Mr. Thomas H. Sheehan, Jr.

Attorney General of Colorado — Opinion
March 30, 1976

RE: Highway Users Tax Fund

J.D. MacFARLANE, Attorney General

Mr. Thomas H. Sheehan, Jr. Executive Director Colorado Department of Administration 724 State Services Building Denver, Colorado 80203

Dear Mr. Sheehan:

This opinion letter is in response to your inquiry in which you asked about the use of moneys from the Highway Users Tax Fund for the purpose of maintaining the statewide communications system.

QUESTION PRESENTED AND CONCLUSION

Your inquiry presents the question:

“In light of the reorganization of responsibility for the communications system in the Department of Administration under C.R.S. 1973, 24-30-905, can moneys from the Highway Users Tax Fund be used to maintain the communications system as established under C.R.S. 1973, 43-5-121 and 43-5-124?”

My conclusion is that Highway Users Tax Fund money can be used to support the communications system.

ANALYSIS

Confusion has arisen in view of a reorganization which placed the communications coordinator in the Department of Administration, C.R.S. 1973, 24-30-905.

Despite the reorganization, the statutes as exemplified by a 1975 amendment to C.R.S. 1973, 43-5-124, continue to require the Chief of the State Patrol to pay for expenses of dispatchers and other necessary employees in connection with the radio broadcasting system:

All expenses of dispatchers and other necessary employees used in connection with the radio broadcasting system provided for by this section shall be paid by the chief of the Colorado state patrol in the same manner as expenses of other employees of said patrol are paid.

C.R.S. 1973, 43-5-124(4).

This section must be read in conjunction with the reorganization provisions of C.R.S. 1973, 24-30-905(2) which indicate an intent to continue use of the Highway Users Tax Fund for payment of operating expenses of the communications system insofar as permissible in connection with the construction, maintenance and supervision of public highways.

But the Legislature did not provide statutory authorization for direct appropriation by the Legislature to the Department of Administration for these purposes and cannot do so without a statutory authorization. Hence, expenses of the highway related communications function should be paid through the existing statutorily authorized appropriation procedure whereby the Legislature appropriates the Highway Users Tax Fund revenue to the Patrol. C.R.S. 1973, 43-4-206(1). In the alternative, the general Highway Department communications expenses can appropriately be derived from the State Highway Fund pursuant to the Highway Commission’s budgetary authority. C.R.S. 1973, 43-1-105(1)(g); 43-4-206(1)(b).

In summary, the expenses of maintaining a statewide communications network for the State Patrol and Highway Department should be billed by the Department of Administration to the State Patrol and Highway Department which would make payments out of a legislative appropriation on the tax fund or by Highway Commission action, or a combination of both. The other alternatives are general appropriations or a statute authorizing the Legislature to appropriate money directly from the Highway Users Tax Fund to the Department of Administration for reasonably related highway purposes.

Since C.R.S. 1973, 43-5-121 deems the radio and teletype system to be part of the State Patrol-Department of Highways function, the expenses for use of these facilities by law enforcement and other agencies can be properly allocated to the Highway Users Tax Fund through the State Patrol appropriation in an amount reasonably related to construction, maintenance and supervision of roadways. Otherwise, a general appropriation or billing of individual governmental agencies is appropriate.

The term “operating expenses” in C.R.S. 1973, 24-30-905(2) refers to expenses incurred in administering, maintaining, equipping, and servicing the communications system; the same statutory section makes it clear that a reasonable allocation of operating expenses must be determined since the Highway Users Tax Fund can only be used to the extent the communications system serves, or provides benefits in connection with the construction, maintenance and supervision of public highways. The breadth of these terms is indicated by our memorandum of March 30, 1977 to the Legislative Audit Committee on proper uses of tax fund revenues.

SUMMARY

To briefly summarize my opinion, expenses for the use by the State Patrol and Highway Department of the statewide communications network maintained by the Department of Administration can be paid from the Highway Users Tax Fund. The Department of Administration should bill the Highway Department which would make payments out of legislative appropriations on the tax fund or by Highway Commission action, or a combination of both.

Very truly yours,

J.D. MacFARLANE Attorney General

HIGHWAYS TAXATION AND REVENUE

C.R.S. 1973, 24-30-905 C.R.S. 1973, 43-5-121 C.R.S. 1973, 43-5-124

ADMINISTRATION, DEPT. OF Administration HIGHWAYS, DEPT. OF

Highway Users Tax Fund moneys can be used to support the statewide communications system utilized by the Dept. of Highways but maintained by the Dept. of Administration.