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Update: Governor Hickenlooper's "$10+ Billion Custodial Slush Fund" has no Legislative Oversight

In VetTheGov's previous story regarding budgets not matching actuals by a long shot, VetTheGov sent out a few emails to find out answers. A quick reminder back in 2011-2012 Colorado state budget was set at around $20.5 Billion yet the actual spending authority showed $34 Billion with actual spending at $28.7 Billion. Here are a couple of email strings VetTheGov received back:


I suspect this larger number comes from continuous appropriation authority, mostly of Federal $'s that come into the state.

Director Ziegler had this to say in part:

“Items that are continuously appropriated by Constitutional, State, or Federal law.  While these items are technically "appropriated", they are not necessarily appropriated every year and therefore, may be off-budget.  The Controller would still, I assume, reflect the estimated budget amount that was not in a specific bill and the actual amounts expended in any given year.  This could cause a difference between the amount reflected in the Long Bill as a budget and the amount  reflected in this report.”

Either way, the legislature only appropriated $19.5B in 11-12, and only $7B of that was General Fund.

After a very cursory look at the differences most of the discrepancy is within the cash funds. I’ll have to look into more.

*Senator Kevin Grantham*

Colorado State Senate District 2

P.O. Box 1383

Cañon City, CO 81215

(719) 431-0111

It appears based on initial responses our Legislators didn't have much of a clue as to the Governors executive branch having this much spending authority and actually stated it might be because the Cash Fund had discrepancies. Senator Grantham serves on the Joint Budget Committee and hopefully he gets back to VetTheGov regarding the cash. Director John Zieglar, mentioned in Senator Grantham's email, is the Director of the Joint Budget Committee and his department in 2011-2012 had a $1.517 Million budget and spent every dime. VetTheGov not satisfied with the answer received from Senator Grantham sent an email to the State Controller's office specifically to Bob Jaros head of the department and here was the response from his office:

Thanks for your inquiry.  The budget-to-actual schedules are inclusive of both the legislative budget (i.e., the Long Bill) and non-legislative budgets.  Non-legislative budgets include items such as custodial budgets for federal funds beyond those identified in the the Long Bill and statutorily authorized activity not subject to appropriation such as payments for unemployment claims.  Please let me know if you have any additional questions.

Tammy Nelson
Financial Analysis & Reporting Director

So VetTheGov searched back through the 2011-2012 actual budget and searched all line items with the terms custodial and found these located in the Cash Fund under Department of Law and Public Safety but only account for approximately $10 Million. Seems there is around $9.99 Billion of slush nowhere labeled Custodial. VetTheGov then looked under the Unemployment Federally Funded portion of the actuals and found almost $1 Billion in federal spending for this category but still $8.99 Billion of non-appropriated slush funding all under the control of the Executive branch. It's no wonder the contested races for Governorship cost so much to gain entry to the slush cookie jar fund!

Back in 1990 then Governor of Colorado Romer wrote a letter to then Attorney General Woodard specifically asking for a decision of authority over Custodial funding. The communication which can be found here is also included below from the Analysis and Summary portion of the decision.


Is the Legislature's plenary power of appropriation limited with respect to custodial funds received by the executive branch of government?

Yes. The legislative power of appropriation does not extend to those funds for which the executive branch serves as a custodian or trustee for limited purposes.


It is an axiom that the power of the General Assembly over appropriations of state funds is plenary, subject only to constitutional limitations. Colorado General Assembly v. Lamm, 704 P.2d 1371, 1380 (Colo. 1985); Anderson v. Lamm, 195 Colo. 437, 579 P.2d 620, 623 (1978); MacManus v. Love, 179 Colo. 218, 499 P.2d 609, 610 (1972). Article III of the Colorado Constitution requires separation of the respective powers of the legislative and executive branches. This constitutional provision has been interpreted to prohibit the Legislature from exercising its budgetary powers to interfere with the executive responsibility for administering state government. Anderson v. Lamm, supra.

The boundary between the respective powers of the legislative and executive branches is not a clearly fixed frontier. Court decisions which have found violations of Article III have considered the circumstances of each alleged incursion on a case-by-case basis and identified attempts by one branch of government to usurp fundamental powers of another branch.

In a series of cases spanning a dozen years, the Colorado Supreme Court delineated a narrow class of funds administered by State government which fall outside the broad sweep of the legislative power of appropriation. At one point in time this exception was defined to comprise federal grant funds received by the state to carry out federal programs. See Anderson v. Lamm, supra; MacManus v. Love, supra. In 1985 the court clarified that the key to this controversy was not whether particular funds derived from a federal source or a private source, but whether "the role of the state in administering the fund, as determined by the external source generating the revenue, was essentially custodial in nature." Colorado General Assembly v. Lamm, 700 P.2d 508, 525 (Colo. 1985).

In its most recent, and most exhaustive, discussion of this topic, the court expanded upon this theme. It is the nature of the restrictions upon the funds, and not their source, that determines whether the legislature constitutionally may control expenditures through the appropriation process. Colorado General Assembly v. Lamm, 738 P.2d 1156 (Colo. 1987). There the court minutely examined the nature of the restrictions found in several federal block grant programs enacted during the Reagan administration. As a general rule, those grant programs permitted the state considerable discretion to choose the specific objectives for which federal funds would be spent to further particular federal goals. The governor, the court held, possesses constitutional authority to make specific staffing and resource allocation decisions among several options which are consistent with federal purposes. The executive role with respect to block grant funds amounted to administering a fund that was essentially custodial in nature. 738 P.2d at 1173.

But the governor's authority to expend federal block grants is subject to limitations as well. The court concluded that legislative appropriation was required where federal law permitted the state to transfer funds from one block grant program to another. The degree of flexibility permitted the state by federal law in those circumstances was held to be inconsistent with a mere custodial role. Even though the source of the funds was the federal government and the ultimate beneficiaries were not state agencies, the legislature had constitutional authority to appropriate such transfers, subject to gubernatorial veto. 738 P.2d at 1173.

The cases discussed above provide parameters to the respective powers of the legislature and the governor. The circumstances of each case provide examples of instances where the Colorado Supreme Court has found that one branch has gone too far by interfering with fundamental functions of another branch. They do not provide a formula for determining whether other funds for which the State has responsibility are custodial. Future determinations must turn on a careful examination of the nature of the specific funds, starting with the terms under which they have been provided to the state.

In the first General Assembly v. Lamm decision, the Colorado Supreme Court set out the following definition of "custodial funds":

funds not generated by tax revenues which are given to the state for particular purposes and of which the state is a custodian or trustee to carry out the purposes for which the sums have been provided....

700 P.2d at 524. Central to the court's concept of custodial funds is a requirement that the state's role must be that of a guardian or safekeeper of funds, rather than the outright owner of the moneys. Compare Webster's Third New International Dictionary at 559 (1971) ("custodial" is defined as "relating to or marked by guardianship or maintaining safely"). The governor's ability to expend such funds in the absence of legislative appropriation is premised on his limited role to administer expenditure of the moneys consistent with policy directives imposed by the source of the funds. If those policy decisions have not been made, then legislative appropriation is necessary. Otherwise, the governor improperly would be exercising a legislative function.

If the state itself generates funds, whether by tax revenues, user fees or otherwise, it becomes very difficult to sustain the argument that state government acts simply as a custodian. Similarly, if moneys are provided voluntarily to the state from an outside source without restriction on their use, then it is constitutionally necessary that the legislature make expenditure decisions through the appropriation process.

One example of custodial funds apart from the federal grant context, is the situation where moneys are provided to the state subject to an express or constructive trust to be expended for a designated objective, e.g., erection of a monument or purchase of a work of art. The state is free to decline such a gift. However, once it has accepted the gift and its terms, then state government is obligated to satisfy the restrictions as a condition of expenditure. Under those circumstances the executive branch functions as a custodian to administer the funds consistent with the terms of the donation. Legislative appropriation is not required.

This analysis also applies to state recoveries of money through litigation pursuant to state or federal law. Court judgments which award the state general damages or attorneys fees and costs pursuant to federal or state law ordinarily amount to a form of unconditional compensation to the state that is subject to the legislative power to appropriate or to make statutory provision for expenditure. In certain instances, however, the terms of the court order may specify that recoveries are intended to benefit a certain class or are intended for use for specified purposes (e.g., establishment of a trust fund to return money to defrauded consumers or to benefit persons similarly situated through future enforcement of consumer laws). In such instances, restricted court awards may properly be considered custodial funds not subject to appropriation.

This is not to say that the General Assembly has no role whatsoever concerning expenditures of custodial funds. In the course of the state's budget process the General Assembly may request information on the use of custodial funds by executive agencies in order to determine allocations of other appropriated funds. However, the legislature may not redefine custodial funds in a manner inconsistent with the decisions of the judicial branch. Expenditures of custodial funds by state agencies are subject to financial audit by the state auditor under his constitutional and statutory authority. See Section 2-3-103, C.R.S. (1990 Supp.); Colo. Const. art. V, Section 49. Since custodial funds are the responsibility of state government to administer, expenditures normally will be subject to the general statutory requirements that pertain to spending other types of state funds (e.g., the fiscal rules, personnel laws and procurement code requirements).

Authority to expend custodial funds does not expand the substantive powers of a state official or agency beyond those already conferred by statute or constitution. As a general rule an executive agency may not use custodial funds to engage in programs for which it has no existing statutory or constitutional authority. Where the scope of statutory powers is in doubt, the General Assembly retains the power to enact legislation precluding an executive agency from engaging in specified activities or programs, regardless whether funded by custodial funds or otherwise. Passage of such legislation would, of course, be subject to the gubernatorial veto power.


Since your letter did not raise any particular disputed situation, I have discussed the principles governing expenditures of custodial funds in very general terms. The key lesson is that custodial funds amount to a very narrow exception to the general constitutional requirement of legislative appropriation. Any claim that specific funding is not subject to appropriation must be carefully examined in light of each set of particular circumstances. Ordinarily a presumption exists that appropriation is necessary until the contrary is established. Should you wish an opinion concerning a specific situation, it would be appropriate to examine those facts in a separate opinion.

Now you have the full picture of the huge cookie jar in Colorado! The question becomes, is it time for your elected Legislator's to challenge the Custodial Taxpayer Slush Fund of the Executive Branch and the Governor's use at his discretion? Thanks for reading and hope this was educational and informative!