Guest article from the Division of Local Affairs (DOLA)

The richness and diversity of Colorado’s heritage, landscape and communities is evident throughout the entire state. Each region has its own unique characteristics and needs, influencing a broad range of governing styles. To assure rules and regulations are carried out consistently, our local governments are often asked to bear a burden of responsibility driven by state government. Often, these burdens are the result of federal mandates passed through the state. However, they can also be the result of state regulations created to ensure the uniform application of policies, rules and laws. Without an effective, established line of two-way communication dedicated to this issue, mandates, particularly those that are unfunded, can create a divide among state and local government, even though they ultimately are striving for the same outcome—the health, safety and well-being of our citizens.

To enhance the relationship between state and local government, Governor John Hickenlooper issued Executive Order 05 (E05), requiring state rulemaking agencies to consult with and engage local governments prior to the promulgation of any rules containing mandates. This consultation with local governments is a new process designed to better understand responsibilities required at each level of government, foster better communication and encourage constructive input from those most impacted by the rulemaking.

After Governor Hickenlooper issued Executive Order 05, the Department of Local Affairs (DOLA) established a task force including Sam Mamet from the Colorado Municipal League, Chip Taylor of Colorado Counties Inc., Ann Terry from the Special District Association and Ken Delay of the Colorado Association of School Boards. State agencies participating on the task force include: Human Services, Labor and Employment, Local Affairs, the Office of State Planning and Budgeting, Public Health and Environment and Department of Regulatory Agencies—agencies that work closely with local governments and most often promulgate rules.

This task force has developed a process with significant input from Colorado local government associations to enhance communication between state agencies and local governments as rules are being conceived, developed and promulgated. The main goal is to facilitate and improve communication between state agencies and local governments.
The process being implemented will utilize an online system that documents communication between state agencies and local governments and provides a forum that enables input.
The E05 effort utilizes a phased process to communicate with local government involving the following steps:

1. A state agency engaged in rulemaking will initiate communication with local government(s) about the concept of the potential rule to solve or prevent a problem.
2. The state agency will then request input from local governments to determine:
   1. Their perception of how to solve the problem identified which could include alternative means rather than a regulation.
   2. If alternative methods are not possible to solve the problem, the state agency will partner with local governments in the development of a regulation.
   3. The state agency will request local government to identify and document if there is a cost to local government if regulation is implemented.
3. Determine if the rule being considered is an unfunded mandate.
4. State agency will document communication with the local government and the agency’s proposed rule, if there’s a mandate and what type.
5. Agency forwards documentation of agency communication with local government to the Office of State Planning and Budgeting who reports to the Governor’s Office. This report will validate if appropriate communication occurred and the type of mandate.
6. Agency proposing regulation works with Governor’s Office for next steps which will precede the existing process in the Administrative Procedures Act.

These measures are a significant step in the right direction to create a more collaborative process for rulemaking. Rulemaking can become a more efficient, effective and elegant process that takes into account long range impacts with input from our diverse communities. Ultimately, the tools being developed through this new process will provide us a means to better plan and anticipate the ramifications of rules passed on to our local governments.

Governor Hickenlooper will announce when the system goes live in 2012. Training for the system will begin in December 2011.