Could CollegeInvest, the state's student-loan authority, hire an outside lobbyist?

Opinion 10-03: CollegeInvest could engage an outside lobbyist under its enabling statute, subject to Governor's written approval

Plain-English summary

CollegeInvest is a quirky entity. It was created as an "independent body politic and corporate" to make and purchase student loans, then in 2000 transferred into the Department of Higher Education as if under a Type 2 transfer, while keeping its operational autonomy from the State Procurement Code, its borrowing power, and its non-state-debt status. Its director asked: can we hire an outside lobbyist? The AG's enabling-statute reading: yes. Section 23-3.1-206(1)(g) authorized engagement of "private consultants and legal counsel" plus "professional and technical assistance, advice, and other services." A professional lobbyist (defined in § 24-6-301(6)) fits within "private consultants" who give "professional advice." Even if not, the residual phrase "other services" caught everything else. Standard canons (expressio unius, ejusdem generis, the legislative directive that CollegeInvest's enabling statute be liberally construed) all pointed the same way.

The principal-department lobbying coordination statute (§ 24-6-303.5(1)(a)) was a separate question. That statute required each principal department to designate a single point person responsible for coordinating lobbying done by "state officials or employees." The defined term excluded contracted lobbyists registered under §§ 24-6-302 and 24-6-303. So the statute did not preclude CollegeInvest from hiring outside lobbyists; it just regulated what departments did with their own employee-lobbyists.

But there was a separate gating step. Executive Order D0069 88 (May 10, 1988) required any contract with non-state-employee lobbyists working on behalf of any agency of the State to be approved in writing by the Governor.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

CollegeInvest was created in 1979 to operate Colorado's student-loan bond program. The 2000 conversion (§ 23-3.1-203(1)) made it a division of the Department of Higher Education while preserving its operational autonomy: bonds it issued were not state debt, and its purchases and borrowings could proceed outside the State Procurement Code. Its enabling statute, § 23-3.1-206, granted it a long list of powers, including § 206(1)(g), which authorized engagement of "the services of private consultants and legal counsel and to otherwise contract with providers to render professional and technical assistance, advice, and other services."

Section 24-6-303.5 governed principal-department lobbying. Subsection (1)(a) required each department to designate one person to coordinate lobbying by state officials or employees. Subsection (3) defined "state official or employee" to exclude contracted lobbyists registered under §§ 24-6-302 and 24-6-303 (registration as a professional lobbyist). The statute therefore reached only employee-lobbyists, not outside contractors.

Executive Order D0069 88, signed May 10, 1988, required gubernatorial written approval for any contract with non-state-employee lobbyists working on behalf of any state agency.

What the AG concluded at the time

Section 23-3.1-206(1)(g) authorized lobbying contracts

The AG read the statute by ordinary plain-meaning rules (People v. Yascavage; United Airlines, Inc. v. Indus. Claim Appeals Office). A "consultant" is "one who gives professional advice or services" (Merriam-Webster). A registered professional lobbyist is, definitionally, in the business of giving professional advice and services on legislative matters. Lobbying services therefore fit within "private consultants" or, alternatively, within "professional and technical assistance, advice, and other services."

Canons of construction reinforced the same reading

Even if the language were ambiguous, the canons pointed the same way. Expressio unius est exclusio alterius (the listing of items, without a more general or inclusive term, excludes others) cut against any narrow reading because § 206(1)(g) ended with the inclusive phrase "other services." Ejusdem generis (general words construed to embrace objects similar in nature to those preceding) brought lobbying within the residual phrase. People v. Cunefare had treated comparable catch-all language as covering everything not specifically enumerated.

CollegeInvest's enabling statute requires liberal construction

Section 23-3.1-201's legislative declaration directed that CollegeInvest's enabling provisions "be liberally construed to accomplish" its purposes. Sections 23-3.1-206(1)(n) and (o) gave CollegeInvest powers to "make and execute contracts ... necessary or convenient" and "to do all things necessary and convenient." The agency operated in worldwide financial markets and engaged with state and federal legislative and executive branches. The AG concluded that these features made professional legislative strategy and lobbying expertise "necessary or convenient" within the statutory power.

Section 24-6-303.5(1)(a) did not block this

Section 303.5 governed coordination of lobbying by state officials and employees on behalf of a principal department. The definition in § 303.5(3) excluded a contracted, registered lobbyist. Therefore the statute had no bearing on CollegeInvest's authority to hire outside lobbyists.

Executive Order D0069 88 still applied

The AG concluded the analysis by flagging the Governor's executive order requiring written approval for any non-state-employee lobbyist contract on behalf of any state agency. CollegeInvest's hiring authority did not displace that gubernatorial-review requirement; the contract had to be approved by the Governor in writing.

Common questions

Did the AG say CollegeInvest could spend bond proceeds on lobbying?

No. The opinion addressed legal authority to enter the contract, not the funding source or appropriations question. CollegeInvest's funding sources are governed by separate statutes, and any spending question would require its own analysis.

Did this opinion apply to other quasi-state entities?

The reasoning was specific to CollegeInvest's enabling statute, particularly § 23-3.1-206(1)(g)'s residual "other services" language and § 23-3.1-201's liberal-construction directive. Other state entities with narrower enabling statutes might not have the same authority.

Does the principal-department lobbying coordination statute still apply when an outside lobbyist is hired?

The opinion's reading was that § 303.5 only reached state officials and employees. The hired outside lobbyist would register as a professional lobbyist under §§ 24-6-302 and 24-6-303 and would be subject to the registration regime, but not to the principal-department coordination requirement.

What if the Governor declined to approve the contract under Executive Order D0069 88?

The opinion did not address what would happen in that scenario. The executive order made gubernatorial written approval a prerequisite, so an unapproved contract would not be authorized.

Citations

• C.R.S. § 23-3.1-201 — legislative declaration; liberal-construction directive.
• C.R.S. § 23-3.1-203(1) — conversion of CollegeInvest to a Department of Higher Education division.
• C.R.S. § 23-3.1-206(1)(g) — power to engage private consultants, legal counsel, and providers of professional and technical assistance, advice, and other services.
• C.R.S. § 23-3.1-206(1)(n), (o) — power to make and execute contracts necessary or convenient.
• C.R.S. § 24-6-301(6) — definition of "professional lobbyist."
• C.R.S. § 24-6-303.5(1)(a) — principal-department designation of single lobbying coordinator.
• C.R.S. § 24-6-303.5(3) — definition of "state official or employee" excluding registered professional lobbyists.
• People v. Yascavage, 101 P.3d 1090 (Colo. 2004) — Colorado Supreme Court rule on giving effect to legislative intent through statutory language.
• People v. Cunefare, 102 P.3d 302 (Colo. 2004) — Colorado Supreme Court treatment of "catch-all" language.
• Garman v. Conoco, Inc., 886 P.2d 652 (Colo. 1994) — Colorado Supreme Court application of expressio unius.
• Executive Order D0069 88 (May 10, 1988) — gubernatorial written-approval requirement for non-state-employee lobbyist contracts.

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-10-3-CollegeInvests-Authority-to-Engage-an-Outside-Vendor-to-Provide-Legislative-Strategy-and-Lobbying-Services.pdf

Original opinion text

STATE OF COLORADO

John W. Suthers
Attorney General

DEPARTMENT OF LAW

Cynthia H. Coffman
Chief Deputy Attorney General

Office of the Attorney General
State Services Building
1525 Sherman Street - 7th Floor
Denver, Colorado 80203
Phone (303) 866-4500

Daniel D. Domenico
Solicitor General

FORMAL OPINION OF JOHN W. SUTHERS Attorney General

No. 10-03
AG Alpha No. HE OB AGBDF
May 21, 2010

This opinion, requested by CollegeInvest Director Debra DeMuth on December 30, 2009, concerns CollegeInvest's authority to engage an outside vendor to provide legislative strategy and lobbying services.

QUESTIONS PRESENTED AND CONCLUSIONS

Question 1: Whether engaging an outside vendor to provide legislative strategy and lobbying services is within the legislative authority of CollegeInvest.
Answer 1: Yes. CollegeInvest is legislatively authorized to engage an outside vendor to provide legislative strategy and lobbying services.

Question 2: Whether § 24-6-303.5(1)(a), C.R.S. (2009) precludes CollegeInvest from engaging an outside vendor to provide legislative strategy and lobbying services.
Answer 2: No. Section 24-6-303.5(1)(a), C.R.S. (2009) does not preclude CollegeInvest from engaging an outside vendor to provide legislative strategy and lobbying services.

DISCUSSION

Question 1: Whether engaging an outside vendor to provide legislative strategy and lobbying services is within the legislative authority of CollegeInvest.

Answer 1: Yes. CollegeInvest is legislatively authorized to engage an outside vendor to provide legislative strategy and lobbying services. CollegeInvest, a division of the Department of Higher Education, differs from most State entities in terms of its history, statutory mission, and status. CollegeInvest was formerly an "independent body politic and corporate" created to "enhance the availability of student obligations and assist residents in meeting the expenses incurred in availing themselves of higher education opportunities" through the making and purchasing of student obligations. §§ 23-3.1-201-203(1), C.R.S. (1999). In May 2000, CollegeInvest became a division within the Department of Higher Education as if it were transferred under a type 2 transfer under the Administrative Organization Act of 1968. § 23-3.1-203(1), C.R.S. (2001). Its statutory mission remains the same. § 23-3.1-201, C.R.S. (2009).

CollegeInvest's powers and duties reflect the unique challenges of converting an independent body politic and corporate to a State entity while retaining its ability to operate effectively in private financial markets. As a result, CollegeInvest has certain powers not generally available to State entities. For instance, CollegeInvest may operate its business without regard to the State Procurement Code, may borrow money, and may organize entities and transfer funds to such entities for investment. § 23-3.1-206, C.R.S. (2009). Additionally, its actions do not create a debt of the State.

In furtherance of its purpose to improve access to and choice of higher education opportunities through the making and purchase of student obligations, CollegeInvest also has the authority to "engage the services of private consultants and legal counsel and to otherwise contract with providers to render professional and technical assistance, advice, and other services . . ." § 23-3.1-206(1)(g), C.R.S. (2009). Although legislative strategy and lobbying services are not explicitly named, the scope of this authorization should be interpreted to include such services.

When interpreting a statute, the "goal is to determine and give effect to the intent of the legislature and adopt the statutory construction that best effectuates the purposes of the legislative scheme." People v. Yascavage, 101 P.3d 1090, 1093 (Colo. 2004). To determine the intent of the legislature, "the language of the statute itself" must first be considered. Id. When the statutory language is unambiguous, courts assume that the legislature "meant what it clearly said." United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152, 1157 (Colo. 2000). Only if the intent of the legislature cannot be ascertained through a plain reading of the statute, will a court resort to canons of statutory construction. People v. District Court, Second Judicial Dist., 713 P.2d 918, 921 (Colo. 1986). The plain language of section 23-3.1-206(1)(g), C.R.S. (2009) leaves little doubt that CollegeInvest is authorized to engage outside vendors for legislative strategy and lobbying services. Nonetheless, applying canons of statutory construction points to the same result.

Section 23-3.1-206(1)(g) allows CollegeInvest to contractually engage "the services of private consultants and . . . professional and technical assistance, [and] advice . . . ." The plain meaning of these words demonstrates that the legislature intended to authorize CollegeInvest to engage a wide range of services, including those provided by outside vendors. A consultant is commonly defined as "one who gives professional advice or services." (Merriam-Webster Third New Int'l Dictionary at 490.) Furthermore, outside vendors who engage in lobbying for pay or consideration are statutorily defined as "professional lobbyists." § 24-6-301(6), C.R.S. (2009). These definitions suggest that outside vendors performing lobbying and legislative services are private consultants who give professional assistance and advice as those words are used in § 206(1)(g).

Additionally, the statute allows CollegeInvest to contractually engage "other services," which similarly suggests an expansive legislative intent. See People v. Cunefare, 102 P.3d 302, 312 (Colo. 2004) (observing that "[b]y creating [a] 'catchall,' ... the General Assembly intended ... to cover all ... that were not otherwise specified"). Thus, even if legislative strategy and lobbying services are not construed to be those of a "private consultant," or those in the nature of "professional and technical assistance" or "advice," such services would be authorized as "other services" under § 23-3.1-206(1)(g).

If the language of § 206(1)(g) were deemed ambiguous, applying canons of statutory construction leads to the same conclusion regarding CollegeInvest's authority to contract for legislative strategy and lobbying services. Under the canon of expressio unius est exclusio alterius the listing of particular items, without a more general or inclusive term, excludes all items except those that are specifically enumerated. Garman v. Conoco, Inc., 886 P.2d 652, 664 (Colo. 1994). Here, the list of authorized services is not specific. Legal counsel is the only item in the list identifying a specific service. The remaining authorized services are all broadly descriptive, encompassing numerous types of service providers. Moreover, the list ends with the even more general and inclusive term "other services." Therefore, applying the canon of ejusdem generis general words are construed to embrace only objects similar in nature to those objects enumerated by preceding words. People v. One 1988 Mazda 232 VIN JM1BF232XJ0131664, 857 P.2d 569, 571 (Colo. App. 1993). "Other services" would embrace providers of legislative strategy and lobbying services as services similar in nature to private consultants, legal counsel, and providers of professional and technical assistance and advice. § 23-3.1-206(1)(g), C.R.S. (2009).

Broad construction of § 23-3.1-206(1)(g) is also supported by the legislative declaration that statutes pertaining to CollegeInvest "shall be liberally construed to accomplish" its purposes, and by its power "to make and execute contracts, . . . necessary or convenient for the exercise of its powers and function" and "to do all things necessary and convenient" to carry out its purposes. § 23-3.1-201, C.R.S. (2009); § 23-3.1-206(1)(n), (o), C.R.S. (2009). CollegeInvest operates the State's student obligation bond program. The proceeds of its bonds are used to purchase, service, or make student loans so that residents will be better able to meet the expenses of higher education. To advance these purposes and functions, CollegeInvest operates in the worldwide financial market and must engage with legislative and executive branch authorities at the state and federal levels to assure that those responsible for such laws and regulations understand how their official actions impact CollegeInvest's ability to fulfill its purposes. It is reasonable to conclude that this requires professional legislative strategy and lobbying expertise.

Viewed through this lens of liberal construction and the unique history and statutory mission of CollegeInvest, the plain language of § 23-3.1-206(1)(g) should be interpreted to authorize CollegeInvest's engagement of an outside vendor to provide legislative strategy and lobbying services in furtherance of its duty to "improve[ ] access to and choice of higher education opportunities in this state." § 23-3.1-201, C.R.S. (2009).

Question 2: Whether § 24-6-303.5(1)(a), C.R.S. (2009) precludes CollegeInvest from engaging an outside vendor to provide legislative strategy and lobbying services.

Answer 2: No. CollegeInvest's authority to engage an outside vendor to provide legislative strategy and lobbying services is not precluded by § 24-6-303.5(1)(a), C.R.S. (2009). This statute does not apply to lobbying by outside vendors. Rather, it applies to lobbying by persons from principal departments. It requires each principal department to designate one person who shall be responsible for the lobbying efforts on behalf of the department by any "state official or employee," and governs registration requirements for that designated person.

The statute defines "state official or employee" as an "individual who is compensated by a State of Colorado warrant and receives State of Colorado employee benefits except a lobbyist hired on a contract basis if he is currently registered under sections 24-6-302 and 24-6-303 or a lobbyist who registers as a professional lobbyist pursuant to sections 24-6-302 and 24-6-303." § 24-6-303.5(3), C.R.S. (2009). Therefore, § 303.5 governs coordination of lobbying efforts by state officials and employees on behalf of a principal department. It has no bearing on and does not restrict CollegeInvest's authority to engage outside vendors to provide legislative strategy and lobbying services. Authority to engage outside vendors to provide legislative strategy and lobbying services derives from statutory authority independent of § 303.5(1)(a), such as CollegeInvest's enabling statutes.

While § 303.5 does not address coordination of lobbying activities by outside vendors, these activities are not without coordination. Executive Order D0069 88 addresses coordination of these outside vendor services, requiring that any contract with persons who are not state employees to perform lobbying services on behalf of any agency of the State of Colorado must be approved in writing by the Governor. See Exec. Order D0069 88 (May 10, 1988).

CONCLUSION

Based on the foregoing analysis, I conclude that CollegeInvest is legislatively authorized to engage an outside vendor to provide legislative strategy and lobbying services, and § 24-6-303.5(1)(a) does not preclude such engagement. However, such contracts must be approved by the Governor in writing in accordance with Executive Order D0069 88.

Issued this 21st day May, 2010.

JOHN W. SUTHERS
Colorado Attorney General