Judges: GALE A. NORTON, Attorney General
Filed Date: 10/9/1992
Status: Precedential
Modified Date: 7/5/2016
Steven V. Berson Executive Director Department of Regulatory Agencies 1560 Broadway, Suite 1550 Denver, Colorado 80202
Dear Mr. Berson:
This responds to your September 18, 1992 letter requesting an interpretation of §
QUESTIONS PRESENTED AND CONCLUSIONS
Your request for an Attorney General's opinion presents the following questions:
1. Do the provisions of §
No.
2. If §
This question is conditioned upon an affirmative answer to Question No. 1. Since this opinion has answered Question No. 1 in the negative, a response to this question is unnecessary.
ANALYSIS
Section
(2) Credit union organization and membership, other than those of a central credit union, shall be limited to groups having a common bond of employment or association or groups which reside within a well-defined neighborhood, community, or rural district having a population of no more than twenty-five thousand or as otherwise authorized by the commissioner. . . .
The language of §
A well-established canon of statutory construction is that a statute is passed as a whole, not in parts or sections, and is guided by a general purpose and intent. Each part or section should be construed in connection with every other part or section to produce a harmonious whole. See PeoplesBank v. Banking Board,
The inquiry in this matter must focus on the meaning of the words ". . . having a population of twenty-five thousand or as otherwise authorized by the commissioner." It is clear that §
If the phrase "or as otherwise authorized by the commissioner" is interpreted to give the commissioner authority to approve neighborhoods, communities and rural districts of any population size whatsoever for credit union membership, then the preceding phrase, "having a population of no more than twenty-five thousand," is superfluous and meaningless. A statute should be construed so that effect is given to all its provisions and no part is rendered inoperative or superfluous. SeeIn Re Estate of David v. Snelson,
In order to determine the general purpose and intent of a statute, a court may review background information about circumstances leading up to the enactment of the statute, events surrounding the enactment, and developments pertinent to subsequent operation of the statute. Singer, SutherlandStatutory Construction 5th Ed., § 48.01 (1992). In the matter at hand, a review of the nature and history of credit unions is warranted.
A credit union is a democratically controlled, cooperative, nonprofit society organized for the purpose of encouraging thrift and self-reliance among its members by creating a source of credit at a fair and reasonable rate of interest in order to improve the economic and social conditions of its members. A credit union is fundamentally distinguishable from other financial institutions in that the customers may exercise effective control.
La Caisse Populaire Sante Marie v. United States,
One of the traditional indicia of a credit union is the "common bond" requirement. La Caisse Populaire Sante Marie,supra at 508. The purpose of this requirement is evident from the nature of credit unions:
The union's purposes are threatened by directors that are unmindful of members' funds or unresponsive to their collective interests. Thus, Congress ensured that federal credit unions would retain their character as self-managed cooperatives by establishing democratic principles of decision and control. The common bond provision reinforces this aim by advancing the formation of credit unions among groups that may realistically operate with unity of purpose. It encourages the election of directors who possess a common interest or occupation with the membership they serve.
Branch Bank Trust Co. v. Nat'l Credit Union AdministrationBoard,
Colorado first enacted a statute allowing the formation of credit unions in 1931. A credit union was defined as "a cooperative society, incorporated for the two-fold purpose of promoting thrift among its members and creating a source of credit for them at legitimate rates of interest for provident purposes." Membership in a credit union was limited to "groups (of both large and small membership) having a common bond of occupation or association or to groups within a well-defined neighborhood, community or rural district." 1931 Colo. Sess. Laws 80. The statute was repealed and re-enacted in 1967. The new version of the statute limited credit union membership to groups having a common bond of occupation or association. 1967 Colo. Sess. Laws 317.
In 1977, the Colorado legislature amended the credit union statute to extend credit union membership to "groups which reside within a well-defined neighborhood, community or rural district having a population of no more than twenty-five thousand or as otherwise authorized by the commissioner." The legislature also added a provision allowing small groups which have a common bond of employment or association but which lack sufficient potential membership access to existing credit unions. 1977 Colo. Sess. Laws 565. The purpose of the bill was described as follows in hearings before the Senate's Committee on Business Affairs and Labor:
The purpose of this bill would be to bring parity between state and federal credit unions. Presently federal law does provide for a federal credit union in a well-defined neighborhood, community or rural district. Now, the limitation of twenty five thousand was placed by an amendment, which is quite fine with us. The concept is that Sterling, Colorado or Yuma or some of these other small rural areas that do have community credit unions. At the present time there are 12 federal, federally-chartered, community credit unions in the State of Colorado, because the federal act has provided for this since 1934 — state law does not. This would seek to correct this void within state law and would allow also state-chartered.
Hearing on H.B. 1290 Before the Senate Committee on BusinessAffairs and Labor, April 18, 1977 (statement of John Sheehy, Colorado Credit Union League). See alsoHearing on H.B. 1290 Before the House Committee onBusiness Affairs and Labor, March 18, 1977.
Members of the House Committee discussed the meaning of the language in the 1977 bill which set a population limit of 25,000 and gave the commissioner (at that time, the Bank Commissioner) authority to approve larger groups. Although the quality of the audio tapes of the hearing is very poor,1 it is clear that the 25,000 population limit was based upon the federal regulator's, the National Credit Union Administration (hereinafter NCUA), population limit of 25,000 at that time. There were discussions relating to why a population limit should be imposed, such as the following statement by an Assistant Attorney General who appeared at the hearing on behalf of the State Bank Commissioner: "What the amendment intends to do is to prevent a group of say ten block square area in the City of Denver from coming in and saying we are a well-defined neighborhood and we want to be eligible for a credit union." A legislator made the following statement: "Without this language in there, the twenty five thousand, it would be possible for a credit union to just expand throughout the whole City of Denver without some kind of limitation as to size." In the discussion concerning the amendment to the bill which gave the commissioner discretion to authorize groups with populations in excess of 25,000, the only example discussed was a community of "twenty five, five hundred or something like that. . . ." Hearing onH.B. 1290 Before the House Committee on BusinessAffairs and Labor, March 18, 1977.
As mentioned previously, at the time House Bill 1290 was passed, the NCUA's population limit was 25,000. The limit used by the NCUA is set by informal policy, and is not contained in statutes or regulations. The policy differs within the NCUA, with each regional office setting its own population limit. Colorado is located in Region V, which currently has a population limit of 110,000.2 Under special circumstances, this limit may be exceeded, but approval to do so must come from the National Credit Union Administration Board.3
The NCUA has set forth its policies and procedures for granting and permitting change to a federal credit union charter in itsChartering and Field of Membership Manual. Concerning community fields of membership, the manual states as follows:
3. Community Common Bonds. Congress has required that a credit union charter that will be based on a tie to a specific geographic location be limited to "a well-defined neighborhood, community, or rural district." NCUA policy is to limit the community to a single, compact, well-defined area where residents commingle and interact regularly. NCUA recognizes two types of affinity on which a community charter bond can be based: residence and employment. Businesses and other legal entities within the community boundaries may also qualify for membership. Given the diversity of community characteristics throughout the country and NCUA's goal of making credit union service available to all eligible groups who wish to have it, NCUA has established the following common bond requirements:
a. The geographic area's boundaries must be clearly defined; and
b. The charter applicant must establish that the area is recognized by those who live and/or work there as a distinct "neighborhood, community, or rural district."
National Credit Union Administration, Chartering and Fieldof Membership Manual, pp. 1-3 (12-89).
Lowry is a federally-chartered credit union which was initially established to serve the military and civilian population of Lowry Air Force Base. Presently, Lowry's membership base consists of those persons with the "common bond" of employment at or assignment to Lowry Air Force Base (including civilian and military personnel of the United States government as well as employees of several other employers located on the base), and employees and members of a large number of other diverse entities, including, for example, employees of fifty-five named businesses located in Englewood, Aurora and Denver, Colorado, natural person members of the Aurora Board of Realtors, and employees and parishioners of fifteen named churches.4 After the announcement in 1991 that Lowry Air Force Base was scheduled for closure by 1994, Lowry's management approached its regulator, the NCUA, to request an expansion of its membership base.5 Lowry sought to expand its membership base to include a geographic community, the City of Aurora. Lowry's application was denied by the NCUA regional office because the NCUA requires that a credit union have either a common bond field of membership or a community field of membership, and does not permit overlapping of the two.6 Lowry sought to add a community to its field of membership while retaining its common bond component. This was not permissible.7
Lowry's management then approached Colorado's regulator of credit unions, the Division of Financial Services, to apply for conversion from a federally-chartered credit union to a state-chartered credit union with a field of membership consisting of those persons already eligible for membership in Lowry plus a geographic community, the City of Aurora. On June 4, 1992, Commissioner Paul conditionally approved Lowry's application for conversion to a state-chartered credit union with a field of membership consisting of the persons previously eligible for membership in Lowry and, in addition, the residents of the City of Aurora, including all relatives by birth, marriage and adoption, with the exclusion of the existing members of ten credit unions which currently operate in the City of Aurora.8
Clearly, the language of §
From the legislative history available, it appears that the legislative purpose behind the extension of credit union membership to groups residing within well defined neighborhoods, communities or rural areas was parity between state and federal law.10 The language which gave the Commissioner authority to exceed the population limit was added on to the bill during a House Committee hearing.11 The legislative history available concerning this language indicates that the legislature's purpose was to provide the Commissioner with some flexibility concerning population size while preventing unlimited expansion. Maintaining numerical parity with the NCUA was not discussed.12
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SUMMARY
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Sincerely,
GALE A. NORTON Attorney General
CREDIT UNIONS STATUTORY CONSTRUCTION STATE AGENCIES
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REGULATORY AGENCIES, DEPT. Banking, Div. of
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