State Law Regarding Limits on Contracted Employees

[AeroBuff99]

Thought it would be good to have this posted, making it easier find. To be more competitive, we need to have this law modified to allow for AD's to have more contracts. Perhaps including another section specifically for AD's to contract Head coaches for up to 5 years, top assistants for up to 3 years and all other assistants for up to 2 years.

TITLE 24. GOVERNMENT - STATE ADMINISTRATION
ARTICLE 19. PAYMENT OF POSTEMPLOYMENT COMPENSATION TO GOVERNMENT-SUPPORTED EMPLOYEES​

C.R.S. 24-19-104 (2015)​

24-19-104. Terms of employment contracts - public inspection

(1) Except as expressly permitted pursuant to subsection (1.5) of this section, if any governmental unit or government-financed entity enters into an employment contract or employment contract extension with a government-supported official or employee, such employment contract or employment contract extension shall contain terms that clearly state that:

(a) Such employment contract is subject to termination by either party to such contract at any time during the term of such contract and that such official or employee shall be deemed to be an employee-at-will;

(b) No compensation, whether as a buy-out of the remaining term of the contract, as liquidated damages, or as any other form of remuneration, shall be owed or paid to such government-supported official or employee upon or after the termination of such contract except for compensation that was earned prior to termination prorated to the date of termination; and

(c) If the contract is not substantially in compliance with the prohibition against payment of postemployment compensation, the contract is null and void.

(1.5) (a) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, each system of higher education and each campus of each state institution of higher education may have in effect employment contracts or employment contract extensions having a duration not more than five years with not more than six government-supported officials or employees if:

(I) The governing board of the institution determines that the contract or extension is necessary for the hiring or retaining of the employee in light of prevailing market conditions and competitive employment practices in other states;

(II) The contract contains a clause that the institution remains free to terminate the contract or extension without penalty if sufficient funds are not appropriated.

(b) Nothing in this subsection (1.5) shall be construed to exempt any governmental unit or government-financed entity from the requirements of section 24-19-103.

(c) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section or paragraph (a) of this subsection (1.5), each system of higher education and each campus of each state institution of higher education may have in effect an unlimited number of employment contracts or employment contract extensions having a duration of not more than five years with an unlimited number of government-supported officials or employees if the employment contracts or employment contract extensions are for research to be performed in university settings. A contract executed pursuant to this paragraph (c) shall include a provision that the contract shall become unenforceable if, during the term of the contract, the system of higher education or campus of a state institution of higher education that is a party to the contract:

(I) Ceases to be an enterprise, as defined in section 20 (2) (d) of article X of the state constitution; and

(II) Lacks present cash reserves sufficient to pledge irrevocably to satisfy the terms of the contract.

(d) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section or paragraph (a) of this subsection (1.5), each system of higher education and each campus of each state institution of higher education may, subject to the approval of the chief executive officer of the system or institution and any rules or limitations established by the chief executive officer, have in effect an unlimited number of term employment contracts or term employment contract extensions having a duration of not more than three years with an unlimited number of government-supported officials or employees if the term employment contracts or term employment contract extensions are for half-time or longer, non-tenure-track classroom teaching appointments or librarian appointments. A person employed in a classroom teaching appointment pursuant to a term employment contract or term employment contract extension described in this paragraph (d) may have duties in addition to classroom teaching, as described in the contract or contract extension. A term employment contract or term employment contract extension executed pursuant to this paragraph (d) at a minimum shall include a provision stating the contract or contract extension is unenforceable if, during the term of the contract or contract extension, the system of higher education or campus of a state institution of higher education that is a party to the contract:

(I) Ceases to be an enterprise, as defined in section 20 (2) (d) of article X of the state constitution; and

(II) Lacks present cash reserves sufficient to pledge irrevocably to satisfy the terms of the contract.

(2) If any governmental unit or government-financed entity enters into an employment contract or employment contract extension with any government-supported official or employee on or after July 1, 1993, such governmental unit or government-financed entity shall make the terms of such contract available to the public for inspection and copying during regular business hours.

(3) The provisions of this section shall not be interpreted to authorize the termination of any government-supported official or employee for any reason that is contrary to applicable federal, state, or local law.

(4) (a) No governmental unit or government-financed entity shall enter into an employment contract with a government-supported official or employee or extend an existing employment contract with a government-supported official or employee if such employment contract or contract extension contains any provisions that are intended to evade the requirements of this article. Contractual provisions that are prohibited under the provisions of subsection (1) of this section include, but are not limited to, any provision that allows a government-supported official or employee to earn an unreasonably large portion of contractual compensation during the early stages of the term of employment of such government-supported official or employee.

(b) The provisions of paragraph (a) of this subsection (4) shall not be interpreted to prohibit the reimbursement of any actual relocation expenses of government-supported officials or employees or the payment of reasonable incentives for accepting employment to government-supported officials or employees.

HISTORY: Source: L. 93: Entire article added, p. 665, § 1, effective July 1.L. 96: (1)(a) and (1)(b) amended and (1)(c) added, pp. 850, 849, § § 3, 1, effective May 23.L. 98: IP(1) amended and (1.5) added, p. 312, § 1, effective April 17.L. 2007: (1.5)(c) added, p. 65, § 1, effective March 15; (1.5)(c) amended, p. 1476, § 1, effective May 30.L. 2012: (1.5)(d) added, (HB 12-1144), ch. 99, p. 330, § 1, effective August 8.L. 2014: IP(1.5)(d) amended, (HB 14-1256), ch. 91, p. 340, § 1, effective March 27.

 

[SuperiorBuff]

Wasn't that a constitutional amendment? Good luck.

 

[L Buff]

Wasn't that a constitutional amendment? Good luck.

Nope .... just a statute.

 

[SuperiorBuff]

Nope .... just a statute.

sweet

 

[Buffnik]

One obstacle to getting this statute changed is that Phil D supports it.

 

[L Buff]

sweet

That being said, since IIRC (I wasn't in CO at the time) that was passed in rapid response to CU (under either Gee or Albino) giving sweetheart exit packages to top administrators (I don't think any coaches were involved), and the fact that CO is not a CFB crazed state, getting that statute amended or repealed in order to permit what AeroBuff proposes will be very difficult and probably unlikely.

 

[Darth Snow]

I'm struggling to come up with a non-CU athletics reason to get this passed.

 

[Buffnik]

I'm struggling to come up with a non-CU athletics reason to get this passed.

This is where I get jealous of other states where the HC could make a call to the governor to let him know it was hurting the program and get the statute changed in the next legislative session.

 

[Darth Snow]

This is where I get jealous of other states where the HC could make a call to the governor to let him know it was hurting the program and get the statute changed in the next legislative session.

I can make an argument that it prevents CU and other academic institutions as a whole from obtaining administrators on par with the rest of the world - and that the disadvantage it puts CU in athletically hurts the state since athletics are the cheapest and best way for CU's universities to advertise themselves. That's about it.

 

[SuperD]

The sad thing is I wouldn't be surprised if our administrators actually like this law because it helps minimize their costs to switch coaching administrations.

 

[Bufffan68]

The sad thing is I wouldn't be surprised if our administrators actually like this law because it helps minimize their costs to switch coaching administrations.

I hope they don't take the bean counter approach.

 

[Jayne Cobb]

Knowing a little about the workings of the Colorado General Assembly, I think that would be very significant hurdles to getting this law changed. First of all, it is pretty much impossible for the upcoming legislative session, as the members have already worked on the bills that they are going to introduce, and there is a limit.

Second, I don't see a broad constituency supporting this bill (and Allbuffs is not a broad constituency). For a change like this, you would want a broad constituency pushing it.

Third, "good government" types would fight this tooth and nail, as would anti-spending types.

Ain't no way the legislature changes this in an election season, and unless you suddenly have party leadership consisting of hardcore college football fans, nobody is going to push this.

 

[Deleted member 807]

Since the probability of repealing the statute is small, maybe other options can be explored.

The relationship between the CUAD and the state of Colorado is complicated.
The University of Colorado gets increasingly less funding from the state with each new budget. CU's portion of revenue from the state is a percentage in the single digits. No higher education funding directly supports the athletic department's operations. It's CU policy that the CU athletic department be financially self sufficient. Ticket sales, television revenue, licensing, and donations drive CUAD operations. The CUAD borrows money from the University at times with expectations it will be paid back. This borrowing is useful for facilities projects, shortfalls caused by conference alignment, and other one-time events. The AD resides on state property. Athletic facilities are owned by the university. Coaches and the AD report to university officials and are subject to state statutes that govern hiring practices, pensions, and other benefits.

What if CUAD was restructured as a separate legal entity in order to bypass state hiring limitations? Since the AD is supposed to be self-sufficient, then why can't there be a legal structure that allows for hiring practices to be divorced from state handcuffs, with similar freedoms that are enjoyed by private university AD's like Stanford or USC or Baylor or TCU or Northwestern? It's clear that private universities are more nimble and are able to adjust to the changing athletic landscape better than big public bureaucratic universities like Cal, Minnisota, Illinois, Maryland, and Colorado.

It seems like the State offers an oppressively beaurocratic regime that imposes authority without an equitable degree of support and investment in the success of the enterprise. What is the tipping point where the carve-out of the AD makes sense?

When it comes to college athletics, The state should lead, follow, or get the hell out of the way. If the state is unwilling to go to bat for the AD on par with states inside the SEC footprint or Ohio State, then they should finish the job of giving the AD not only the mandate to be financially self-sufficient, but also empowered to compete on a level playing field with peers who are not operating with one hand tied behind their back.

If CU and the state doesn't like change, then it appears they are more comfortable with irrelevance. Somewhere the pursuit of excellence has been lost between Folsom and Capitol Hill.

 

[Hugegroove]

One obstacle to getting this statute changed is that Phil D supports it.

Let's start 1st by getting rid of the obstacle.

 

[buffalo1]

I've long understood that the amount of funding from the State to CU is becoming smaller and smaller. Some suggest that CU just get out of funds from the state and then not be subject to State imposed constrictions. One example is the Legislature berating CU every time they impose a tuition increase.

I recall hearing that Bohn had funds committed to buy out Hawkins but the CU admin was about to have heavy dealings with the legislature about money and EVEN THOUGH the buyout was privately funded, the story would hinder asking for state money for academics. Admin told Bohn no firing/buyout.

tsarbomba is spot on in assessment of the legislators. I deal with many of them during and outside of the session. They are at times scared of their own shadow. Bill titles have been pulled. They claim a limit of 5 bills per, but if you take the total number of bills, divided by number of legislators, I bet you get a number north of 5.

 

[DBT]

Take the AD out of the state system so they aren't state employees. Though I'm sure those things have been thought of. You could make them contractors but then you have to deal with contracting laws, rules and regulations.

 

[buffalo1]

Some quasi governmental functions that have their own revenue streams are sometimes set up as enterprises. But probably still subject to this statutory provision. I haven't read it all.

 

[L Buff]

Some quasi governmental functions that have their own revenue streams are sometimes set up as enterprises. But probably still subject to this statutory provision. I haven't read it all.

Hmmm ... you may be onto something here. Don't have time to thoroughly research or analyze it now (too much football to watch) ... but here are the relevant sources.

Here's a memo from the State Auditor re CU's application for enterprise status.

And the statute at issue:

COLORADO REVISED STATUTES
*** This document reflects changes current through all laws passed at the First Regular Session
of the Seventieth General Assembly of the State of Colorado (2015) ***
TITLE 23. POSTSECONDARY EDUCATION
STATE UNIVERSITIES AND COLLEGES
ARTICLE 5. GENERAL PROVISIONS
C.R.S. 23-5-101.7 (2015)
23-5-101.7. Enterprise status of institutions of higher education



(1) As used in this section, unless the context otherwise requires, "institution of higher education" or "institution" means the Colorado state university - Pueblo, Adams state university, Colorado Mesa university, Metropolitan state university of Denver, Fort Lewis college, Western state Colorado university, the university of northern Colorado, Colorado school of mines, the university of Colorado, Colorado state university, and all community colleges governed by the state board for community colleges and occupational education.

(2) An institution of higher education, or a group of institutions of higher education that is managed by a single governing board, may be designated as an enterprise for the purposes of section 20 of article X of the state constitution so long as the governing board of the institution or group of institutions retains authority to issue revenue bonds on behalf of the institution or group of institutions and the institution or group of institutions receives less than ten percent of its total annual revenues in grants from all Colorado state and local governments combined. So long as it is designated as an enterprise pursuant to the provisions of this section, an institution or group of institutions shall not be subject to any of the provisions of section 20 of article X of the state constitution.

(3) In pledging revenues for the repayment of revenue bonds issued on behalf of an institution of higher education or group of institutions of higher education that is designated as an enterprise, the institution or group of institutions may pledge internal revenues only if the institution or group of institutions:

(a) Is accounted for separately in institutional financial records; and

(b) Engages in the type of activities that are commonly carried on for profit outside the public sector.

(4) (a) The governing board of an institution of higher education may, by resolution, designate an institution of higher education or group of institutions of higher education managed by the governing board as an enterprise so long as the institution or group of institutions meets the requirements for an enterprise stated in subsection (2) of this section. Except as provided in paragraph (b) of this subsection (4), any such enterprise designation shall not terminate, expire, or be rescinded as long as the institution or group of institutions meets the requirements for an enterprise.

(b) All resolutions adopted pursuant to paragraph (a) of this subsection (4) shall be submitted by the adopting governing board to the office of the state auditor in the form and manner prescribed by the legislative audit committee. The designations shall be reviewed by the office of the state auditor to determine whether the designations are within the authority of the adopting governing board pursuant to the provisions of this section. The legislative audit committee shall also review the designations to determine whether the designations conform with the provisions of this section. The official certificate of the state auditor as to the fact of submission or the date of submission of a designation as shown by the records of the office of the state auditor, as well as to the fact of nonsubmission as shown by the nonexistence of such records, shall be received and held in all civil cases as competent evidence of the facts contained therein. A designation adopted by a governing board of an institution or group of institutions of higher education without being submitted within twenty days after adoption to the office of the state auditor for review by the office and by the legislative audit committee shall be void.

(5) Repealed.

HISTORY: Source: L. 2004: Entire section added, p. 719, § 8, effective July 1; (5) repealed, p. 1936, § 5, effective July 1.L. 2011: (1) amended, (SB 11-265), ch. 292, p. 1366, § 19, effective August 10.L. 2012: (1) amended, (HB 12-1080), ch. 189, p. 758, § 14, effective May 19; (1) amended, (SB 12-148), ch. 125, p. 426, § 10, effective July 1; (1) amended, (HB 12-1331), ch. 254, p. 1270, § 12, effective August 1.

 

[DBT]

When we hire contract employees, we have to compete it and look at best price/technically capable. Best value and all that ****. We are dealing with a protest at this very moment. Government contracting laws are pretty restrictive.

 

[MtnBuff]

Never got a response to an earlier post.

What would happen if a foundation or other non-profit was formed. Certain assistant coaches would have the Foundation as a second employer. They would be contracted with the foundation with certain conditions on the contracts. They would have to make a certain number of appearances each year at foundation events (Kick-off luncheon, a meet and greet once or twice in season and after LOI day, a charity event or two) and their contract would be contingent on meeting the obligations of their university employment with the added element that if the university chose not to have them back there would be a payout and if they left for a comparable position they would have to pay a buy-out.

They would still have their year to year contract with the university including benefits and a salary of say $50-60,000 per year.

The foundation would pay with donations made to the foundation instead of directly to the AD, The AD would still have the right to oversite of the foundations income and expenditures to insure that no violations of NCAA rules occur.

 

[DBT]

Never got a response to an earlier post.

What would happen if a foundation or other non-profit was formed. Certain assistant coaches would have the Foundation as a second employer. They would be contracted with the foundation with certain conditions on the contracts. They would have to make a certain number of appearances each year at foundation events (Kick-off luncheon, a meet and greet once or twice in season and after LOI day, a charity event or two) and their contract would be contingent on meeting the obligations of their university employment with the added element that if the university chose not to have them back there would be a payout and if they left for a comparable position they would have to pay a buy-out.

They would still have their year to year contract with the university including benefits and a salary of say $50-60,000 per year.

The foundation would pay with donations made to the foundation instead of directly to the AD, The AD would still have the right to oversite of the foundations income and expenditures to insure that no violations of NCAA rules occur.

How would the university gain revenue? The AD would have to enter into some sort of agreement, a contract, with the school and facilities, revenue, ancillary things like dorms and meals would be involved. The athletes represent the school. Would they be under disciplinary guidelines? I think there would be a lot of roadblocks to your plan.

 

[MtnBuff]

How would the university gain revenue? The AD would have to enter into some sort of agreement, a contract, with the school and facilities, revenue, ancillary things like dorms and meals would be involved. The athletes represent the school. Would they be under disciplinary guidelines? I think there would be a lot of roadblocks to your plan.

This wouldn't pay the athletes, it's strictly about coaching staff or other employees of the university for whom we need to offer a longer contract term in order to be competitve.

The Foundation would be a non-profit. Donations would go towards paying these key employees for longer term contracts. Any surpluses not put away for future obligations would simply be donated to the school.

As fans our interest would be in the ability to recruit and keep better assistant coaches and coaches for non-revenue sports. It could also be useful if for instance a corporation or trade group wanted to provide financial assistance in recruiting a uniquely qualified professor or researcher. In many of those cases having some kind of long term security may be a critical element of recruiting because their research or program requires some extended time to complete.