No.

Mr. Thomas H. Sheehan, Jr., Executive Director Colorado Department of Administration 724 State Services Building Denver, Colorado 80203

Dear Mr. Sheehan:

You have asked several questions regarding use of the Highway Users Tax Fund for the purpose of maintaining the communications system established under C.R.S. 1973, 43-5-121 and 43-5-124, in the statutory provisions which govern the State Patrol. Confusion has arisen in view of a reorganization which placed the communications coordinator in the Department of Administration, C.R.S. 1973, 24-30-905.

QUESTION PRESENTED AND CONCLUSION

How should the expense of maintaining a statewide communications network for the state patrol and the highway department be billed?

The State Communications Coordinator, through the Department of Administration should bill the State Patrol, through the Department of Highways for the expense of maintaining a statewide communications network for the patrol and highway department. Such payments may be made from Highway Users Tax Funds.

ANALYSIS

Despite the reorganization, the statutes as exemplified by a 1975 amendment to C.R.S. 1973, 43-5-124, continue to require the Chief of the State Patrol to pay for expenses of dispatchers and other necessary employees in connection with the radio broadcasting system:

All expenses of dispatchers and other necessary employees used in connection with the radio broadcasting system provided for by this section shall be paid by the chief of the Colorado state patrol in the same manner as expenses of other employees of said patrol are paid

C.R.S. 1973, 43-5-124(4).

This section must be read in conjunction with the reorganization provisions of C.R.S. 1973, 24-30-905(2) which indicate an intent to continue use of the Highway Users Tax Fund for payment of operating expenses of the communications system insofar as permissible in connection with the construction, maintenance and supervision of public highways.

But the Legislature did not provide statutory authorization for direct appropriation by the Legislature to the Department of Administration for these purposes and cannot do so without a statutory authorization. Hence, expenses of the highway related communications function should be paid through the existing statutorily authorized appropriation procedure whereby the Legislature appropriates the Highway Users Tax Fund revenue to the Patrol. C.R.S. 1973, 43-4-206(1). In the alternative, the general Highway Department communications expenses can appropriately be derived from the State Highway Fund pursuant to the Highway Commission's budgetary authority. C.R.S. 1973,43-1-105(1)(g); 43-4-206(1)(b).

In summary, the expenses of maintaining a statewide communications network for the State Patrol and Highway Department should be billed by the Department of Administration to the State Patrol and Highway Department which would make payments out of a legislative appropriation on the tax fund or by Highway Commission action, or a combination of both. The other alternatives are general appropriations or a statute authorizing the Legislature to appropriate money directly from the Highway Users Tax Fund to the Department of Administration for reasonably related highway purposes.

Since C.R.S. 1973, 43-5-121 deems the radio and teletype system to be part of the State Patrol-Department of Highways function, the expenses for use of these facilities by law enforcement and other agencies can be properly allocated to the Highway Users Tax Fund through the State Patrol appropriation in an amount reasonably related to construction, maintenance and supervision of roadways. Otherwise, a general appropriation or billing of individual governmental agencies is appropriate.

The term "operating expenses" in C.R.S. 1973, 24-30-905(2) refers to expenses incurred in administering, maintaining, equipping, and servicing the communications system; the same statutory section makes it clear that a reasonable allocation of operating expenses must be determined since the Highway Users Tax Fund can only be used to the extent the communications system serves, or provides benefits in connection with the construction, maintenance and supervision of public highways. The breadth of these terms is indicated by our memorandum of March 30, 1977 to the Legislative Audit Committee on proper uses of tax fund revenues.

SUMMARY

The State Communications Coordinator, through the Department of Administration should bill the State Patrol through the Department of Highways for the expense of maintaining a statewide communications network for the patrol and highway department. Such payments may be made from Highway Users Tax Funds.

Very truly yours,

J.D. MacFARLANE Attorney General

HIGHWAYS HIGHWAY PATROL

C.R.S. 1973, 43-5-124(4) C.R.S. 1973, 24-30-905(2) C.R.S. 1973, 43-4-206(1) C.R.S. 1973, 43-5-121

ADMINISTRATION, DEPT. OF Communications, Div. of HIGHWAYS, DEPT. OF Colorado State Patrol

The State Communications Coordinator, through the Department of Administration should bill the State Patrol through the Department of Highways for the expense of maintaining a statewide communications network for the patrol and highway department. Such payments may be made from Highway Users Tax Funds.