City of Ouray v. Olin, 87SC214

• Decision Date: 19 September 1988
• Docket Number: No. 87SC214,87SC214
• Citation: 761 P.2d 784
• Parties: 28 Wage & Hour Cas. (BNA) 1496 CITY OF OURAY, Colorado, Petitioner, v. Emery OLIN, Respondent.
• Court: Colorado Supreme Court

Page 784

761 P.2d 784

28 Wage & Hour Cas. (BNA) 1496

CITY OF OURAY, Colorado, Petitioner, v. Emery OLIN, Respondent.

No. 87SC214.

Supreme Court of Colorado En Banc.

Sept. 19, 1988.

John R. Kappa, City Atty., Montrose, for petitioner.

Frank J. Woodrow, Woodrow, Roushar & Carey, Montrose, for respondent.

Geoffrey T. Wilson, Denver, for amicus curiae Colorado Mun. League.

Justice ROVIRA delivered the Opinion of the Court.

In Olin v. City of Ouray, 744 P.2d 761 (Colo.App.1987), the court of appeals concluded that section 8-13-105(2), 3 C.R.S. (1973), a since-repealed provision of the Colorado Eight-Hour Day Act, was not limited in its application to county employees, but also applied to municipal employees. We disagree, and therefore, reverse.

I.

In September 1982, Emery Olin (respondent) was appointed by the City Council of the City of Ouray (City-petitioner) to the position of Superintendent of Water Works and Street Commissioner.

Compensation for city officials was based on a specific "grade" within a specific category or pay grade, as determined by the city council. Ouray, Co. Code § 2-24(B)(1)(a). Olin was assigned to grade 4.08 within pay grade 4 and received a yearly salary of $18,876. In March 1985, when this litigation commenced, Olin was in pay grade 4.10, with an annual salary of $21,101.50. This compensation scheme for city officers is to be contrasted with the pay plan set up for non-salaried employees, whose compensation rates are stated in hourly amounts, including amounts for overtime work. See Ouray, Co. Code § 2-24(B)(1)(c), (d).

In February 1985, the United States Supreme Court in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), reversed its prior holding in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and reapplied the federal Fair Labor Standards Act (F.L.S.A.), 29 U.S.C. §§ 201-219 (1982), to the activities of state and local governments.

Shortly after the Garcia decision, Olin filed a complaint against the City in Ouray County District Court. He set out two claims for relief; the first under the Colorado Eight-Hour Day Act, §§ 8-13-101 to -111, 3 C.R.S. (1973), the second under the F.L.S.A. Olin sought retroactive overtime pay for the hours that he had worked in excess of a regular eight-hour work day for the years 1982 through 1985. He claimed that since "[a]ll of the excess hours were worked during calendar weeks when plaintiff had also worked a full forty (40) hour week in the course of his employment," the City is "indebted to and liable to plaintiff for all of the aforesaid excess hours worked at the rate of one and one-half (1 1/2) times his usual rate of compensation."

Olin sought damages under each claim in the amount of $15,264.30, along with costs, attorney fees, and "an additional equal amount as liquidated damages," as provided under 29 U.S.C. § 216(b) (1982).

The City moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to C.R.C.P. 12(b). The City argued, with respect to Olin's first claim for relief, that the Colorado Eight-Hour Day Act failed to provide a civil remedy for the payment of overtime; that neither sections 8-13-104 nor -105, 3 C.R.S. (1973), apply to municipal officers, as opposed to particular municipal employees; that no claim based upon contract could be made pursuant to section 8-13-104; and that any cause of action lying in tort was barred by the Colorado Governmental Immunity Act, §§ 24-10-101 to -120, 10 C.R.S. (1982 & 1987 Supp.). As to the F.L.S.A. claim, the City argued that during the periods of time in question, it was exempt from the requirements of the F.L.S.A., and that nothing in Garcia mandated the retroactive application of that decision; that the overtime requirements of the F.L.S.A. do not apply to "executives" such as Olin; and that Olin's claim should be barred on account of the City's good faith reliance upon United States Supreme Court precedent and applicable Department of Labor regulations.

The district court granted the motion, concluding that the Colorado Eight-Hour Day Act "[does] not provide any civil remedy to an employee of a municipality such as [Olin]," since "it is clear that section 105 is limited to county employees." The district court also held that it would be "inherently unfair" under the facts of this case to give retroactive effect to the Garcia decision, and therefore, declined to do so.

In reversing, the court of appeals held that "[t]he 'legislative scheme' with reference to section 8-13-105(2) ... shows an intention by the General Assembly to cover municipal employees." Olin v. Ouray, 744 P.2d at 764. Accordingly, it interpreted the statutory provisions at issue "as conferring a right to overtime compensation on municipal employees who meet the job classification and overtime requirements of the statute." Id. Further, since for the purposes of dismissal under C.R.C.P. 12(b), the trial court is required to assume the truth of Olin's allegations that he came within the employment criteria of the statute, the trial court erred in dismissing Olin's complaint for failure to state a claim upon which relief could be granted. Id. The court did not consider the F.L.S.A. claim because it was abandoned on appeal.

We granted certiorari to consider whether section 8-13-105, 3 C.R.S. (1973), applies solely to certain county employees, or whether it also applies to certain municipal employees.

II.

A.

The relevant statutory provisions at issue, §§ 8-13-104 to -106, 3 C.R.S. (1973), were repealed by the Colorado General Assembly effective March 1986. See ch. 66, sec. 1, §§ 8-13-104 to -106, 1986 Colo.Sess.Laws 508.

The predecessor statute to section 8-13-104 was originally enacted in 1893. See ch. 11, sec. 1, 1893 Colo.Sess.Laws 305. At the time of its repeal in 1986, and during the years for which respondent is seeking overtime pay, the provision had changed little from when first enacted, and read as follows:

8-13-104. Eight-Hour Day for Public Employees. In all work undertaken in behalf of the state or any county, township, school district, municipality, or incorporated town, it is unlawful for any board, officer, agent, or any contractor or subcontractor thereof to employ any mechanic, workingman, or laborer in the prosecution of any such work for more than eight hours a day.

§ 8-13-104, 3 C.R.S. (1973).

In 1975, the General Assembly repealed and reenacted section 8-13-105 through H.B. 1282. See ch. 70, sec. 1, § 8-13-105, 1975 Colo.Sess.Laws 290. As last amended, section 8-13-105 reads as follows:

8-13-105. Emergency Cases and Otherwise. (1) Nothing in section 8-13-104 shall be construed to prevent work by county employees in excess of eight hours a day in emergencies involving the endangering of life or property.

(2) When any employee referred to in section 8-13-104 is required to work more than forty hours in any calendar week, whether or not because of an emergency, the employer shall compensate him for hours in excess of forty in a calendar week at one and one-half times the regular hourly rate in money or in compensatory time at one and one-half times the number of excess hours, in the board's discretion.

In the 1978 supplement to C.R.S., the words "in the board's discretion," appearing at the end of H.B. 1282, had been changed to read "in the board of county commissioner's discretion." See § 8-13-105(2), 3 C.R.S. (1978 Supp.) (emphasis added). This change had apparently been made by the revisor of statutes.

In considering the statutory provisions at issue, the court of appeals isolated the subsections of section 8-13-105 from each other. The court then found section 8-13-105(1) to be "clear and unambiguous," 744 P.2d at 762, but section 8-13-105(2) to be "not so clear." Id. at 763. It then concluded that changes affecting section 8-13-105(2) evidenced an intention not to limit the provision to county employees. We believe that when subsections 8-13-105(1) and (2) are read together, however, the meaning of the statute becomes more clear.

Section 8-13-105(1) refers only to county employees, and provides an exception to the eight-hour day prohibition set out in section 8-13-104 for "emergencies involving the endangering of life or property." Viewed logically, section 8-13-105(2) requires employers--a general term which under the language of section 8-13-104 includes county officers as well as their contractors or subcontractors--to compensate certain employees, "mechanic[s], workingm[e]n, or laborer[s]," see § 8-13-104, for hours worked in excess of forty hours per week in either money (one and one-half times the regular hourly rate) or time (one and one-half times the number of excess hours), with the decision regarding choice of compensation left in the discretion of the board, i.e., the board of county commissioners.

The court of appeals' construction of the statute--that section 8-13-105(1) applies only to counties, but that section 8-13-105(2) applies to both counties and municipalities--creates two inconsistencies. First, it does not make sense for the legislature to require both counties and municipalities to compensate their employees for overtime work pursuant to section 8-13-105(2), but to allow only counties to require their employees to work more than eight hours per day. If section 105(2) is meant to apply to all types of governmental entities--not just counties--the legislature would presumably have broadened the language contained in section 105(1) so that all employees would be required to work more than eight hours a day in emergency situations.

Second, the court of appeals accepted Olin's argument that the word "board" found in section 105(2) relates to the governing board of the "employer" referred to in section 8-13-104, i.e., the board of county commissioners, the school board, the city council, or the relevant town board of a...