AGO 85-16.

• Case Date: November 18, 1985
• Court: Colorado

Colorado Attorney General Opinions 1985. AGO 85-16. November 18, 1985Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 85-16 AG Alpha No. LE SE AGAOQ Senator Tilman Bishop, Chairman Committee on Water and Land Resource Colorado State Senate Senate Chambers Colorado State Capital Building Denver, Colorado 80203 RE: The constitutional and statutory relationship between the office of the executive director of the Department of Natural Resources and the Board of Land Commissioners relative to the implementation and formulation of administrative and policy matters affecting public lands.Dear Senator Bishop: This letter is in response to your letter of September 30, 1985, in which you request an attorney general's opinion regarding the constitutional and statutory relationship between the office of the executive director of the Department of Natural Resources (executive director) and the Board of Land Commissioners (Land Board) concerning the formulation and implementation of administrative and policy matters affecting public lands. QUESTIONS PRESENTED AND CONCLUSIONS Your request for an attorney general's opinion presents the following questions: 1. Is the type 1 delegation of authority over the State Board of Land Commissioners to the Department of Natural Resources, (sections 24-1-105, and 124(3)(d), C.R.S. (1982 and 1985 Supp.), more limited than other type 1 transfers because of the constitutional creation of the board? See Colo. Const. art. IX, secs. 9 and 10. My conclusion is yes. 2.a. Does the Department of Natural Resources have administrative control over the hiring and firing of State Land Board personnel, the determination of the number and types of positions required, and the organization of personnel? My conclusion is no with respect to the hiring, i.e., the filling of vacancies, and firing of Land Board personnel and the types of positions required. My conclusion is yes with respect to the determination of the number of positions required. With respect to the organization of personnel, my conclusion is yes as to personnel performing functions not vested in the Land Board by statute or the constitution, but no as to personnel performing substantive functions vested in the Land Board by statute or the constitution. 2.b. Does the Department of Natural Resources have administrative control over the determination of office space and furniture requirements? My conclusion is yes. 2.c. Does the Department of Natural Resources have administrative control over the determination of budgetary requirements? My conclusion is yes. 2.d. Does the Department of Natural Resources have administrative control over the daily monitoring of personnel, including board members, to oversee numbers of hours worked and matters worked on? My conclusion is no. 3.a. Do the board members accrue sick leave or annual leave? My conclusion is no. 3.b. If board members do not accrue sick leave or annual leave, can they be required to maintain records of any sick leave or annual leave taken? My conclusion is yes, if required by statute. 4. Does the Department of Natural Resources have authority to oversee or control policy decisions of the Land Board regarding the management of state trust land? My conclusion is no. 5. Is the Land Board required to submit its decisions on policy to the department for approval? My conclusion is no. 6. Is the Land Board required to explain its policy decisions to the department? My conclusion is no. 7. Does the Department of Natural Resources have the authority to impose sanctions against the Land Board, such as withholding salary, for failing to follow the advice or requests of the department regarding policy decisions? My conclusion is no. 8. Does the Department of Natural Resources have the authority to impose sanctions against the Land Board for failing to comply with its administrative directives? My conclusion is no; that authority rests with the Governor. 10.a. Does the requirement that the State Board of Land Commissioners "provide for the location, protection, sale or other disposition" of public lands "in such a manner as will secure the maximum amount therefore" (Colo. Const. art. IX, sec. 10) prevent the Land Board from considering public interest factors in its management and leasing of the public lands? My conclusion is no. 10.b. May the Land Board open grazing leases to hunting and fishing so long as it does not result in lowering rents received from the land? My conclusion, as to current leases, is that it would depend upon the terms of the individual lease. As to future leases, my conclusion is yes. 10.c. If the Land Board is developing a subdivision, may it exceed local planning and zoning requirements in setting aside open space, parks and public use area? My conclusion is yes, provided that it would be consistent with the constitutional mandate that it "will secure the maximum possible amount therefor." 10.d. May the board adopt a multiple-use management policy like that of the federal public land management agencies? My conclusion is yes. ANALYSIS The State Board of Land Commissioners was created by art. IX, sec. 9 of the original state constitution, which was adopted by the territorial constitutional convention on March 14, 1876, and ratified by the territorial electorate at an election held on July 1, 1876. The General Statutes of the State of Colorado 1883, pp. 32-83. The Department of Natural Resources and the office of the executive director were created in 1968 as part of the "Administrative Organization Act of 1968." 1968 Colo. Sess. Laws 88. In the "Administrative Organization Act of 1968," the general assembly, pursuant to the mandate of art. IV, sec. 22 of the state constitution, allocated all executive and administrative offices and agencies in the executive branch of state government to 17 principal departments. 1968 Colo. Sess. Laws 75-76. As part of the administrative organization of the executive branch, the Land Board was allocated to the newly created Department of Natural Resources as a division thereof and transferred to it by a type 1 transfer. 1968 Colo. Sess. Laws 89. The allocation was made in the following words: (3)(a) The department of natural resources shall consist of the following divisions: .... (e) The state board of land commissioners, created by section 9 of article IX of the state constitution, and its powers, duties, and functions, are transferred by a type 1 transfer to the department of natural resources as a division thereof, subject to the state constitution. Id. (Emphasis partly added.) The general assembly, by the addition of the words "subject to the state constitution" clearly indicated that the...