AG Weiser testimony: Before the Joint Committee on the Judiciary on the DOL performance plan (Jan. 11, 2024)
Chair Weissman, Vice Chair Gonzales, and Committee members, thank you for allowing me to present the Department of Law’s (“Department”) 2024 priorities, our annual performance plan, and an update on how we best serve Colorado. I’m grateful for our continued work together.
As required in the SMART Act, I’m prepared to respond to any questions you may have on our performance plan, departmental regulatory agenda, or budget request—or any other matters you wish to discuss.
Background on the Department of Law
As there are several new members to the Committee, I’d like to start with a background on the Department and our responsibilities. Each day, we serve as the State’s lawyers, protect Coloradans’ rights, and defend the rule of law.
As attorney general, I serve as the Department’s executive director. I also hold statutory duties to serve as the State’s chief legal representative. One of our core responsibilities is serving as the lawyers for Executive and Judicial Branch state agencies. This includes providing day-to-day legal counsel and serving as attorneys for all agencies, offices, boards, and commissions under the two branches. I’m committed to ensuring that state agencies receive excellent legal representation—both in litigation and in the day-to-day general counsel we provide. And in doing so, our role is not to give legal advice that our clients want, but instead give the advice they need. I take this principle very seriously; it ensures our clients receive the best legal representation.
We also defend the legal interests of the people of Colorado and our State’s sovereignty. This includes protecting consumers through actions under the Colorado consumer, data privacy, and antitrust laws. We also are charged with protecting our State’s water by representing the Division of Water Resources and the Colorado Water Conservation Board; and we protect the State’s water rights in ongoing current and potential litigation. Other top priorities are our work to combat the opioid epidemic and address our youth mental health crisis.
On advancing public safety, we house the Peace Officer Standards and Training (“POST”) Board, which ensures that officers are properly trained and certified. We also collaborate with and support our law enforcement partners throughout the State, including district attorneys (“DAs”), county sheriffs, police chiefs, federal law enforcement agencies, and the Colorado Department of Public Safety. And we serve as the State’s prosecutor appointed by the Governor during vacancies following DA resignations. Furthermore, we handle criminal appeals and prosecute certain crimes such as multijurisdictional criminal rings and insurance and securities fraud.
Finally, we are charged with defending the laws of Colorado when challenged in court. This is a significant function of our Department, particularly as we have seen an uptick in the number of legal challenges brought to overturn laws enacted by the General Assembly. And, in addition to defending the laws you pass, we also administer certain laws. As you know, the General Assembly entrusted significant new statutory authority and obligations to our Department over the last five years. This includes the Colorado Privacy Act to protect consumers’ data, conducting investigations of patterns and practices of violations of rights by government entities, and standing up a new Fair Housing Unit to ensure State housing laws are followed.
Protecting Colorado’s Land, Air, and Water
Let me start by discussing our work to protect our natural resources. One of the Department’s most important duties is to protect Colorado’s water rights—our greatest natural resource. It fuels our agricultural and recreation industries, economies, and the environment. Yet persistent drought and reduced supply continues, even with wet years like we saw in 2023.
The Colorado River Basin, in particular, not only faces historic drought, but also overuse by Lower Basin states—California, Nevada, and Arizona. This has further stretched an already strained resource. Upper Basin states like Colorado are doing our fair share to live within the means of the river through strict administration of water rights through the State Engineer’s Office and opportunities for interested water users to participate in voluntary, temporary, and compensated water conservation programs to mitigate the impacts of drought in Colorado and the Upper Basin. Negotiations are presently underway between the Upper and Lower Basin states to determine future operations of Lake Powell and Lake Mead, and we work closely with Colorado’s lead negotiator, Becky Mitchell, to ensure Colorado’s long-established rights are protected.
Last year, the legislature established the Colorado River Drought Task Force to present recommendations for addressing drought in the Colorado River and its tributaries. I followed this process closely and offered several points for the members’ consideration.[1] The final recommendations offer some important starting points for legislative action this year. Several call for far greater resources to be devoted to various water programs and infrastructure projects. I’ve pushed hard on this issue in recent budget cycles, urging a major investment in funding Colorado’s Water Plan using federal stimulus funds.[2] No such investment was made. With the hour late on this opportunity, let me be clear on this point—given the presence of one-time federal investments that require state matching fund investments, we are at risk of missing a crucial opportunity unless we commit significant State resources and bring a sense of urgency to this issue.
There is also continued interest from Nebraska in constructing a canal in Northeast Colorado—a concern that is not just theoretical. This plan is now backed up by major appropriations from the Nebraska legislature. This effort stems from a misunderstanding, but now Nebraska is moving ahead with its proposal, a project that will deliver little to no benefit to their state. If Nebraska continues to pursue this project, we are prepared to ensure that it is limited to what was negotiated in 1923. And if need be—we will head to court to defend Colorado’s rights.
Equally important to water supply is water quality. We are engaged in multiple litigation efforts to protect our water from chemicals referred to as “PFAS”. These chemicals are present in swaths of consumer products—they are harmful, do not degrade, and leach into groundwater. We filed a lawsuit in 2022 against manufacturers of this poison for its damage to Colorado’s public health and our natural resources. Last year, I joined with 21 other attorneys general to oppose settlement offers from these manufacturers and negotiated changes to the settlements to improve their fairness and safeguard Colorado’s claims.[3] We will continue to push for a more just outcome that holds these companies accountable for the harms they caused.
I am pleased to report that, in May of 2023, Colorado finalized a $5 million damages settlement with the U.S. Forest Service, Bureau of Land Management, and Environmental Protection Agency for injuries to Colorado’s natural resources stemming from almost a century of improperly conducted mining activity in the Bonita Peak Mining District in San Juan County, including damages related to the Gold King Mine disaster in 2015.
Criminal Justice
As I said earlier, we partner closely with the 22 elected DAs in the criminal justice space. One lesser known but very important function of the Department is that we provide assistance to rural DA offices on complex cases. As I’m sure you know, rural DAs are resource-stretched and have added recruiting challenges. For complex cases, rural DAs may ask us for support from our Special Prosecutions Unit. But demands exceed the Unit’s capacity. In fact, in FY 2022-2023, of the total 262 cases opened by the Unit, 150 (57 percent) were in rural judicial districts. This need is also heightened as the Special Prosecutions Unit is often relied upon during DA vacancies should the Governor designate our Department as the State’s prosecutor for a judicial district—like when the 12th Judicial District DA resigned in 2022. To that end, we have a budget request for your consideration to increase our Special Prosecution Unit personnel so that we may continue to offer this support when requested by rural DAs.[4]
On the POST Board, we continue to pursue methods to best support peace officers. Officers endure some of the most traumatic situations imaginable—suicide continues to be the leading cause of officer deaths. That’s why we worked with you in 2022 in crafting a bill to expand the State peace officer mental health program. We must continue to keep our eyes on this issue. And we are working on a major redesign project of the Law Enforcement Training Academy curriculum. This work will elevate the importance of the entire set of competencies—including emotional intelligence, for example—that sheriffs and officers need to be successful. And it will help cadets develop through active learning techniques.
Also on the POST front, we continue to implement new statutory requirements for transparency and accountability in law enforcement. As you look to refine those laws, this year I’m asking the General Assembly to add new investigation authority. The law governing the POST searchable database to show peace officer records on conduct (such as untruthfulness, terminations for cause, and resignations while under investigation) requires law enforcement agencies to provide this data to us or risk fines. For us to determine when false information was provided, I’ve asked the legislature to grant investigation authority—this will allow us to use basic and important investigation tools like subpoenas, civil investigation demands, and document production.[5] And we’re asking that this authority be coupled with necessary funding so that we can hire investigation personnel to perform this task. If approved, these tools will instill greater confidence and accuracy in the database by rooting out fictitious data reported to the POST Board.
Protecting Consumers
Serving as a watchdog to protect consumers is one of my top priorities. We ensure that consumers are protected and businesses that defraud Coloradans are held accountable. This in turn keeps our marketplace fair for businesses that follow the law and act with integrity.
As we’ve discussed in the past, addressing the opioid crisis and holding accountable corporations that deliberately marketed addictive drugs has been a priority since my first day in office. Our Department is now on track to receive over $750 million dollars for Colorado in opioid settlement funds from bad actors who fueled this crisis. These funds provide a significant opportunity for us to invest in addiction treatment and recovery. We’ve stood up with local governments a regional system to ensure these funds provide critical addiction treatment and prevention services, and are spent responsibly and transparently. We have begun distributing these funds throughout the State and look forward to providing continuing updates on their use and impact (including through our public-facing dashboard).
A more recent area of focus for our Department is youth mental health. Our Department operates the Safe2Tell program, which receives reports of threats facing students and works to prevent harm or tragedies. The top threat we hear is suicide. With that in mind, we are leading a 33-state suit against Meta for the negative impact its platforms (Facebook and Instagram) have on young people. And after our lawsuit against JUUL for promoting teen vaping on social media resulted in a $32 million settlement, we are now investing those funds, focusing on prevention and the underlying youth mental health concerns that led young people to get hooked on vaping.
As you know, the towing industry is another focus of ours. Last month, we announced a settlement with Wyatts Towing that will direct $1 million to Colorado consumers harmed by unlawful towing practices. This action also includes substantial commitments for Wyatts to change its business practices. I am encouraged by the Transportation Legislation Review Committee’s effort to reign in some of these bad behaviors by removing incentives to tow and holding towing companies to a higher standard at the Public Utilities Commission. But we can always do more for consumers. Banning or putting strict guardrails on loans made by towing companies or expanding protections to commercial vehicles are just some of the ways we can stand up to these predatory behaviors. I look forward to working with you on these efforts.
Ensuring that landlords treat tenants fairly is a new and growing function of ours. We have stood up the new Fair Housing Unit called for in 2022 and have put those new laws to use. Just this week, for example, we announced an action against a major rental property service company for wrongly withholding tenants’ security deposits and charging improper fees. As a result of that action, we are returning $1 million to tenants taken advantage of and sending a clear message to corporate landlords that tenants have rights under Colorado law.
Last year, we partnered with you to make many major updates to our consumer laws—two in particular. First, the legislature acted to cap out-of-control medical debt. As I said last year, 18 percent of Americans have some form of medical debt turned over to debt collectors, a figure that surely is higher as some patients pay their medical costs through credit cards or direct provider bills.[6] We now have a strong law in place capping those debts. And, second, under a bill led by Senator Gonzales and Representative Weissman, the State Antitrust Act was overhauled and strengthened for the first time in over 30 years. That action provided necessary updates to ensure mergers do not squash competition and push smaller businesses out of the market. Both bills were major achievements to ensure our laws effectively protect consumers.
Next year, we look forward to partnering with you on several priorities to further strengthen our consumer laws. One area in which Colorado falls short is our vehicle lemon laws. According to the Center for Auto Safety, our laws in this area are second worst state in the country.[7] We must improve transparency for consumers when a car is a lemon so problems are not passed on to the next consumer. Expanding the types of vehicles covered and the window in which consumers can exercise their right will ensure faulty vehicles are identified and fixed before putting someone at risk while on the road. Another area of concern are abusive practices in so-called “Training Repayment Agreement Provisions,” or TRAPS, which leave employees on the hook for punitive fees and act as a de facto non-compete requirement. I look forward to working with you on both of these important issues.
Advancing the Rule of Law
Defending the rule of law is core to our work. Driven in part by rampant incivility in our discourse, we see rising attempts to tear down our democratic institutions and growing numbers of hate crimes. The rule of law is essential to our form of government and must always remain our true North. This commitment drives our work to protect our constitutional rights, freedoms, and liberties; address threats to our democratic republic; and treat all persons equally and fairly under the law. That’s a value we at the Department strive to live by day-in and day-out.
Our commitment to the rule of law leads me and other state attorneys general to challenge the federal government when it oversteps. I often repeat that my standard for bringing a lawsuit against the federal government is based on whether it violated the law and whether Colorado was harmed. It was this principle that drove our work when we sued the U.S. Department of Justice to hold the federal government accountable when it unlawfully withheld needed law enforcement funds from Colorado sheriff and police departments. This commitment to the rule of law—and to our fundamental freedoms—is also at the core of our work defending reproductive freedom and LGBTQ rights, both of which are under attack in many parts of the United States.
Lawyers have a duty to defend our institutions, our commitment to the rule of law, and our vision of an inclusive society with liberty and justice for all. Our team at the Department honors that commitment every day, as it’s our highest duty as lawyers for the State of Colorado.
Conclusion
Thank you for allowing me to join you today. As you begin your important work this session, my staff and I are happy to support you and be a resource on legislation. There will be several bills that we plan to present for your consideration this session. I look forward to working with you on these concepts—even if we are not in agreement. I’m very proud that all of our legislative agenda bills to date received bipartisan support. That record underscores my belief that we do our best work when we do it together, as well as my commitment to respectful dialogue and reaching toward consensus. That’s a Colorado value and we need to hold fast to it.
In your email, you were provided with electronic copies of our performance plan, regulatory agenda, and budget request, as well as statutory reports updating on the work of the Office of Financial Empowerment and implementation of the Nonbank Mortgage Servicers Act. I’m happy to address any questions you have on these items, or any other matters you wish to raise. And as always, thank you for
[1] Letter from Att’y. Gen. Phil Weiser to the Chair Kathy Chandler-Henry, Colo. River Drought Task Force (Oct. 25, 2023).
[2] Letter from Att’y. Gen. Phil Weiser to the Colo. Gen. Assemb. (Nov. 1, 2021); Letter from Att’y. Gen. Phil Weiser to the Colo. Gen. Assemb. (May 24, 2021).
[3] Press Release, Colo. Dep’t of Law, Attorney General Phil Weiser Joins Multistate Coalition in Opposing 3M’s Proposed PFAS Settlement (July 26, 2023), available at https://coag.gov/press-releases/ag-weiser-opposing-3m-pfas-settlement/.
[4] Letter from Att’y. Gen. Phil Weiser to the Joint Budget Comm., Colo. Gen. Assemb. (Nov. 1, 2023) available at https://coag.gov/app/uploads/2023/11/Colorado-Department-of-Law-FY2024-25-Budget-Request.pdf.
[5] Id.
[6] Medical Debt Is Being Erased in Ohio and Illinois. Is Your Town Next?, New York Times, Dec. 29, 2022 (available at https://www.nytimes.com/2022/12/29/us/toledo-medical-debt-relief.html).
[7] Christopher Jensen, For Car Buyers Who Got a Lemon, State Laws Vary Widely, N.Y. Times, Feb. 6, 2019 (available at https://www.nytimes.com/2019/02/06/automobiles/car-lemon-laws-states.html).