James A. Stroup State Controller Department of Administration 1525 Sherman Street, Rm. 706 Denver, CO 80203
Dear Mr. Stroup:
I am writing in response to your memorandum of October 27, 1982, requesting an opinion whether the Department of Social Services lawfully may expend moneys for entitlement programs in excess of moneys appropriated for those purposes. You have advised me that it is possible that the Department of Social Services may incur expenditures in excess of the fiscal 1982-83 Long Bill appropriations for line items in the category of public assistance and welfare programs.
QUESTION PRESENTED AND CONCLUSION
Whether the Department of Social Services lawfully may expend state moneys in excess of the amounts appropriated for fiscal 1982-83 for public assistance and welfare programs.
No.
ANALYSIS
You have advised me that the expenditures in question are those authorized pursuant to the Colorado Social Services Code, title 26, Colorado Revised Statutes 1973, and appropriated in the 1982 Long Bill at pages 104 through 115. 1982 Colo. Sess. Laws ch. 1, pp. 56-62. These appropriations include appropriations of general fund moneys, cash funds and federal funds for specified items in the budget of the Department of Social Services.
As a general rule no state expenditures may be made unless there has been a legislative appropriation of money for that purpose. C.R.S. 1973, 24-30-202(5)(a) provides in pertinent part:
(5) (a) No money of the state or for which the state is responsible shall be withdrawn from the treasury or otherwise disbursed for any purpose except to pay obligations under expenditures authorized by appropriation and allotment and not in excess of the amount so authorized.
(emphasis supplied).
This statute is consistent with the constitutional directive that no moneys shall be disbursed from the treasury "except upon appropriations made by law, or otherwise authorized by law. . . ." Colo. Const. art. V, § 33. See, e.g.,In re Loan of School Fund, 18 Colo. 195, 32 P. 273 (1893).
As your letter recognizes, the state controller is charged by statute with ascertaining whether a particular proposed expenditure is authorized by appropriation. C.R.S. 1973,24-30-202(2). No person may incur an expenditure not authorized by appropriation. C.R.S. 1973, 24-30-202(3).
You state that it has been suggested that C.R.S. 1973, 26-1-102(2) may authorize expenditures in excess of appropriations by the Department of Social Services. That subsection provides:
(2) In providing for such programs relating to public assistance and welfare, the general assembly finds that recipients of social services qualify under the various state and federal programs without regard to the adequacy or inadequacy of funds available for such services. Recognizing this fundamental fact and, further, recognizing that the state department, not the several county departments, is the principal in all federal-state social services programs covered in this title, the general assembly further finds that the monetary limit prescribed in this article for the county department participation shall be deemed a precise limit beyond which no county can operate or be required to operate by virtue of any statutory or regulatory provision.
This declaration of legislative findings does not constitute an exception to the constitutional and statutory requirement that an expenditure shall not exceed the amount appropriated for that purpose.
C.R.S. 1973, 26-1-121(1)(a) requires the general assembly to "make adequate appropriations" to pay the costs for public assistance and welfare activities in the state. This statutory provision appears to require the general assembly to make adequate appropriations to support necessary expenditures, but is not itself an appropriation. It does not authorize payments for benefits where appropriations are inadequate. SeeRodgers v. Atencio, 43 Colo. App. 347,608 P.2d 817 (1979).
It is my understanding that to qualify for participation in related federal entitlement programs, the Department of Social Services has submitted a state plan which has been approved by the Secretary of Health and Human Services. If the Department of Social Services is unable to make expenditures because of inadequate appropriations, it may result in failure to substantially comply with this state plan. Sanctions for such a failure might include the withholding of federal payments and disqualification from future participation in these federal entitlement programs.
If it appears that necessary expenditures for public assistance and welfare programs will exceed appropriated amounts, the general assembly has an obligation to appropriate additional amounts. In the absence of such an appropriation or other legal authority, the state controller is without statutory authority to approve the issuance of warrants to pay any amount above that appropriated.
SUMMARY
It is my opinion that the state controller is not authorized to approve Department of Social Services expenditures for public assistance and welfare programs in excess of amounts appropriated or otherwise lawfully made available for those purposes.
If I can provide additional assistance on this matter, please do not hesitate to contact me.
Very truly yours,
DUANE WOODARD Attorney General
APPROPRIATIONS PUBLIC FUNDS
C.R.S. 1973, 24-30-202 C.R.S. 1973, 26-1-102(2) C.R.S. 1973, 26-1-121(1)(a)
Colo. Const. art. V, § 33
ACCOUNTS CONTROL DIV. OF SOCIAL SERVICES, DEPT. OF
The state controller is not authorized to approve Department of Social Services expenditures for public assistance and welfare programs in excess of amounts appropriated or otherwise lawfully made available for those purposes.