One element of Gov. Jared Polis' budget request for a family leave program for state employees has run into resistance from the Joint Budget Committee, raising questions of not only whether the state can afford it, but whether the governor has the statutory authority to mandate it.
On Jan. 23, the JBC looked at what’s known as common policy figure setting. That’s when they determine items such as salary, benefits and other programs that are common to employees in most branches of state government.
The committee started off by rejecting, on a unanimous vote, Polis’ proposal for paid family leave for state employees.
Polis asked for just under $10 million for the new benefit for “critical positions” within the state government. That’s about 92 different job classifications, according to a JBC budget document, about half of them in healthcare-related positions.
But such a program, while supported by state employees and Democrats, has never been set up as a benefit for state employees, and JBC analyst Alfredo Kemm indicated there were too many questions left unanswered: How would it work? How many weeks? What kind of criteria would have to be in place for someone to apply, such as taking care of a sick family member, adoptions, or illness of the employee?
Those criteria are all included in what has been proposed for a mandatory paid leave program for the private sector that Democrats favor.
The Polis administration on Monday said the state employee program would provide up to eight weeks of paid leave per year, to run concurrently with leave available through the federal Family and Medical Leave Act. Criteria for leave, according to a Department of Personnel and Administration document dated November 1, would include birth, adoption, foster placement, or bonding with a new child; serious health condition of a spouse or family member, including domestic violence; or qualifying military exigency.
Kemm recommended the committee reject the request since “there is no authorizing statute for this specific benefit.”
The Polis administration rejects that argument, claiming they can do it without authorization from the General Assembly. A response from the Department of Personnel and Administration, included with the budget document, said “the State Personnel Director is granted the authority to prescribe procedures for the types, amounts and conditions for all leave benefits, that are typically consistent with prevailing practices” under Colorado Revised Statute 24-50-104.
However, even the statute cited by DPA says the General Assembly “shall approve any changes to leave benefits granted by statute before such changes are implemented.” And the statute is specific about how much leave a state employee can earn, especially sick leave.
Kemm said the guidance he’d received from Legislative Legal Services was that there was no authority to do the paid leave program proposed by the administration.
“There are leave policies specified in statute, and those are the only items the legislature has authority over,” Kemm said. DPA’s opinion appears to be that anything that isn’t in there “is open game, as long as it is considered prevailing practices,” a position also supported by the Attorney General’s office in a submitted opinion.
“If the state personnel director believes it’s a prevailing practice, it’s in her authority to create the leave policy administratively,” Kemm said, in describing the opinion.
So is a paid family leave policy prevailing for state government employees? Not according to the National Conference of State Legislatures, which says that only 14 states offer anything close to it.
“This does not meet the definition of prevailing,” Kemm said.
Kemm also said he had no idea how the administration came up with the costs for the program, and said it had not been proposed in a way that could provide consistent benefits to state employees.
Kemm had another word of advice for the JBC: “Do not cede legislative authority” on this, he said, suggesting the JBC avoid running a bill to set it up, given the amount of testimony that would result. It’s better to leave it to a committee of oversight within the legislature, he said.
The JBC agreed unanimously with the request, and rejected the request on a 6-0 vote.
In a statement, Polis spokesman Conor Cahill said the "Governor's proposal to provide paid family and medical leave for our public servants is part of efforts to make the state an 'employer of first choice.' This unfortunate decision by the Joint Budget Committee did not acknowledge the valuable role state workers play in our communities.
"Although the Governor is disappointed that the JBC has now twice denied this administration’s efforts to support our state employees, even though DPA has a legal opinion that’s clear cut on the legal authority to extend this benefit, we are hopeful that they will live up to their stated values and reconsider the importance of our state employees and provide this important benefit.”
That wasn’t the only bad news for the Polis administration last week.
On Jan. 24, the JBC received an overview of its available general fund dollars for both the 2019-20 and 2020-21 budgets, and compared supplemental requests and the next year's budget asks to the most recent revenue forecasts.
The good news is that even with $73.7 million in requests for more money from state agencies for 2019-20, including $9.8 million to deal with the pending closure of the private Cheyenne Mountain Re-Entry Center, the state has enough left over in 2019-20 to cover its supplemental requests.
There’s even enough to pay for the $10 million request from the Polis administration for Fisher’s Peak, the newest state park, as well as to address other state park infrastructure issues.
The bad news? Polis’ 2020-21 request, based on current revenue forecasts from Legislative Council economists, is a budget-buster. In JBC speak: “General Fund revenues are not sufficient in FY 2020-21 to cover requested appropriations, the Governor’s placeholders, and the Governor’s proposed increase in the statutory reserve.” The shortfall is estimated at $134.8 million, according to the JBC staff analysis.
That number could change when the March revenue forecast comes out, the one the JBC uses to make final tweaks to the budget. But that’s not due until March 17, well after most of the major decisions have come and gone.
The JBC relies on the forecasts from their own Legislative Council economists, which tend to be more conservative, than the forecasts produced by the Governor's Office of State Planning and Budgeting .
"Under the OSPB forecast, there is no budget shortfall," countered Cahill. "The budget the Governor submitted on November 1st met the constitutional requirements of a balanced budget, in fact the budget he submitted in November left millions of dollars in room for legislative prerogatives. On Friday, the JBC staff published an analysis of available funds under the Legislative Council forecast. It will be up to the Committee to choose either OSPB or Leg Council’s updated forecast in March."