Anderson v. Colorado State Dept. of Personnel, 86SA61

Decision Date16 May 1988
Docket NumberNo. 86SA61,86SA61
Citation756 P.2d 969
PartiesDouglas ANDERSON, Patricia Clisham, Harvey Cochran, Thomas F. Dixon, James Dotson, Edwin L. Felter, Jr., William Fritzel, H. Conway Gandy, Michael R. Homyak, Thomas E. Korson, Paul Kubitschek, Paul Leibowitz, Harriett Moskovit, Thomas R. Moeller, Michael Mullins, Judith F. Shulman, David A. Sorenson, Arthur G. Staliwe, Don P. Stimmel, John Stuelpnagel, and Robert E. Temmer, Plaintiffs-Appellants, v. COLORADO STATE DEPARTMENT OF PERSONNEL, and Gail S. Schoettler, Executive Director; and The Colorado State Personnel Board, Defendants-Appellees. and Montie BARRINGER, Patricia Clisham, Harvey Cochran, Thomas F. Dixon, James Dotson, Edwin L. Felter, Jr., William Fritzel, H. Conway Gandy, Michael R. Homyak, Thomas E. Korson, Paul Kubitschek, Paul Leibowitz, Harriett Moskovit, Thomas R. Moeller, Michael Mullins, Judith F. Shulman, Marshall Snider, David Sorenson, Arthur G. Staliwe, Don P. Stimmel, John Stuelpnagel, and Robert E. Temmer, Plaintiffs-Appellants, v. COLORADO STATE DEPARTMENT OF PERSONNEL, and Gail S. Schoettler, Executive Director; and the Colorado State Personnel Board, Defendants-Appellees.
CourtColorado Supreme Court

Michael R. Homyak, Arthur G. Staliwe, Denver, for plaintiffs-appellants.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Kathryn J. Winters, Mary Ann Whiteside, Asst. Attys. Gen., Denver, for defendants-appellees.

KIRSHBAUM, Justice.

The appellants, hearing examiners employed by the State of Colorado, appeal a district court order affirming two decisions of the Colorado State Personnel Board (the Board) rejecting challenges to the validity of two annual salary and employee benefit surveys conducted by the State Personnel Director (the Director). 1 We affirm.

I

Article XII, section 14, of the Colorado Constitution established the Board and the Colorado State Department of Personnel (the Department) and designated the Director as the head of the Department and the administrator of the state personnel system. Pursuant to this constitutional provision, the State Personnel System Act (the Act), currently codified at sections 24-50-101 to -402, 10 C.R.S. (1982 & 1987 Supp.), was enacted, establishing a state policy to compensate state employees with salaries and benefits comparable to those found by the Director to prevail in comparable public and private employment positions, § 24-50-104(2), 10 C.R.S. (1982 & 1987 Supp.). 2 During the time period relevant to this case, section 24-50-104(5), 10 C.R.S. (1982 & 1983 Supp.), of the Act required the Director annually to conduct a salary and benefit survey to determine comparable compensation rates prevailing in the public and private sectors and to forward compensation recommendations to the Governor for submission to the General Assembly. 3

On March 1, 1983, the Director submitted to the Governor recommended salary adjustments for the fiscal year beginning July 1, 1983. These recommended adjustments were based upon the Department's 1983 salary survey and included a recommendation that the hearing examiners receive an approximate 7.5% salary decrease.

On March 22, 1983, the hearing examiners filed an appeal of the recommended salary decrease with the Board, see § 24-50-104(5)(c)(II), 10 C.R.S. (1982) (persons affected by Director's actions may petition for Board review within fifteen working days after publication of proposed pay plan), generally challenging the data collection procedures and alleging specifically that the Director erred by failing to include in the survey salaries of comparable positions in the federal government. The hearing examiners asserted that had a valid study been conducted the proper recommendation would have been that the examiners receive a 7.5% increase in salary rather than a 7.5% decrease. 4

On March 31, 1983, the Board issued a memorandum noting that its review would be conducted in a summary fashion, that no hearings would be held and that a request had been made of the Department that it file its response to all the appeals no later than April 12, 1983. On April 11, 1983, the Department filed its response to the appeals. On April 13 and April 22, 1983, the hearing examiners filed additional data they had collected in their own survey. On April 22, 1983, the Director submitted a written statement to the Board urging that the Board not consider the additional data because the timely filed data had already been transmitted to the Department for its response. On April 27, 1983, the Board issued an oral policy statement that no exhibits submitted after the March 22 filing deadline would be considered; on May 3, 1983, the Board issued a written ruling to the same effect. On June 2, 1983, the hearing examiners submitted more data collected in their own survey.

On June 30, 1983, the Board issued its order upholding the Director's recommendations. The Board noted that when errors raised by the hearing examiners were corrected the final survey recommendations remained unchanged. The Board concluded that the Director properly surveyed comparable state government positions without also obtaining salary data respecting federal government positions. 5 The hearing examiners then sought judicial review of the Board's action in the district court. See § 24-50-103(6), 10 C.R.S. (1982); § 24-4-106(4), 10 C.R.S. (1982).

On March 1, 1984, the Director published recommended salary adjustments for the fiscal year beginning July 1, 1984. This 1984 document included a recommendation, based upon the Department's 1984 salary survey, that the hearing examiners receive an approximate 7.5% salary increase. On March 22, 1984, the hearing examiners filed an appeal with the Board, asserting that the Department's 1984 survey had employed improper data collection techniques. The hearing examiners argued, based upon data they had collected and the analysis of that data by an economist whose services they had retained, that had proper techniques been employed the salary study would have indicated that the examiners should be given a 20.0% increase in salary rather than merely a 7.5% increase. The hearing examiners also asserted that section 24-50-104(5), 10 C.R.S. (1982 & 1983 Supp.), was unconstitutional because, by failing to require a hearing before the Board, it deprived them of their property without due process of law.

On June 26, 1984, the Board issued its decision affirming the Director's recommendations. The Board found the data underlying the survey were valid and adopted the Department's actions respecting survey methodology and final application of data. The hearing examiners appealed the Board's action to the district court and filed a motion to consolidate the case with the case challenging the 1983 salary survey. The motion was granted. After conducting a hearing, the district court issued an order affirming the orders of the Board respecting both the 1983 and 1984 salary surveys and concluding that section 24-50-104(5), 10 C.R.S. (1982 & 1983 Supp.), was not unconstitutional. We affirm.

II

The hearing examiners argue that by employing improper methodology, including a failure to sample the salaries and benefits paid to hearing examiners in federal positions, the Director and the Department obtained invalid salary data for the 1983 and 1984 salary surveys, thus violating section 24-50-104, 10 C.R.S. (1982 & 1983 Supp.). We find the hearing examiners' argument unpersuasive.

During the time period pertinent to this case, section 24-50-104(2)(a), 10 C.R.S. (1982 & 1983 Supp.), provided in pertinent part as follows:

It is ... the policy of the state, in recruiting and retaining competent personnel, to compensate such officers or employees with salaries, fringe benefits, including retirement benefits, working conditions, and hours of work comparable to those found by the state personnel director to prevail for comparable kinds of employment in typical places of public and private employment with which the state competes in recruiting personnel....

Section 24-50-104(5), 10 C.R.S. (1982 & 1983 Supp.), also provided in pertinent part as follows:

Salary and fringe benefits survey. (a) To determine comparable rates for salaries and fringe benefits prevailing in other places of public and private employment, the state personnel director shall annually conduct a salary and fringe benefit survey. In conducting the survey, the state personnel director shall select various key classes, including, as applicable, classes at the entrance, supervisory, and management levels of occupational series within the classification plan, to be used in establishing prevailing rates for all classes and employees in the state personnel system....

(b) In order to establish confidence in the salary and fringe benefits survey, the state personnel director shall meet and confer in good faith with management and employee representatives of the state for the design and methodology of the survey. The state personnel director shall develop and publish a statement of policy and a manual of procedures detailing the methodology used in the selection and description of the key classes to be used in the survey, the selection of the survey sample, and the system used in the collection, tabulation, analysis, and application of the survey data. The survey shall include a fair sample of public and private employments in what the state personnel director determines to be the competitive labor market area for various key classes, including areas of the state which are outside the Denver metropolitan area. The state personnel director may use the results of other appropriate surveys conducted by public or private agencies and may contract with such agencies to conduct the survey.

(c)(I) The state personnel director shall use valid statistical techniques and, after collecting all appropriate data, shall review the data and...

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