Gold Star Wives Day, April 5 2016. A resolution of the United States Senate

April 5, 2016

Gold Star Wives Day

by resolution of the

United States Senate

A Message from Bob McDonald, Secretary of Veterans Affairs on the 50th Anniversary of the Vietnam War

A Message from Bob McDonald, Secretary of Veterans Affairs:

Our nation is currently commemorating the 50th anniversary of the Vietnam War, a long overdue opportunity to honor our 7.2 million living Vietnam Veterans and the 9 million families of those of us who served from November 1, 1955, to May 15, 1975. The Department of Veterans Affairs and more than 9,000 local, state and national organizations have joined the Department of Defense as Commemorative Partners in this important commemoration. 

For us, this partnership holds special significance in light of our mission to serve those who “shall have borne the battle,” their families and their survivors. Embracing our Vietnam Veterans and their families is in keeping with the intent and spirit of our MyVA transformation, focusing on our customers and improving their experience with the VA. 

Please take advantage of the opportunity this commemoration presents to express your gratitude for the service and sacrifice of this generation of American Servicemembers. Thank a Vietnam Veteran and welcome them home!

Briefing Package – Problems with Colorado's Disabled Veteran Property Tax Exemption, & Recommended Solutions

Background & source documents

We have summed up the issues with HB07-1251, Referendum E, and Article X Section 3.5 of the Colorado Constitution...CLICK to download the complete briefing packet.

Also quite informative is the legislative history for HB07-1251. CLICK to download that 33-page resource.

Paris reaches out to Brussels – Je suis Bruxellois

Je suis Bruxellois

VA Unemployability Disability Ratings (TDIU) – a little background for Colorado

There are two kinds of U.S. Department of Veterans Affairs– 100% and TDIU; both are total and permanent disability ratings that should be recognized for Colorado's disabled vet property tax exemption – but aren't!

VA has 100% rating for total disability for unemployability...and also total and permanent disability individual unemployability (TDIU) or often in print, just IU.  

The Individual Unemployability Benefit is equal in every way to a 100% Schedular rating. The compensation is 100% and that dollar amount is equal to both ratings.  This VA permanent disability rating of TDIU meet Colorado's constitutional requirements for the disabled veteran property tax exemption.

(Note: VA has a temporary version of 100%, which is not eligible for the exemption as it is temporary, not permanent as the Colorado constitution and HB07-1251 require.)

This is the rating CDMVA should reject, not the permanent TDIU. All TDIU ratings are permanent, unless the veteran’s health improves and VA determines employment is possible.

If the veteran is VA-rated as 100% Schedular, he or she may work at any job they are capable of doing. The TDIU veteran is proven unable to hold "gainful employment." Nationwide, about 330,000 disabled veterans are rated TDIU. The IU veteran completes a yearly VA Form 21-4140 to verify that there has been no employment in the previous year. 

More about TDIU:

If awarded, this benefit allows the veteran to receive the total disability rating if he/she is proven unable to secure any gainful employment but only for reasons of very serious line-of-duty injuries worse than standard VA tables anticipate. Frequently state or VA experts will evaluate veterans using Certified Rehabilitation Specialists.

For TDIU, VA specifies basic disability ratings that reach the following levels:

a) a single service connected disability rated at 60% or more, or but which, in fact, is totally disabling

b) the result of 2 or more service-connected disabilities where the total rating is 70% and at least one disability is 40% or more and, in fact, are totally disabling.

This type of claim is automatically considered by the VA Regional Office whenever the Veteran’s service-connected impairment ratings reach the above levels. 

Should TDIU disabled vets qualify for Colorado's disabled veteran property tax exemption? Yes, we believe so, based on several points:

     1. Referendum E's Blue Book analysis clearly included veterans made unemployable due to line-of-duty injuries, and was overwhelmingly approved by the voters.

"Who qualifies for the tax reduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify." 

The Blue Book described totally disabled veterans eligible for the benefit:

• Veterans are rated 100-percent permanently disabled when a line of duty mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong. 

But note that the same description, those same qualifications can apply to TDIU vets:

• Similarly, veterans are rated TDIU when an unusually severe mental or physical line of duty injury makes it impossible this specific veteran to hold a job and the disability is lifelong. 

 

Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans were expected to qualify for the property tax reduction in Colorado.

     2. Article X Section 3.5 in the Colorado constitution describes the qualifying points of a veteran's disability for the tax exemption, and VA Veterans Benefits Administration confirmed that VA's TDIU rating has the same qualifiers:

 "(1.5) For purposes of this section, "disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado national guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force. 

"Unemployability" VA Total & Permanent Disability Rating (TDIU) for Vets With Line-of-Duty Injuries – Colorado's unique exception

Colorado is unique among US states in distinguishing VA line of duty permanent and total unemployability ratings (TDIU)) from VA's other permanent and total disability schedular rating.

Only Colorado denies TDIU totally and permanently line-of-duty rated vets the state property tax exemption provided in the state constitution's Article X Section 3.5 by somehow considering this VA classification of veterans different than VA's other category of 100% disabled veterans.

No other state in the Union treats TDIU disabled vets differently than 100% schedular vets. To 49 other states, both VA 100% disability ratings are treated the same. The only difference is that TDIU vets are rated so disabled that they are unable to work.

NOTE: PDIU & TDIU have been used interchangeably, especially by older vets like me. TDIU is the current proper VA term.

Families of Troops Killed in Line-of-Duty – Denied Surviving Spouse Disabled Veteran Property Tax Exemption

If a disabled vet isn't already in receipt if the property tax exemption, the survivor is forever forbidden this important benefit. The system is set up so that widows and widowers of troops killed in the line-of duty will never get the benefit. (click for Gold Star Families' blog on this)

How does Colorado keep troops'' widows from receiving the Disabled Veteran Property Tax Exemption?

Colorado's "PROPERTY TAX EXEMPTION FOR THE SURVIVING SPOUSE OF A PREVIOUSLY QUALIFIED DISABLED VETERAN" form explains that the widow or widower of a totally and permanently 100% service-connected veteran:

"The veteran to whom the applicant was married must have applied for and been granted the disabled veterans property tax exemption as provided by § 39-3-203(1.5)(a), C.R.S., prior to his or her death" (Colorado CMDVA Form 15-DPT-AR DV-002-07/14) 

Very clearly, CMDVA's form discourages widows from applying unless the veteran was already receiving Colorado's disabled veteran property tax exemption. This is even though no prohibition can be found in the constitution or the state's laws as regards the veteran's receipt before death.

Other confusing barriers pop up to frustrate Colorado's most disabled veterans and their survivors. Colorado's constitution spells out the exemption's qualification requirements, but as this blog has carefully detailed, legislation enacted in 2007 to accommodate Referendum E (which became Article X Section 3.5 of the constitution) didn't properly address two vital provisions in the constitution:

(1) HB07-1251 left out the constitution's provision for totally disabled military retirees, and (2)  the Division of Military Affairs added somehow a barrier to VA's Permanent and Total Individual Unemployability (TDIU.)

Vets who've been around the block with the US Department of Veterans Affairs will tell anyone asking how slow the VA is in making its disability awards. Even the simplist 100% disability rating can take years following the initial injury while on duty. Following the Gulf War, this writer was retired by the Air Force with a permanent and total 100% service connected disability military retirement effective in 1996, yet the VA 100% service connected rating didn't follow until 2015! Thus, Colorado denied its tax exemption even though the constitution clearly provides for it. Further, Colorado refused to recognize the VA's TDIU rating dating from 1998,

Were I to have died from my Gulf War injuries or at any time from 1991 until my VA rating came through in 2015, my widow would be forever denied the exemption regardless of my clear eligibility.

Colorado has been doing this to hundreds of disabled veterans' widows and widowers (Gold Star families) since 2007 when HB07-1251 was signed by the governor. For nine years, we have refused the tax exemption to survivors whose veterans were qualified by military disability retirements or TDIU VA disability ratings. Colorado also refuses it to active duty personnel who die in service because, obviously, they never were able to apply for the exemption and thus, their widows are refused.

Does this make sense, after reading the Blue Book's comprehensive description of the goal for Referendum E, or does it make sense after reading Article X Section 3.5 of the constitution? The answer should be no. CMDVA's interpretation of the statute, even though it seems in step with the constitution, has drifted far from what the electorate approved by a 78% margin in the 2006 election.

Until a more compassionate program is established, this year's' military widows will join the ranks of those between 2007 and 2016 in being refused this vital, well-earned benefit.

Many voices now calling for Colorado's Disabled Veteran Property Tax Exemption to be properly applied

Today I attended Colorado Senator John Kefalas' community coffee in Fort Collins. He was impressive in his grasp of budget, transportation, energy, childhood nutrition and other issues.

He kindly invited me to explain my perspective on Colorado's Article X Section 3.5, and the imperfect way the subsequent legislation has excluded two groups of otherwise eligible disabled veterans.

Senator Kefalas explained that both chambers of the Legislature have requests for "late bills" for leadership to consider, although the President of the Senate seems to have already denied us. Not only is the Senator in support of us, but he explained that so, too, is the United Veterans Committee and its legislative representative Mr. Bill Hanna, and the Colorado Department of Military and Veterans Affairs itself! What great news.

Regardless of party, our region is well-represented in Denver.

Legislative History of HB07-1251, statutes to implement Referendum E [Article X Section 3.5 , "Disabled Veteran Property Tax Exemption"]

I learned more history about the senior and disabled veteran property tax exemption, based on some research conducted in the Capital Thursday morning. Kind folks in the Colorado Legislative Counsel's office provided a.complete history of the evolution of HB07-1251, the statute which implemented Article X Section 3.5 of the constitution, following approval by the electorate of Referendum E. Our next step will be listening to the audio tapes of deliberations.

CLC's Blue Book, the Legislature's "sales brochure" promoting the referendum, described the veterans to be covered by the referendum:

"Who qualifies for the tax reduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify. Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong.Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans are expected to qualify for the property tax reduction in Colorado."

The first version of HB07-1251's description of qualified veteran was exactly as per Article X Section 3.5 of the constitution as it remains today:

 (1.5) For purposes of this section, "disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado national guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force. 

The next version of HB07-1251 ("Engrossed" version) made the changes in definition of qualified veteran. Those changes remained static thereafter until signed by the governor.

(3.5) "Qualifying disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado National Guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the United States department of veterans affairs as one hundred percent permanent and total disability pursuant to a law or regulation administered by the department.

(Simply dropped from the final statute was the last phrase of the constitution., "through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force.")

CONCLUSION:
1. In its Blue Book for 2006, the Legislature obviously included, and the electorate approved, Colorado veterans whose disabilities were total, permanent, service-connected and that made veterans unemployable. In the actual wording for Referendum E, however, no specific mention was made of unemployable terms, and still the VA rating for unemployability complies with the referendum's specifics. CdmVA ends up refusing these totally disabled vets the exemption, opposite the people's goal.

2. The Legislature's first pass at legislation also had no reference to employability issues but did specify military permanent and total disability retirements as qualified for the property tax exemption. By the second version (Engrossed) military disability retirements were not mentioned, and that version of the definition was carried into the stature and into effect today.

3. Colorado Division of Veterans Affairs complies with the statute, not the constitution, and denies property tax exemption to two groups of disabled veterans specified by the people when we amended the constitution to add the exemption to veterans. For some reason not apparent in the legislative history of HB07-1251, "unemployability" went from acceptable to specifically refused by CDMVA. The constitutional provision recognizing military service disability ratings was cut from HB07-1251 in the Engrossed version, without comment...it just disappeared. CMDVA also excludes those veterans which obviously conflicts with the constitution.

Did Colorado Legislative Council Overrule the People and Constitution of Colorado?

"CLC" is the Colorado Legislative Council. The CLC web site tells us they have an important role in our state's legislative process:

"The Colorado Legislative Council plays a big role in the initiative process in Colorado. The Legislative Council meets to approve all language for all ballot measures that have qualified in Colorado. Also, Legislative Council provides a fiscal impact statement which is mandatory for all ballot measures. This is done to determine impacts on any state agency or local government.
Once the analysis is complete, the Legislative Council prepares an official booklet which is published to Colorado voters on the actual language and fiscal impacts of ballot measures. The name of the official booklet is known as the Blue Book."

Colorado's voters were sent the Blue Book back in 2006, and CLC explained which veterans were specified in Referendum E. Included were explanations that the Referendum specified totally military personnel retired by their services, and described VA-rated totally and permanently disabled veterans, "Veterans are rated 100 percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong." Referendum E received 78% of the votes, becoming Article X Section 3.5 of the Colorado constitution.

In 2007 the Legislature undertook to create statutes to implement the constitution's changes. Their final work efforts were then routed past CLC for legal form, content and other requirements to become law. But CLC, or the Legislature, goofed. Twice.

First, the final legislation somehow dropped reference to totally disabled military personnel retired by the Army, Navy and Air Force. Second, although the Blue Book explained to the electorate (and we approved) that totally and permanently disabled vets "are rated 100 percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong," CLC and the Legislature somehow specifically barred VA's disability category called "totally and permanently disabled individual unemployability," or TDIU. The electorate, relying on CDC's Blue Book, amended the constitution and specifically protected vets who couldn't hold a job and whose disability was lifelong.

But CLC then specifically rejected such unemployability, somehow backtracking on its Blue Book as well as the decision of the electorate to amend the constitution, in part overturning the voters' decision on Referendum E.

Today, the Colorado Department of Military and Veterans Affairs refuses to follow the constitution but instead relies on the flawed statute, both of which CLC worked on. CDMVA thus defies the constitution and refuses the exemption to qualified vets seeking the benefit. State and county forms read, but without legal foundation, "VA employability awards do not meet the eligibility requirements." 

Why couldn't CLC get the final statutes to comply with the constitution and the guidance CLC gave the electorate? Why does CLC say VA permanent and total service-connected unemployability disability awards are unqualified for the exemption?

Why is the will of the people, expressed in our approval of Referendum E to amend the constitution, defied by CLC and the Colorado Legislature? How can CLC be called to account for this, and to correct their mistakes?

WHAT VOTERS APPROVED IN 2006 FOR DISABLED VETERAN PROPERTY TAX EXEMPTION

BUT WE DIDN'T GET IT!

Late Bill Can Save Colorado $8M – ONLY IF Senate or House Leadership Will Get It to the Legislature

Leadership in the Colorado Legislature has an opportunity to actually save Colorado over $8M by enacting legislation. Act now...this legislative session. Not next year

Veterans affected by the problems surrounding Referendum E, and the resultant Article X Section 3.5 in the Constitution, and subsequent flawed legislation have two clear approaches to correct the disabled veterans property tax exemption:

1. corrective legislation, with "late bill" restoring military disability retirements and unemployability provisions  of the Constitution, to begin in 2017, or...
2. the Supreme Court to declare unconstitutional statutes and regulations related to Referendum E/Article X Section 3.5

1. A legislative solution through a "late bill" is a much, much cheaper solution. If enacted, it will provide the exemption for application in 2017.  Because Colorado laws prohibit retroactive correction., there can be no payment for years when the exemption was withheld. But...

2. If veterans gain relief from the Supreme Court, it is probable jurors will grant relief retroactive to the 2007 tax year, because that's when abuse to the Constitution's Article X Section 3.5 began. Thus, benefit of the exemption will be made effective from 2007 on, ten years earlier than what the Legislature can provide! Nine years times as as many veterans as might be affected by this solution (estimated 2000), times an average of $466 each.

To both save money and help veterans now, leaders in the Senate and House much permit the necessary late bills to be released for the Legislature to act on ...now!

Colorado will fix the problems surrounding Article X Section 3.5...but when? Will it be too late?

Correct the property tax exemption!

Colorado's legislative leadership needs to carefully consider approving a "late bill" this session. This year, not next! Next year is too late for too many of us. Too late for our widows also!

There's pressure against any such late bills introduced after Senate and House deadlines unless the proposed statute addresses issues serious problems that must be corrected without delay.

I contend that's us. Having had our Constitutional rights denied for eight years since Referendum E was approved in 2006, unless legislation is approved this year it will be 2018 before the property tax exemption is of any benefit. If House or Senate leaders insist on postponing introduction of legislation fixing the problem, a bill passed next year will be approved too late for 2017 taxes and veterans won't have use of the exemption until the following year.

Because a totally disabled veteran is not just a veteran, but one with grievous, life-changing military injuries or illnesses. Only one percent of all disabled veterans are 100% service-connected. These injuries or illnesses drastically reduce our remaining years. Our families are hit hard, especially kids as we try to live going forward on a VA disability check...hard to look forward to high school and college.

Cancer, paralysis, loss of arms or legs, ALS...it takes a very serious issue for VA to rate a veteran at 100% disabled and thus, eligible for the disabled veteran property tax exemption. Colorado's mistakes in the 2007 legislation passed to implement Resolution E (Article X Section 3.5) have denied property tax relief for eight years and we just can't wait too much longer. Further, our widows are forever denied the property tax exemption unless, before our deaths, we'd been receiving the benefit.

We don't have years to wait. There's real meaning behind the phrase "Constitutional Rights Delayed are Constitutional Rights Denied." Don't make us wait past our deaths for Colorado to finally resolve the problem caused by the Legislature in 2007 with its lawed statutes on Referendum E. Too many of our fellow veterans have passed during these last eight years when they should have been receiving the property tax exemption – and every one of their widows is now denied the exemption supposedly guaranteed in Article X, Section 3.5 of the Colorado Constitution.

This can and should be fixed by advancing the late bills now with the President of the Senate and the Speaker of the House.

What needs to be fixed to comply with Colorado's Constitution Article X Section 3.5?

CLICK FOR BRIEFING PACKAGE

Easy. Everyone swore an oath to uphold the Constitution and we can count on our public servants to correct legislation offensive to the Constitution. Their oaths, plus the clear knowledge that inaction by the Legislature fails Colorado's disabled veterans by denying us our Constitution's protection, make the Legislature's duty obvious.

Easy because it is so very clear. Current defective statutes addressing Article X Section 3.5 so clearly offend the Constitution we can easily summarize what's needed.

Corrective Action:

1. Military service total disability retirements must have enabling statute
2. All barriers to VA's total disability individual unemployability (TDIU) permanent ratings must be removed, but do not need corrective legislation. Regulatory correction suffices because each element of TDIU already satisfies constitutional requirement NOTE: RECOMMENDED: correct the defect in the entire program's failure to accommodate widows of service members who die on active duty, without a chance to qualify for veteran's status 

Justification:

1. Military service total disability retirements are clearly specified in Article X Section 3.5 and must be made acceptable to CDMA
2. The electorate exercised its power to amend the Constitution and approved Referendum E. Voter guidance from Colorado Legislative Council described unemployable disabled veterans, and each specific in Article X Section 3.5 as well as subsequent legislation detailed "permanent, service-connected, 100% total" as qualifying elements. The US Department of Veterans Affairs Veterans Benefits Administration confirmed each element is also an element of the VA permanent TDIU disability rating, and VA has offered to brief CDMA and other Colorado agencies.

DISCOVERED – A 2010 DOLA Reference to "Unemployability"

DOLA brochure           

Days and days have been spent trying to pin down how the state's basis for its current barrier to VA permanent and total disabled unemployability (TDIU) ratings and just how it grew into policy. Perhaps one such source document was found this evening, published in 2010 by the Department of Legislative Analysis (DOLA.) But nothing so far any earlier than 2010.

We learned that the 2006 Referendum E voter summary specifically described unemployability issues for the electorate to approve in this constitutional amendment. ("Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong.") That's what the voters were asked to consider. They approved, but the Legislature dropped from statutes along with military 100% disability retirements. Ge3.5t the point? The Legislature in effect changed the Constitution by statues which failed to encompass the full range of Article X Section, leaving CMDVA unable to follow the Constitution's provisions and stuck with the flawed statute instead.

Article X Section 3.5 simply mentioned "permanent, 100% service connected, total disability" VA ratings with nothing at all to eliminate or somehow disqualify TDIU. We learned that CDMVA said the department had "legislative guidance" to exclude VA TDIU, despite the Constitution and the subsequent enabling legislation passed in 2007. In the 2006 ballot information, voters were told Referendum E was to address vets who were "100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job." The voters did not vote to bar unemployability ratings but specifically to include that rating for property tax exemption.

Did the legislators decide to override the electorate after Article X Section 3.5 was added to the Constitution? Why did CMDVA end up with its rules being 180º away from what voters approved? How did the Constitution's provision for CDMVA to recognize military service total disability retirements disappear from subsequent statute ?

Exemption application forms, county web pages and various unofficial sources mention that VA unemployability awards were unacceptable to CMDVA, but nothing on a state form. CallinguCMDVA yields the same negative answer - "not acceptable." We found nothing else from the State Until this evening, discovered on the Colorado Legislative Council web page.

Tonight, the earliest info we've been able to dig up is a 2010 DOLA-published two-page flyer titled "PROPERTY TAX EXEMPTION FOR DISABLED VETERANS IN COLORADO." Now, there's nothing official about this and it is an information-only type document, and it came out four years after the Constitution's change.

DOLA wrote, "VA employability awards do not meet the eligibility requirements." This 2010 brochure is the earliest document we can find addressing unemployability, and the only state document. We've found nothing more official on which CMDVA policy was based.

Will Politics Play a Role Against Veterans' Needs?

Maybe the question should be – will legislators find a way to use veterans' rights and needs to attack the opposing party? With veterans' issues founded in the Constitution, we think not. Especially not, because we've seen leaders in the Senate and the House, from opposite parties, push for late bills.

Folks in the know about Colorado politics remind us that corrections in our disabled veteran property tax exemption face hurdles, especially if legislation is involved rather than a constitutional challenge at the Supreme Court.

Too often, perfectly worthy bills are assigned to committees which have nothing to do with the bill so that failure is certain. For instance, automobile safety bills assigned by the president of the Senate or the speaker of the House to the Committee on State, Veterans and Military Affairs. That's known as referring bills to a "kill" committee.

So, not only do we have to hope leadership in Denver will obey their oaths of office to support the Constitution and bring statues into accord with it, but we have to hope they don't find in the process a way to attack the opposite party and use "kill" committees. Finally, we have to hope the Legislature views veterans' rights under Article X Section 3.5 to be something they will permit us to finally enjoy by passing essential legislation. Too much to hope for? Perhaps.

The problem is felt heavily by the electorate. Bills might be important problem-fixers, but legislative in-fighting makes it far more important for parties to find ways to hurt each other rather than serve the electorate. The worst of these abuses comes when really important legislation is introduced by one party but blocked by the other only to keep the introducing party from getting credit for good legislation.

Finally, the problem can be that this is the veterans' problem, not our legislators'. Their disinterest might just leave us abandoned.

Colorado's Legislative Council – did they let veterans down on Referendum E?

I'm learning so much as I follow the trail of Colorado's disabled veteran property tax exemption, the 2006 Referendum E.

What I've learned about is Colorado's legislative process. Reading about it I've got a better picture about the history of our disabled vet property tax exemption and problems now surfacing.

The steps begin with the Legislature sending the language of a referendum to the Legislative Council to insure its legality, compliance with style and format. That means the property tax exemption was carefully worded by the Legislative Council for the specific words by which the Constitution would be amended, and also the words by which the electorate would be guided to an understanding of the referendum adequate to have an informed opinion when voting.

You can see what they did below in the referendum's plain-language description. Attention is drawn to the highlighted words in the "who qualifies for the tax deduction" section. Consider...this was written by the Legislature's "experts"??

"Who qualifies for the tax reduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify. Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong. Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans are expected to qualify for the property tax reduction in Colorado."

After the voters approved Referendum E by 78% and by it, created Article X Section 3.5 of the Colorado Constitution, it became the job of the Legislature to craft enabling legislation. Once done, that headed over to the Colorado Legislative Council for the same reasons...legal clarity, compliance with the Constitution, form and style. This is where serious problems popped up. Legislation did not match the newly-amended Constitution! The electorate was duped.

What the Legislative Council approved for the Referendum E'/Article X Section 3.5 enabling statute drifted far from what the electorate were told they'd voted for. Struck from the statute was a very important group of veterans the state now cites statute to deny the exemption, even though this category of disabled vet is spelled out in tht Cinstitution. Vets whose injuries leave them unable to work are termed "permanent and total service connected unemployability" ratings. That's bad because the Legislative Council blocked about half of the veterans the electorate voted to help! From the 2006 Blue Book:

"Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong."

Disabled veterans with VA's unemployability disability rating were specified as what the voters were helping, became in the administration of the statute by CMDVA a group specified as unqualified.

That's a complete 180º shift away from the Constitution, enough to disappoint this veteran! 

What is the value of Colorado's disabled veteran property tax exemption?

Very simply, a totally disabled veteran's property is given a $100,000 exemption from the appraised value. A veteran's widow(er) also receives the exemption if the veteran was receiving the exemption before death. Sadly, no combat deaths qualify because the servicemember wasn't receiving the benefit at death, obviously.

Referendum E was explained to voters as an effort to thank Colorado's veterans whose service left them 100% permanently and totally disabled, about one percent of all veterans.

Vets still pay property tax but that burden is lessened on average about $466. Total cost to the state was estimated at $1,000,000 for extending the benefit to an estimated 2000 veterans.

There is also a benefit to the entire state in encouraging and supporting voluntary military service.

Referendum E, which became Article X Section 3.5 of our state constitution, is Colorado's largest benefit for qualified disabled veterans, although not to be compared to other states like New Hampshire or New Jersey where all property taxes are excused. The public expressed the intent of a little tax help so that totally disabled veterans might get and keep their homes, although the benefit applies only to homeowners. Other states provide different property tax relief. Oregon, for instance, exempts only $18,000 of the assessed value. Connecticut and a few other states offer 100% tax exemption. Colorado wrongly considers itself "somewhat above average" in disabled veterans' benefits. Remember: disabled veterans and military retirees are combat- proven good citizens and also economically beneficial to their states. Their pensions and retirements are huge injections of cash to local economies. Because of federal benefits, they are not burdens, and many states actively target these folks as new residents by offering such things as property and income tax relief.  Colorado can do so much more, especially with free state park camping, tax-exempt military retirement, and more significant property tax exemptions.

A little history - Colorado's Disabled Veteran Property Tax Exemption

Let's look at history...

"Unemployability" is specifically cited by CMDVA and the county governments as an unacceptable VA disability rating. While nothing in the Constitution or the 2007 enabling legislation bars VA unemployability ratings for permanent and total 100% service-connected veterans, CMDVA staff reports this has resulted from casual, unofficial legislative guidance after the statute was on the books. Today, the only written basis for barring unemployability ratings are some counties' application forms (hardly a legal foundation) and the CMDVA web site. It is barred because CMDVA says so, not because of any statute or Constitutional provision.

But history tells a fuller story. Colorado's referendum measures are described in detail by the Legislature at their web site, Colorado Ballot Analysis. Amazingly, there we read that unemployability was a substantive issue specifically provided for in the various drafts, the Blue Book and the final ballot analysis given the electorate to consider:

"Who qualifies for the tax reduction? Homeowners who have served on active duty in the U. S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify. Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong. Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans are expected to qualify for the property tax reduction in Colorado.
What are the fiscal implications? Referendum E affects property taxes paid beginning in 2008. The average property tax savings for those who qualify will be about $466. The total reduction in property taxes is estimated to be about $1 million in the first year. The state is required to reimburse local governments for the reduction in property tax revenue resulting from Referendum E."

When Referendum E was finally referred to the electorate to vote on, there was no unemployability language like the voter summary contained, and Article X Section 3.5 simply mentioned the specific qualifiers. The words "100% percent (1) permanently (2) and totally service-connected disabled (3)" were used. These are what the Constitution's Article X Section 3.5 requires CMDVA to require of veterans seeking the disabled veteran property tax exemption. "Unemployability" does not appear in the Constitution and that VA rating doesn't conflict at all with the Constitution's specifications.

The US Department of Veterans Affairs Veterans Benefits Administration confirmed that it has two such ratings. One is for 100% service-connected illnesses or injuries, and the other is for permanent and totally disabled 100% service-connected unemployability. VA generally refers to the latter as "TDIU" or "PDIU." Nothing in the Constitution or the subsequent statutes bars CMDVA from accepting claims of both groups but the state only accepts the first category. 

In doing this, about half of the eligible veterans are barred from the protection intended for them by the electorate who approved Referendum as Article X of the Constitution.

What the people approved should be the law of the land. If unemployability, or enlisted, or commissioned, or value of property, or age, or kind of injury, or type retired, or any other qualifier is to be applied in evaluating a veteran's application for the disabled veteran property tax exemption, that should be spelled out in law which reflects the Constitution. Only permanent, total, 100% service-connected and disabled are the words of our Constitution.

Permanent VA unemployability ratings were described by DOLA in the Blue Book for approval by the people and should not be disqualified by the state.