Judges: DUANE WOODARD, Attorney General
Filed Date: 9/15/1988
Status: Precedential
Modified Date: 7/5/2016
Clifford Hall Deputy State Controller 1525 Sherman Street, 7th Flr. Denver, Colorado 80203
Dear Mr. Hall:
I write in response to your request for an Attorney General's opinion regarding the payment of expenses of an incumbent who successfully challenges a petition to recall him.
QUESTIONS PRESENTED AND CONCLUSIONS
a. Is an incumbent who successfully challenges a recall petition entitled to payment of the expenses which he incurred even though an election is not held?
No.
b. Are the time frames which are set forth section
Yes, with respect to the time frame within which the incumbent must submit his expenses, no, with respect to the time frame within which the municipality must forward the request to the state controller.
ANALYSIS
c. Pursuant to Colo. Const. art.
If at any recall election the incumbent whose recall is sought is not recalled, he shall be repaid from the state treasury. . . .
Both article XXI and section
The plain language of both the constitutional and the statutory provision predicate one's ability to recover expenses upon the occurrence of an "election," i.e., a vote of the electors. See Tangeman v. Coates,
The purpose of both provisions is to ensure the promotion of "an environment in which voters are capable of reaching an informed decision." Passarelli v. Schoettler,
d. You have also asked whether the time frames set forth in section
Section
The incumbent shall file a complete and detailed request for reimbursement within 60 days after the date of the recall election with the governing body of the municipality holding the recall elections, who shall then review the reimbursement request for appropriateness under subsection (2) of this section and refer such request, with recommendations, to the controller within thirty days after receipt of the reimbursement request.
The provision contains two time requirements. The incumbent must submit his request within 60 days after the recall election, and the municipality must submit its recommendation to the state controller within 30 days after receipt of the request.
The requirement that the incumbent submit his request within 60 days of the date of the recall election is jurisdictional. Mandatory time limits for commencing administrative actions are generally jurisdictional, Country View Care Center v.Colorado Department of Social Services,
The requirement that the municipality must forward the information to the controller is not jurisdictional. Generally, the failure of any agency to handle a matter within statutory time frames is not jurisdictional. See e.g.,In re Sekerz,
SUMMARY
An incumbent who successfully challenges a recall petition is not entitled to payment of expenses incurred in that challenge if an election is not held. Section
Sincerely,
DUANE WOODARD Attorney General
ELECTIONS PUBLIC OFFICE JURISDICTION
Section
Colo. Const. art.
ADMINISTRATION ACCOUNTS CONTROL, DIV. OF SECRETARY OF STATE DEPT ELECTIONS, DIV. OF
An incumbent who successfully challenges a recall petition is not entitled to payment of expenses incurred in that challenge if an election is not held. Section