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» LAW
To oarc1 of County CommissioneUMe
_August 29_,—lg_ZZ
COLORADO From _Thomas O. David-, Weld County Attorney
s"nie<<: Legality and enforceability of a resolution_ regarding
the partial suspension of Victor Jacobucci , Weld
County-Commissionei 1>y the—Aead County Council .
You have requested a legal opinion concerning the legality
and the enforceability of gr a resolution regarding the partial
suspension of Victor Jacobucci , Weld County Commissioner, by the
Weld County Council .
On August 24 , 1977 , the Weld County Council passed a
resolution suspending Weld County Commissioner Victor Jacobucci
from his position as coordinator of the Department of Engineering
Services of the Office of the Weld County Commissioners . The
resolution stated that it would take effect immediately on the
24th day of August , 1977 , and would remain in effect until such
time as Victor Jacobucci has been acquitted of the charges ren-
dered against him in the indictment handed down by the Weld
County grand jury on August 17 , 1977 .
The resolution passed by the Weld County Council cited
as authority for their action Article VIII , Section 13-8- (5)
of the Weld County home rule charter which provides in part as
follows :
"In the event an elected official is formally
charged or indicted for the commission of a
crime , the Council may suspend such officer,
with or without pay, pending the prosecution •
of the offense ; and, . . .
Further in the same resolution, Article VIII , Section
16-10- (14) of the home rule charter was cited for the purpose of
defining the word "crime" as follows:
"Crime--A felony or a Class I or II misdemeanor
as defined by state law, or a comparable federal
crime or crime in some other state . Does not
include petty or traffic offenses . ; and, . . . "
Section 30-10-105 of the Colorado Revised Statutes
sets forth the conditions which can create a vancancy in a county
office . The portions of Section 30-10-105 which are applicable
to this memorandum are as follows :
" (2) In the event a county officer is found
guilty of any felony or infamous crime' by a court
or jury , the board of county commissioners shall
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immudi.ately suspend such county officer from
office without pay until his conviction is final
and he has exhausted , or by failure to assert
them has waived , all rights to new trial and all
rights of appeal . At the time such officer ' s
conviction is final and he has exhausted or
by failure to assert them has waived , all rights
to appeal and new trial , the said board shall
remove such officer from office and his successor -
shall be appointed as provided by statute , unless
during such period of suspension a successor has
been duly elected and qualified and said successor,
whether so appointed or elected, shall be the duly
constituted officer.
•
( 3 ) : Should the officer suspended from office by the
board of county commissioners as provided in this
section be found not guilty in a state or federal
court either on appeal , original trial , or new
trial , the board shall forthwith reinstate such
officer and give him his back pay, unless during
such period of suspension a successor to such
suspended officer has been duly elected and qual-
ified. In the event a successor to such suspended
officer has been so elected and qualified , such
suspended officer shall receive his back pay only
up to the expiration date of his regular term of
office and he shall not he reinstated or paid fur-
ther unless he is such person duly elected and
qualified. "
In order to properly determine the validity of the
Sections of the Weld County home rule charter used by the Weld
County Council to suspend Commissioner Jacobucci , it is first
necessary to examine the Sections of _the Constitution of the State
of Colorado and the statutes enacted thereunder which permit
County home rule in Colorado and define the power that may be •
exercised by a home rule county .
Article XIV, Section 16 of the Constitution of Colo-
rado provides as follows :
"Section 16 . County home rule . (1) Notwithstanding
the provisions of suctions 6 , 6 , 9 , 10 , 12 and 15
of this article, the qualified electors of each county
of the state are hereby vested with the power to
adopt a home rule charter establishing the ORGANIZATION
and SPRUCtURI': of county government consistent with this
article and statutes enacted pursuant hereto.
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" (2 ) The general r-issembly shall provide by statute
procedures under which the qualified electors of any
county may adopt, amend , and repeal a county home rule
charter . Action to initiate home rule may be by petition ,
signed by not less than five percent of the qualified
electors of the county in which home rule is sought ,
or by any other procedure authorized by statute . No
county home rule charter , amendment thereto, or repeal
thereof , shall become effective until approved by a
majority of the qualified electors of such county
voting thereon .
" (3 ) A HOME RULE COUNTY SHALL PROVIDE ALL MANDATORY
COUNTY FUNCTIONS , SERVICES , AND FACILITIES AND SHALL
EXERCISE ALL MANDATORY POWERS AS MAY BE REQUIRED BY
STA'T'UTI
" (4 ) A HOME RULE COUNTY SHALL BE EMPOWERED TO PROVIDE
SUCH PERMISSIVE FUNCTIONS , SERVICES , AND FACILITIES
AND TO EXERCISE ISE SUCH PERMISSIVE POWERS AS MAY BE
AUTHORIZED BY STATUTE APPLICABLE TO ALL HOME RULE
COUNIIE_S , except as may be otherwise prohibited or
limited by charter or this constitution.
" (5) The provisions of section 6 , 8 , 9 , 10 , 12 and
].5 of article XIV of this constitution shall apply to
counties adopting a home rule charter only to such
extent as may be provided in said charter .
Adopted November 3 , 1970--Effective January 1 , 1972 . "
(Emphasis on certain portions supplied . )
The powers which may be exercised by a home rule county
in the State of Colorado are set forth in Section 30-11-511 , C. R. S . ,
1973 , as amended , which provides that a home rule county of
Colorado can exercise only those powers specifically granted by
statute . The full text of Section 30-11-511 C .R.S . , 1973 ,
reads as follows :
"Board of county commissioners - home rule counties .
A home rule county shall provide all mandatory county
functions , services , and facilities and shall exercise
all mandatory powers required by statute. A home rule
county may provide such permissive functions , services ,
and facilities and may exercise such permissive powers
as authorized by statute applicable to nonhome rule
counties , except as may be otherwise PROHIBITED or
LINITHD by the county charter or the Constitution of
Colorado. Any power, Function, service , or facility
vested by statute in a particular county officer,
agency , or board , including a board of county commission-
ers , may be exercised or performed within a home rule
county by such county officer , agency , or board desig-
nated in the home rule charter . For home rule counties ,
the term 'board of county commissioners ' means the
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governing body of the county designated by the
county .
(Emphasis supplied . )
Section 30-11-511 , C . R. S . , .1973 , as amended , limits
the power of the home rule county to the exercise of only
those mandatory powers required by statute and permissive
functions which are specifically authorized by statute and
applicable to nonhome rule counties .
The Weld County home rule charter , Article VIII ,
Section 13-8- ( 5) purports to expand the power of the Weld
County government beyond the scope of Section 30-10-105 , C .R.S . ,
1973 , by permitting the immediate suspension of a county
officer who is formally charged or indicted for the commission
of a felony or a class I or class L[ misdemeanor as defined
by state law. The charges lodged against Commissioner•
Jacobucci are misdemeanors , not felonies . It is to be noted
that there is a vast difference between a person being charged
with a. misdemeanor and being convicted of a felony , and I •
am therefore of the opinion that Article VIII , Section 13-
8- (5) insofar that it provides for suspension of a county
official simply upon being formally charged or indicted for
a crime , whether felony or misdemeanor , is beyond the scope
of the power given to home rule counties by state law and is
consequently invalid and unenforceable .
Section 30-11-511 , C . R. . S . , 1973 , which is set forth
in full above , permits the transfer of any power , function,,
service or facility vested by statute in a particular county
office , agency , or board , including the board of county com-
•
missioners , to another agency or board designated by the
home rule charter . This would indicate that the home rule
charter could transfer the power given to the board of county
commissioners under Section 30-10-105, C .1R. S . , 1973 , to suspend
county officers found guilty of a felony or infamous crime
by a court or jury to the Weld County Council . Although this
power to suspend may be transferred , the power to suspend an
officer is strictly limited to the criteria as set forth in
Section 30-10-105 , C.R. S . , 1973 .
The resolution passed by the Weld County Council- on
the 24th day of August, 1977 , purports to suspend Commissioner
Jacobucci of his duties as coordinator of the Department of
Engineering Services . Article III , Section 3-6 of the Weld
County home rule charter provides as follows :
"Commissioner - Departments
(1) The department of Finance , Central Purchasing
and Personnel shall be coordinated by the Chairman .
of the Board of County Commissioners.
(2) Each of the other four major departments , as
established by Article TV, shall be coordinated by
one of the other commissioners together with assis-
tance from another commissioner, both of whom shall
be appointed by the Board at its first meeting in
January each year . "
The above cited section of the Weld County home rule
charter specifically delegates to the Weld County_ Commissioners
the power to designate Commissioner-Coordinators of the four
major departments of County Government other than the Department
of Finance , Central Purchasing and Personnel , which must be
coordinated by the Chairman of the Board of County Commissioners .
The determination of Conunissioner Coordinator positions is there-
fore the,full prerogative of the the Board of County Commissioners
and cannot be exercised by any other agency of Weld County
government .
The Weld County Council under Article VIII , Section
13-8 ( 6) of the Weld County home rule charter provides that the
Council shall review all aspects of county government and shall
make such periodic reports to the people relating to expenditures ,
efficiency , responsiveness , adherence to statutes , laws and
regulations , and other matters as the Council deems advisable .
This section further provides that such reports shall
be in such form as the Council shall determine and shall be
filed with the Board of County Commissioners and copies furnished
to all elected officers . This particular section of the Weld
County home rule charter would imply that the Weld County Council
may act in an advisory capacity to the Board of County Commissioners
of Weld County , Colorado, and therefore it is my opinion that the
resolution passed by the Weld County Council on August 24 , 1977 ,
can be considered as advisory only upon the question of whether or
not Commissioner Jacobucci should remain as Commissioner Coordinator
for the Department of Engineering Services . Any action changing the
position of Commissioner Coordinator for Engineering Services must
therefore be initiated and acted upon by the Board of County Com-
missioners of Weld County , Colorado .
Based upon the foregoing I am of the opinion that the
resolution passed by the Weld County Council on August 24 , 1977 ,
suspending Weld County Commissioner Victor Jacobucci from his •
duties as Commissioner Coordinator of the Department of Engineer-
ing Services is invalid and unenforceable .
Dated this 29th day of August , 1977 .
`\..-----��irk .rte `` GC<' rJ
Thomas O. David , Weld County Attorney
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