HomeMy WebLinkAbout830729.tiff SHELTON AND KINKADE
ATTORNEYS AT LAW
UNION COLONY BANK BUILDING
1701 -23RD AVENUE,SUITE A
GREELEY, COLORADO 80631
JAMES H.SHELTON
JOHN W.KINKADE
RONALD J.LAM B D EN 303-352-8673
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January 27, 1983 .1 1983
GREILEY. CO-C'
Weld County Council
Attn: Vicky Sprague
915 - 10th Street, Room 339
Greeley, Colorado 80631
Dear Ms. Sprague:
The question you posed in your letter of January 10, 1983 on behalf of
the County Council as I understand it was: Do the Weld County Commis-
sioners have the authority to require an entity receiving County funds
to sign a statement allowing the County Council to audit that entity's
operations before the County funds are granted to that entity?
The Colorado Supreme Court in Board of County Commissioners of the County
of Jefferson, et al . v. City and County of Denver, et al , 194 Colo. 252,
571 P2d 1094 (1977) , stated the general rule that, "A County and its
Commissioners possess only such powers as are expressly conferred upon
them by the Constitution or statute and such incidental implied powers
as are reasonably necessary to carry out such express powers." (Also
see Robbins v. Boulder County Commissioners, 50 Colo. 610, 115 P 526,
and Board of County Commissioners of Dolores County, et al . v. John A.
Love, et al . , 172 Colo. 121, 470 P2d 861 (1970) . The Colorado Court of
Appeals further define the powers of the County Commissioner in a 1900
case, Colburn v. Board, 15 Colo. App. 90, 61 P241, when it stated that
the powers of County Commissioners are to be used in such a manner as
would best serve the interest of the citizens of the County of which the
County Commissioners are simply the representatives. Given these general
limitations, I believe there are two theories by which the County
Comissioners could require entities to submit to a County Council
audit.
The first theory is a "contract theory. " The Colorado Constitution at
Article XIV, Section 18(A) provides that political subdivisions may co-
operate or contract to provide functions, services or facilities law-
fully authorized to each cooperating or contracting unit. Section 18 at
subsection (C) goes on to state that:
d 30729
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Weld County Council
January 27, 1983
Page 2
"Nothing in this constitution shall be construed to
prohibit any political subdivision of the State from
contracting with private persons, associations or
corporations for the provision of legally authorized
functions, services or facilities within or without
its boundary. "
This contracting authority is also found at C.R.S. 1973, 29-1-201, et
seq. , which provides the details for intergovernmental contracting.
Further, at C.R.S. 1973, 30-35-103(5) , the Colorado statute relating to
the powers of home rule counties provides that a home rule county shall
be a body politic and corporate, with the power to sue and be sued, con-
tract and be contracted with, acquire real and personal property, have a
seal and other privileges as are incident to corporations of like
character or degree and not inconsistent with its charter or laws of the
state. The Weld County charter at Article II, Section 2-1 adopts all
mandatory and permissive County powers and functions as provided by the
home rule powers statutes. It is my opinion that inherent or implied
in this power to contract is the power to include in contractual arrange-
ments a requirement for an audit as such audit relates to the general
purpose of the contract.
The limitations on this "contract theory" are that certain contracts that
the County has already entered into do not have an audit provision or
language broad enough to require or allow a County Council audit.
Therefore, the contract power is limited to future contracts between the
County and other governmental and private entities.
The second theory by which the County Commissioners might require a
County Council audit may be found in the home rule county's ability to
enact ordinances which are necessary to protect the life, health and
property of the County citizens and preserve the general welfare and
security of the County and its inhabitants. This power is found at
C.R.S. 1973, 30-35-201(45) and is adopted by the County charter in
Article II. I believe this approach would require the Commissioners to
make specific findings that an audit, either a financial audit or an
audit of some other specified nature, would serve the public welfare and
set forth the appropriate situation for such an audit.
The difficulty with the "ordinance theory" is that any ordinance at-
tempting to cover all situations may be too broad. It may be necessary
to tailor ordinances for specific situations and provide specific find-
ings as to how the audit relates to the public welfare. Also, ordin-
ances like contracts, should be prospective and not attempt to affect
current relationships.
Weld County Council
January 27, 1983
Page 3
Since a County, even a home rule county, exists only for the convenient
administration of State government and are created only to carry out
the will of the State (Board v. Love, supra. ), there may be State
statutes which mandate that the County take certain actions or make
certain appropriations without giving the County the power to review
how the funds appropriated are to be spent or how the receiving entity
is administered.
A specific review of the statutory relationship between the County and
the receiving entity would be required in order to determine if such
mandate existed. If such mandate were in existence, the County Commis-
sioners would not have the authority to require a County Council audit
of the particular entity.
If, the County Council is unable to conduct an audit because of previous
contractual relationships, statutory mandate, or the refusal of the
County Commissioners to require a County Council audit, the Council may
be able to gather information about various entities through other
sources. For example, the Colorado Local Government Audit Law, C.R.S.
1973, 29-1-201 et seq. , requires local governments, which include cities
and towns, school districts, service districts, special districts and
any other governmental units having tax authority, to file either annual
financial audits or audit reports with the State auditor. These reports
are public records. For other entities, it may be necessary to review
the type of entity and the sources of information concerning that en-
tity. For example, a corporation must file corporate reports with the
Secretary of State.
In summary, I believe the County Commissioners have the authority, within
the limits mentioned above, to require entities receiving money from the
County to submit to County Council audits. The "contract theory" is
probably the most functional and is clearly the most defensible legally.
Very truly yours,
SHELTON, KINKADE and,1.AMBDEN
Ronald J. Lambden
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