No. 82SA16Supreme Court of Colorado.
Decided February 21, 1984. Rehearing Denied April 2, 1984.
Appeal from the District Court, City and County of Denver, Honorable Gilbert A. Alexander, Judge
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James R. Gilsdorf, Sheila H. Meer, for plaintiffs-appellees.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solicitor General, David K. Rees, Assistant Attorney General, Timothy R. Arnold, Assistant Attorney General, for defendants-appellants.
En Banc.
JUSTICE LOHR delivered the opinion of the Court.
[1] This is an appeal from a judgment of the Denver District Court declaring certain provisions of the State Personnel System Act, Sections 24-50-101 to 24-50-142, C.R.S. 1973 (1982 Repl. Vol. 10 1983 Supp.), and regulations promulgated thereunder to be invalid because they violate Article XII of the Colorado Constitution. We affirm in part and reverse in part. I.
[2] In 1981, the General Assembly enacted Senate Bill No. 308, Colo. Sess. Laws 1981, ch. 304 (S.B. 308), amending the State Personnel System Act in numerous respects. This new legislation reflected in large measure the recommendations of the Governor’s Executive Committee on Personnel Management in State Government, contained in its final report issued January 1, 1981, entitled “Revitalizing The State Personnel System.” S.B. 308 was to take effect July 1, 1981, and emergency rules to implement the statutory changes were promulgated to become effective on that same date. These rules were later made permanent.
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District Court challenging some of the provisions of S.B. 308 and the rules adopted thereunder as inconsistent with Article XII of the Colorado Constitution, which contains detailed provisions with respect to the state personnel system. The plaintiffs sought declaratory and injunctive relief. Named as defendants were Richard D. Lamm, as Governor of Colorado; Gail H. Klapper, as Executive Director of the Colorado Department of Personnel; the Colorado Department of Personnel; and the Colorado State Personnel Board.
[4] After the plaintiffs’ motions for a temporary restraining order and for a preliminary injunction were denied, the case was tried on the merits. On October 26, 1981, the court issued written findings of fact, conclusions of law and a judgment granting much of the relief requested by the plaintiffs. The defendants appealed, challenging the court’s determinations that: (1) the provisions of S.B. 308 granting rulemaking authority to the State Personnel Director (Director) violate Colo. Const. Art. XII, §§ 14(3) and (4), which vest rulemaking authority exclusively in the State Personnel Board (Board); (2) Section 24-50-124(1) of S.B. 308, modifying criteria and procedures to be employed in separating certain certified employees from state service, violates the veterans’ preference provisions of Article XII of the Colorado Constitution; (3) Section 24-50-115(6) of S.B. 308, requiring a probationary period for employees who are promoted, transferred to a different position at their request, or hold a position that is reallocated to a higher pay grade, contravenes sections 13(8) and 13(10) of Article XII of the Colorado Constitution; (4) Sections 24-50-101(3)(a) and 24-50-104(3)(g) of S.B. 308 introduce criteria for employment and promotion that are inconsistent with the constitutionally prescribed system based on merit and fitness, to be ascertained by competitive examination; (5) the authorization in Colo. Const. Art. XII, § 13(9) to make temporary appointments for a period of up to six months without complying with the personnel system’s hiring criteria and procedures cannot be construed to allow the appointment of temporary employees to complete up to 1040 hours of work in a twelve-month period as purportedly permitted by section 24-50-114(2) of S.B. 308. We agree with the fifth ruling and with that part of the fourth that holds section 24-50-104(3)(g) unconstitutional, but reverse all the other determinations summarized above. II.
[5] As a preliminary matter, it is useful to review the standards by which the sufficiency of a statute is to be tested under the Colorado Constitution. The General Assembly has plenary legislative powers, conferred by the people in their Constitution. People ex rel. Tucker v. Rucker, 5 Colo. 455 (1880). These powers, however, are subject to express or implied restraints reflected in the Constitution itself People ex rel. Livesay v. Wright, 6 Colo. 92 (1881); People ex rel. Tucker v. Rucker, supra. The legislature cannot enact a law contrary to those constitutional restraints. Mauff v. People, 52 Colo. 562, 123 P. 101
(1912). We have consistently recognized that every statute is presumed to be constitutional and this presumption can be overcome only by showing that the enactment is unconstitutional beyond a reasonable doubt. E.g. Colorado Auto Truck Wreckers Association v. Department of Revenue, 618 P.2d 646 (Colo. 1980); Mr. Lucky’s Inc. v. Dolan, 197 Colo. 195, 591 P.2d 1021 (1979). The provisions of Article XII of the Colorado Constitution set forth in detail the principles under which the state personnel system is to operate. While the General Assembly can supplement the provisions of Article XII, no legislation contrary to the express or implicit requirements of that Article can survive a constitutional challenge. See Colorado State Civil Service Employees Association v. Love, 167 Colo. 436, 448 P.2d 624 (1968). Where the language of the Constitution is plain and its meaning clear, that language must be declared and enforced as written. Id.; People ex rel. Park Reservoir Co. v. Hinderlider, 98 Colo. 505, 57 P.2d 894 (1936).
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[6] With the foregoing principles as our guide, we now review the trial court’s rulings. III. A.
[7] The trial court found that a number of the provisions of S.B. 308 purport to alter the constitutionally established roles of the Board and the Director with respect to rulemaking and delegation of authority. The court concluded, therefore, that such provisions violate Article XII, sections 14(3) and (4) of the Colorado Constitution. We disagree, and hold that each of the challenged statutes is consistent with those sections of the Constitution.
governing the [competitive employment] examination process”; the last two sentences of section 24-50-113, mandating that the Director “establish uniform procedures for use by the principal departments in determining when a promotional examination may be used”; and sections 24-50-118(1) and (2), requiring the Director to “provide for the evaluation of employee performance.” (Emphasis added in each case.) The court also invalidated section 24-50-123, which limits Board reversal of grievance decisions made by the appointing authority to circumstances where the Board finds that “the decision was made arbitrarily or capriciously,” thus — in the trial court’s view — interfering with the Board’s constitutional authority to set rules regarding grievances. [14] Finally, the trial court examined section 24-50-101(3)(d) of S.B. 308 and declared the following two sentences unconstitutional as contrary to Article XII, section 14(4): [15] “The heads of principal departments and presidents of colleges and universities shall be responsible and accountable for the actual operation and management of the state personnel system for their respective departments, colleges, or universities. Such operation and management
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shall be in accordance with directives promulgated by the state personnel director, who shall provide postaudit review of such operation and management.”
[16] The trial court’s ruling was based on its conclusion that “this language purports to transfer the administrative authority of the Director to heads of other departments and agencies within the personnel system. Since the Personnel Department and the office of the Director are constitutionally established, only that department and that officer may exercise constitutional duties specifically reserved to them.” [17] We believe that the trial court’s rulings reflect an inappropriately rigid view of the constitutional requirements. It is true that the Board and the personnel department are distinct entities with separate powers and responsibilities. Spahn v. State Department of Personnel, 44 Colo. App. 446, 615 P.2d 66 (1980). In general, rulemaking is within the proper ambit of the Board’s authority, while the Director’s duties and responsibilities are limited to administration. Id.; see In re Interrogatories by Governor, 111 Colo. 406, 141 P.2d 899 (1943). Administration, however, if it is to be effective, requires the development of procedures to implement the policy determinations reflected in the Constitution, statutes and rules. We agree with the appellants that, rather than reflecting impermissible intrusions on the rulemaking function of the Board, the challenged portions of S.B. 308 are entirely consistent with the Board’s constitutionally-prescribed role. Section 24-50-112(3) — struck down by the trial court — typifies the sensitive and constitutionally appropriate division of responsibilities found throughout S.B. 308. That statute provides: [18] “The board shall provide by rule, considering the recommendations of the state personnel director, the conditions under which applications will be accepted, the procedures by which tests will be held, the frequency with which candidates may compete in the same examination, and the standards by which candidates shall be deemed qualified. The state personnel director shall establish procedures governing the examination process which shall be uniformly used by the principal departments.” [19] The Board promulgates rules; the Director establishes administrative procedures to carry the rules into effect. The procedures so established are precisely what the Constitution contemplates as long as they are administrative in nature and consistent with statutes and Board rules. See Colo. Const. Art. XII, §§ 14(3) and (4).[1] [20] Since the plenary power of the legislature is the general rule, a limitation of that power is an exception that must be clearly apparent People v. Y.D.M., 197 Colo. 403, 593 P.2d 1356 (1979). We find nothing in the Constitution expressly or impliedly prohibiting the legislature from empowering the Director to establish administrative procedures, as authorized by S.B. 308. See Colorado State Civil Service Employees Association v. Love, supra. This is an activity entirely appropriate for the Director in exercising the constitutional mandate to “be responsible for the administration of the personnel system of the state under this Constitution and laws enacted pursuant thereto and the rules adopted thereunder by the state personnel board.” Colo. Const. Art. XII, § 14(4). [21] Similarly, section 24-50-101(3)(d) reflects a delegation of authority by law to the heads of principal departments and presidents of colleges and universities. These department heads are to act under administrative directives issued by the Director, and subject to that official’s postaudit review. The Director in turn is governed by the rules promulgated by the Board under its constitutional authority.Page 1356
We find nothing in this scheme for the delegation of administrative authority that contravenes the Constitution. Rather, it reflects a legislative plan designed to preserve constitutional areas of authority and responsibility inviolate while accomplishing the degree of delegation necessary for the efficient administration of a geographically widespread college and university system. See State v. Imperatore, 92 N.J. Super. 347, 223 A.2d 498 (App.Div. 196 6). While the Director is responsible for the administration of the state personnel system, the General Assembly retains authority to make this delegation because the Director acts under the Constitution “and laws enacted pursuant thereto.”Colo. Const. Art. XII, § 14(4).
[22] We acknowledge that there may be administrative directives that impermissibly infringe on the Board’s rulemaking authority. Clearly, the Director must implement the rules of the Board. Furthermore, there is an area where proper administrative directives leave off and rulemaking begins, and there is no litmus test to identify whether a particular administrative directive that is within this borderline area intrudes on rulemaking. This must necessarily be resolved in the context of particular directives on a case-by-case basis. In re Interrogatories by Governor, supra. The possibility that an administrative directive may infringe upon an area of rulemaking supplies no basis for a claim that the challenged provisions are unconstitutional on their face. [23] We reverse the trial court’s rulings that all or parts of sections 24-50-101(3)(c), 24-50-112(3), 24-50-113, 24-50-118(1) and (2), 24-50-123, and 24-50-101(3)(d) are unconstitutional. B.
[24] The trial court held that section 24-50-124(1) of S.B. 308, with respect to separation of employees from state service, is incompatible with the veterans’ preference entitlement created by Colo. Const. Art. XII, § 15(3)(a). We disagree.
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state personnel system. See Perry v. O’Farrell, 120 Colo. 561, 212 P.2d 848 (1949). Under subsection (3)(a), an employee entitled to credit for military service cannot be separated from employment in a work force reduction before an employee not eligible for military service credit unless the latter employee has more service in the employment of the state after the veteran’s military service is considered. In that narrow circumstance, the Constitution does not permit performance evaluations to affect the determination of which employee is to be discharged. Nothing in section 15 prohibits performance evaluations from being taken into consideration in deciding who should be terminated under any other set of facts.[3]
[31] Section 24-50-124(1) does not expressly provide that performance evaluations are not to be considered in discharge from state employment under those circumstances where the veterans’ preference provision of Article XII, section 15 prohibits them from being taken into account. However, as stated above, statutes are presumed to be constitutional. Where two constructions of a statute are possible — one that will sustain constitutionality and another that will not — a court must elect the construction that will uphold the legislation. E.g., People ex rel. C.M., 630 P.2d 593 (Colo. 1981); People v. Garcia, 197 Colo. 550, 595 P.2d 228(1979). Section 24-50-124(1) was enacted against the background of the detailed provisions of Article XII, in which section 15 clearly sets forth the veterans’ preference. We believe that under these circumstances the veterans’ preference provision should be read into the statute as an implied limitation on the scope of its applicability. See Edwards v. Denver R.G.R.R., 13 Colo. 59, 21 P. 1011 (1889). [32] Moreover, the Board recognized this constitutional limitation in enacting Rule 9-4-1(C) to supplement the statute. That rule provides: [33] “Any additional recognition for quality of service shall not accrue if the direct effect is to deprive a veteran of his retention rights as secured by Article XII, Section 15 of the Colorado Constitution.” [34] Reasonable interpretations of state statutes by agencies charged with their enforcement should be given deference by the courts. Travelers Indemnity Co. v. Barnes, 191 Colo. 278, 552 P.2d 300 (1976); Haines v. Colorado State Personnel Board, 39 Colo. App. 459, 566 P.2d 1088 (1977). [35] For the foregoing reasons, we agree with the defendants that the trial court erred in declaring section 24-50-124(1) in conflict with Article XII, section 15(3)(a) of the Colorado Constitution.
C.
[36] The district court ruled that those provisions of section 24-50-115(6) of S.B. 308 mandating that the Board establish probationary periods for all persons promoted, transferred into a different position at their request, or in a position that is reallocated to a higher pay grade are void because they are contrary to Article XII, section 13(10) of the Colorado Constitution, authorizing probationary periods for “all persons initially appointed.” We reverse.
initially appointed, promoted, or transferred into a different position at their request or who are in a position reallocated to a higher pay grade, but not to exceed twelve months for any class or position. After satisfactory completion of any such period, as demonstrated by satisfactory or above average performance evaluations, the person shall be certified to such class or position within the state personnel system, but unsatisfactory performance shall be grounds for dismissal by the
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appointing authority during such period without right of appeal.”
[39] (Emphasis added). [40] Section 13(10) of Article XII of the Colorado Constitution reads: [41] “The state personnel board shall establish probationary periods for all persons initially appointed, but not to exceed twelve months for any class or position. After satisfactory completion of any such period, the person shall be certified to such class or position within the personnel system, but unsatisfactory performance shall be grounds for dismissal by the appointing authority during such period without right of appeal.” [42] Article XII, section 13(10) mandates probationary periods for newly appointed employees. It does not prohibit the establishment of probationary status for state employees who are promoted, transferred at their own request, or elevated in pay grade within the state personnel system. Under section 13(10), satisfactory completion of a probationary period after initial appointment results in certification to the class or position for which the appointment was made; it does not guarantee certified status in the event of requested transfer or promotion to a new class or position. [43] The plaintiffs contend that section 24-50-115(6) would have untoward and constitutionally impermissible effects. First, they assert that a person who satisfactorily completes a probationary period becomes a certified or permanent employee in the personnel system. Section 24-50-115(6), however, attempts to strip the employee’s certified status if that person is promoted, transferred by request or reallocated. Thus, the argument proceeds, the permanence of certification guaranteed by section 13(10) and appeal rights under section 13(8)[4] are dissipated, and the clear purpose of providing civil service personnel with tenure, as reflected in those sections, is defeated. The appellees’ argument, however, fails to focus on the precise terms of the constitutional guarantee. Successful completion of a probationary period after initial hiring assures certification to the class or position within the personnel system for which the employee was hired. Nothing in section 13(10) assures certification to a new or different position upon promotion, requested transfer, or reallocation. [44] The legislature, by enacting section 24-50-115(6), has determined that probationary periods are important to ensure the suitability of an employee for a new class or position that is obtained by promotion, requested transfer or reallocation. The statute reflects legislative recognition that a person who is competent in one job may not perform satisfactorily in a different position. Thus, before an employee achieves certified status in the new position it is appropriate to subject that person to a new probationary period.[5]Page 1359
[45] In Turner v. City and County of Denver, 146 Colo. 336, 361 P.2d 631(1961), we noted that the basic purpose of civil service laws is to secure efficient public servants for positions in government. We added that while such laws seek to promote the welfare of the individual civil servant, an “overriding policy is promotion of the best interests of the public as a whole.” Id. at 342, 361 P.2d at 634. The General Assembly has determined that it is in the public interest to subject a governmental employee to a new period of probation when that person undertakes to serve in a new position as a result of promotion, requested transfer or reallocation. We discover nothing in the Colorado Constitution that is inconsistent with the implementation of section 24-50-115(6). Therefore, we reverse the district court’s ruling that this statute is unconstitutional.
D.
[46] The trial court struck down sections 24-50-101(3)(a) and 24-50-104(3)(g) of S.B. 308, and the rules promulgated thereunder, ruling that the statutes and rules are contrary to Article XII, section 13(1) of the Colorado Constitution, mandating that merit and fitness — to be ascertained by competitive tests of competence — be the bases of appointment and promotion in the state personnel system. We uphold the trial court’s ruling that section 24-50-104(3)(g) is unconstitutional, but reverse the determination that section 24-50-101(3)(a) does not meet constitutional requirements.
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demonstrated qualification through testing. Roberts v. People ex rel. Duncan, 81 Colo. 338, 255 P. 461 (1927); Shinn v. People, 59 Colo. 509, 149 P. 623 (1915). We must not allow this beneficent goal to be evaded by the description of a promotion by some other name. We are persuaded that an “upward allocation of a position” and the “movement of the incumbent employee with his position” are together nothing but a euphemistic description of a promotion. See Schmidt v. Hurst, 109 Colo. 207, 124 P.2d 235 (1942); People ex rel. Kelly v. Milliken, 74 Colo. 456, 223 P. 40 (1923).[6]
[55] It is noteworthy that the Board’s Rule 3-7-3 treats promotion and upward reallocation identically for the purpose of determination of pay. The Attorney General of Colorado has twice issued opinions that the upgrading of incumbents in positions that have been reallocated to a higher level is constitutionally indistinguishable from promotions to vacant positions. Op. Colo. Att’y Gen. 70-4451 (1970), 2643-53 (1953). Such opinions, reflecting a traditional view of the matter, have “some significance in cases involving consideration of constitutional provisions where there is room for interpretation . . . .” White v. Anderson, 155 Colo. 291, 299, 394 P.2d 333, 336 (1964). Accordingly, we hold that section 24-50-104(3)(g) violates Article XII, section 13 of the Colorado Constitution. E.
[56] The trial court tested section 24-50-114(2) of S.B. 308, permitting temporary appointments for up to 1040 hours of work in a twelve-month period, to ascertain whether it is within the exception found in Colo. Const. Art. XII, § 13(9), permitting temporary appointments for a period of up to six months without complying with personnel system hiring criteria and procedures. The court found that section 13(9) does not authorize temporary appointments for longer than six months without regard to the number of hours worked during the appointment period, and concluded that section 24-50-114(2) violates the merit selection provisions of the Colorado Constitution. We agree.
section 2-4-106, C.R.S. 1973 (1980 Repl. Vol. 1B) (in construing
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statutes, the word “month” means a calendar month). Nothing in the language of section 13(9) suggests the strained construction that the appellants advocate. Therefore, we affirm the trial court’s ruling that section 24-50-114(2) is unconstitutional to the extent that it purports to authorize temporary appointments for periods longer than six calendar months. See Colorado State Civil Service Employees Association v. Love, supra; People ex rel. Park Reservoir Co. v. Hinderlider, supra.
IV.
[63] In summary, we reverse the trial court’s rulings that certain provisions of S.B. 308 violate the constitutional scheme in Colo. Const.
Art. XII, §§ 14(3) and (4) for rulemaking and delegation of authority; that section 24-50-124(1) as to separation of employees from state service contravenes the veterans’ preference requirements of Art. XII, § 15(3)(a); that the establishment of probationary periods under section 24-50-115(6) is contrary to Art. XII, §§ 13(8) and 13(10); and that section 24-50-101(3)(a) does not comport with the “merit and fitness” hiring criteria in Colo. Const. Art. XII, § 13(1). We affirm the district court’s determinations that section 24-50-104(3)(g) is contrary to the “merit and fitness” standards in Art. XII, § 13(1); and that section 24-50-114(2), purporting to authorize temporary appointments of personnel for longer than six months, cannot pass constitutional muster. The plaintiffs ask us to adjudge the constitutionality of numerous Board rules associated with these statutes. We decline to do so, because the connection between statute and rule is sometimes a subtle one, and the parties have not fully addressed these connections in their arguments to this court. Instead, we remand the case to the district court for determination of the constitutionality of the rules under the principles set forth in this opinion.
(1971); Vivian v. Bloom, supra.