Saturday, November 01, 2008

Colorado Ballot Amendments for 2008

Below is my analysis of the Ballot Initiatives we here in Colorado will vote on in a few days. For your convenience I have also linked the initial source material. To that end, here is the Blue Book in pdf form.

I will go through the Initiatives in the same order the Blue Book does. The Blue Book has summaries, pros and cons, and the actual text of the amendments so it is all most people need to decide how to vote on each of these issues. It has been my experience that the summaries are usually flawed and the pros and cons unnecessarily limited. There are a couple of such cases in this year's Blue Book but thankfully the state also supplies the actual text for your reading pleasure. Most people are not as sick as I am and do not bother to attempt to parse the often lengthy and legalese ridden texts. That being said, be aware that this text is what you are actually voting on. If the summary misleads you there is no legal remedy for voting against what you believe your interests are.

Amendment 46: Discrimination and Preferential Treatment by Governments

For all practical purposes this amendment gets rid of Affirmative Action and set-asides by the state government or any public institution therein. It begins with stating that discrimination against or preferential treatment to anyone based on race/sex/color/ethnicity/origin. It then goes through a list of exceptions like hiring women to search female prisoners and anything that is required to receive federal funding or comply with existing or future court orders. As far as I can tell they have included all the reasonable exceptions including not changing any existing contracts so that the end of discrimination is going forward only. The "con" argument in the Blue Book is that Affirmative Action is inherently good. They also do not point out any reasonable exception which has been left out.

If you believe that Affirmative Action by government is necessary and good, you should vote No.

Ergo: Mailgeek votes YES!

Amendment 47: Prohibition on Mandatory Labor Union Membership and Dues

This is a Right to Work Amendment and it does have some teeth. Since Right to Work is a somewhat contentious issue (although I never understood why), let me say up front that I am totally biased in favor of Right to Work. Most Right to Work clauses are the same in the basic proposition. They prohibit forcing a person to join a union as a condition of employment or continuation of employment. The differences between them are how far reaching they are and do they have any teeth. For those of you who understand how Right to Work statutes differ let me give you the highlights of this one.

Does it extend to private companies and state and local governments? YES, so both public and private employees may choose not to join a union or to break away from their current union without fear of losing their job.

Does it prohibit unions from extracting "negotiation fees" from non-union members? YES, so if you choose not to be a member of the entrenched union at your place of business the union cannot take one dime from you without your express consent.

Does it prohibit an employee from voluntarily joining or helping to form a union and using that union to collective bargain on his behalf? NO, if you want to be in a union and a majority of your coworkers do also this does not change in any way your right to do so.

Can people who attempt to force you to join or fund the union be punished? YES, by the highest level of punishment currently on the books for a misdemeanor, including jail time and fines.

Does it change things for you tomorrow if you are a current union member? NO, I think (I am not a lawyer and don't play one on TV). The way I read it, which may be incorrect, the revocation of "union shop" status, forcing all employees to be a union member as stated in an existing contract would still be in effect until the contract expires or is renegotiated. It prohibits that restriction on any new or updated contract only. As much as I am pro-right-to-work I believe this is the way to put it in place. It will not disrupt current contracts in any way for the employer or the union. It simply makes a restriction with regards to union shop contracts going forward so that issue is off the table for the next round of contracts or the forming of any new union groups.

If you make your living off of forced union payroll deductions, you should vote NO.
Ergo: Mailgeek votes YES!

Amendment 48: Definition of a Person

This is a simple amendment that defines "person" as used in the Colorado Constitution as beginning at the point of conception.

I have to editorialize here...... why do the people who try to put limits on abortion almost always overreach? It is absolutely true that the current abortion guarantees from the currently in force badly decided court cases on abortion hung their hat to some extent on the lack of a definition of "person" in the federal and most state constitutions. The reason a fetus does not have a right to life is that it is not a person, until the courts decide they were just joking about that and come up with some other convolution of the English language to make abortion on demand legal. The big problem with this, IMO, was not even mentioned in the cons (a perfect example of why you should read my blog).

The cons section says you should vote against this because:
1. It outlaws abortion (that isn't what the text says but it is the complaint)
2. It probably outlaws embryonic stem cell research - it does, but big yawn, ESCR is a bust and totally unnecessary in today's medical world.
3. It may change criminal law - in other words, kill a pregnant woman and you will be up on 2 counts of murder......... ok, that's a pro in my book.

What did they miss?
1. There is nothing in this which gives guidelines for some very real medical issues. Termination of pregnancy is sometimes medically required, usually in the first trimester, and this change does nothing whatsoever to balance this legally. While I have confidence that the courts and legislature would eventually work out a reasonable balance where doctors and women would not have fear of lawyers for doing medically necessary abortions... this change would most certainly wind up putting some well meaning and reasonable doctors and women into very expensive contact with lawyers until that happens. Do you want your wife/mother/daughter/neighbor to wind up in an expensive legal battle because she had the misfortune of being in a car accident while pregnant? Do you want your wife/mother/daughter/neighbor's doctor to worry about that potential lawsuit when recommending treatment while her life is on the line?
2. What about fertility clinics? Under this change as proposed many couples will have to go out of Colorado to become pregnant. The reality of in-vitro fertilization is that there are a percentage of fertilized eggs that are never implanted and most of them are eventually destroyed. Under this change those fertilized eggs are "persons" entitled to life and legal protection. This one isn't as big a deal for me as it is for many people, and would not stop me from voting for it, but for some of you it should.

If you believe that a probably ill-fated legal battle to outlaw abortion is worth the possible downside of this amendment you should vote YES.

I, unfortunately cannot, ergo, Mailgeek votes NO.

Amendment 49: Allowable Government Paycheck Deductions

The long and short of this amendment is that it gets rid of the ability for the government unions from automatically deducting their fees from the government employee's paycheck.

There are two potential impacts of this depending on the outcome of Amendment 47. If this passes and 47 does not, it will have the following impact: the government employee who wishes to fully fund his union dues will have the inconvenience of having to make separate arrangements to do so. At the same time, the government employee who MUST be a member of the union but does not wish to fund the union's political activities will be able to hand the union a check and avoid all the hassle that is currently in place to be in the union without funding their political activities.

If this passes and 47 does also....... This means that the union must come hat in hand to every government employee and ask for contributions. If you are anti-union, this is a major win. If you are pro-union, this is still a win. If you can just take my money, even if I don't agree with what you do, are you, the union leader, as likely to do what I want you to do? Not only NO, HELL NO! The big problem, IMO, with unions today is that union leadership is all in for THEMSELVES. Even very pro-union government employees will benefit from this arrangement as the union leadership will be forced to be more responsive to their needs and wants.

As with Amendment 47, if you make your living on forced extraction of union dues, you should probably vote NO.

Ergo, Mailgeek votes YES!

Amendment 50: Limited Gaming in Central City, Black Hawk, and Cripple Creek

This amendment does 4 things:
  1. Allow the 3 towns with legalized gambling to extend the hours of operation if they want.
  2. Puts much of the increase in revenue for passage to community colleges and most of the rest to the communities themselves.
  3. Require statewide voter approval for any increase in gaming taxes.
  4. Exempt the new revenue from passage from state and local revenue and spending limits.

The potential downside is that we could have a couple of mini-Vegas areas in CO which could make it easier for people with gambling problem to get themselves in trouble.

The upsides: We could have a couple of mini-Vegas areas here in CO! As much as I love to play cards and enjoy poker, casinos are just 1 step short of lottery tickets which are well labeled "taxes on the stupid". This will increase revenues to the state and those communities and create good paying jobs for them while only taxing those willing to be taxed.

As much as I am sympathetic to the potential downside and hurt for those who are, or have family members who are, gambling addicts, I cannot see the wisdom in preventing the upside of this idea,

Ergo: Mailgeek votes YES!

Amendment 51: State Sales Tax Increase for Services for People with Developmental Disabilities

Again, I will point out my bias... anything that begins with "tax increase" I start with an assumption of NO! and need to be convinced with overwhelming evidence that it is necessary.

In this case the proposed increase is 0.2% over 2 years so the tax increase is minimal. The proposed cause is also one which I am sympathetic to. That said, what little, and there was a thin trail to follow, I could dig up would indicate that the problem with services for the Developmentally Disabled in the state are largely due to the government having massive inefficiencies and not a lack of funding.

I am torn on this, it almost meets my standards, but Mailgeek must vote NO! Your mileage may vary.

Amendment 52:Use of Severence Tax Revenue for Highways

The long and short of this is to divert some of the revenue that the legislators are pushing to water projects into highway projects.

I admit, I don't have a clue about the details of this, in as much as WHY the legislature is funding one of these more or less than the other. I am sure there is political funding buried in these decisions but the fundamentals of the decision may be sound and the influences we the taxpayers don't like may be marginal. I did some digging and did not come to a definitive conclusion.

The nightmare that was the Highway 25 expansion in south Denver (T-Rex) and the joy that was the E-470 extension should have taught us what we really need to know about highway dollars...... they should be farmed out on real contracts that have monetary consequences for the people who build and or maintain the highways. Whether you are for or against toll roads it has been conclusively proven that when the state puts out real bids for private businesses to do the work we the taxpayers as well as we the driving public win. This amendment has no such provision. I have no desire to put more money in the hands of "employees" who hold up shovels on the road side.

Ergo, Mailgeek votes NO!

Amendment 53: Criminal Accountability of Business Executives

I have no idea who came up with this idea but they should crawl back under their little rock (not that I have a strong opinion on it). While I have no issue with holding executives who are aware of criminal behavior being committed on behalf of their company this amendment is riddled with problems. I will give you the top 3 IMNSHO.

1. They could put executives in jail for misdemeanor offenses for minor violations of EPA, HUD, ABCD or other government entity regulations. While the amendment does include language that the executive in question must be aware of both the offense and the fact that the deed is a violation, it has no exemption for executives who, for instance:
  • put in place reasonable policies to avoid the offense
  • became aware of the violation after the fact
  • made a reasonable attempt to take corrective action for the offense
  • fired, or otherwise punished, the people responsible for the offense
2. Any executive can avoid criminal prosecution by simply putting in a report to the Attorney General any provable knowledge he may have had of the offense prior to being charged. So the seriously or potentially corrupt business executive will just file box cars of reports to the government on a regular basis which the government will be unable to process in a meaningful time frame in order to avoid prosecution. This is both a "get out of jail free" card AND a "spend tax payer money to sort through meaningless paperwork" card.

3. Not only is this a potential issue for CO based companies, there is no exemption for companies that do business in CO but whose executives are based elsewhere, potentially even companies not based in the US. While we want all companies doing business in CO to follow our law, this is both potentially unenforceable and a really good reason for out of state and international companies from putting an office in our state. It could potentially force the state to attempt to charge executives in another state or country for the actions of a single employee who lives or works in our state. I do not want my employer or yours to allow me to live anywhere "except Colorado".

Mailgeek must vote NO!

Amendment 54
: Campaign Contributions from Certain Government Contractors

Wow! This may be the hardest issue to decipher on the ballot this year.

The basic intention is to get rid of pay to play. I think we can all agree this is a very good goal. Goverment corruption is best exemplified in "machine politics" where people get government money in the form of jobs or contracts because they assist politicians in charge to continue getting elected through campaign contributions and other, more indirect, methods.

There is a ton of good stuff in this amendment including:
  • prohibiting those who receive no-bid contracts from making political contributions to candidates for the duration of the contract + 2 years
  • prohibiting people who push for a ballot measure from getting contracts based on it for 2 years
  • punishing bookeepers who knowingly watch their clients violate the act

and some questionable stuff including:
  • prohibiting the family members of any director of a company who gets a no bid contract from making political contributions without calling into question the language "causing to be made, or inducing by any means, a contribution, directly or indirectly, on behalf of the contract holder or on behalf of his or her immediate family member" which seems a bit broad to me. It isn't clear where the burden of proof here is to me if my uncle gets a no bid contract.
  • it does not limit contributions to 501s, only to candidates, parties, and in some cases ballot initiatives.... leading, I suspect, to a simple redirection of kickback money
  • it does not limit the most obvious of all payoffs...... I make a big contribution to candidate X this year, and next year he steers a big contract to me. It does keep me from contributing again for a while, but if a politician is really dealing from the bottom of the deck, is this sufficient?

I love the ideas embodied in this amendment and would ignore the negatives I see in it if the amendment better limited its scope with regards to family members liability. If my brother/mother/father/sister-in-law/adult child/niece/uncle/etc getting a no bid contract did not seem to call into question my ability to make political contributions I would probably vote Yes. But, to me, it seems to.

Ergo, Mailgeek must vote NO! Take this one back to the drawing board and clean it up a little.

Amendment 55: Allowable Reasons for Employee Discharge or Suspension

This amendment would undo the at-will nature of employment in the state. There are up sides and down sides of at-will employment. Personally, I prefer it and believe it increases job creation at the expense of lazy people getting fired. In principle forcing employers to show reason for firing an employee sounds good but the real world result is to make employees spend enormous amounts of money to document and redocument getting rid of employees who don't do their job.

On the good side, this amendment:
  • exempts private employers with fewer than 20 employees
  • exempts non-profit employers with fewer than 1000 employees
  • allows imposition of legal fees for the losing party - thus making employees hesitant to file frivolous claims, although the lawyer isn't liable for said damages

On the bad side, this amendment:
  • has an automatic right of suit on termination..... meaning there is no hearing process to allow employers to avoid the extreme cost of a trial at a lower cost for frivolous claims
  • has very troubling language around laying off employees for economic reasons "DISCHARGE OR SUSPENSION DUE TO SPECIFIC ECONOMIC CIRCUMSTANCES THAT DIRECTLY AND ADVERSELY AFFECT THE EMPLOYER AND ARE DOCUMENTED BY THE EMPLOYER, PURSUANT TO SUBSECTION (3) OF THIS SECTION" which leaves open the question of can I fire a carpenter while hiring a sales person or the reverse? Welcome to lifetime employment? Maybe/maybe not.
  • does not impose the legal fees of losing cases in any way on the filing lawyer who may have knowingly filed a frivolous case on behalf of the proverbial bloodless stone for a few bucks up front
Ergo, Mailgeek must vote NO!

Amendment 56: Employer Responsibility for Health Insurance

This would require all employers with 20 or more employees to not only provide a group plan for insurance but to subsidize it at 80%. It does not exempt non-profit organizations. It does, however, exempt "THE STATE OR ANY POLITICAL SUBDIVISION THEREOF" which is quite troubling. It does not, as is usually done, define an employee as a "full time equivelant/FTE" but any employee or "A RECEIVER OR OTHER PERSON ACTING ON BEHALF OF THE EMPLOYER" (please read contractor).

So the result is that if I have a small business that employees 10 full time people, 8 half time students at 10 hours/week each and 3 contractors to do my landscaping, janitorial services, and book keeping, as I read this, I have to subsidize coverage at 80% for all of them and at 70% for their families.

This is a lousy idea......
Ergo, Mailgeek must vote NO!

Amendment 57: Additional Remedies for Injured Employees

This amendment would require employees to pay costs, including but not limited to, medical costs, funeral expenses and pain and suffering for any injured employees if, and only if, the employer did not "PROVIDE A SAFE AND HEALTHY WORKPLACE".

It does not replace or revoke the current worker's compensation plan that employers already pay into, and pay more if there are repeated injuries at their place of business.

Further, there is no proof of evidence defined for "safe & healthy" leaving it up to a judge to decide if your environment working the high steel or on a comercial farm qualifies.

I would be happy to let a jury decide the questions if we could do away with the worker's compensation program which I believe is a mockery not only in the state of Colorado but in most states that have one. This amendment does not do that.

Ergo: Mailgeek must vote NO!

Amendment 58: Severance Taxes on the Oil and Natural Gas Industry

This act does a few things:
  • increases the percentage of GROSS, not NET income on the production of gas and oil products in the state to 5% for the largest producers and smaller percentages for smaller producers
  • removes the tax credit associated with property taxes on the land where the production occurs
  • puts the new revenue outside of the standard spending percentages in place and defines where the revenue goes (including the state funding of "renewable" energy research as opposed to forcing the companies to invest those funds privately which would be much preferred)

I have a number of fundamental problems with this amendment.
  • it applies, starting next year, to existing contracts, redefining the contract without negotiation with energy producers with existing leases/contracts. This is anti-American in any industry IMNSHO.
  • it makes the assumption that we are all morons and believe companies pay taxes.... they don't, they collect taxes from consumers... and taxing energy is a highly regressive tax as the poorest citizens pay the largest portion of their income on energy.
  • it will make energy companies hesitant to come do business in our state for fear that the people will simply tax them out of their existence in the future regardless of the rules put in place at the time of said investment.
  • the tax is on GROSS income and then we remove on of the larger fixed cost deductions, the tax on the property in question. We do not allow most businesses to deduct their property taxes from their income taxes, but we tax their NET profit, not their GROSS income. It is unfair to have the companies agree to do business based on such a taxation system and then remove one of the only benefits to that alternate system.

I might vote for this if it applied to new leases or new contracts but it applies to existing contracts also.

Ergo, Mailgeek votes NO!

Amendment 59: Education Funding and TABOR Rebates

Essentially what this amendment does is to eliminate TABOR rebates in years where the tax revenue exceeds the legal spending limits on the state government. It replaces those rebates with a savings fund for years when the tax revenue is short of spending limits. In theory this is a great idea. Again, the devil is in the details:
  • the legislature can spend the interest on the fund in years without a shortfall rather than allowing that interest to further enhance the fund
  • there is no restriction on legislature raising fees in good times and putting the money into the fund, the only practical limitation on fee increases in good times being the rebate of those fees back to the taxpayers
  • it removes the guaranteed increase in spending on education set at inflation per pupil, thus all but gutting TABOR
  • it would seem to me to remove the percentage limit of spending on education allowing the non-education spending to grow in good years thus preventing the fund from being funded. I am not sure about this piece as the language is a bit confusing
The idea is good, back to the drawing board folks, and please stop trusting the politicians to do the right thing which is the whole point of TABOR.

Ergo, Mailgeek must vote NO!


At Sun Nov 02, 08:16:00 AM 2008, Blogger Evan Ravitz said...

Don't forget to vote NO on Referendum O. It's opposed by everyone from Common Cause and Environment Colorado to Doug Bruce!

Here's what Common Cause has to say:

At Tue Nov 04, 09:27:00 AM 2008, Blogger mailgeek said...

Evan, I won't forget, but have to vote YES on O.

For those who care about the Inititiaves.

Mailgeek votes:
L - No
M - No
N - No
O - Yes


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