AGO 90-7.

Case Date:May 16, 1990
Colorado Attorney General Opinions 1990. AGO 90-7. STATE OF COLORADO OFFICE OF THE ATTORNEY GENERAL FORMAL OPINION OF DUANE WOODARD Attorney General Opinion No. 90-7 AG Alpha No. RG SL AGARO May 16, 1990David Paul Commissioner Division of Financial Services 1560 Broadway, Suite 750 Denver, Colorado 80202 RE: Deferred Compensation Funds/Protection of Deposits of Public Moneys ActDear Mr. Paul: This opinion letter is in response to your April 12, 1990 inquiry about the status of deferred compensation funds in connection with statutory collateralization requirements of "public moneys" in savings and loan institutions. QUESTION PRESENTED AND CONCLUSION Whether deferred compensation funds are "public moneys" covered by Protection of Deposits of Public Moneys Act (hereafter, "PDPMA"). Yes, they are. ANALYSIS In 1980, the Colorado General Assembly enacted the State Deferred Compensation Statute which allows state employees to defer a portion of their salaries for distribution at some later specified date or event. See Sections 24-52-101 to -103, C.R.S. (1988). This statute was enacted to take advantage of section 457 of the Internal Revenue Code which allows tax deferral on income placed in such plans. Some or all of these funds can be deposited with savings and loan institutions. Section 24-52-103, C.R.S. (1988). The PDPMA requires savings and loan institutions to collateralize "public moneys." See Sections 11-47-106 to -108, C.R.S. (1988). The Act defines "public moneys" as, "all moneys under the control of or in the custody of governmental units." Section 11-47-103(12), C.R.S. (1988)(emphasis added). The issue, therefore, is whether deferred compensation funds are moneys under the "control" or "custody" of a "governmental unit." Clearly, they are. First, "governmental unit" is defined by the PDPMA as, the State of Colorado, every ... authority located in this state, every public body corporate created or established under the constitution or any law of this state, and every board, commission, department, institution, agency of, and every entity created by intergovernmental agreement among any of the foregoing which collects, receives, or has custody of or control over public moneys. Section 11-47-103(8), C.R.S. (1990 Supp). The Deferred Compensation Statute identifies the Deferred Compensation Committee...

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