No. ( 1979 )

Mr. Dan S. Whittemore, State Controller Department of Administration Division of Accounts and Control 1525 Sherman Street, Room 706 Denver, Colorado 80203

Dear Mr. Whittemore:

Your memorandum requests clarification of your expenditure authority under C.R.S. 1973, 24-30-202(21) (Supp. 1978), in circumstances where the state has incurred loss or damage to uninsured property.

QUESTIONS PRESENTED AND CONCLUSIONS

1. You ask whether, with approval of the governor, you may authorize necessary repair, replacement or reconstruction of uninsured state property suffering casualty loss without specific legislative appropriation.

My conclusion is "yes."

2. You also ask if the $100,000 expenditure limit provided in this section applies to each such casualty loss, or is a one time legislative grant of total expenditure authority.

My conclusion is that the $100,000 expenditure limit applies in each instance of property damage.

ANALYSIS

You are advised that C.R.S. 1973, 24-30-202(21) (Supp. 1978), is an express authorization for the state controller, acting with the approval of the governor, to repair, replace or reconstruct casualty-damaged uninsured state property, and that the state controller may authorize up to $100,000 of such expenditures in each instance of property damage occasioned by casualty occurrence.

C.R.S. 1973, 24-30-202(21) (Supp. 1978), is a comprehensive legislative provision authorizing the state controller to deal with casualty damages to state property in either insured or uninsured circumstances. To the extent damaged state property is insured the controller is authorized to set up a special account to receive the insurance proceeds and, without further approval or review, expend such in repair or replacement of the property. If the property is uninsured or partially insured the controller, with gubernatorial approval, may expend general fund monies for the same end.

The section provides:

If, as a result of fire or other insured loss to state property, the state receives moneys from any insurance company, the controller is authorized to deposit such moneys in an account from which he may, without regard to the provisions of part 4 of article 37 of this title and without further legislative action, reimburse contractors for repair, replacement, or reconstruction of state properties damaged or destroyed under a contract executed in accordance with state contracting laws and procedures in effect at the time of the execution of the contract. If the amount of insurance recovery exceeds the actual cost of such repair, replacement, or reconstruction, any balance remaining in said account after payment of actual costs shall revert to the general fund. With respect to the loss or damage to state property which is not insured or the loss or damage to state property which is insured but the insurance does not fully cover the loss or damage, the controller may, with the approval of the governor, without further legislative action, reimburse contractors for the repair, replacement, or reconstruction of such state property up to a maximum amount of one hundred thousand dollars.

There is no limitation in this section on the amount of insured damages which may be received and expended under this provision and I conclude that the legislature intended to provide continuing and ongoing authority for the controller and governor to similarly deal with uninsured property loss or damage. The $100,000 limitation thus would apply to each instance of casualty loss rather than operate as a cumulative maximum.

SUMMARY

This construction of the statute in question is consistent with the respective responsibilities of the legislature and the executive under the Colorado constitution and statutes. The legislative control of the public fisc has been served since the initial acquisition of all state property has been subjected to the legislative process. It is only unforeseen damage or loss to property to which C.R.S. 1973, 24-30-202(21) (Supp. 1978), addresses itself. The intent of the legislature was clearly to waive the full legislative property acquisition budgeting process and to directly authorize the executive to act in repair, replacement or reconstruction in the casualty instances specified in the section.

Very truly yours,

J.D. MacFARLANE Attorney General

PUBLIC FUNDS APPROPRIATIONS PROPERTY, STATE INSURANCE

C.R.S. 1973, 24-30-202(21)

ADMINISTRATION, DEPT. OF Accounts Control Div. of

State controller, with the approval of the governor, may repair, replace or reconstruct uninsured state property suffering a casualty loss for up to $100,000 per occurrence with legislative appropriation.