NOTE: The governor signed this measure on 6/2/2015. SENATE BILL 15-204 BY SENATOR(S) Newell and Lundberg, Aguilar, Baumgardner, Carroll, Cooke, Crowder, Grantham, Guzman, Hodge, Holbert, Johnston, Kefalas, Kerr, Lambert, Marble, Martinez Humenik, Merrifield, Scott, Steadman, Todd, Ulibarri, Woods, Heath, Jahn, Roberts, Scheffel, Cadman; also REPRESENTATIVE(S) Singer, Garnett, Kraft-Tharp, Lebsock, Lee, Lontine, McCann, Melton, Moreno, Primavera, Rankin, Rosenthal, Ryden, Salazar, Tate, Tyler, Winter, Young, Hamner, Kagan, Lawrence. Concerning the independent functioning of the office of the child protection ombudsman, and, in connection therewith, making and reducing appropriations. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, repeal and reenact, with amendments, 19-3.3-102 as follows: 19-3.3-102. Office of the child protection ombudsman established - child protection ombudsman board - qualifications of ombudsman - duties. (1) (a) On or before January 1, 2016, the independent office of the child protection ombudsman, referred to in this article as the "office", is established in the judicial department as an independent agency for the purpose of ensuring the greatest protections for the children of Colorado. (b) The office and the related child protection ombudsman board, established in subsection (2) of this section, shall operate with full independence. The board and office have complete autonomy, control, and authority over operations, budget, and personnel decisions related to the office, board, and ombudsman. (c) The office shall work cooperatively with the child protection ombudsman board established in subsection (2) of this section, the department of human services and other child welfare organizations, as appropriate, to form a partnership between those entities and persons, parents, and the state for the purpose of ensuring the greatest protections for the children of Colorado. (2) (a) There is established an independent, nonpartisan child protection ombudsman board, referred to in this article as the "board". The membership of the board must not exceed twelve members and, to the extent practicable, must include persons from throughout the state and persons with disabilities and must reflect the ethnic diversity of the state. All members must have child welfare policy or system expertise or experience. (b) The board members must be appointed on or before August 1, 2015, as follows: (I) The chief justice of the Colorado supreme court shall appoint: (A) An individual with experience as a respondent parents' counsel; (B) An individual with experience defending juveniles in court proceedings; (C) An individual with legal experience in dependency and neglect cases; and (D) An individual with experience in criminal justice involving children and youth. (II) The governor shall appoint: (A) An individual with previous professional experience with a rural county human or social services agency or a rural private child welfare advocacy agency; (B) An individual with previous professional experience with the department of human services; (C) An individual with previous professional experience with an urban human or social services agency or an urban private child welfare agency; and (D) An individual with experience in primary or secondary education. (III) The president and minority leader of the senate shall appoint: (A) An individual who was formerly a child in the foster care system; and (B) An individual with professional experience as a county and community child protection advocate; and (IV) The speaker and the minority leader of the house of representatives shall appoint: (A) A current or former foster parent; and (B) A health care professional with previous experience with child abuse and neglect cases. (c) Board members shall serve for terms of four years; except that, of the members first appointed, two members appointed pursuant to subparagraphs (I), (II), and (III) of paragraph (b) of this subsection (2) and one member appointed pursuant to subparagraph (IV) of paragraph (b) of this subsection (2), as designated by the appointing officials, shall serve initial terms of two years. The appointing officials shall fill any vacancies on the board for the remainder of any unexpired term. (d) The board shall meet a minimum of two times per year and additionally as needed. At least one meeting per year must be held outside of the Denver metropolitan area. (e) Board members shall serve without compensation but may be reimbursed for actual and reasonable expenses incurred in the performance of their duties. (f) Expenses incurred for the board must be paid from the general operating budget of the office of the child protection ombudsman. (3) The board has the following duties and responsibilities: (a) To oversee personnel decisions related to the ombudsman, including, but not limited to: (I) On or before December 1, 2015, and as necessary thereafter, appointing a person to serve as the child protection ombudsman and director of the office, referred to in this article as the "ombudsman". The ombudsman appointed by the board on or before December 1, 2015, shall assume his or her position on the effective date of the memorandum of understanding between the judicial department and the office, developed pursuant to section 19-3.3-102 (3) (e). The board may also discharge an acting ombudsman for cause. A two-thirds majority vote is required to hire or discharge the ombudsman. The general assembly shall set the ombudsman's compensation and such compensation may not be reduced during the term of the ombudsman's appointment. (II) Filling any vacancy in the ombudsman position; (b) To ensure accountability and consistency in the operating policies and procedures, including reasonable rules to administer the provisions of this article and any other standards of conduct and reporting requirements as provided by law; (c) To work cooperatively with the ombudsman to provide fiscal oversight of the general operating budget of the office, to assist with training, as needed, and provide any other assistance to ensure that the office and ombudsman operate in compliance with the provisions of this article and with state and federal laws relating to the child welfare system; (d) To assist with the memorandum of understanding between the office and the state department. The memorandum of understanding must be completed and signed no later than November 1, 2015; (e) To collaborate with the judicial department and the office on the creation of an administrative memorandum of understanding between the office and the judicial department. The memorandum of understanding must be completed and signed no later than November 1, 2015, and have an effective date of no later than January 1, 2016. The memorandum of understanding must contain, at a minimum: (I) A requirement that the office has its own personnel rules; (II) A requirement that the ombudsman has independent hiring and termination authority over office employees; (III) A requirement that the office must follow judicial fiscal rules; (IV) A requirement that the office of the state court administrator shall offer the office of the child protection ombudsman limited support with respect to: (A) Personnel matters; (B) Recruitment; (C) Payroll; (D) Benefits; (E) Budget submission, as needed; (F) Accounting; and (G) Office space, facilities, and technical support limited to the building that houses the office of the state court administrator; (V) Any other provisions regarding administrative support that will help maintain the independence of the office; (f) To assist with training for the ombudsman, office, or as otherwise needed; and (g) To assist with reporting requirements to the general assembly. (4) Meetings of the board are subject to the provisions of section 24-6-402, C.R.S., except for executive personnel actions or meetings requiring the protection of confidentiality for children's or parents' personal data pursuant to the federal "Child Abuse Prevention and Treatment Act", Pub.L. 93-247, and state privacy laws. (5) The records of the board and the office are subject to the provisions of part 2 of article 72 of title 24, C.R.S. SECTION 2. In Colorado Revised Statutes, 19-3.3-103, amend (1) (a) (I) (A), (2) (b), (2) (e), (3), and (5) as follows: 19-3.3-103. Office of the child protection ombudsman - powers and duties - access to information - confidentiality - testimony - judicial review. (1) The ombudsman has the following duties, at a minimum: (a) (I) (A) To receive complaints concerning child protection services made by or on behalf of a child relating to any action, inaction, or decision of any public agency or any provider that receives public moneys that may adversely affect the safety, permanency, and or well-being of the child. The ombudsman may, independently and impartially, investigate and seek resolution of such complaints, which resolution may include, but need not be limited to, referring a complaint to the state department or appropriate agency or entity and making a recommendation for action relating to a complaint. (2) The ombudsman has the following powers, at a minimum: (b) To review and evaluate the effectiveness and efficiency of any existing grievance resolution mechanisms and to make recommendations to the general assembly, executive director, and any appropriate agency or entity for the improvement of the grievance resolution mechanisms; (e) To recommend to the general assembly, the executive director, and any appropriate agency or entity statutory, budgetary, regulatory, and administrative changes, including systemic changes, to improve the safety of and promote better outcomes for children and families receiving child protection services in Colorado. (3) An agency or organization that is awarded the contract for the operation of the program, The ombudsman, employees of the program office, and any persons acting on behalf of the program office shall comply with all state and federal confidentiality laws that govern the state department or a county department with respect to the treatment of confidential information or records and the disclosure of such information and records. (5) In the performance of his or her duties, the ombudsman shall act independently of the divisions within the state department that are responsible for child welfare, youth corrections, or child care, and of the county departments in the performance of his or her duties of human or social services, and of all judicial agencies, including, but not limited to, the office of the child's representative, the office of the respondent parents' counsel, the office of state public defender, the office of alternate defense counsel, and the office of attorney regulation counsel. Any recommendations made by the ombudsman or positions taken by the ombudsman do not necessarily reflect those of the state department, judicial department, or of the county departments of human or social services. SECTION 3. In Colorado Revised Statutes, amend 19-3.3-106 as follows: 19-3.3-106. Award of contract - extension - repeal. (1) (a) Subject to the provisions of subsection (2) of this section, the executive director, in accordance with the "Procurement Code", articles 101 to 112 of title 24, C.R.S., shall issue the request for proposals for the administration of the program office. The proposal submission period, the review of submissions, and the award of the contract shall be completed within sixty days after the issuance of the request for proposals. (b) The request for proposals shall include language prohibiting the award of the contract to a contractor who will continue to be involved in providing child protection services or involved in the legal representation of children after the award of the contract or who has any other conflict of interest or who is unable to independently and impartially perform the duties of the program office. (2) Notwithstanding any provisions of this article to the contrary, the executive director shall not award a contract for the operation of the program office until such time as the executive director determines that sufficient moneys are available or have been committed for the operation of the program office. (3) The executive director may extend a contract awarded pursuant to this section until December 31, 2015. The contract extension may be revoked upon the agreement of all parties, but no sooner than the effective date of the memorandum of understanding between the judicial department and the office, developed pursuant to section 19-3.3-102 (3) (e). (4) This section is repealed, effective July 1, 2016. SECTION 4. In Colorado Revised Statutes, 19-3.3-107, amend (4); and add (5) as follows: 19-3.3-107. Child protection ombudsman program fund - created - repeal. (4) Any moneys in the fund not expended for the purposes of this article may be invested by the state treasurer as provided by law. All interest and income derived from the investment and deposit of moneys in the fund shall be credited to the fund. Any unexpended and unencumbered moneys remaining in the fund at the end of a fiscal year shall remain in the fund and as of January 1, 2016, shall not revert or be credited or be transferred to the general fund. or to another fund. (5) This section is repealed, effective July 1, 2016. SECTION 5. In Colorado Revised Statutes, 19-3.3-108, amend (2) and (3) as follows: 19-3.3-108. Office of the child protection ombudsman - annual report. (2) The ombudsman shall transmit the annual report to the executive director for review and comment. The executive director ombudsman shall distribute the written report to the governor, the chief justice, and to the health and human services committees of the house of representatives and of the senate, or any successor committees the general assembly. The ombudsman shall present the report to the health and human services committees of the house of representatives and of the senate, or any successor committees. upon request of those committees. (3) The state department ombudsman shall post the annual report issued by the ombudsman to the web site of the state department on the office of the child protection ombudsman's web site and the general assembly's web site. SECTION 6. In Colorado Revised Statutes, add 19-3.3-110 as follows: 19-3.3-110. Funding recommendations. The ombudsman shall make funding recommendations to the joint budget committee of the general assembly for the operation of the office of the child protection ombudsman. The general assembly shall make annual appropriations, in such amount and form as the general assembly determines appropriate, for the operation of the office. SECTION 7. In Colorado Revised Statutes, 19-3.3-108, amend (1) introductory portion and (1) (a) as follows: 19-3.3-108. Office of the child protection ombudsman - annual report. (1) On or before September 1 of each year, commencing with the September 1 following the first fiscal year in which the program is implemented office was established, the ombudsman shall prepare a written report that shall include, but need not be limited to, information from the preceding fiscal year and any recommendations concerning the following: (a) Actions taken by the ombudsman relating to the duties of the program office set forth in section 19-3.3-103; SECTION 8. In Colorado Revised Statutes, amend 19-3.3-109 as follows: 19-3.3-109. Review by the state auditor's office. The state auditor shall conduct or cause to be conducted a performance and fiscal audit of the program office at the beginning of the third year of operation of the program office. Thereafter, at the discretion of the legislative audit committee, the state auditor shall conduct or cause to be conducted a performance and fiscal audit of the program office. SECTION 9. In Colorado Revised Statutes, 24-37-302, amend (3) (b) as follows: 24-37-302. Responsibilities of the office of state planning and budgeting. (3) (b) The department of state, the department of the treasury, the department of law, the judicial department, the office of state public defender, the office of alternate defense counsel, the independent ethics commission, and the office of the child's representative, and the office of the child protection ombudsman shall use the state agency budget submissions described in paragraph (a) of this subsection (3) as a guideline for the submission of their budgets to the joint budget committee. SECTION 10. In Colorado Revised Statutes, 24-37.5-105, amend (11) (b) (I), (11) (b) (II), (11) (b) (IV), (11) (b) (VI), and (11) (c) (II) as follows: 24-37.5-105. Office - responsibilities - rules. (11) (b) The electronic budgeting system should, at minimum: (I) Allow access by the principal departments of the executive branch of state government, as specified in section 24-1-110, the legislative branch agencies, the judicial department, the office of state public defender created in section 21-1-101, C.R.S., the office of alternate defense counsel created in section 21-2-101, C.R.S., the independent ethics commission established in section 24-18.5-101 (2) (a), the office of the child's representative created in section 13-91-104, C.R.S., the office of the child protection ombudsman created in section 19-3.3-102, C.R.S., the office of state planning and budgeting, and the joint budget committee staff; (II) Allow for the confidential development of the governor's annual budget request and the annual budget requests of the legislative branch agencies, the judicial department, the office of state public defender created in section 21-1-101, C.R.S., the office of alternate defense counsel created in section 21-2-101, C.R.S., the independent ethics commission established in section 24-18.5-101 (2) (a), and the office of the child's representative created in section 13-91-104, C.R.S., and the office of the child protection ombudsman created in section 19-3.3-102, C.R.S.; (IV) Allow for the electronic communication of the governor's annual budget request and the annual budget requests of the legislative branch agencies, the judicial department, the office of state public defender created in section 21-1-101, C.R.S., the office of alternate defense counsel created in section 21-2-101, C.R.S., the independent ethics commission established in section 24-18.5-101 (2) (a), and the office of the child's representative created in section 13-91-104, C.R.S., and the office of the child protection ombudsman created in section 19-3.3-102, C.R.S., to the joint budget committee staff; (VI) Allow the joint budget committee staff to view the final version of the governor's annual budget requests and the budget requests of the legislative branch agencies, the judicial department, the office of state public defender created in section 21-1-101, C.R.S., the office of alternate defense counsel created in section 21-2-101, C.R.S., the independent ethics commission established in section 24-18.5-101 (2) (a), and the office of the child's representative created in section 13-91-104, C.R.S., and the office of the child protection ombudsman created in section 19-3.3-102, C.R.S.; (c) The feasibility and requirements study should also assess the cost and feasibility to implement the following potential system components: (II) A web-based interface that will allow the legislative branch agencies, the judicial department, the office of state public defender created in section 21-1-101, C.R.S., the office of alternate defense counsel created in section 21-2-101, C.R.S., the independent ethics commission established in section 24-18.5-101 (2) (a), and the office of the child's representative created in section 13-91-104, C.R.S., and the office of the child protection ombudsman created in section 19-3.3-102, C.R.S., to upload and submit budget documents and requests to the joint budget committee staff; SECTION 11. In Colorado Revised Statutes, 2-7-202, amend (5) (a); and add (13.5) as follows: 2-7-202. Definitions. As used in this part 2, unless the context otherwise requires: (5) (a) "Department" means the judicial department, the office of state public defender, the office of alternate defense counsel, the office of the child's representative, the office of the child protection ombudsman, the public employees' retirement association, the Colorado energy office, the office of economic development, and the principal departments of the executive branch of state government as specified in section 24-1-110, C.R.S., including any division, office, agency, or other unit created within a principal department. (13.5) "Office of the child protection ombudsman" means the office of the child protection ombudsman created in section 19-3.3-102, C.R.S. SECTION 12. In Colorado Revised Statutes, 2-7-204, amend (1) (c) and (3) (b) as follows: 2-7-204. Performance management systems. (1) (c) No later than August 1, 2013, and no later than August 1 of each year thereafter, the department of state, the department of the treasury, the department of law, the office of state public defender, the office of alternate defense counsel, the Colorado energy office, the office of economic development, and the office of the child's representative, and the office of the child protection ombudsman shall each publish their components of the performance management systems for their respective department, office, or commission. These instructions must be posted on the official web sites administered by the respective departments, offices, and commissions. (3) (b) Each department's performance plan shall be posted on the official web sites of the department and the office of state planning and budgeting. The state treasurer, the attorney general, the secretary of state, the state court administrator for the judicial department, the office of state public defender, the office of alternate defense counsel, the public employees' retirement association, the Colorado energy office, the office of economic development, and the office of the child's representative, and the office of the child protection ombudsman shall ensure the office of state planning and budgeting receives the information required to be posted on the office of state planning and budgeting's web site pursuant to this paragraph (b). The office of state planning and budgeting shall not have access to edit any information provided by the state treasurer, the attorney general, the secretary of state, the state court administrator for the judicial department, the office of state public defender, the office of alternate defense counsel, the public employees' retirement association, the Colorado energy office, the office of economic development, or the office of the child's representative, or the office of the child protection ombudsman. SECTION 13. In Colorado Revised Statutes, 2-7-205, amend (1) as follows: 2-7-205. Annual performance report. (1) (a) (I) Except as provided in subparagraph (II) of this paragraph (a), no later than November 1, 2014, and no later than November 1 of each year thereafter, the office of state planning and budgeting shall publish an annual performance report for each department except the department of state, the department of the treasury, the department of law, the judicial department, the office of state public defender, the office of alternate defense counsel, the Colorado energy office, the office of economic development, and the office of the child's representative, and the office of the child protection ombudsman. The annual performance report must include a summary of each department's performance plan and most recent performance evaluation. The annual performance report must be clearly written and easily understood and must be limited to a maximum of four pages per department. (II) The office of state planning and budgeting shall prepare the section of the annual performance report for the department of higher education by reviewing the institutions of higher education's progress towards the goals set forth in the institution of higher education's performance contract described in section 23-5-129, C.R.S., and the outcomes of the recommended performance funding plan required in section 23-1-108 (1.9) (b), C.R.S. (b) No later than November 1, 2014, and no later than November 1 of each year thereafter, the department of state, the department of the treasury, the department of law, the judicial department, the office of state public defender, the office of alternate defense counsel, the Colorado energy office, the office of economic development, and the office of the child's representative, and the office of the child protection ombudsman shall each publish an annual performance report including a summary of its performance plan and most recent performance evaluation. The annual performance reports must be clearly written and easily understood and must each be limited to a maximum of four pages. SECTION 14. In Colorado Revised Statutes, 19-3.3-101, amend (2) introductory portion as follows: 19-3.3-101. Legislative declaration. (2) The general assembly further finds and declares that the establishment of the office of the child protection ombudsman program will: SECTION 15. In Colorado Revised Statutes, 19-3.3-103, amend (1) (a) (I) (B) and (1) (c) as follows: 19-3.3-103. Office of the child protection ombudsman - powers and duties - access to information - confidentiality - testimony - judicial review. (1) The ombudsman has the following duties, at a minimum: (a) (I) (B) The ombudsman shall treat all complaints received pursuant to sub-subparagraph (A) of this subparagraph (I) as confidential, including the identities of complainants and individuals from whom information is acquired; except that disclosures may be permitted if the ombudsman deems it necessary to enable the ombudsman to perform his or her duties and to support any recommendations resulting from an investigation. Records relating to complaints received by the program office and the investigation of complaints are exempt from public disclosure pursuant to article 72 of title 24, C.R.S. (c) To report at least annually, pursuant to section 19-3.3-108, concerning the actions taken by the ombudsman with respect to the goals and duties of the program office. SECTION 16. In Colorado Revised Statutes, amend 19-3.3-104 as follows: 19-3.3-104. Qualified immunity. The ombudsman and employees or persons acting on behalf of the program shall be office are immune from suit and liability, either personally or in their official capacities, for any claim for damage to or loss of property, or for personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred within the scope of employment, duties, or responsibilities pertaining to the program office, including but not limited to issuing reports or recommendations; except that nothing in this section shall be construed to protect such persons from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such that person. SECTION 17. Appropriation - adjustments to 2015 long bill. (1) To implement this act, the general fund appropriation made in the annual general appropriation act for the 2015-16 state fiscal year to the department of human services for the child protection ombudsman is decreased by $270,372. (2) For the 2015-16 state fiscal year, $351,086 is appropriated to the judicial department. This appropriation is from the general fund and is based on an assumption that the department will require an additional 2.2 FTE. To implement this act, the department may use this appropriation as follows: (a) $10,000 for general courts administration, which amount is based on an assumption that the department will require an additional 0.2 FTE; (b) $133,812 for courthouse capital and infrastructure maintenance; and (c) $207,274 for the office of the child protection ombudsman, which amount is based on an assumption that the office will require an additional 2.0 FTE. SECTION 18. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. ____________________________ ____________________________ Bill L. Cadman Dickey Lee Hullinghorst PRESIDENT OF SPEAKER OF THE HOUSE THE SENATE OF REPRESENTATIVES ____________________________ ____________________________ Cindi L. Markwell Marilyn Eddins SECRETARY OF CHIEF CLERK OF THE HOUSE THE SENATE OF REPRESENTATIVES APPROVED________________________________________ _________________________________________ John W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO