No.

The Honorable Nancy Dick Lieutenant Governor 144 State Capitol Building Denver, Colorado 80203

Dear Lieutenant Governor:

QUESTION PRESENTED AND CONCLUSION

By letter of August 9, 1979, you have requested my opinion on whether the State of Colorado, and its designated applicant, the Lieutenant Governor's Office, will comply with the minimum program requirements of Section 460.12(a), Chapter II, Title 10, Code of Federal Regulations, as amended, by establishing an Office of Consumer Services by executive order of the governor upon notification of such award.

It is my opinion that the Governor has the authority to establish an Office of Consumer Services within the executive branch and it is also my opinion that the office will comply with the minimum program requirements of section 460.12(a)

ANALYSIS

Article IV, section 2 of the Colorado Constitution provides as follows:

The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed.

Article III of the Colorado Constitution provides as follows:

The powers of the government of this state are divided into three distinct departments, — the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.

Thus, the Governor may take whatever actions he deems necessary, including issuance of executive orders, to execute the laws of the state and run his office so long as he does not infringe upon the legislative or judicial branches of government.cf. Anderson v. Lamm, 579 P.2d 620 (1978);MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972).

Pursuant to the above-referenced powers, Colorado governors historically have issued executive orders to establish various commissions and offices. See Executive Orders of May 2, 1978, establishing the Medicare-Medicaid Fraud Unit; August 10, 1977, establishing the Office of Energy Conservation; October 1, 1973, establishing the Office of Human Resources; and December 22, 1964, establishing the Commission on the Status of Women. The Colorado legislature has recognized the Governor's power to establish a commission by executive order, as reflected in C.R.S. 1973, 24-34-201(1), which provides, in part, as follows:

The general assembly finds and declares . . . that there has existed in the state, by executive order of the governor, the Colorado commission on the status of women . . . .

SUMMARY

Therefore, it is my opinion that the Governor has the authority to establish an Office of Consumer Services within the executive branch.

With respect to whether such an office would comply with the minimum requirements of Section 460.12(a), those requirements are as follows:

1. That it be a consumer interest office;

2. That it be empowered to assess the effect of proposed electric utility rate charges upon consumers, to assist consumer groups by providing technical or financial assistance, and to advocate positions on its own behalf it determines are most advantageous to consumers; and

3. That it be independent of a utility regulatory commission so that the commission has no direct control over the office's budget and no authority over the office's personnel and so that employees of the office do not perform any services for the commission.

By virtue of the enabling executive order, an Office of Consumer Services would have the authority necessary to exercise the above-described functions. Moreover, because the source of funding for such an office is through this grant and therefore independent of the source of funding for the Public Utilities Commission, the commission will have no authority over the budget or personnel of the office, and no employees of the office will perform any services for the commission. Therefore, it is my opinion that the office will comply with the minimum program requirements of Section 460.12(a).

Very truly yours,

J.D. MacFARLANE Attorney General

EXECUTIVE BRANCH GOVERNOR

C.R.S. 1973, 24-34-201

Colo. Const. art. IV, § 2 Colo. Const. art. III

2 C.F.R. 10, § 460.12(a)

EXECUTIVE BRANCH Governor, Office of Lieutenant Governor

The Governor has the authority to issue an executive order establishing the Office of Consumer Services within the Executive Branch (in this case, in the Office of the Lieutenant Governor). The Office of Consumer Services as established complies with the minimum program requirements established by federal law.