority to be held at the local level, even if it means nothing changes. That may not completely align with the goals of the HB 1210 proponents that argue $11.10 – and ultimately $12.00 on January 1, 2020 – is not a living wage and that it must be allowed to exceed the state’s minimum in areas of the state with the highest costs of living.

CML is agnostic as to whether or not the minimum wage should be increased but fully supports the authority granted to local governments to decide. If HB 19-1210 is signed into law, then it will be incumbent upon municipal leaders  to engage with employers and citizens in their communities, as well as with other municipalities and counties, on whether or not and to what extent there should be local variances. They will have to consider the ripple effects in the employment market of even one municipality or county increasing the minimum wage and work together. This kind of collaboration occurs every day in local government on a number of issues that most people are not even aware of. Thankfully, there are other areas of the country from which experience and data can be studied.

HB 19-1210 will get its first hearing on March 6 in the House Transportation and Local Government Committee. It is very likely that the legislation will move quickly through the House and possibly even the Senate. If enacted, the legislation would become effective on August 2, 2019.

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Wayfair in Colorado

Slow and steady wins the race

Colorado’s unique system of sales tax collection gets much attention from both within and outside of the state, but that attention has grown even more since the June decision by the U.S. Supreme Court in South Dakota vs. Wayfair. The result of upholding South Dakota’s scheme of requiring remote sellers meeting certain criteria to collect and remit sales taxes is an opening for all states to require the same.

Brick and mortar has a chance at a level playing field with “click and order.”

But it is just that…an opening – and for Colorado’s self-collecting home rule municipalities, it means pumping the brakes a bit before launching local requirements for remote sellers to get local sales tax licenses.

Background

Colorado’s unique, decentralized sales tax collection process consists of state sales tax collection on behalf of itself, statutory municipalities and counties with sales taxes, a handful of special districts with sales tax authority, and 24 home rule municipalities that do not self-collect.  In addition, there 71 home rule municipalities choosing to self-collect.  This creates some additional, yet not insurmountable hurdles, as it relates to collection of local sales taxes from remote sellers in such a way that does not violate the basic tenets of Wayfair.

The Supreme Court, in overturning prior precedent in the pre-Ecommerce Quill vs. North Dakota (1992) decision, held that the prior requirement of “physical presence (nexus)” was an incorrect interpretation of the Commerce Clause. The Supreme Court noted that South Dakota’s system was designed to prevent “discrimination or undue burdens upon interstate commerce.” There were three keys to this holding:

  1. Establishment of a de minimisthreshold for application of state law to a remote seller
  2. The law was prospective and not retroactive
  3. South Dakota’s adoption of the Streamlined Sales and Use Tax Agreement (SSUTA).

This is where things get interesting because Colorado has not adopted the SSUTA and never will, if municipalities have any say. The SSUTA requires all entities to adopt a single rate and the state’s base for a single point of collection.  The only problem is that both statutory and home rule municipalities may have established different tax rates, and home rule municipalities have not given away the over 80 sales tax exemptions that the state has over several years of special interest pressure. Simply put – adopting a single rate and the state’s base would mean a significant fiscal impact to municipalities that have not granted exemptions in the same free-spirited manner as the State of Colorado. So SSUTA will never make sense in Colorado, although some of the principles of simplification it promotes could possibly be tailored to meet Colorado-specific conditions.

The Supreme Court recognized the following aspects of SSUTA:

  • Standardizes taxes to reduce administrative and compliance costs
  • Single, state-level tax administration
  • Uniform definitions of products and services
  • Simplified rate structures
  • Related uniform rules
  • Remote seller access to state-funded tax administration software and associated immunity from audit liability for using it

To be clear, the Supreme Court did not require that states had to utilize SSUTA to require remote sellers to remit sales tax, but the Court certainly established the characteristics of South Dakota’s system it found helpful in order to ensure there is no barrier or impediment to interstate commerce. Colorado will have to be wary of these issues moving forward at both the state and the local level.

Some pundits believe Colorado is already a lawsuit waiting to happen. One recent blog post from Colorado LegiSource opines that the “constitutional authority of home rule jurisdictions to levy and collect taxes is arguably an obstacle to statewide uniformity” and that the “Supreme Court could find that a fractured collection requirement is discriminatory or an undue burden to interstate commerce.”

Earlier this month, a senior manager of state and local tax for KPMG told the 2018 California Tax Bar and California Tax Policy Conference attendees that “we’re waiting with bated breath to see what happens in Colorado…there are many home-rule jurisdictions in Colorado [that] essentially operate their own little kingdom of sales and use tax, and they are very aggressive, and a lot of people are waiting to see what they will do.” She and other panelists peg future legal battles on non-SSUTA state’s choices and whether or not they will lead to lawsuits claiming they impede interstate commerce. They surmised Colorado will get sued first, helping to clarify the limits of taxing authority for all other non-SSUTA jurisdictions.

However, these scenarios only become true if individual municipalities attempt to require remote sellers to obtain a local sales tax license for sales occurring within their jurisdictions. Self-collecting home rule municipalities are aware of the issues and are taking steps to prevent Colorado from being the test case that folks seem to have already decided it will be. If legislation is required in the Colorado General Assembly, then municipalities through CML will lead the effort, as opposed to being  forced to react to notions by others of what municipalities should be doing.

Next Steps

Discussions have been ongoing since June within and among Colorado’s 71 self-collecting home rule municipalities.  More recently, CML’s Sales Tax Simplification Committee – which is made up of a large number of finance directors, tax administrators, and revenue managers – has been meeting to discuss how to move forward. Already, there is a growing consensus that self-collecting home rule municipalities will have to have a uniform approach to collections from remote sellers, with the exception of those remote sellers that choose/are convinced to voluntarily obtain a local sales tax license.

The committee will be meeting again in December and will revisit a very similar discussion that occurred back in 2013 when CML negotiated legislation to allow self-collecting home rule municipalities to be able to collect from remote sellers if the Marketplace Fairness Act passed. Of course, it never did. What is clear is that the statute cannot just be modified to cut “MFP” and paste “Wayfair.” It may provide a “process template” for coming up with methodology to allow self-collecting municipalities to receive taxes from remote sellers that do not voluntarily get a local tax license. That said, all possibilities will be explored, and no stone will be left unturned.

Taking Our Time is Important (aka “Staying off the front page”)

There is certainly significant interest at the local level to begin remote collections sooner rather than later, and local businesses that have continued to weather the current unfair playing field deserve results. It may take some time to do this right, but it is worth it to ensure the least possible chance of litigation.

No mayor wants to be on the front page of the Wall Street Journal or the Denver Post trying to explain a Wayfair-style lawsuit against his or her municipality for going rogue and trying to mandate local sales tax compliance. Such a lawsuit could also result in all governmental entities in the state being enjoined from collecting from remote sellers. That is not a popularity contest any local official will want to enter.

Meanwhile, it will be important for the remainder of the self-collecting municipalities to adopt the Standard Definitions created by the CML Sales and Use Tax Simplification Committee, as uniform definitions are one of the SSUTA components notably identified by the Supreme Court. Of concern, though, is that the State of Colorado will still have different definitions and will need to find a way to adopt the standard definitions that municipalities took the lead on creating.  If 71 municipalities and come to agreement on them, then the state should be able to find a way to get on board, as well.

Another area of concern at the state level is the more than 80 sales tax exemptions given by the state over the years, and the constant drumbeat every legislative session of interest groups asking for more. A downside of uniform state collection is that self-collecting municipalities would likely have to accede to the state’s reduced base on taxes collected from remote sellers on their behalf.

Conclusion

South Dakota vs. Wayfair has most certainly opened the door to collection of remote sales taxes within Colorado. It is critical that careful thought and a uniform approach are agreed to before Colorado municipalities walk through it.

The home stretch

2018 legislative session ends on May 9

home-stretch

With three working days left in the 2018 legislative session after today, compromise on a couple of huge issues is tantalizingly close. Politics, feelings, power plays, and good, old-fashioned strong-arm tactics could still change the final outcome.

Transportation

After the Senate unanimously passed SB 18-001, the House has taken its time working on a package that incorporates three main components necessary for a statewide transportation funding solution:

  1. A shot in the arm of one-time revenues for state and local transportation and transit
  2. A timeout on a referred bonding question, in order to allow a chance for a 2018 citizen initiative (Denver Metro Chamber/Colorado Contractors Association sales tax proposal) to make the ballot and pass
  3. A 2019 referred bonding question (if the 2018 effort is unsuccessful) that – if passed – leaves no part of the state behind. State and local transportation and transit will receive funding.

The key in the House has been working to calm fears that the funds necessary for one-time and ongoing funding will not impair education funding, and the House amendments appear to hit the mark. SB 18-001 now requires the establishment of a $335 million reserve account if a 2019 bonding measure is approved. This will ensure that the state’s new obligations to transportation will not impact other areas of the budget in the event of an economic downturn. The bill still has to get through the full House, where additional tweaks are expected. However, the goal of the sponsors is to work with the Senate sponsors and deliver a bill that the Senate will agree to and avoid a conference committee.

Municipal courts and public safety

The drumbeat continued in 2018 with multiple bills, mostly backed by the American Civil Liberties Union (ACLU), with which CML continues to work with to try to meet in the middle. Key bills include:

  1. HB 18-1353 that provides state funding toward the unfunded mandate created by the state with HB 16-1309. Municipal courts will apply to the Department of Local Affairs (DOLA) for the funds to reimburse the mandate for defense counsel at first appearance. A small portion of the funds will also go to the Office of Alternative Defense Counsel (ADC) to prepare for implementation of SB 18-203 (below).
  2. SB 18-203 has been perhaps the most challenging bill of the session on this issue because, once again, an ACLU-backed bill is tinkering with aspects of municipal court operations. The final bill will require defense counsel for indigent defendants in one of three ways – but will allow municipal courts to continue contracting with a public defender of their choice. The only requirement is an evaluation by ADC or the court’s choice of other methods. The funding mentioned above in HB 18-1353 will allow ADC to determine how much to request to fund the evaluations once required. Faced with certain passage of this bill, CML worked to provide as many options for courts as possible, rather than risk a massive unfunded mandate ending up on the books. Whether or not the process mandate is an infringement of home rule authority for those municipal courts in home rule municipalities is a matter for the courts, should any municipality choose to pursue it.
  3. HB 18-1404  deals with internal affairs investigations and the accessibility of those records to the public. The introduced version of the bill was particularly troubling. Again, faced with the prospect of bad bill making it through the process, CML worked with the sponsors and other legislators to amend the bill such that the League could remove opposition. The bill is in the Senate now, and there are still efforts to clean up a few points that need clarity.

PERA

The unfunded liability of the Public Employees Retirement Association (PERA), with 27 CML-member municipalities included in the Local Government Division, is somewhere between $32 – $50 billion, depending on the source. PERA has become unsustainable in its current state, and months of effort have culminated in SB 18-200 that passed the Senate and House with different solutions and is now in a conference committee. The atmosphere around this bill is markedly different from many others, as legislators seem to fully understand that the must come to a compromise this year to stop the bleeding.  The key issue for CML is protecting the CML municipal members and their employees from unnecessary additional contributions because the Local Government Division is poised to be fully funded much sooner than the others.  It appears the League will be successful in that regard, although attention to the conference committee process is necessary to ensure no problematic language gets stuck into the committee report.

Beer and Liquor

The conundrum described in a recent CML Legislative Matters blog is the subject of SB 18-243, although the solutions proposed are not unanimously supported.  SB 16-197 changed the landscape of alcohol beverage licensing forever, with the biggest changes yet to come on January 1, 2019. At that time, existing fermented malt beverage (FMB) licensees that are only allowed to sell 3.2 beer will be able to sell malt liquor – or full-strength beer. Whether they realized the significance of that provision when it passed in 2016 or not, Colorado’s retail liquor stores became very concerned about it after a required working group created by SB 16-197 failed to recommend a solution to the legislature the retailers wanted. While SB 18-243 contains some of the consensus recommendations of the working group, the version that passed the Senate and is now under consideration in the House has some distinct additions to those statutes.

The League has managed to negotiate out some problematic language and is neutral on the legislation. Language CML asked for that ensures no new FMB licenses can be within 500 feet of a school (or at a distance less than that, if determined by the municipality) is included in the bill. It is also the subject of an “insurance policy” bill to be introduced today and pushed through in the event that SB 18-243 falters.

In the last few days, the bill is now a battle of Goliaths from various aspects of the alcohol beverage and retail industry.  Once the final outcome is known, the League will fully evaluate where liquor licensing in Colorado is headed and how municipalities may be impacted

When the dust settles…

All of the remaining bills alive, as well as logs of those bills CML supports and opposes, are on the CML website’s current legislative session page.  Shortly after the session ends, CML will publish a newsletter article alerting members of legislation that passed is already or will soon be effective. In early June, a full compendium of all the laws enacted affecting Colorado municipalities will be published and available on CML’s website.

Until then and any time, feel free to contact any of the advocacy team members on bills or issues in which you have an interest or on which you have questions.

Keeping Colorado mussel free

musselHB 18-1008 recently passed a key hurdle by passing out of the Senate Finance committee on a 4-1 vote. A product of the Water Resources Review Committee, the legislation  helps to ensure continued funding of Colorado Aquatic Nuisance Species program (ANS) and protection of the state’s lakes and reservoirs. The program was first implemented in 2008 to prevent the introduction of zebra and quagga mussels by inspecting watercraft before they enter our waterways.

Due to the volatility surrounding Colorado’s severance tax revenue in recent years, the Colorado Division of Parks and Wildlife determined that using this revenue as it primary funding source left the program vulnerable and unable to confront the very real dangers an infestation might cause. The Mussel-Free Colorado Act provides a stable funding source of $2.4 million for the ANS program every year by requiring boat owners to purchase an ANS stamp ($25 for residents and $50 for non-residents).

After quagga mussel larvae were discovered in Green Mountain Reservoir in Summit County last summer, the Colorado Department of Natural Resources, state legislators, and local governments across the state acquired a heightened sense of urgency regarding the safety of our waterways and water infrastructure from these invasive species.

Zebra and quagga mussels are not native to the nation’s rivers, lakes and reservoirs and are considered our most serious aquatic nuisance species threat. They cause enormous problems for municipal water infrastructure by attaching to, clogging and impairing water storage, treatment and distribution systems.

Thus far, Colorado’s reservoirs have been able to resist a mussel infestation thanks largely to this vigorous inspection program. In states where infestations have occurred, controlling the damage that mussels inflict on municipal infrastructure becomes a permanent and expensive part of normal operations costing millions of dollars annually.

Without this important program municipalities and municipal water providers will be placed in the very difficult position of risking an infestation in its reservoirs or closing them off to recreational boaters entirely. With the recreational boating community contributing over $800 million to Colorado’s economy each year and much of those dollars going directly back to cities and towns in close proximity to these reservoirs – neither is a good option.

Fortunately, HB 18-1008 has received broad bipartisan support in both chambers of the general assembly with both parties acknowledging the importance of this program. CML will continue to support the legislation going forward and expects to see the legislation on the Governor’s desk in the next couple of weeks.

Use specific ownership tax for state transportation funding? Forget it.

We’re lucky in Colorado. There has always been a sense over time of doing things together between the state and municipalities. Home rule is respected, and the ability of city and town leaders to make decisions in their own communities to advance their own best interests is a cherished value.

This partnership is especially reflected in state-shared revenue relationships.

We are a fiscally decentralized state. Municipalities raise far more revenue locally and receive much less in state shared revenues. However, there are some significant examples where the state does step up to the plate to aid cities and towns, and the Highway Users Tax Fund (HUTF) is Exhibit “A” in that regard.

The state shares the gas tax and various motor vehicle registration fees with municipalities and counties on a formula basis. In 2018, we expect this amount to be around $144 million. This sharing arrangement has been in place for decades and rarely has been questioned. There is also a set aside for Colorado Department of Transportation (CDOT) transit grants, municipalities may use their HUTF proceeds for multi-modal projects, and the General Assembly has authorized regional sales and property taxes for transit. In the area of aviation, the state shares a portion of the aviation fuel tax with municipal airports.

It is an admirable system which has stood the test of time. Once again, it is time to “pay the piper” with additional transportation and multi-modal funding both for CDOT and for municipalities.

Finding the right funding solution

No one at the Capitol disagrees that something needs to be done; the challenge is crafting an appropriate solution.

We came awfully close last session with a bi-partisan bill crafted by Senate President Kevin Grantham, R-Cañon City, and Speaker of the House Crisanta Duran, D-Denver. It would have raised significant new dollars through a referred state sales tax increase more than doubling the amount of money each city and town is currently getting under the HUTF formula; and municipalities could have used the money for all sorts of local needs in transportation. Unfortunately, it did not pass.

At the moment there are a number of proposals being floated under the Gold Dome and by various interests outside the Capitol through the initiative process. Many are well intentioned. However, there is the law of good intentions and the law of unintended consequences. There is one glaring example that needs to go away, and quickly.

Using the Specific Ownership Tax is the wrong approach

According to a recent story in the Denver Business Journal, there are groups with which we are familiar circulating the idea of tinkering with the specific ownership (SO) tax for statewide transportation funding. They have recently been doing some statewide polling. The SO tax is assessed on motor vehicles annually based upon value and age. It is treated as a property tax, and it is generally distributed back to property taxing local governments (municipalities, counties, special districts, and schools) based upon the percentage each local government collects in property taxes as a percentage of all property taxes collected in that particular county. It has been a critical source of local revenue since 1937, and local governments can use the revenue for whatever purposes they deem.

taxbenefits

To those outside special interest groups enamored with this idea, we say, “drop it.” SO tax is a local government revenue source in lieu of a property tax – and for various local governments like school districts, a very important local revenue source. To raise it and use it for some other purpose breaks with a time-honored a state and local partnership as it relates to the SO tax.

Messing with the SO tax is a non-starter – certainly for municipal interests, and we think for other local governments, as well. It will be difficult enough to find a statewide solution without unnecessarily expending effort on tapping an inappropriate source of revenue. As it is said at the under the golden dome, “to be continued.”

CML Executive Director Sam Mamet and CML Legislative & Policy Advocate Morgan Cullen contributed to this blog

Modernizing Colorado 811

A significant stakeholder effort that began shortly after the 2017 legislative session led to the recently introduction of SB 18-167 to modernize Colorado’s 811 Call-Before-You-Dig Program. The program was created to prevent personal injury and property damage resulting from unintentionally harming underground facilities and utilities during excavation.

Due to a number of extenuating circumstances, there has been a concerted effort to transform Colorado 811 into a true one-call program in recent years. Currently, Colorado is the only state in the country that does not have a notification program that alerts all relevant facility owners when a locate request has been received.

SB 18-167 would eliminate Colorado’s tiered membership provisions after a two-year phase in period, to ensure all facility owners are receiving locate requests directly from 811. The bill would also create a 12-member safety commission with broad oversight and enforcement authority over the 811 program.  The commission would be composed of representatives from local government, facility owners, excavators and the CEO of the Notification Association.

CML sees a number of upsides to the current proposal, including the improved public safety and enhanced protection of municipal infrastructure. However,  we have also shared concerns about how this new safety commission would oversee municipal utilities and the cost of the transition for some of our member municipalities.

Last fall, the Colorado Association of Municipal Utilities (CAMU) objected to the prospect of a municipality being regulated by a state designated safety commission that they assert would have been an unconstitutional delegation of authority reserved to home rule municipalities and their respective utilities. Other municipalities have raised concerns that the changes would inundate their offices with an overwhelming number of locate requests that could cost municipal utilities hundreds of thousands of dollars per year.

To address these issues, CML has advocated for exemption language in the bill to exclude municipalities from the commission’s oversight authority in exchange for a requirement that they implement their own set of enforcement guidelines. We are also in the process of negotiating an amendment to give the safety commission a more prominent role in increasing the efficiency of 811 and implementing new policies that will help save facility owners and excavators valuable time and money over the long-term.

SB18-167 recently passed the Senate Transportation Committee on a 4-1 vote and will have to go through the Senate Finance and Senate Appropriations Committees before it goes before the full Senate.  CML will continue to monitor the legislation, on which the League is now neutral, and ensure that the final result will be positive for Colorado’s cities and towns.

Broadband for…some, if you’re lucky!

If you lived in an “average area” of the United States in 2011, you would have been thrilled to get broadband download speeds measuring 10Mbsp.  According to the FCC in 2011, that was the average broadband speed in the US.  By 2014, the average increased to 31Mbps.  Four years later in 2018, the FCC defines the minimum speed for broadband at 25Mbps down and 3Mbps up.

And then there is SB 18-002 – legislation that is meant to simply repurpose a large portion of the money collected on your phone bill to provide landline statewide and instead use it support private investment in modern broadband in rural Colorado. The sponsors are Sens. Don Coram, R-Montrose, and Jerry Sonnenberg, R-Sterling; and Speaker Crisanta Duran, D-Denver, and Rep. KC Becker, D-Boulder. There is no doubt about their resolve to crack the grip CenturyLink has had on the high cost support mechanism (HCSM) to make that money available for broadband. Unfortunately – with so many telecom lobbyists circling in chummed waters – the bill includes more than just HCSM money for broadband.

To be fair, the competition test and the process for determining an unserved area in current statute – thanks to the 2014 deregulation legislation that was supposed to open the floodgates to broadband deployment by the private sector – are much improved in SB 2. In addition, the bill came out of the Senate with a more immediate and more significant transfer of HCSM revenue for rural broadband grants

Now for the “not so good part.” Various elements of the telecom industry have stated they want to build modern broadband as soon as possible in a fair process that will help rural Colorado inch closer to parity with urban areas of the state. Inexplicably, an industry-backed amendment uncouples the statutory definition of “broadband network” with the FCC minimum speeds of 25Mbps down/3Mpbs up.

The result is that the Broadband Deployment Board may be required to give grants for broadband network deployment at speeds that are on par with the 2011 average speed. CML agrees with Colorado Counties, Inc. that this change is “effectively moving the state backwards with respect to establishing adequate service.”

As SB 18-002 moves through the House, the question will be whether or not the goal is to assist the private sector in building sustainable rural broadband networks that are forward-looking or just to subsidize rollout of networks reflecting the best that 2011 has to offer in 2018 and beyond. As local governments and private providers know all too well, the challenges that face rural Colorado make implementation of fast, reliable broadband more challenging than in urbanized areas.

Some have criticized the goal of 25Mbps as building a “Cadillac” network – easy to say when most of the folks saying that have 250Mbps or faster from their Denver Metro area providers. Perhaps a better comparison is 10Mbps as a 1976 Ford Pinto…when maybe folks should at least get a 25 Mbps 2014 Chevy Cruze.

No matter what, SB 2 needs to pass to ensure that HCSM revenue is available to private providers to get Broadband Deployment Board grants to bring better broadband to unserved areas of Colorado. Colorado communities will be watching very closely to see if the all the stated good intentions turn into fiber in the ground and fast, modern broadband for all.