AGO 88-5.

Case Date:September 15, 1988
Colorado Attorney General Opinions 1988. AGO 88-5. September 15, 1988Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 88-5 AG Alpha No. AD AC AGAQR Clifford Hall Deputy State Controller 1525 Sherman Street, 7th Flr. Denver, Colorado 80203 RE: Payment of Expenses of Challenging Recall PetitionsDear Mr. Hall: I write in response to your request for an Attorney General's opinion regarding the payment of expenses of an incumbent who successfully challenges a petition to recall him. QUESTIONS PRESENTED AND CONCLUSIONS Is an incumbent who successfully challenges a recall petition entitled to payment of the expenses which he incurred even though an election is not held? No. Are the time frames which are set forth section 31-4-504.5(3), C.R.S. (1986) jurisdictional? Yes, with respect to the time frame within which the incumbent must submit his expenses, no, with respect to the time frame within which the municipality must forward the request to the state controller. ANALYSIS Pursuant to Colo. Const. art. XXI, sec. 4, elective officers of subordinate units of state government may be recalled. Groditsky v. Pinckney, 661 P.2d 279 (Colo. 1983). An incumbent who successfully withstands a recall election is entitled to reimbursement for expenses incurred in beating the challenge. Article XXI, section 4 and section 31-4-504.5(1), C.R.S. (1986) both provide: If at any recall election the incumbent whose recall is sought is not recalled, he shall be repaid from the state treasury.... Both article XXI and section 31-4-504.5(1), C.R.S. (1986) provide that the incumbent may seek reimbursement "if at any recall election" he is not recalled. The question, then, is whether an incumbent must face an election before he is entitled to reimbursement. In my view he must. The plain language of both the constitutional and the statutory provision predicate one's ability to recover expenses upon the occurrance of an "election," i.e., a vote of the electors. SeeTangeman v. Coates, 51 Colo. 208, 117 P. 145 (1911); Carlile v. Henderson, 17 Colo. 532, 31 P. 117 (1892). The purpose of both provisions is to ensure the promotion of "an environment in which voters are capable of reaching an informed decision." Passarelli v. Schoettler, 742 P.2d 867, 871 (Colo. 1987). If no election is held, however...

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