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Amendment 38

September 25, 2006

My first conduit deep into the language of Amendment 38 was provided by the Legislative Council’s Fiscal Impact Statement about the amendment. In analyzing the effect on state revenues, the statement said: “Amendment 38 could increase fine revenue to the state General Fund …”

Fines? I read on: “The proposal imposes a $3,000 fine for each offense by a district or government official or employee that discusses a pending ballot issue once petition forms are ready for signatures.” Colorado has hundreds of local government entities.

I followed this down the rabbit hole and saw how Amendment 38 is an anti-government fantasy that could come true. On the face of it, the amendment concerns Initiative and Referendum petitions, expanding citizen petition rights to all levels of government and relaxing petition rules.

The amendment is also a tool chest with wrenches to toss into the works of government at every level — state, county, city, fire districts, even library districts.

I followed the rabbit hole to the provision that no district staff shall use district resources, equipment, or staff time to discuss pending petitions. What fun for an information center like the library.

Amendment 38 expands current restrictions on district advocacy, making mere discussion of a pending issue illegal. Currently, the staff of a public entity may legally answer “unsolicited questions” about a ballot issue.

The protection for “unsolicited questions” was added to the law after an entrapment campaign in which activists called public employees at work to lure them into making comments about an issue … in violation of the “public funds” statute.

But that’s not all: “No district resources or staff time shall aid accused violators or repay expenses.” Thus, employees merely “accused” of a violation are entirely on their own. No public resources may be used to defend public employees, despite their being innocent in the eyes of the law until proven guilty.

And once they are proved innocent, the law still prohibits repaying of their defense expenses by the district. A public employee can follow the spirit and letter of the law, but any complainant with a little time and nothing else to do can freely cause one this expense.

But wait … there’s more: “Each district and other violator shall separately pay the state general fund at once, per event and without offset, the greater of $3,000 or 3 times the value of such spending, use, aid, and/or repayment.”

So, for example, every time an anti-government activist entraps a local public employee at work into answering his question about a pending ballot issue, both the employee personally as well as the public entity must each pay the state General Fund $3,000.

Currently, penalties are designed to repay the government whose funds were improperly spent. Under Amendment 38, the government is not repaid but is also further depleted by fines paid to the state General Fund. This is incomprehensible public policy and serves to highlight the wacky, vindictive nature of this proposal.

I’ve focused on one arcane aspect of Amendment 38, but it is full of awkward and unclear language and intent that will be an attorney gold mine for years if it is passed.

Despite the amendment’s claim to increase petition rights, section 3d actually reduces the petition rights of municipal electors quite dramatically. However, it greatly increases the delay and cost that a few people can cause to even the slightest government action — and this is really the point of Amendment 38. It’s not designed to improve anything.

It almost makes me want to say, “If you don’t like America, go someplace else.” Please vote carefully.

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