Draft Audit and Appeals Policy
Branson - DORA, Daryl
Daryl Branson, ENP RPL
State 911 Program Manager
Colorado Public Utilities Commission
1560 Broadway Ste 250, Denver, CO 80202
daryl....@state.co.us | www.colorado.gov/dora/puc
J. Benkert
After further research and review, I don’t believe §29-1-203.5(3)(a) bears upon the ability of a 9-1-1 Authority to impose a penalty of 50% on service suppliers where there are indications of fraud in the under-remittance of ETCs. I also conferred with Bart Miller, whose practice includes the general representation of local Colorado governmental entities as well as representation of 9-1-1 Authorities, and he agrees that the authority for those penalties in the Denver and Aurora tax ordinance and Sec. 16-24(d) the Denver Emergency Preparedness Ordinance (https://library.municode.com/co/denver/codes/code_of_ordinances?nodeId=TITIIREMUCO_CH16EMPR), is the inherent authority of home rule cities in Colorado.
Bart and I also discussed that it would probably not be worth the investment of time and expense for most 9-1-1 Authorities to seek to prove fraud by a service supplier in the late- and/or under-remittance of ETCs. Even for large providers, even an additional 40% of an under-remitted amount may not be a sufficient amount to justify the time and expense involved to recover the additional penalty. Providers which have a substantial investment in and derive substantial revenue from providing service to governmental entities may not be able to afford a finding of fraud that could result in debarment from government contracting, which could cause them to vigorously defend against such allegations.
As I discussed Monday, §29-11-103(7)(b) provides that if a service supplier fails to timely file a remittance report and remit the ETC, files an incorrect remittance report and/or remits an incorrect amount of ETCs, the Governing Body shall estimate the correct amount, assess a penalty equal to 15% of the delinquent amount, and assess interest on the delinquent amount until paid. An argument can be made that, under the rules of statutory interpretation, that is the only the 15% penalty is the only penalty that a Governing Body may assess for failure to timely remit and report the correct amount of ETCs. Denver obviously believes it has a basis to believe it would not be prevented from imposing a 50% penalty. I do not consider it within my discretion to omit provisions from the Denver ordinance which I was provided to use as a template for a resolution to be adopted by other 9-1-1 Authorities to implement provisions for audits (and enforcement) of remittances, and appeals of imposition of penalties and interest. However my recommendation would be not to include the 50% penalty where there is indicia of fraud in an under-remittance or failure to remit in the template, even as an option, since it is not provided for in §29-11-103.
Section 8(b) is appropriate.
Thanks!
Joe
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Matt Goetsch
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