Untitled

This information is prepared as an informational service only and should not be relied upon as an official record of action taken by the Colorado General Assembly.

SENATE JOURNAL

Sixty-second General Assembly

STATE OF COLORADO

First Regular Session

42^nd Legislative Day Tuesday, February 16, 1999

Call to By the President at 9:00 a.m.

Order

Prayer By the chaplain, Rev. Glen Hamlyn, Rocky Mountain Cathedral, Denver.

Roll Call Present--Total, 24.

Absent/Excused--Arnold, Congrove, Hillman, Lacy, Martinez, Phillips, Tanner, Tebedo, Thiebaut, Wham--Total, 10.

Vacancy--Total, 1.

Present later--Arnold, Congrove, Hillman, Lacy, Martinez, Phillips, Tanner, Tebedo, Thiebaut, Wham.

Quorum The President announced a quorum present.

Reading of On motion of Senator Musgrave, reading of the Journal of February 15^th was

Journal dispensed with and the Journal stands approved as corrected by the Secretary.

SENATE SERVICES REPORT

Senate Correctly printed: SJR 99-13.

Services

Correctly engrossed: SB 99-175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197.

INTRODUCTION OF BILL--FIRST READING

The following bill was read by title and referred to the committee indicated:

SB 99-202 by Senators Anderson and Blickensderfer; also Representative Pfiffner--Concerning an increase in parental participation in the determination of a school's curriculum.

Education

THIRD READING OF BILLS--FINAL PASSAGE

On Third Reading, the title of the following bills were publicly read, the reading at length having been dispensed with by unanimous consent:

SB 99-175 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Agriculture

The question being "Shall the bill pass?" the roll was called with the following result:

YES 29

NO 0

EXCUSED 6

ABSENT 0

Anderson
Y
Evans
Y
Matsunaka
Y
Tanner
E

Andrews
Y
Feeley
Y
Musgrave
Y
Tebedo
E

Arnold
Y
Vacancy
*
Nichol
Y
Teck
Y

Blickensderfer
Y
Hernandez
Y
Owen
Y
Thiebaut
Y

Chlouber
Y
Hillman
Y
Pascoe
Y
Wattenberg
Y

Congrove
Y
Lacy
E
Perlmutter
Y
Weddig
Y

Dennis
Y
Lamborn
Y
Phillips
E
Wham
Y

Dyer
Y
Linkhart
Y
Reeves
Y
Mr. President
Y

Epps
Y
Martinez
E
Rupert
Y

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-176 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Corrections

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

Co-sponsor: Hernandez.

SB 99-177 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Education

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-178 by Sen. Lacy; Rep. Tool--Suppl Approp Gov, Lt Gov, OSPB

The question being "Shall the bill pass?" the roll was called with the following result:

YES 30

NO 0

EXCUSED 5

ABSENT 0

Anderson
Y
Evans
Y
Matsunaka
Y
Tanner
Y

Andrews
Y
Feeley
Y
Musgrave
Y
Tebedo
E

Arnold
Y
Vacancy
*
Nichol
Y
Teck
Y

Blickensderfer
Y
Hernandez
Y
Owen
Y
Thiebaut
Y

Chlouber
Y
Hillman
Y
Pascoe
Y
Wattenberg
Y

Congrove
Y
Lacy
E
Perlmutter
Y
Weddig
Y

Dennis
Y
Lamborn
Y
Phillips
E
Wham
Y

Dyer
Y
Linkhart
Y
Reeves
Y
Mr. President
Y

Epps
Y
Martinez
E
Rupert
Y

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-179 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Health Policy & Fin

The question being "Shall the bill pass?" the roll was called with the following result:

YES 32

NO 0

EXCUSED 3

ABSENT 0

Anderson
Y
Evans
Y
Matsunaka
Y
Tanner
Y

Andrews
Y
Feeley
Y
Musgrave
Y
Tebedo
Y

Arnold
Y
Vacancy
*
Nichol
Y
Teck
Y

Blickensderfer
Y
Hernandez
Y
Owen
Y
Thiebaut
Y

Chlouber
Y
Hillman
Y
Pascoe
Y
Wattenberg
Y

Congrove
Y
Lacy
E
Perlmutter
Y
Weddig
Y

Dennis
Y
Lamborn
Y
Phillips
Y
Wham
Y

Dyer
Y
Linkhart
Y
Reeves
Y
Mr. President
Y

Epps
Y
Martinez
E
Rupert
Y

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-180 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Human Servs

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-181 by Sen. Lacy; Rep. Tool--Suppl Approp Judicial Dept

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-182 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Labor & Employment

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-183 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Law

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-184 by Sen. Lacy; Rep. Tool--Suppl Approp Legislative Dept

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-185 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Local Affairs

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-186 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Military Affairs

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-187 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Natural Resources

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-188 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Personnel

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-189 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Pub Health & Envir

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-190 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Public Safety

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-191 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Reg Agencies

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-192 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Revenue

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-193 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of State

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-194 by Sen. Lacy; Rep. Tool--Suppl Approp Dept Of Transportation

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-195 by Sen. Lacy; Rep. Tool--Suppl Approp Treasury Dept

The question being "Shall the bill pass?" the roll was called with the following result:

YES 31

NO 1

EXCUSED 3

ABSENT 0

Anderson
Y
Evans
Y
Matsunaka
Y
Tanner
Y

Andrews
Y
Feeley
Y
Musgrave
Y
Tebedo
Y

Arnold
Y
Vacancy
*
Nichol
Y
Teck
Y

Blickensderfer
Y
Hernandez
Y
Owen
Y
Thiebaut
Y

Chlouber
Y
Hillman
Y
Pascoe
Y
Wattenberg
Y

Congrove
Y
Lacy
E
Perlmutter
N
Weddig
Y

Dennis
Y
Lamborn
Y
Phillips
Y
Wham
Y

Dyer
Y
Linkhart
Y
Reeves
Y
Mr. President
Y

Epps
Y
Martinez
E
Rupert
Y

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-196 by Sen. Lacy; Rep. Tool--Suppl Approp Capital Construction

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

SB 99-197 by Sen. Blickensderfer; Rep. Dean--Leg. Expenses and Appropriation

A majority of all members elected to the Senate having voted in the affirmative, the bill was declared PASSED.

Vacancy (*) shown as "Excused".

COMMITTEE OF REFERENCE REPORT

Business After consideration on the merits, the committee recommends that SB99-144 be

Affairs amended as follows and, as so amended, be referred to the Committee on Appropriations

and Labor with favorable recommendation:

Amend printed bill, strike everything below the enacting clause, and substitute the following:

"SECTION 10 Article 25 of title 13, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

1325126.7. Documents arising from voluntary insurance compliance selfevaluation legislative declaration definitions admissibility of evidence. (1) Legislative declaration. INSURANCE COMPANIES AND PERSONS CONDUCTING ACTIVITIES REGULATED UNDER TITLE 10, C.R.S., ARE ENCOURAGED BOTH TO CONDUCT VOLUNTARY INTERNAL AUDITS OF THEIR COMPLIANCE PROGRAMS AND MANAGEMENT SYSTEMS TO ASSESS AND IMPROVE COMPLIANCE WITH STATE AND FEDERAL STATUTES, RULES, AND ORDERS. AN INSURANCE COMPLIANCE SELFEVALUATION PRIVILEGE IS RECOGNIZED TO PROTECT THE CONFIDENTIALITY OF COMMUNICATION RELATING TO VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATIONS. THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT PROTECTION OF INSURANCE CONSUMERS IS ENHANCED BY COMPANIES VOLUNTARILY COMPLYING WITH COLORADO'S INSURANCE AND OTHER LAWS AND THAT THE PUBLIC WILL BENEFIT FROM INCENTIVES TO IDENTIFY AND REMEDY INSURANCE AND OTHER COMPLIANCE PROBLEMS. IT IS FURTHER DECLARED THAT LIMITED EXPANSION OF THE PROTECTION AGAINST DISCLOSURE WILL PROTECT THE PUBLIC AGAINST BOTH CIVIL AND CRIMINAL HARM, ENCOURAGE VOLUNTARY COMPLIANCE, AND IMPROVE INSURANCE MARKET CONDUCT QUALITY. FURTHER, THE VOLUNTARY SELFEVALUATION PROVISION OF THIS SECTION WILL NOT INHIBIT THE EXERCISE OF THE REGULATION AUTHORITY, WHILE PROTECTING BOTH INSURERS AND THE GENERAL PUBLIC, BY THOSE ENTRUSTED WITH PROTECTING INSURANCE CONSUMERS.

(2) Definitions. AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(a) "ADMINISTRATIVE LAW JUDGE" MEANS ANY PERSON APPOINTED TO BE AN ADMINISTRATIVE LAW JUDGE PURSUANT TO SECTION 24301003, C.R.S.

(b) "DIVISION" MEANS THE DIVISION OF INSURANCE CREATED IN SECTION 101103, C.R.S.

(c) "IN CAMERA REVIEW" MEANS A HEARING OR REVIEW IN A COURTROOM, HEARING ROOM, OR CHAMBERS TO WHICH THE GENERAL PUBLIC IS NOT ADMITTED. SUCH HEARING OR REVIEW AND ANY TRANSCRIPT OF THE ORAL AND OTHER EVIDENCE AND STATEMENTS OF THE JUDGE AND COUNSEL SHALL BE HELD IN CONFIDENCE BY THOSE PARTICIPATING IN OR PRESENT AT THE HEARING OR REVIEW, AND ANY TRANSCRIPT OF THE HEARING OR REVIEW SHALL BE SEALED AND NOT CONSIDERED A PUBLIC RECORD, UNTIL THE CONTENTS ARE DISCLOSED BY A COURT OR ADMINISTRATIVE LAW JUDGE HAVING JURISDICTION OVER THE MATTER.

(d) "INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT" MEANS DOCUMENTS PREPARED AS A RESULT OF OR IN CONNECTION WITH A VOLUNTARY SELFEVALUATION RELATED TO UNFAIR METHODS OF COMPETITION AND DECEPTIVE ACTS OR PRACTICES AS DEFINED IN PART 11 OF ARTICLE 3 OF TITLE 10, C.R.S. AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT MAY INCLUDE A WRITTEN RESPONSE TO THE FINDINGS OF A VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION. AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT SHALL BE DEVELOPED OR PREPARED FOR THE PRIMARY PURPOSE OF OR IN THE COURSE OF A VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION. DOCUMENTS THAT MAY BE CONSIDERED AN INSURANCE SELFEVALUATION DOCUMENT MAY INCLUDE, BUT ARE NOT LIMITED TO, FIELD NOTES AND RECORDS OF OBSERVATIONS, FINDINGS, OPINIONS, SUGGESTIONS, CONCLUSIONS, DRAFTS, MEMORANDA, DRAWINGS, PHOTOGRAPHS, COMPUTERGENERATED OR ELECTRONICALLY RECORDED INFORMATION, AND TELEPHONE RECORDS PREPARED AS A RESULT OF OR IN CONNECTION WITH AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT. IN NO EVENT SHALL DOCUMENTS OTHERWISE REQUIRED TO BE PREPARED, RETAINED, OR DISCLOSED BY LAW OR LAWFUL ORDER BE CONSIDERED AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT. AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT MAY ALSO INCLUDE ANY OF THE FOLLOWING:

(I) AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT PREPARED BY AN AUDITOR, WHO MAY BE AN EMPLOYEE OF THE INSURER OR AN INDEPENDENT CONTRACTOR, THAT MAY INCLUDE:

(A) THE SCOPE OF THE VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION;

(B) THE INFORMATION GAINED IN THE VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION; OR

(C) THE CONCLUSIONS OR RECOMMENDATIONS, WITH EXHIBITS AND APPENDICES, FROM THE VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION.

(II) MEMORANDA AND DOCUMENTS ANALYZING PORTIONS OR ALL OF THE INSURANCE COMPLIANCE SELFEVALUATION DOCUMENTS AND DISCUSSING POTENTIAL IMPLEMENTATION ISSUES;

(III) AN IMPLEMENTATION PLAN THAT ADDRESSES CORRECTING PAST NONCOMPLIANCE; OR

(IV) ANALYTICAL DATA GENERATED IN THE COURSE OF CONDUCTING THE VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION.

(e) "INSURER" SHALL HAVE THE SAME MEANING AS SET FORTH IN SECTION 101102 (8), C.R.S.

(f) "VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION" MEANS A SELFINITIATED, INTERNAL EVALUATION, REVIEW, ASSESSMENT, AUDIT, OR INVESTIGATION FOR THE PURPOSE OF IDENTIFYING OR PREVENTING NONCOMPLIANCE WITH THE LAWS, REGULATIONS, ORDERS, OR INDUSTRY OR PROFESSIONAL STANDARDS, THAT IS CONDUCTED BY OR ON BEHALF OF AN INSURER LICENSED OR REGULATED UNDER TITLE 10, C.R.S.

(3) Admissibility of evidence. (a) EXCEPT AS PROVIDED IN SUBSECTION (4) OF THIS SECTION, AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT IS PRIVILEGED INFORMATION AND IS NOT DISCOVERABLE OR ADMISSIBLE AS EVIDENCE IN ANY CIVIL OR ADMINISTRATIVE LAW PROCEEDING. THE PRIVILEGE CREATED IN THIS SUBSECTION (3) IS A MATTER OF SUBSTANTIVE LAW OF THIS STATE AND IS NOT MERELY A PROCEDURAL MATTER GOVERNING CIVIL PROCEDURES IN THE COURTS OF COLORADO.

(b) EXCEPT AS PROVIDED IN SUBSECTION (4) OF THIS SECTION, IF ANY INSURER, PERSON, OR ENTITY PERFORMS OR DIRECTS THE PERFORMANCE OF A VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION, AN OFFICER, EMPLOYEE, OR AGENT INVOLVED WITH THE VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION OR ANY CONSULTANT WHO IS HIRED FOR THE PURPOSE OF PERFORMING THE VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION MAY NOT BE EXAMINED IN ANY CIVIL OR ADMINISTRATIVE PROCEEDING AS TO THE VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION OR ANY INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT.

(c) DISCLOSURE OF AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT TO A GOVERNMENT AGENCY, WHETHER VOLUNTARY OR PURSUANT TO COMPULSION OF LAW, SHALL NOT CONSTITUTE A WAIVER OF THE PRIVILEGE SET FORTH IN THIS SUBSECTION (3) WITH RESPECT TO ANY OTHER PERSONS OR ANY OTHER GOVERNMENTAL AGENCY.

(4) (a) THE PRIVILEGE SET FORTH IN SUBSECTION (3) OF THIS SECTION SHALL NOT APPLY TO THE DIVISION. THE DIVISION MAY REASONABLY REQUEST AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT FOR PURPOSES OF CONDUCTING A MARKET CONDUCT EXAMINATION PURSUANT TO PART 2 OF ARTICLE 1 OF TITLE 10, C.R.S. IN MAKING SUCH A REQUEST, THE DIVISION SHALL SPECIFY THE SUBJECT OR SUBJECTS OF THE MARKET CONDUCT EXAMINATION AND THE INSURER SHALL, WITHIN A REASONABLE TIME, PROVIDE ANY INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT THAT IS DATED UP TO TWO YEARS PRIOR TO THE DATE OF SUCH REQUEST.

(b) TO THE EXTENT THAT THE INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT REVEALS NONCOMPLIANCE WITH ANY COLORADO INSURANCE LAW, REGULATION, OR ORDER, AND THE INSURER UNDERTAKES GOOD FAITH CORRECTIVE ACTION WITHIN A REASONABLE TIME AFTER PREPARATION OF THE INSURANCE COMPLIANCE SELFEVALUATION, THE DIVISION SHALL NOT IMPOSE A PENALTY, SANCTIONS, OR FINES UPON THE INSURER FOR THE ACTS OR OCCURRENCES THAT ARE THE SUBJECT OF THE INSURANCE SELFEVALUATION DOCUMENT. HOWEVER, IF THE INSURER HAS FAILED TO TAKE GOOD FAITH CORRECTIVE ACTION WITHIN A REASONABLE TIME AFTER PREPARATION OF THE INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT, THE DIVISION MAY IMPOSE A PENALTY, SANCTIONS, OR FINES UPON THE INSURER PURSUANT TO LAW. FAILURE TO PROVIDE THE DIVISION WITH AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT WITHIN A REASONABLE TIME OF THE REQUEST BY THE DIVISION MAY SUBJECT THE INSURER TO PENALTIES OTHERWISE PROVIDED BY LAW.

(c) THE DIVISION SHALL NOT TRANSMIT OR PROVIDE ACCESS TO CONFIDENTIAL DOCUMENTS SUBMITTED PURSUANT TO THIS SECTION TO THE NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS OR MAKE THIS SUBMISSION AVAILABLE TO THE PUBLIC.

(d) (I) AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT SUBMITTED TO THE DIVISION PURSUANT TO THIS SUBSECTION (4), OR SUBMITTED VOLUNTARILY BY THE INSURER, SHALL BE SUBJECT TO THE PRIVILEGE GRANTED IN SECTION 1390107 (1) (j) AND TO ALL OTHER STATUTORY OR COMMON LAW PRIVILEGES INCLUDING, BUT NOT LIMITED TO, THE WORK PRODUCT DOCTRINE, ATTORNEYCLIENT PRIVILEGE, AND THE SUBSEQUENT REMEDIAL MEASURES EXCLUSION.

(II) ANY INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT SUBMITTED PURSUANT TO THIS SUBSECTION (4) AND IN THE POSSESSION OF THE DIVISION SHALL REMAIN THE PROPERTY OF THE INSURER AND SHALL BE EXEMPT FROM THE OPEN RECORDS LAW PURSUANT TO ARTICLE 72 OF TITLE 24, C.R.S.

(5) (a) THE PRIVILEGE SET FORTH IN SUBSECTION (3) OF THIS SECTION DOES NOT APPLY TO THE EXTENT THAT IT IS EXPRESSLY WAIVED BY THE INSURER THAT PREPARED OR CAUSED PREPARATION OF THE INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT.

(b) IN A CIVIL OR ADMINISTRATIVE PROCEEDING, A COURT OF RECORD MAY, AFTER AN IN CAMERA REVIEW, REQUIRE DISCLOSURE OF MATERIAL FOR WHICH THE PRIVILEGE SET FORTH IN SUBSECTION (3) OF THIS SECTION IS ASSERTED, IF THE COURT DETERMINED ONE OF THE FOLLOWING:

(I) THE PRIVILEGE IS ASSERTED FOR A FRAUDULENT PURPOSE; OR

(II) THE MATERIAL IS NOT SUBJECT TO THE PRIVILEGE.

(c) AN INSURER ASSERTING THE INSURANCE COMPLIANCE SELFEVALUATION PRIVILEGE AS SET FORTH IN SUBSECTION (3) OF THIS SECTION HAS THE BURDEN OF DEMONSTRATING THE APPLICABLE PRIVILEGE BY A PREPONDERANCE OF THE EVIDENCE. ONCE AN INSURER HAS ESTABLISHED THE APPLICABLE PRIVILEGE, THE PARTY SEEKING DISCLOSURE UNDER SUBSECTION (4) OR (5) OF THIS SECTION FOR A CIVIL MATTER HAS THE BURDEN OF PROVING WITH CLEAR AND CONVINCING EVIDENCE THAT THE PRIVILEGE IS FOR A FRAUDULENT PURPOSE.

(6) THE PARTIES MAY AT ANY TIME STIPULATE IN A PROCEEDING, UNDER SUBSECTION (3), (4), OR (5) OF THIS SECTION, TO THE ENTRY OF AN ORDER DIRECTING THAT SPECIFIC INFORMATION CONTAINED IN AN INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT IS OR IS NOT SUBJECT TO PRIVILEGE PROVIDED UNDER SUBSECTION (3) OF THIS SECTION. ANY SUCH STIPULATION MAY BE LIMITED TO THE INSTANT PROCEEDING, AND ABSENT SPECIFIC LANGUAGE TO THE CONTRARY, SHALL NOT BE APPLICABLE TO ANY OTHER PROCEEDING.

(7) NOTHING IN THIS SECTION, INCLUDING THE RELEASE OF ANY INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT, SHALL LIMIT, WAIVE, OR ABROGATE THE SCOPE OR NATURE OF ANY STATUTORY OR COMMON LAW PRIVILEGE INCLUDING, BUT NOT LIMITED TO, THE WORK PRODUCT DOCTRINE, THE ATTORNEYCLIENT PRIVILEGE, OR THE SUBSEQUENT REMEDIAL MEASURES EXCLUSION.

SECTION 20 1390107 (1) (j), Colorado Revised Statutes, is amended to read:

1390107. Who may not testify without consent. (1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:

(j) (I) (A) If any person or entity performs a voluntary selfevaluation, the person, any officer or employee of the entity or person involved with the voluntary selfevaluation, if a specific responsibility of such employee was the performance of or participation in the voluntary selfevaluation or the preparation of the environmental audit report, or any consultant who is hired for the purpose of performing the voluntary selfevaluation for the person or entity may not be examined as to the voluntary selfevaluation or environmental audit report without the consent of the person or entity, or unless ordered to do so by any court of record, or, pursuant to section 244105, C.R.S., by an administrative law judge. For the purposes of this paragraph (j), "voluntary selfevaluation", ~~and~~ "environmental audit report", "VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATION", AND "INSURANCE COMPLIANCE SELFEVALUATION DOCUMENT" have the meanings provided for the terms in ~~section~~ SECTIONS 1325126.5 (2) AND 1325126.7 (2).

(B) This paragraph (j) does not apply if the voluntary selfevaluation is subject to an exception allowing admission into evidence or discovery pursuant to the provisions of section 1325126.5 (3) or (4) OR SECTION 1325126.7 (4), (5), (6), OR (7).

(II) This paragraph (j) applies only to voluntary selfevaluations AS DEFINED IN SECTION 1325126.5 that are performed during the period beginning June 1, 1994, and ending June 30, 1999. THIS PARAGRAPH (j) APPLIES TO VOLUNTARY INSURANCE COMPLIANCE SELFEVALUATIONS AS DEFINED IN SECTION 1325126.7 (2) (f), PERFORMED ON OR AFTER JULY 1, 1999.

SECTION 30 Effective date applicability. This act shall take effect July 1, 1999, and shall apply to voluntary insurance compliance selfevaluations completed on or after said date.

SECTION 40 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.".

______________________________

On motion of Senator Blickensderfer, and with a majority of those elected to the Senate having voted in the affirmative, the Senate proceeded out of order for Consideration of Governor's appointment.

______________________________

CONSIDERATION OF GOVERNOR'S APPOINTMENT

On motion of Senator Anderson, the following Governor's appointment was confirmed by a roll call vote:

PUBLIC UTILITIES COMMISSION

OF THE STATE OF COLORADO

for a term expiring the Monday preceding the second Tuesday in January 2003:

Raymond L. Gifford of Denver, Colorado, to serve as a Republican, appointed.

YES 32

NO 0

EXCUSED 3

ABSENT 0

Anderson
Y
Evans
Y
Matsunaka
Y
Tanner
Y

Andrews
Y
Feeley
Y
Musgrave
Y
Tebedo
Y

Arnold
Y
Vacancy
*
Nichol
Y
Teck
Y

Blickensderfer
Y
Hernandez
Y
Owen
Y
Thiebaut
Y

Chlouber
Y
Hillman
Y
Pascoe
Y
Wattenberg
Y

Congrove
Y
Lacy
E
Perlmutter
Y
Weddig
Y

Dennis
Y
Lamborn
Y
Phillips
Y
Wham
Y

Dyer
Y
Linkhart
Y
Reeves
Y
Mr. President
Y

Epps
Y
Martinez
E
Rupert
Y

Vacancy (*) shown as "Excused".

______________________________

On motion of Senator Blickensderfer, and with a majority of those elected to the Senate having voted in the affirmative, the balance of the calendar of Tuesday, February 16, was laid over until Wednesday, February 17, retaining its place on the calendar.

______________________________

Senate in recess.

Senate reconvened.

MESSAGE FROM THE HOUSE:

February 16, 1999

Mr. President:

The House has passed on Third Reading and transmitted to the Revisor of Statutes

HB99-1090, amended as printed in House Journal, February 15, page 468.

MESSAGE FROM THE REVISOR

February 16, 1999

We herewith transmit:

without comment, as amended, HB99-1090.

INTRODUCTION OF BILLS--FIRST READING

The following bills were read by title and referred to the committees indicated:

SB 99-203 by Senators Arnold, Chlouber, Evans, and Hillman; also Representative Allen--Concerning recommendations of the senate committee on education related to the continuation of requirements for certain reports to the general assembly from executive agencies under article 60.5 of title 22 to title 23, Colorado Revised Statutes.

Education

Appropriations

HB 99-1090 by Representatives Keller and Morrison; also Senator Wham--Concerning the protection of persons from restraint.

Health, Environment, Welfare & Institutions

SIGNING OF BILLS

The President has signed: HB99-1043.

On motion of Senator Hillman, the Senate adjourned until 9:00 a.m., Wednesday,

February 17, 1999.

Approved:

Ray Powers

President of the Senate

Attest:

Patricia K. Dicks

Secretary of the Senate

YES 29		NO 0		EXCUSED 6		ABSENT 0
Anderson	Y	Evans	Y	Matsunaka	Y	Tanner	E
Andrews	Y	Feeley	Y	Musgrave	Y	Tebedo	E
Arnold	Y	Vacancy	*	Nichol	Y	Teck	Y
Blickensderfer	Y	Hernandez	Y	Owen	Y	Thiebaut	Y
Chlouber	Y	Hillman	Y	Pascoe	Y	Wattenberg	Y
Congrove	Y	Lacy	E	Perlmutter	Y	Weddig	Y
Dennis	Y	Lamborn	Y	Phillips	E	Wham	Y
Dyer	Y	Linkhart	Y	Reeves	Y	Mr. President	Y
Epps	Y	Martinez	E	Rupert	Y

YES 30		NO 0		EXCUSED 5		ABSENT 0
Anderson	Y	Evans	Y	Matsunaka	Y	Tanner	Y
Andrews	Y	Feeley	Y	Musgrave	Y	Tebedo	E
Arnold	Y	Vacancy	*	Nichol	Y	Teck	Y
Blickensderfer	Y	Hernandez	Y	Owen	Y	Thiebaut	Y
Chlouber	Y	Hillman	Y	Pascoe	Y	Wattenberg	Y
Congrove	Y	Lacy	E	Perlmutter	Y	Weddig	Y
Dennis	Y	Lamborn	Y	Phillips	E	Wham	Y
Dyer	Y	Linkhart	Y	Reeves	Y	Mr. President	Y
Epps	Y	Martinez	E	Rupert	Y

YES 32		NO 0		EXCUSED 3		ABSENT 0
Anderson	Y	Evans	Y	Matsunaka	Y	Tanner	Y
Andrews	Y	Feeley	Y	Musgrave	Y	Tebedo	Y
Arnold	Y	Vacancy	*	Nichol	Y	Teck	Y
Blickensderfer	Y	Hernandez	Y	Owen	Y	Thiebaut	Y
Chlouber	Y	Hillman	Y	Pascoe	Y	Wattenberg	Y
Congrove	Y	Lacy	E	Perlmutter	Y	Weddig	Y
Dennis	Y	Lamborn	Y	Phillips	Y	Wham	Y
Dyer	Y	Linkhart	Y	Reeves	Y	Mr. President	Y
Epps	Y	Martinez	E	Rupert	Y

YES 31		NO 1		EXCUSED 3		ABSENT 0
Anderson	Y	Evans	Y	Matsunaka	Y	Tanner	Y
Andrews	Y	Feeley	Y	Musgrave	Y	Tebedo	Y
Arnold	Y	Vacancy	*	Nichol	Y	Teck	Y
Blickensderfer	Y	Hernandez	Y	Owen	Y	Thiebaut	Y
Chlouber	Y	Hillman	Y	Pascoe	Y	Wattenberg	Y
Congrove	Y	Lacy	E	Perlmutter	N	Weddig	Y
Dennis	Y	Lamborn	Y	Phillips	Y	Wham	Y
Dyer	Y	Linkhart	Y	Reeves	Y	Mr. President	Y
Epps	Y	Martinez	E	Rupert	Y