Alexander v. Colorado Dept. of Personnel
| Decision Date | 24 July 1997 |
| Docket Number | No. 96CA0641,96CA0641 |
| Citation | 952 P.2d 814 |
| Parties | 97 CJ C.A.R. 1206 Cathy ALEXANDER, John Bailey, Ana C. Bowman, Tom Bovio, Vicki Bunch, Gloria Carino, Joe Chase, Joyce Chevarria, Joann Christensen, Rich Copley, Mike Coulter, Art Crespin, Michele Cyr, Christine Dexter, W. David Driscoll, Felipe Duran, Larry Frazier, Robert L. Glidden, Cynthia A. Granner, Thomas Herman, Louis Hoefer, Bob Jeannelle, Gary Jensen, Karen Jones, Larry Jordahl, Karen Karl, Cary Kelliher, Dave Kennedy, Michelle Kerstann, Kent LeBlanc, Dave Loomis, Gary Maelzer, Dee Mahonson, Christina A. Manthey, Joe Markworth, Gary May, Dorothy McKay, Jim McNaught, Jim Meyers, Robert S. Mitchell, John Mohatt, Michelle Mongan, Darlene Muniz, Bruce Nelson, Robert Osborne, Vince Palkovich, John Petersen, Douglas Pollack, Dick Pond, Linda Quade, William Rayner, Mary Robyn, Virginia E. Ruge, Mike Santos, Karen Shaw, Tammy Sorensen, Joseph Soss, Sharon Stehr, Phil Strickland, Dana Summers, Nancy Tanner, August Tilger, Larry Toillion, Gary Toleno, Karen Torsney, John Trujillo, David C. Valenciano, Richard Victorson, Lloyd Wicke, Larry Williams, John Wilton, Trish Windham, Donna Wright, Rebecca Gillespie, Wendell Miller, Raymond A. Cardy, Chris J. Eliopulos, James K. Hinz, Ronald H. Granner, William V. Speckman, and John C. Streeter, Plaintiffs-Appellants, v. The COLORADO DEPARTMENT OF PERSONNEL; Shirley Harris, Executive Director of the Colorado Department of Personnel; The Colorado Department of Revenue, and Terrance Fagan, Executive Director of the Colorado Department of Revenue, Defendants-Appellees. . I |
| Court | Colorado Court of Appeals |
James R. Gilsdorf, Denver, for Plaintiffs-Appellants.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John D. Baird, Assistant Attorney General, Denver, for Defendants-Appellees.
Opinion by Judge MARQUEZ.
Plaintiffs, certified revenue agents and tax conferees, who are present and past employees of the Colorado Department of Revenue (Revenue Department), appeal the trial court's judgment affirming a decision of defendants the Colorado Department of Personnel (Personnel Department) and Shirley Harris, the Executive Director of the Colorado Department of Personnel (Director), approving a reduction in plaintiffs' pay grades. We reverse and remand.
In 1991, in response to a 1989 Governor's Commission on Productivity recommendation, the Personnel Department began a system-wide revision of the job evaluation system. One intent of the project was to review the salary relationship of all classes using market data.
On June 1, 1993, the Director issued a proposed Job Evaluation Project Narrative Report and Class Series Descriptions for the positions of revenue agent and tax conferee. The report proposed pay grade decreases for seven of the eight classes within these two jobs. The pay grade decreases were to become effective September 1, 1993.
Plaintiffs appealed the Job Evaluation Project Narrative Report and Class Series Descriptions. On September 16, 1993, and September 20, 1993, the Director issued decisions in which she denied plaintiffs' requested relief; however, she agreed with plaintiffs' claim that the use of certain data to set their salaries was arbitrary and remanded the issue to the Personnel Department for further review.
The Personnel Department first sought salary review data from the Federation of Tax Administrators in Washington, D.C., but this data was deemed unsuitable because it was five years old. The Personnel Department then sought and obtained permission from the Total Compensation Advisory Council (TCAC) to perform direct surveys from other states. See § 24-50-104(2)(c)(II), C.R.S. (1996 Cum.Supp.) (establishing TCAC to authorize the Revenue Department to conduct direct surveys).
In October 1993, acting pursuant to § 24-4-106, C.R.S. (1988 Repl.Vol. 10A), plaintiffs filed a complaint for judicial review in the trial court. However, because there was no final agency action, the court dismissed the claims without prejudice.
On April 26 and May 2, 1994, the Director issued a Job Evaluation Letter (JEL-94) and proposed class descriptions for both revenue agents and tax conferees. These publications purported to amend the June 1, 1993, publication. And, on August 11, 1994, the Director issued a decision in which she denied plaintiffs' requested relief and made permanent the reduction in pay grades. None of these actions were submitted to the governor for his approval.
Thereafter, plaintiffs sought judicial review of the agency action in the trial court, pursuant to § 24-50-104(4)(d)(I), C.R.S. (1988 Repl.Vol. 10B) and § 24-4-106, C.R.S. (1988 Repl.Vol. 10A). In February 1996, the trial court issued a judgment denying plaintiffs' requested relief and finding that the Director's decision did not constitute an abuse of discretion. This appeal followed.
Plaintiffs first contend that the supplemental 1994 job evaluation study cannot apply retroactively to a salary reduction which was implemented in September 1993. Essentially, plaintiffs argue that defendants cannot justify a September 1, 1993, pay grade decrease based on data not published until 1994 and not approved by the governor. We agree that the pay decrease was not implemented in accordance with the governing statute and, thus, is not valid.
Defendants assert that this matter is governed by the law applicable to salary relationships conducted under provisions of §§ 24-50-104(3) and 24-50-104(4), C.R.S. (1996 Cum.Supp.). They assert specifically that the Director's review of plaintiffs' salary levels was governed by § 24-50-104(4)(d)(I), which requires that the Director "review the appeal in summary fashion on the basis of written material...."
Section 24-50-104(3) provides that the state personnel director be responsible for the preparation, maintenance, and revision of a job evaluation system for all positions in state government not expressly exempted. Section 24-50-104(4) addresses revision and maintenance and states that the state personnel director is to revise the job evaluation system whenever conditions indicate that a change is necessary.
Plaintiffs, however, rely on § 24-50-104(4)(d)(II), C.R.S. (1996 Cum.Supp.), which provides, as pertinent here:
Any assignments or reassignments of classes to pay grades, salary rates, salary ranges, or pay relationships required by the creation of new positions or any duly authorized reorganization or change in work method which have a fiscal impact shall be made effective, with the approval of the governor, on the ensuing July 1.... In order for the fiscal impact of any such job evaluation study to be included in the annual general appropriation bill, the results of such study shall be submitted to the joint budget committee of the general assembly no later than December 1 of each year for the ensuing fiscal year. Each study shall contain a detailed fiscal impact calculation by agency and department.... [T]he only exception to the July 1 date regarding any assignment or reassignment of classes to pay grades, salary rates, or salary ranges, including those resulting from special salary surveys, shall be made in those urgent situations where personnel shortages will endanger the health, safety or welfare of citizens of the state of Colorado and where special salary surveys utilized as a part of that study indicate that such assignment or reassignment of classes is necessary to provide salaries comparable to those prevailing in comparable kinds of employment. In such urgent situations, upon approval of the governor and the state personnel director, such changes shall be effective on the first day of the month following such approval. (emphasis added)
The trial court's decision is subject to judicial review under § 24-4-106 of the Administrative Procedure Act (APA). Section 24-50-104(4)(d)(I), C.R.S. (1996 Cum.Supp.). Under the APA, the standard of review by this court is the same as that which governed the trial court's review of the administrative ruling. A reviewing court may not reverse the decision of the agency unless the court finds it to be arbitrary and capricious or contrary to rule or law. Sections 24-4-106(7) and 24-4-106(11)(e), C.R.S. (1988 Repl.Vol. 10A).
A reviewing court must uphold the director's decision if it is supported by substantial evidence in the record considered in its entirety. For purposes of judicial review of administrative action, substantial evidence is the same as competent evidence. Blake v. Department of Personnel, 876 P.2d 90 (Colo.App.1994).
Agency action taken pursuant to statutory authority is presumed valid. However, courts are not bound by an...
To continue reading
Request your trial
-
State Personnel Bd. v. DOC
... ... No. 98SC339 ... Supreme Court of Colorado, En Banc ... September 20, 1999. 988 P.2d 1148 Ken Salazar, Attorney General, ... See, e.g., Alexander v. Colorado Dep't of Personnel, 952 P.2d 814 (Colo.App.1997); Halverstadt v. Department of ... ...
- Colorado Dept. of Personnel v. Alexander