No. 86CA0269Colorado Court of Appeals.
Decided June 2, 1988. Rehearing Denied June 23, 1988. Certiorari Denied November 28, 1988 (88SC347).
Appeal from the District Court of the City and County of Denver Honorable John Coughlin, Judge
LaFond Evangelisti, Richard C. LaFond, Dominic Latorraca, for Plaintiff-Appellant.
Steven H. Kaplan, City Attorney, Geoffrey S. Wasson, Assistant City Attorney, for Defendant-Appellee.
Division VI.
Opinion by JUDGE SILVERSTEIN.[*]
[*] Sitting by assignment of the Chief Justice under provisions of th Colo. Const., art. VI, Sec. 5(3), and § 24-51-607(5), C.R.S. (1982 Repl. Vol. 10).
[1] In this C.R.C.P. 106 action, plaintiff, Margaret O’Neill, sought reversal of an order of defendant Career Services Board (Board) entered in favor of defendant Department of Revenue, Treasury Division, City and County of Denver (Department). The trial court affirmed the order, and plaintiff appeals. We reverse the judgment of the trial court.
[2] First, we note that in her complaint, plaintiff asserted a second claim for relief, alleging outrageous conduct by defendant Paul Brownridge. That claim is still pending in the trial court. The C.R.C.P. 106
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claim is before us pursuant to a C.R.C.P. 54(b) order.
[3] Plaintiff was a probationary employee of the Department. She was discharged under an order which stated that the reason for the dismissal was: “Refusal to comply with orders and instructions of authorized supervisors.” Plaintiff sought administrative review of the discharge, contending that her dismissal was the result of discrimination because of race or color. Plaintiff is white, the supervisors are black. [4] Following a hearing, the career service authority hearings officer determined, on supporting evidence, that plaintiff had “met her burden of proof as to discrimination on the basis of race and color.” He ordered that she be restored to her position and awarded pay from the date of her dismissal to the date she resumed her duties, and ordered that she be afforded the opportunity to complete her probationary period. [5] The Department appealed to the Board, which reversed the hearings officer’s decision, determined that plaintiff had been discharged for insubordination, and reinstated her dismissal. Plaintiff then brought the present action. The trial court affirmed the order of the Board, and this appeal followed. [6] In its order the Board made several findings of fact all of which were contrary to the findings of the hearings officer. Based on these findings, the Board found the dismissal was non-discriminatory. Plaintiff contends that the Board exceeded its jurisdiction and had no fact-finding authority in the present case. We agree. [7] In affirming the Board’s order, the trial court based its decision on the issue of whether the Board was bound to come to the same conclusion as the hearings officer where that conclusion was based upon competent evidence. The court concluded that the authority of the Board was “like that of [the] Industrial Commission of Colorado in [an] unemployment compensation case.” In so ruling, the court erred. [8] An administrative agency’s powers are limited to those granted by the organic legislation which creates the agency. See Flavell v. Department of Welfare, 144 Colo. 203, 355 P.2d 941 (1970) (actions outside “the purview of the statute granting the agency its powers are not merely erroneous, but are void”); BQP Industries v. State Board of Equalization, 694 P.2d 337(Colo.App. 1984). Cf. Clark v. Colorado State University, 762 P.2d 698
(Colo. 1988). [9] The Board was established by Denver City Charter § C5.24, et seq. Denver City Charter § C5.25 sets forth the duties and powers of the Board and states: [10] “The Career Service Board shall have the following powers: [11] . . . . [12] “5) Reopen and reconsider, in accordance with personnel rules . . . a decision of the hearings officer when the party requesting reopening and reconsideration submits written argument or evidence which establishes that (a) new and material evidence is available which was not available when the appeal was heard by the hearings officer, or (b) the decision of the hearings officer involves an erroneous interpretation of the personnel rules of the [Board], or (c) . . . is of a precedential nature involving policy considerations that may have an effect beyond the case at hand.” (emphasis added) [13] This charter section further provides that when a decision is reopened, the Board shall “review the record of the proceedings and all written representations” and “issue a written decision . . . affirming, modifying or reversing the decision of the hearings officer.” Denver Career Services Authority Personnel Rule 19-31 provides that a party may request the Board “to reopen and reconsider a decision by the Hearings Officer only on the . . . grounds” set forth in section C5.25 of the Charter. (emphasis added) [14] In its appeal to the Board, the Department relied on the grounds of erroneous interpretation of the rules and the precedential effect of the decision. However, in its order, the Board did not address either of these issues, which were the only issues before it. Instead, it made its own findings of fact: that plaintiff was guilty of insubordination
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and was discharged for that reason.
A.
[15] The factual basis for the firing of plaintiff was not an issue before the Board unless it could properly determine that the hearings officer’s decision constituted an erroneous interpretation of the personnel rules. The interpretation or construction of a statute is a question of law, Colorado Division of Employment Training v. Parkview Episcopal Church, 725 Colo. 787 (Colo. 1986), as is the construction of a rule promulgated by an administrative agency. See Pluss v. Department of Revenue, 173 Colo. 86, 476 P.2d 253 (1970). Therefore, we may resolve this issue here.
B.
[22] The Department’s second contention is that the hearings officer’s decision is of a precedential nature involving policy considerations that may have an effect beyond the case at hand. This contention is also a legal issue. We find no merit in this claim.
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