By Seth Richardson
The wisdom or necessity of the sale of city-owned Memorial Hospital to a private for-profit entity is a local issue subject to local democratic debate and decision making, as is the question of how Colorado Springs can spend the proceeds it might collect from such a sale. Neither are legitimate subjects for regulation or oversight by the state Legislature, according to the Colorado Constitution.
Much of the rhetoric being heard recently about the potential sale is focused on the requirements of the Colorado Hospital Transfer Act (CHTA), a state law enacted in 1998. This law says that the state Attorney General is empowered, among other things, to “ensure that any proceeds of the transaction are dedicated to… charitable purposes,” and he can require that the “proceeds… be set aside in an amount equal to the fair market value of the hospital assets being transferred.” Thus, the CHTA regulates how such money can be spent.
But the CHTA was never intended to interfere with home rule powers of municipalities, says former state Representative and Colorado Springs resident Andy McElhany, who was serving in the Legislature at the time. McElhany says of the CHTA, “Our intent was not to hinder the sale of municipally owned hospitals; the last thing we wanted was to prevent cash-strapped local governments from putting publicly owned assets like Memorial to their best and highest use for their citizen-owners. Rather, the thinking behind the 1998 legislation was to ensure that the sale of any private, nonprofit hospital which, in a sense, belongs to no one did not betray its charitable mission.”
Because the law fails to distinguish between publicly-owned and privately-owned hospitals in imposing this mandate, the law conflicts with the city’s constitutional home rule powers. Colorado Springs is a home rule city, and the decisions of the City Council on purely local matters are not subject to interference by the Legislature. Article XX, Section 6 of the state Constitution says:
“Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith… It is the intention of this article to grant and confirm to the people of all municipalities … the full right of self-government in both local and municipal matters.”
One of the most fundamental powers of a municipality under home rule, one that is inherent and inseparable from the power to collect revenue, is the power to determine how those revenues are spent, subject only to the rules of the municipality itself. The power to dispose of city assets is solely vested in the City Council or in the residents of the city, and if the voters of the city decide that it is no longer necessary or desirable to have a city-0wned hospital, that decision is final. Likewise, if the City Council chooses to spend the revenues collected from a sale of the hospital on fixing bridges or potholes, that decision too is not subject to interference by the Attorney General or the Legislature.
While the state Legislature certainly has the power to regulate private hospitals and at least arguably the Attorney General, pursuant to the CHTA, can make regulations and set conditions on how private state-licensed hospitals operate that will protect the public interest in affordable health care, both the decision to sell and the allocation of the proceeds of the sale of hospitals owned by home rule cities is beyond its authority to regulate, and squarely conflicts with the city’s constitutional home rule powers.
The state Supreme Court has said that, “the legislature cannot prohibit the exercise of constitutional home rule powers, regardless of the state interests which may be implicated by the exercise of those powers.”
The violation of the sovereign home rule powers of the City of Colorado Springs found in the Colorado Hospital Transfer Act is something entirely aside from the local question of whether Memorial Hospital should be sold to a private for-profit entity. The City Council must challenge the state’s authority to tell Colorado Springs how to spend it’s own money, if for no other reason than in order preserve the city’s sovereign constitutional powers.
© 2011 Altnews
Seth funny how the Gazette continues to push the agenda of clearing the way for removal of the CHTA act so ineffective political leaders can use the funds to perform the services that they should already be performing. I find the use of Andy McElhany who has been a very outspoken advocate of selling Memorial to be self serving. Also, Andy has no idea what was in the minds of all of the representatives when they voted on it. A case can be made that this former representative, who by his new found revelations is clearly in bed with HeathOne. His comments prove the citizens of Colorado Springs elected him to office and it was a bad choice. He obviously is incompetent in that he voted in favor of the CHTA but didn’t know what he was voting for. I guess he was for it before he was against it. FLIP FLOP. I am glad he is no longer anyone in the town.
The facts of the economic crisis put paid to your assertions of incompetence on the part of the city council.
Whether Memorial should be sold is a matter for the citizens of Colorado Springs to decide, as is how the money is spent. So far, the editorial pages of the Gazette have suggested only this, and have not opined on the propriety of selling the hospital at all.
McElhany’s quote is not determinative, merely illustrative. The more salient fact is as I pointed out; the city’s home rule powers. Whatever the Legislature intended, whether it included an intent to regulate publicly-owned hospitals or not, the issue of the conflict of the CHTA with home rule cities and their powers is a legitimate one.
McElhany’s quote is not determinative, merely illustrative? Illustrative of what? That he didn’t know what he was voting for or that he flip flopped when he needs to be and is pimping for a job in the health care industry? It sure is illustrative. It was used by you and the Gazette to sway those less informed to support the change of the CHTA which clears the way for the sale.
Illustrative of the fact that the CHTA is not all you’re attempting to make it out to be. Illustrative of the fact that the Legislature was evidently aware of the issue of home rule authority, and gave it consideration, which goes to legislative intent in any challenge to the authority of the state to interfere with how home rule municipalities deal with their owned assets and spend their own money.
Since the CHTA does not EXPLICITLY overrule home rule authority, the legal presumption in reviewing a law that affects such home rule powers is that the legislature DID NOT intend to infringe on those powers.
You may not like that, but that’s the legal fact.