By Jerry Kopel
There is an election coming in Denver that might affect you if XCel Energy keeps your home or business warm.
Neither the Denver Post nor the Rocky Mountain News has mentioned anything about the election. I wonder why?
XCel Energy is seeking a renewal of a 20 year franchise for Denver. The last election granting Public Service Company (now XCel Energy) a 20 year franchise occurred in 1986.
Also in 1986, an amendment to the state constitution (Article 20, section 4) was put on the ballot by the state legislature. It was House Concurrent Resolution 1002 and it removed a requirement that Denver may grant franchises only upon the vote of registered electors. This amendment to the constitution was enacted into law by all Colorado voters, not just Denver voters.
Replacing it was language that a referendum on a franchise award would be required only if petitioned by five percent of registered electors. But the amendment also stated "Nothing ....shall preclude a home rule charter provision...which requires a franchise to be voted on by the registered voters."
Denver has tried several times since 1986 to amend the charter, but the requirement for a definite vote on the franchise (not just XCel) relating to streets , alleys, or public places of Denver has not been changed. So instead of Denver City Council voting in 2006, it will be registered voters in Denver.
According to newspaper reports at the time of the debate on HCR 1002 "representatives of the cable television industry and the Public Service Company testified before the House State Affairs Committee in support of the suggested amendment to the constitution. The vote in the House was 60 to 3 and in the Senate, 30 to 1.
Are negotiations going on between Denver and XCel Energy? Of course. What they ultimately decide is what the franchise language will include. But it really is time for some transparency, since voters are interested in what the city gives and what the city gets, especially in relation to high-energy bills. There really should be a publicly appointed citizens committee to participate in the decision making.
What choice will Denver voters have? There are no companies presently around to replace XCel. It would be enormously costly for Denver to have what is available in about 20 other cities, a utility actually owned by the city. Most of those started when the towns were incorporated or shortly afterwards.
We could have an early election such as when the state wide primary elections occur, vote "no" and continue to negotiate for better terms with a second election in November. There is precedent for that approach.
Or we could voice concerns about the length of the franchise contract. The Denver charter sets a maximum franchise length at 20 years. City Council, which will set the election date, could provide the contract would only last, as an example, five years. That would add a little more muscle to seek ways to reduce high energy costs, or start looking for a replacement for XCel Energy.
The franchise contract cannot include matters not directly involved such as high energy costs, but a supplemental document would be legal.
Meanwhile Section 4 of Article 20 of the constitution is badly written. There is debate over whether it applies solely to Denver or to all home rule cities. The language starts out referring to Denver and "said" city and county, but then discuses electors "of a home rule city" where the word "Denver" would have sufficed. Case law (almost all pre-1986 vote) indicates the language covered all home rule cities.
Also Section 4 doesn't provide what number of registered voters is divided by five percent, other than "all registered electors". Is it five percent of all registered electors at the time the petition drive begins, or is it five percent at the time it is turned into the election commission?
If any other portion of Article 20 is put before the voters in November, Section 4 might also be worth revising.
Jerry Kopel served 22 years in the Colorado House.
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