Insights for Practicing Before Local Government Boards and Commissions in Colorado - November 2007 - Government and Administrative Law
| Publication year | 2007 |
| Pages | 53 |
2007, November, Pg. 53. Insights for Practicing Before Local Government Boards and Commissions in Colorado - November 2007 - Government and Administrative Law
November 2007
Vol. 36, No. 11 [Page 53]
Government and Administrative Law
Insights for Practicing Before Local Government Boards and Commissions in Colorado
by Peter J. Gowen
Government and Administrative Law articles provide information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law.
Article Editor:
Brad Bailey, Assistant City Attorney, City of Littleton - (303) 795-3725,bbailey@littletongov.org
About the Author:
Peter J. Gowen is a solo practitioner in Boulder. He started representing local governmental entities in 1986. He also has served on local government boards in various capacities since 1993 - (303) 494-4125,PJGowen@comcast.net.
The following article describes legislative and quasi-judicial functions exercised by local governmental boards and commissions. It also describes the differences in processes and procedures required by each.
As of July 12, 2007, Colorado has sixty-four counties; 270 incorporated cities and towns; 1,610 active Title 32 special districts; and 1,595 Title 32, Article 1 districts - for a total of 2,920 active local government units.(fn1) Of the incorporated cities and towns, there are eighty-six home rule municipalities, fourteen statutory cities, and 167 statutory towns.(fn2) Most of the larger counties and municipalities in the state use administrative boards and commissions to assist in their legislative and policy making functions, as well as their quasi-judicial functions. Illustrative county and municipal boards and commissions include: planning and zoning commissions;(fn3) local licensing authorities under the Colorado Liquor Code;(fn4) boards of adjustment;(fn5) and various advisory boards covering wide-ranging areas of interest, such as social services, arts, urban renewal, open space, water, historic preservation, libraries, transportation, and parks and recreation.
Legal practice before these boards and commissions is quite different from practice before state or federal administrative boards, boards of county commissioners, and even city councils. Practitioners representing clients in quasi-judicial proceedings before boards of this nature should be aware that the process will differ from the process of litigating in a civil courtroom. The purpose of this article is to explain these differences, and the reasons for the differences, so that practitioners will be better prepared to present cases to these boards and commissions. This article focuses on tips for practicing before inferior boards or commissions of city and county governments, although the recommendations also may apply to special districts, city or town councils, and boards of county commissioners for the smaller counties in the state.
Structure of Local Boards or Commissions
The typical board is filled by appointment by the governing body that it serves. Usually, this involves a public recruitment effort, with notice to prospective applicants; an application submission, frequently followed by an interview; and finally a public appointment process. Although some boards may have specific required qualifications for service, many do not. Applicants are from the community at large and often have a wide range of education and experience. Appointments to boards can be politically based, merit based, or both. The best way to discern the character of the board is through experience - either by practicing before the board or learning from others' experiences before the board.
The composition of the board may significantly affect how the board handles cases. For example, if board members are from the community of local political activists, there is a risk that their predisposition on a particular matter will impede an objective decision on the merits. Life experiences, education, professional affiliations, and prior civic involvement will have significant bearing on the ability of a board member to perform the board's work. Some boards are highly competent and professional, and others are not.
Types of Board Functions
Administrative boards and commissions generally have two types of functions. One function is legislative or policy making in nature, the other is adjudicative or quasi-judicial. Some boards have both legislative and policy making functions, and other boards will focus only on one. The distinction between the two functions is critical to understanding how any given board operates and how to represent clients before it.
Legislative, policy making, or rulemaking functions involve the promulgation of generally applicable requirements or standards governing prospective conduct for entire classes of the population.(fn6) For local governmental entities, it includes the process of recommending or adopting ordinances, setting policies, and adopting plans.(fn7) Quasi-judicial adjudication consists of determining the legal consequences of past or present events (as in the case of enforcement actions) or applying the facts of a case to applicable law (as in the case of deciding whether a particular applicant is entitled to a license, franchise, or land use approval).(fn8)
Governing Law
At the federal level, agency and administrative board procedures are defined by the Administrative Procedures Act (APA).(fn9) Colorado has adopted its own State APA, modeled after the federal Act.(fn10) Many local jurisdictions have adopted administrative procedures codes or rules, and most of these follow general principles of administrative law that underlie the federal and state administrative procedures acts. When representing a client before a specific local board, it is essential for a practitioner to be familiar with the provisions of that jurisdiction's general procedure code, as well as any procedures that have been adopted and are specific to that particular board.
Board Training
The level of board training and orientation varies...
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