Title Board on Feb. 5

Title Board members Julie Pelegrin (left) and Theresa Conley listen to testimony during a Feb. 5, 2020 hearing.

The state’s Initiative Title Setting Review Board on Wednesday heard objections to four similar ballot measures establishing an out-of-school learning opportunities agency, and revoked the title for two of them.

Kenneth Nova, a Boulder resident, protested the titles set on Jan. 15, citing elements he felt were misleading to voters. Nova’s attorney, Thomas M. “Trey” Rogers III, told the three-member panel that it was a violation of the Taxpayer Bill of Rights for the title to mention that the measure would raise taxes on corporations, and was inappropriate to only list some, but not all, of the programs to be funded in the measures.

“They’re fine with a longer title when it suits their political purposes,” said Rogers. “They’re not okay with a longer title when we’re describing what the measure does and the central features to the voters.”

Rogers also focused on a drafting error in one variation that referred to “eligible contributions” from income tax credits, while the proposal in question did not establish the tax credits as a source of revenue. Although two of the initiatives did choose that funding mechanism, the version with the error sought revenue through eliminating the net operating loss tax deduction for corporations.

“It doesn’t appear that ‘eligible contribution’ is a reference to revenue generated by the elimination of the net operating loss,” he argued. “They can’t correct their error here before the Title Board. If this measure passes, the General Assembly will have to decide what an ‘eligible contribution’ is.”

Attorney Benjamin J. Larson, representing the proponents, admitted to the drafting error, but believed the clarifications to the title that Nova was seeking were not crucial to voters' understanding of the measure.

“Most of these issues, we believe, are without merit and are generally directed at increasing the length of the titles for political reasons,” he said.

The proposals, backed by the Donnell-Kay foundation and whose designated representatives are Amber Drevon of Aurora and Charles Dukes of Denver, would establish an independent agency to administer parent-directed funds to be used for out-of-school experiences like tutoring, special needs support and career or technical training.

One area in which Rogers found traction was in his client’s contention that two of the proposals violated the constitutional mandate for initiatives to adhere to a single subject. In those variations, money for the agency would come from income tax deductions. However, the proponents attempted to backfill the lost revenue from the state by limiting or eliminating the net operating loss deduction, raising taxes by up to $223.7 annually.

“Eliminating the net operating loss deduction won’t put another dollar into the program. In fact, it has nothing to do with the program,” Rogers said. “This measure would draw in supporters of higher corporate taxes, even if they don’t support out-of-school learning opportunities. This kind of maneuvering in a measure is prohibited.”

Larson shot back that “this isn’t some sort of Christmas tree provision that would sneak in some huge net tax gain that people wouldn’t know about.” He said that the ability existed to offset the revenue losses from the measure, “and that is the connection between the two.”

Rogers’s concern found support among Title Board members. David Powell, the representative of Attorney General Phil Weiser, doubted whether the backfill mechanism was “necessarily or properly connected” to the initiative. Theresa Conley, the representative of Secretary of State Jena Griswold, said she was also hesitant.

Siding with the proponents was Julie Pelegrin, representing the Office of Legislative Legal Services. If designers of a ballot initiative wanted to say, “‘so that we have an impact of no more than X amount, we’re going to reduce this and increase that,’ I think within the scope of a single subject of creating a program, it’s hard for me to rationalize or come to a particular reason why a proponent could not do that,” she explained.

The board voted 2-1 to find that the two initiatives with the backfill mechanism, #169 and #171, violated the single-subject rule. Pelegrin voted no.

On the remaining initiatives, #168 and #170, the board modified the titles to reflect that the program would sunset in 2035 and that the out-of-school learning opportunities agency would be independent of the Colorado Department of Education.

“We don’t want voters to think this is just going into the Department of Education,” Larson said in asking for the change. “Some voters, I don’t know why, have a problem with the Department of Education.”

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