Fraternal Order of Police v. City
| Citation | 996 P.2d 133 |
| Decision Date | 28 February 2000 |
| Docket Number | No. 99SC85.,99SC85. |
| Parties | FRATERNAL ORDER OF POLICE, COLORADO LODGE # 19, Petitioner, v. CITY OF COMMERCE CITY, Respondent. |
| Court | Supreme Court of Colorado |
As Modified on Denial of Rehearing April 10, 2000.1
Brauer, Buescher, Valentine, Goldhammer & Kelman, P.C., Thomas B. Buescher, Denver, Colorado, Attorneys for Petitioner.
Gehler & Merrigan, Thomas E. Merrigan, Commerce City, Colorado, Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Attorneys for Respondent.
Geoffrey T. Wilson, Denver, Colorado, Attorney for Amicus Curiae The Colorado Municipal League.
Franklin P. Lauer, Pueblo, Colorado, Attorney for Amicus Curiae Local 537 of the International Brotherhood of Police Officers.
Bruno, Bruno & Colin, P.C., David J. Bruno, Stacey E. Nickolaus, Denver, Colorado, Attorneys for Amicus Curiae Denver Police Protective Association.
We granted certiorari before judgment in the court of appeals pursuant to C.A.R. 50 to review the district court's order declaring binding arbitration provisions contained in an amendment to the City Charter of Commerce City unconstitutional and unenforceable. The voters of Commerce City passed the charter amendment, designated as Question 2A on the ballot, in November 1998. The charter amendment provides for collective bargaining between police officers and Commerce City, as well as a system of binding arbitration to resolve impasses in negotiations. Following cross-motions for summary judgment, the district court ruled that the binding arbitration provisions violated the Colorado Constitution and were therefore void and unenforceable. We hold that the binding arbitration provisions provide the arbitrator with political accountability in compliance with article XXI, section 4 of the Colorado Constitution. Accordingly, we reverse the district court's order and remand the case for further proceedings consistent with this opinion.
On November 3, 1998, the voters of the City of Commerce City (the City) approved an amendment to the City Charter, designated on the ballot as Question 2A (the charter amendment). The charter amendment provides for collective bargaining between police officers2 and the City, as well as a system of binding arbitration to resolve impasses in negotiations. Mandatory subjects for collective bargaining in the charter amendment include wages, hours, vacation, insurance (contribution levels and levels of benefits only), special or additional pay, leaves of absence, promotion procedures, and other related subjects. The charter amendment requires the parties to begin the collective bargaining process on or before May 15 of any year in which the bargaining agreement expires. In the event that the employee organization and the City are unable to reach an agreement on a contract within thirty days of their first meeting, the charter amendment requires "any and all" unresolved issues to be submitted to binding arbitration.
The charter amendment establishes the following system of binding arbitration to resolve impasses in negotiations. Within thirty days after the adoption of the charter amendment, the City is required to solicit applications for a permanent panel of arbitrators.3 The charter amendment specifies the qualifications and experience necessary to be eligible for the permanent panel of arbitrators and requires the City Council to create a permanent panel of at least three arbitrators from those qualified individuals who apply. The City Council is allowed to add arbitrators to the permanent panel at any time and may also remove arbitrators from the panel at any time, with the exception that an arbitrator who has been selected to hear a dispute may not be removed until after issuing a decision.
If the employee organization and the City are unable to agree on a contract within thirty days as specified above, the employee organization and the City engage in an alternating "strike process" whereby each party alternately eliminates4 one name from the list of members of the permanent panel of arbitrators until either one or two names remain.5 If one name remains, that person becomes the arbitrator for the dispute. If two names remain, the Mayor selects one of those remaining two persons to be the arbitrator. The employee organization and the City also are allowed to agree on an arbitrator from the permanent panel in lieu of the strike process.
The arbitrator is required to choose either the final offer of the City or the final offer of the employee organization on each issue in dispute. In arriving at a decision, the arbitrator is required to consider seven factors6 and issue a written decision. The arbitrator's decision is final and binding on the parties. The charter amendment provides for limited judicial review in that a district court must affirm the arbitrator's decision unless it determines: (1) the award was procured by corruption, fraud, or other undue means; or (2) the decision on any issue is arbitrary and capricious, i.e., there is no competent evidence in the record to support the decision; or (3) the decision on any issue was reached without considering the factors listed in section 21.14 of the charter amendment.
After the voters passed the charter amendment, the City filed a complaint pursuant to C.R.C.P. 57 requesting a declaratory judgment on the validity of the binding arbitration provisions and an injunction enjoining implementation of the arbitration provisions. Before a hearing was held on the City's complaint, the parties filed cross-motions for summary judgment and stipulated that no disputed issues of material fact existed.
At a hearing on the cross-motions for summary judgment, the district court ruled that the binding arbitration provisions violated the Colorado Constitution and were therefore void and unenforceable. The court ruled that the remaining provisions of the charter amendment establishing collective bargaining were enforceable because they were severable from the arbitration provisions.
The City contends that the binding interest arbitration provisions of the charter amendment constitute an unlawful delegation of legislative power because they delegate the authority to set the terms and conditions of municipal employment to an arbitrator who is not sufficiently accountable to an elective official. Petitioner Fraternal Order of Police contends that the arbitration provisions are constitutional because the arbitrator is politically accountable to the City Council. We hold that the binding arbitration system contained in the charter amendment is constitutional because it provides the arbitrator with the political accountability required under article XXI, section 4.
The prohibition against delegating legislative power to politically unaccountable persons is found in the following language in article XXI, section 4 of the Colorado Constitution:
Every person having authority to exercise or exercising any public or governmental duty, power or function, shall be an elective officer, or one appointed, drawn, or designated in accordance with law by an elective officer or officers, or by some board, commission, person or persons legally appointed by an elective officer or officers, each of which said elective officers shall be subject to the recall provision of this constitution....
The plain language of this section mandates that every person having authority to exercise a governmental power must either be an elective officer or be appointed or designated in accordance with law by an elective officer.
We first interpreted this prohibition against the delegation of legislative power in the context of a challenge to binding arbitration provisions in Greeley Police Union v. City Council of Greeley, 191 Colo. 419, 553 P.2d 790 (1976). In Greeley Police Union we considered the constitutionality of binding interest arbitration provisions contained in a charter amendment passed by the voters of the City of Greeley. The arbitration system in the Greeley charter amendment provided for the American Arbitration Association (AAA), an independent organization with no political accountability, to submit a list of five names of potential arbitrators to each party. Each party then had the opportunity to cross off two names and number the remaining three names on their list in order of preference. The AAA then would select a single person who was granted the authority to resolve all disputed issues. The arbitrator's decision was binding on the parties.
We held that the binding arbitration provisions in the Greeley charter amendment violated the Colorado Constitution.7 In reaching our holding, we explained that article XXI, section 4 prohibits the "delegat[ion] of legislative power to politically unaccountable persons." Id. at 422, 553 P.2d at 792 (emphasis added).
We reaffirmed the holding of Greeley Police Union one year later in City of Aurora v. Aurora Firefighters' Protective Ass'n, 193 Colo. 437, 566 P.2d 1356 (1977). The arbitration system contained in the charter amendment in Aurora Firefighters' paralleled the system in Greeley Police Union in all important respects in that the AAA was to submit a list of seven names of potential arbitrators to each party and the parties were then to each cross off two names from their list. The AAA was then to select three arbitrators from the names remaining to decide the disputed issues. The Aurora Firefighters' system suffered from the same fatal flaw as Greeley Police Union: the organization charged with creating the list of potential arbitrators and making the final selection of the arbitrator had no political accountability. Accordingly, we held that Greeley Police Union controlled and invalidated the binding arbitration provisions. See id. at 440, 566 P.2d at 1358.
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...2000); Dep't of Human Servs. v. May, 1 P.3d 159 (Colo. 2000); Fraternal Order of Police, Colo. Lodge No. 19 v. City of Commerce City, 996 P.2d 133 (Colo. 2000); Garcia v. People, 997 P.2d 1 (Colo. 2000); Gilford v. People, 2 P.3d 120 (Colo. 2000); State v. Nieto, 993 P.2d 493 (Colo. 2000); ......