No.

Lee White Executive Director Office of State Planning and Budgeting Room 102 State Capitol Denver, CO 80203

Dear Mr. White:

I am writing in response to your request for an opinion concerning whether the executive branch has authority to administer block grants of federal moneys made to Colorado pursuant to the Omnibus Budget Reconciliation Act of 1981.

QUESTION PRESENTED AND CONCLUSION

Your specific question is whether the executive branch may accept and spend block grants of federal moneys without appropriation of those moneys by the general assembly.

My answer is yes. It is my opinion that block grants of federal moneys to Colorado are not subject to appropriation by the general assembly, and may therefore be accepted and spent by the executive branch of Colorado state government.

ANALYSIS

For fiscal year 1982, the United States Congress adopted a method for disbursing federal moneys to the states which employs block grants. Your office has provided me a copy of Book I of the Conference Report for the Omnibus Budget Reconciliation Act of 1981 which sets forth pertinent provisions of the new federal law. Pursuant to federal law, block grant funds are allocated directly to the State of Colorado. You have asked whether the executive branch of state government may properly apply for, receive and expend federal block grants without obtaining appropriation of those federal moneys by the general assembly.

Chapter 2 of title XVII of the Omnibus Reconciliation Act of 1981 sets out general requirements for each state which receives block grant funds under the Act, stating in pertinent part:

(b) For purposes of this chapter — (1) block grant funds are funds which are received for a program —

(A) which provides for the direct allocation of funds to States only, except for the allocation of funds for use by the Federal agency administering the program; and

(b) which provides funds that may be used at the discretion of the State, in whole or in part, for the purpose of continuing to support activities funded, immediately before the date of the enactment of this Act, under programs the authorization of which are discontinued by this Act and which were funded, immediately before such date of the enactment, by Federal Government allocations to units of local government or other eligible entities, or both; . . .

Title XVII does not define what branch of government is to be considered the "State" for purposes of receiving block grants. Your office has advised me that as a matter of practice the federal government appears to be neutral on this question in its dealings with Colorado, leaving the matter to be resolved according to state law.

State law is quite clear on this point. The appropriations power of the general assembly relates only to state moneys and does not extend to federal contributions. MacManus v. Love,179 Colo. 218, 499 P.2d 609 (1972). See also Andersonv. Lamm, 195 Colo. 437, 579 P.2d 620 (1978). TheMacManus decision determined that the general assembly could not constitutionally limit the authority of the executive branch to administer federal funds received directly from the federal government. A provision in the 1971 Long Bill which required federal funds received by state agencies to be appropriated was held to be void as an unconstitutional violation of the separation of powers established by article III of the Colorado Constitution. The Colorado Supreme Court reached the following conclusion:

The power of the General Assembly to make appropriations relates to state funds. Bedford v. People, 105 Colo. 312, 98 P.2d 474 (1939). Custodial funds are not state moneys. Stong v. Industrial Commission, 71 Colo. 133, 204 P. 892 (1922). As we read Bedford v. People, supra, it supports the proposition that federal contributions are not the subject of the appropriative power of the legislature.

179 Colo. at 222, 499 P.2d at 610.

Federal block grants are made pursuant to the Omnibus Budget Reconciliation Act of 1981 directly to the State of Colorado. The Act itself does not require the block grants to be appropriated by the general assembly. Consequently no federal requirements preempt Colorado law on this issue. The MacManus v.Love case is controlling on the question presented by your request.

SUMMARY

It is my opinion that federal block grants made to the State of Colorado may properly be received and expended by the executive branch of state government without being subject to appropriation by the general assembly.

Very truly yours,

J.D. MacFARLANE Attorney General

APPROPRIATIONS EXECUTIVE BRANCH LEGISLATURE FEDERAL GRANTS PUBLIC FUNDS

Colo. Const. art. III

PLANNING AND BUDGETING DEPT. State Planning, Div. of LEGISLATIVE BRANCH General Assembly EXECUTIVE BRANCH Governor, Office of

Block grants of federal moneys to the State of Colorado are not subject to appropriation by the legislature and may therefore be accepted and spent by the executive branch of Colorado State Government.