Attorney General of Colorado — Opinion
October 1, 1979
RE: Compensation of Division of Registration Board Members
J.D. MacFARLANE, Attorney General
Mr. D. L. Simmons Administrator Colorado State Board of Pharmacy, Room 128 1525 Sherman Street Denver, Colorado 80203
Dear Mr. Simmons:
QUESTIONS PRESENTED AND CONCLUSIONS
On behalf of the State Board of Pharmacy you have requested an attorney general opinion interpreting S.B. 264 as enacted in the First Regular Session of the Fifty-Second General Assembly of the Colorado Legislature (1979). Specifically you ask:
1. Is the per diem compensation to be paid for “attendance at board meetings” solely applicable to in state meetings among Colorado boards, or is a per diem compensation also authorized for attendance at meetings among board members of different states, such as district or national meetings?
2. Is per diem authorized if a board member prepares examination questions and/or grades examinations at home?
3. Is per diem authorized if a board member attends a “pretrial” type hearing in which the respondent, his attorney, the assistant attorney general and staff members participate?
The answer to your first question is that the per diem allowance is payable to Department of Regulatory Agencies, Division of Registration board members while in attendance at board meetings called in furtherance of legislatively delegated board functions under the respective organic acts of each agency. Board meetings, hearings and examinations, duly noticed and convened, are appropriate authorized board functions for which per diem is allowed, irrespective of whether they are held in conjunction with other board member activities. If a board or a board committee convenes a meeting as authorized under board direction or rules of procedure, the members in attendance are eligible for per diem payment without regard for the location of the meeting.
In answer to your second question, examination per diem allowances are payable only while board members are in attendance at examinations. Matters prefatory and subsequent to the actual conduct of agency examinations are not eligible for this payment unless they are accomplished during board meetings or authorized committee or subcommittee meetings of the board.
The answer to your third question is “yes.”
ANALYSIS
Section 1, of S.B. 264 is determinative of all three of your questions. It adds subsection (13) to C.R.S. 1973, 24-34-102
(1978 Repl. Vol.) which provides:
24-34-102. Division of registrations — creation — duties of division and department heads. (13) All laws to the contrary notwithstanding, each member of a board or commission within the division of registrations shall receive a per diem allowance of fifty dollars for each day spent in attendance at board meetings, hearings, or examinations and shall be reimbursed for actual and necessary expenses incurred in the discharge of such official duties; except that such per diem compensation shall not exceed that sum in any fiscal year which may be approved by the state personnel board for employees not under the state personnel system and except that no member of a board or commission otherwise employed by the state or by the federal government shall receive such per diem compensation. Payment for all such per diem compensation and expenses shall be made out of annual appropriations from the general fund by the general assembly.
In enacting this provision, the legislature intended to authorize per diem payments for two specific agency functions: examinations and hearings, and for all other board business as may be conducted at meetings. Per diem allowances are conditioned on member attendance at these functions and meetings. Independent board member activity, no matter how directly related or efficacious to board meetings, examinations and hearings is not contemplated as eligible for per diem payment under this section.
However, DORA boards and agencies within the Division of Registrations have the authority to regulate their practice and procedure for legislatively delegated tasks under their organic statutes. Board member attendance at committee or subcommittee meetings, convened at the direction of the board for the furtherance and accomplishment of legislatively delegated functions, would entitle board members to per diem allowances. Similarly, duly authorized and delegated rulemaking or adjudicatory activity, either under agency organic law or the Administrative Procedure Act, would be a hearing as this term is used in S.B. 264 and board member attendance at such, at the direction of his or her agency, would entitle that person to per diem payment.
SUMMARY
It should be noted that all board budget allocations are subject to the direction and supervision of the executive director of the Department of Regulatory Agencies under C.R.S. 1973, 24-1-105 and that in no event, may any expenditure be made in excess of the general fund appropriation for such.
Very truly yours,
J.D. MacFARLANE Attorney General
PUBLIC OFFICERS EXPENSES
C.R.S. 1973, 24-34-102(13)
REGULATORY AGENCIES, DEPT. Pharmacy, Bd. of
Per diem is authorized for members of boards within the Division of Registrations, Dept. of Regulatory Agencies, only for attendance at duly noticed and convened board meetings in furtherance of legislatively delegated board functions, exams and hearings. No per diem for work on exams where not in attendance at exam. Per diem authorized for pretrial hearings where board members participate.