Chiappe v. State Personnel Bd.

• Decision Date: 12 January 1981
• Docket Number: No. 79SA63,79SA63
• Parties: Salvador CHIAPPE and Michael Kaufman, Plaintiffs-Appellants, v. STATE PERSONNEL BOARD and The Members thereof, John Barnard, Thornley Wood, Shelby Harper, Ruth Lurie, Lincoln Baca; University of Colorado, Boulder Campus, James Schaeffer, Arthur Ingraham, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 527

622 P.2d 527

Salvador CHIAPPE and Michael Kaufman, Plaintiffs-Appellants, v. STATE PERSONNEL BOARD and The Members thereof, John Barnard,

Thornley Wood, Shelby Harper, Ruth Lurie, Lincoln Baca;

University of Colorado, Boulder Campus, James Schaeffer,

Arthur Ingraham, Defendants-Appellees.

No. 79SA63.

Supreme Court of Colorado, En Banc.

Jan. 12, 1981.

Rehearing Denied Feb. 9, 1981.

Jonathan B. Chase, Boulder, for plaintiffs-appellants.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Ann Sayvetz, Asst. Atty. Gen., Denver, for defendants-appellees.

ROVIRA, Justice.

This is an appeal from an order by the Boulder County District Court which dismissed a complaint seeking review of the action of the State Personnel Board upholding the termination of employment of Messrs. Chiappe and Kaufman (appellants). We affirm.

The appellants were hired as food service workers in the University Memorial Center at the University of Colorado at Boulder in 1974. At the time they were hired each had a beard, and no mention was made of a "no beard" policy as a condition of employment. They did not actually prepare or serve food but worked as "busboys" in areas where food was prepared and served, clearing and busing dirty dishes and cleaning tables. Their job description and classification as employees of the state personnel system entailed the possibility of being required to prepare food. ¹

In May 1976 Arthur Ingraham, who had a degree in hotel and restaurant management and 26 years' experience in food service operations, was hired to manage the food service operations of the University Memorial Center. He decided to implement a hair restraint policy which included a no-beard rule. This policy had been in effect for several years, but it had not been enforced by past management. ²

Written and oral notice of the new policy was given to appellants by their immediate supervisor. After they refused to shave their beards, they were suspended without pay on June 7, 1976, for seven days and advised that they could return to work during this period if they should change their minds. ³ They were notified that discharge would follow a decision to retain their beards. Seven days later they returned to work with beards intact. They met with the University Memorial Center director, reiterated their resolve not to shave, and offered nothing by way of defense or mitigation. The director then advised them orally and in writing that they were terminated from employment. ⁴

The appellants appealed their termination, and a hearing was held before a personnel board hearing officer who found that the no-beard policy was "directly concerned with the promotion of clean and sanitary food service activities in the dining facilities ... and as such is directly job related to the food service employees."

The hearing officer upheld the termination, and his decision, on appeal, was affirmed by the State Personnel Board. Subsequently, appellants filed an action for judicial review pursuant to the State Administrative Procedure Act, section 24-4-101 et seq., C.R.S.1973. In a well-reasoned opinion the trial court held that the proper test to be applied in reviewing this food service regulation is whether it was rationally related to a legitimate interest of the state. The court determined that the no-beard policy was not arbitrary because there was a clear relationship between persons who came into contact with food and the danger of staphylococci contamination of food by direct hair fallout or indirect finger contact. It concluded that there was no violation of appellants' federal constitutional rights, that appellants had not been denied their rights as state employees under article XII, section 13, of the Colorado Constitution, and that there was sufficient evidence in the record to support the Board's action.

I.

In this court the appellants have limited their case to the following argument: (1) that there is a constitutionally protected "liberty interest" involved in an individual's choice of personal appearance; (2) that constitutional "procedural due process" protections must be provided to one whose liberty interest is subject to state regulation; and (3) that in this case procedural due process requires that the state use the "means least restrictive of liberty interests" to accomplish its legitimate objective of promoting public health and safety. Although we do not disagree with the first two of these propositions, we cannot accept appellants' conclusion that their liberty interests were irrationally restricted by the no-beard policy which was enforced by the University. Instead, we hold that this policy was neither irrational nor arbitrary. Therefore, it was not an impermissible deprivation of the appellants' liberty to forbid their wearing beards while they were food service employees.

A.

"Liberty Interest"

The United States Supreme Court has neither created nor discovered any "fundamental" constitutional right in a person's decision to affect a particular grooming standard. See Wilkinson and White, Constitutional Protection for Personal Lifestyles, 62 Cornell L. Rev., 563 (1977); L. Tribe, American Constitutional Law § 15-16 (1978); J. Nowak, R. Rotunda, and J. Young, Constitutional Law at 416-19, 680-87 (1978). Nevertheless, we have no reason to doubt that the constitution offers protection to the citizenry at large against the state's comprehensive regulation of their personal appearance. Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (Powell, J., concurring) (Marshall, J., dissenting). ⁵ The quality of this asserted liberty is distinguishable from an "individual's freedom of choice with respect to certain basic matters of procreation, marriage and family life." Kelley v. Johnson, supra, at 244, 96 S.Ct. at 1444. But an individual's interest in personal appearance seems to come within the broad terms of U.S. Const., amend. XIV, which declares that "(n)o state shall ... deprive any person of life, liberty, or property, without due process of law." It is in this broad sense that the appellants' constitutional liberty has been imposed upon by the no-beard rule and, they claim, imposed upon in violation of due process of law. ⁶

That a constitutional liberty interest has "substantive" content is not a new concept. The due process clause of the United States Constitution has been interpreted as affording individuals substantive as well as procedural protections against irrational governmental restrictions. Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); Kelley v. Johnson, supra; Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); see Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). But there is no uniform nature to the rights that can be asserted as liberty interests under the due process clause. They exist on a rational continuum and may be "ranked in a spectrum of importance," at one end of which are the "great liberties" or fundamental rights and at the other end the "lesser liberties," such as personal standards of grooming. ⁷ Karr v. Schmidt, supra, n. 6, at 615; Miller v. School District, supra, n. 6. See Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting). Thus our threshold acceptance of the constitutionality of the liberty asserted here does not blind us to the fact that a person's decision to appear as he chooses, regardless of the preferences of others, is of much lesser magnitude than a "fixed star in our constitutional constellation." Miller v. School District, supra, n. 6, at 624, quoting West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943). Such a decision is weighed less heavily in due process balancing than those choices which our legal system treats as fundamental.

Furthermore, almost any employment, whether in the public or the private sector, "entails some need to comply with an employer's concept of the manners which are suitable to the position." Miller v. School District, supra, n.6, at 666 n.29. Such accommodations are inherent in the choice of occupations. The state action involved in regulation of a food service employee's shaving habits conveys no preferred status to the public employee above that of his counterpart who works for a private employer. Id. Indeed, the liberty of the public employee as distinguished from that of the ordinary citizen may, under some circumstances, be subjected to comprehensive and substantial governmental restrictions which impede activities at the very core of specifically guaranteed constitutional rights. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

"If such state regulations may survive challenges based on the explicit language of the First Amendment, there is surely even more room for restrictive regulations of state employees where the claim implicates only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment." Kelley v. Johnson, supra, 410 U.S. at 245, 96 S.Ct. at 1445.

B.

"Procedural Due Process"

As courts frequently emphasize, "due process" is a flexible concept. It requires the use of orderly procedures that are balanced in such a way as to protect constitutional interests and, at the same time, further legitimate governmental ends. People v. Taylor, Colo., 618 P.2d 1127 (1980); R. McG. v. J. W., Colo., 615 P.2d 666 (1980) (Dubofsky, J., specially concurring). Due process calls for the procedural protections which the particular situation demands. People v. Taylor, supra.

In the present case, the appellants challenge the application of a health-related policy which was imposed on all workers within their job...