Colorado Senate Bill 10-040 (SB040 – Tochtrop/Soper) “Concerning Motorcycle Safety Education Programs” was put down on May 10th, in the last days of this years’ legislative General Assembly. The bill was PI’d (Postponed Indefinitely) at the request of the House sponsor in the House Transportation & Energy committee, and the committee voted unanimously to honor the request.
A lot of controversy was generated by a consortium of opponents to the bill – a bill that sought to protect and define the use of the funds in the Motorcycle Operator Safety Training (MOST) program, administered within the Colorado Department of Transportation (CDOT).
So why was the bill brought forth, and what was seemingly so controversial about it? Let’s get into it, and start with some history…
ABATE of Colorado designed and pushed for this bill – and we’re proud of it. In conjunction with a number of long-time, altruistic training associates and MOST program founders, as well as previous and current ABATE state officers and coordinators, ABATE has the benefit and distinction of a long institutional history and knowledge of/with the MOST program and training in Colorado. We were there in the beginning. ABATE has remained upright in keeping with our mission statement “…to preserve freedom of the road, to unite motorcyclists, to promote fair legislation, safety, and rider education and to provide a network for communications on issues affecting motorcyclists.” Of course, no small part of this is the eventuality of saving lives and reducing injuries by providing formal training to motorcyclists so they are better skilled and aware on the roadways, a mission that ABATE takes seriously and strives for every day. As an original stakeholder, with the benefit of the rider in mind, we also consider ourselves to be a ‘watchdog’ over the state-administered program, a position we also do not take lightly.
The MOST program was created and signed into law in 1990. ABATE was training riders that same year. A ‘Rules’ committee was established by law “…to assist in the development and implementation of the program.” Under the Colorado Code of Regulations (2 CCR 602-3 RULES AND REGULATIONS TO ESTABLISH, IMPLEMENT AND ADMINISTER A MOTORCYCLE OPERATOR SAFETY TRAINING [MOST] PROGRAM)
I. “These rules are adopted pursuant to the authority contained in sections (of statute – editors’ note)… The purpose of these Rules is to adopt necessary provisions and procedures to establish, implement, and administer the Motorcycle Operator Safety Training (MOST) Program intended and required by the Statute. The intent of the Statute is that the Colorado Department of Transportation (CDOT) use Motorcycle Operator Safety Training Funds to establish, administer, promote, PROVIDE MOTORIST AWARENESS PROGRAMS, and participate in the costs of the Program, so that Motorcycle Safety training would be more accessible to a greater percentage of Colorado consumers and would be less costly to consumers, thereby enabling more persons to enroll in and complete such safety training.” This is the verbatim language, and you will note that I emphasize the MOTORIST AWARENESS PROGRAMS in the text. It has a history (and we will refer to it again later) because “…provide motorist awareness programs…” became part of the rules at the insistence of the Western slope Riders for Justice organization back then, and by agreement of committee.
So there you have the beginning of the program in a nutshell; there were sponsors contracting with MOST, coming on-board to provide training according to the Rules, and let’s say for the most part the program was humming along and growing.
In about the mid-2000’s, and under the administration of a previous program manager (who is no longer with CDOT), disturbing and troublesome trends were taking place in that the historical MOST Advisory (oversight) Committee was unilaterally disbanded by the manager, payments were being made to reimburse contractors for items/expenditures that should be considered their own cost-of-doing-business (CoDB), and the ‘cap’ (or limit) on what a contractor could charge a student for training was also unilaterally removed in spite of protests. In the same time-frame, it is believed that a few individuals with ties to rider training were exerting pressure and their own type of influence upon the manager to manipulate some outcomes. There won’t be any details forthcoming here or later, but the belief is reliably-based. After a few years of some stagnancy to the concerns, it became time to “right the ship.”
Senate Bill 040 attempted to do just that, by bringing legislative pressure to bear into the program. In all fairness to the current administration and management of MOST, they inherited problems and we believe they have the best of intentions to service motorcyclists’ training and the legislative intent of the program. The bill sought to achieve three outcomes, 1) designate that 80% of the program funds be used solely for student tuition reimbursements and for the travel costs of rider coaches to deliver training to outlying areas of the state, 2) re-implement the cap on what students could be charged for a class by a sponsor, and 3) set-aside 5% of the annual MOST funds for motorist awareness programs. It’s important to know more than anything else, this is a bill about the functionings of MOST and its use of the funds.
The concerns of the average rider in the context of, let’s say, their right-to-ride don’t much come into play. Unless they’re keen on the subject, most riders are not much concerned about MOST except they may know they contribute a few bucks into it each year as a collective. And they have an advocate in ABATE. After the bill’s smooth-sail through the Senate, opposition gathered up and decided this was a problem bill that needed to be killed. Why? Much of the opposition doesn’t have a history with the program but somehow wanted to be a dog in the fight. With that stated, let’s take apart each section and the arguments beginning with the 80% use of funds…
1). First of all the MOST fund uses 15% for administrative purposes and that cannot change – it is law. The rest of the fund has historically paid for many things including supplies of all types (and many rightfully so) but had been extended to include coolers, picnic tables, carpeting, window tinting, etc. as reimbursements to contractors, and had gotten out of hand. These are administrative decisions, and once decided upon have a tendency to become future standard practice and even snowball from there. There has to be a dividing line or criteria of what constitutes direct expenses of delivering training and not nuanced decisions based on ‘want’ by sponsors and paid with biker dollars. More on this later…
2). The ‘cap’ on tuition that can be charged by contractors to a student is an historical and functional norm. It has served well and goes right to the very beginning of the creation of the program when legislators insisted – and trainers agreed – that a cap be implemented agreeably among the sponsors.
It is NOT an arbitrary figure, and takes into consideration the stakeholders needs. In essence, it is an understanding between training provider and MOST, and part of the agreement that in effect says ‘I will abide by the Code of Regulations, Rules, and spirit of the Program’ which is to deliver quality training with integrity and business acumen. Who can argue with that? Somehow, there’s an argument anyway – one that says “government is limiting my business to an artificial price ceiling per student.” This position has no merit. This is not government – it’s agency rules. Contractors initially agreed to it, and now some don’t like it?
· If a contractor doesn’t like the cap, they are free to exit the MOST program and train outside of the Rules. There is no regulation preventing a motorcycle training company from doing business in Colorado, nor one that governs the price structure in that free-market. Move along then, and best wishes…
· State Coordinator Terry Howard hit the nail on the head in a recent commentary when she stated training businesses that take MOST funds (tax dollars) to offset the tuition costs to students should abide by those functional Rules, and not attempt to change them
· With the number of training businesses operating under the MOST program, I know of none that have not succeeded in generating a profit as long as they have managed their business properly.
· The unilateral decision to remove the cap by administrative diktat may have been within authority, but likely wasn’t without a minority influence.
3). The 5% of the MOST fund that would be used as a set-aside for motorist awareness programs has been assailed by opposition who have characterized it from the beginning as a “raid” on the funds. This sensationalism could not be further from the truth. To read and listen to this bunk proffered, one is led to believe the program is being gored. They initially misrepresented the annual dollar intake into the MOST fund as being six million, and when that figure was challenged as incorrect, revised it to one million, which is still incorrect. At no time have they publicly retracted the statement of their figures. The true dollar amount, based upon the current operating budget, is about $571,000 according to Legislative Council staff, which has the responsibility of perusing finances of any bill before the legislature. Of that, $28,565 would be used for motorist awareness, or 5%.
· The use of MOST funds for motorist awareness is expressly authorized in the Rules and Authority (see article beginning.) This has not happened in the course of the Program, and should – it’s overdue.
· There’s an argument that says “Why should motorcyclists pay for it?” Using that logic, suppose motorists were to say “I don’t want my tax dollars used for motorcycling messages…” How would that go over with you? Because motorists do. In the scheme of public service awareness programs and roadway safety messaging, road repairs, etc. we are all paying the freight. It’s ‘Taxes 101’ – we all pay for everything. This small figure would contribute more to alleviating a dearth of messaging and hard materials, more than we have now. How about the Section 2010 Motorcycle Safety Funds of the TEA-21 transportation bill that ABATE helped to secure for Colorado? Besides targeting the motorcyclist exclusively, they will also be used for motorist awareness – it’s part of the monies’ usage.
· The 2007 NHTSA Technical Assessment of Colorado’s Motorcycle Safety Program recommends point-blank “Develop and distribute informational materials and communications campaigns that emphasize rider conspicuity, motorist awareness of motorcycles, and the reasons why motorists do not see motorcyclists.”
· Another hair-split is about who would carry out the program. The Office of Transportation Safety within CDOT would – the same office with authority over MOST. Yes, they do have expertise in this area, and yes, they do contract with and use outside ad agencies. And yes, motorcycling advocacy organizations could be a part of the process to approve – this does not have to be spelled out in a bill.
· Finally, if certain “reimbursed” items become ‘deniables’, then the savings conceivably translate into funds for motorist awareness.
The bill’s House testimony was on March 23rd in the Transportation & Energy committee. This hearing was nothing short of a disappointment – the committee schedule was overloaded for the date, and by the time SB-40 was up for presentation it was almost 6 o’clock. Opposition was presented first, as is typical because the proponents always want to have the opportunity to present rebuttal. The opposition was afforded over an hours’ time which included much off-topic rambling that should have been shut down. The legislators’ body language signified weariness, a huge Spring storm was moving in, and by the time we had our turn we were given less than half the time. The legislators failed to ask the in-depth questions we had the answers to. Suffice to say we weren’t given fair audience. For the sake of comparison, ABATE invites you to listen to the testimony audio in its entirety (about 1 ½ hrs.) and you can be the judge – we have no need or cause to embellish things in print. Give us a call…
A key to understanding legislation and law, and one that I touched on in an article a couple months ago is that when legislation is passed by a body and signed by the governor, it is always assigned to a department, agency, or instrumentality (or multiples) of the government to carry out the core legislative intent. Not everything about a bill is spelled out on the bill paper – the rest of the authority to implement, carry out, and/or enforce lies with the departments given that charge. At the same time, interpretations have to be made, and they can become lost in bureaucracies and managerial hierarchies.
For all that CDOT does, they are also a bureaucracy whereupon actions get gridlocked in the hierarchy of the chain of command and management; policy gets muddled. Not everything about the MOST program is perfect, and some things there are matters of interpretation as well. Generally speaking, agencies have but one Master, and that is usually the legislative branch. Sometimes it takes a shove from the legislature or the specter of legislation to serve notice and move policy where it should go. Such is the case with certain aspects of the MOST program.
This is not a jab at the current MOST managers; it’s upstream. Senate Bill 40 brought attention to issues in MOST. Legislatures are not inclined so much to micro-manage, but will review and re-visit existing law. Managers will find a redefined understanding of what the legislative intent is, their legal administrative authority, and what they can do – with the blessing of their superiors they hadn’t had before. This re-definition is taking place now. Before SB40 was killed, the House Transportation & Energy committee would have liked an audit of the MOST program – is CDOT/MOST opposed? No. It is likely to happen. The committee also wanted to consider the possibility of moving MOST under the Department of Public Safety. Do we consider this a viable alternative? No. The logistics of moving this program to another branch and re-implementing for start-up would be nightmarish. Does CDOT/MOST have the authority to restrict previously reimbursed items? Yes. Is CDOT/MOST opposed to a tuition cap? No. Is CDOT/MOST opposed to using some funds for motorist awareness programs? No. So, at the end of the day, there wasn’t much left of SB-40 that really couldn’t be done internally, and in consultations with the bill sponsor we helped put it to sleep. With or without the bill, change is on the horizon – mission accomplished.
The opposition may say they “killed” the bill, and they’re entitled to their opinion. For the sake of argument, let’s say they did. Since they didn’t offer up any improvements or modifications past wanting to kill it outright and attempting to take ABATE to task at the same time, then the logic follows that their coalition is defending the Status Quo. And that is unacceptable.
There are 175,000 motorcycle registrations in Colorado. $28,565 if used for motorist awareness amounts to 16 cents per motorcycle, per year.