Horrell v. Department of Admin.

• Decision Date: 25 October 1993
• Docket Number: No. 92SA303,92SA303
• Citation: 861 P.2d 1194
• Parties: Richard Anderson HORRELL, Hyneatha H. Jones, Doris Lucas, Douglas Mitchell, Larry A. Page, Ivy Thomas, Hattie L. Thompson, and Colorado Association of Public Employees, Jack Ashley, and C.W. Peterson, Plaintiffs-Appellants, v. DEPARTMENT OF ADMINISTRATION, Colorado Janitorial Service, Inc., Metropolitan Building Maintenance Corporation, Jefferson County Community Center for Developmental Disabilities, Inc., Platte River Industries, Inc. and Danguard Services, Inc. of Colorado, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1194

861 P.2d 1194

Richard Anderson HORRELL, Hyneatha H. Jones, Doris Lucas,

Douglas Mitchell, Larry A. Page, Ivy Thomas, Hattie L.

Thompson, and Colorado Association of Public Employees, Jack

Ashley, and C.W. Peterson, Plaintiffs-Appellants, v. DEPARTMENT OF ADMINISTRATION, Colorado Janitorial Service,

Inc., Metropolitan Building Maintenance Corporation,

Jefferson County Community Center for Developmental

Disabilities, Inc., Platte River Industries, Inc. and

Danguard Services, Inc. of Colorado, Defendants-Appellees.

No. 92SA303.

Supreme Court of Colorado,

En Banc.

Oct. 25, 1993.

Rehearing Denied Nov. 15, 1993.

Vonda G. Hall, Denver, for plaintiffs-appellants.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Maurice G. Knaizer, Deputy Atty. Gen., Laurie Rottersman, Asst. Atty. Gen., Denver, for defendants-appellees.

Justice KIRSHBAUM delivered the Opinion of the Court.

The appellants, seven present and former state employees (hereafter the employees); the Colorado Association of Public Employees (hereafter CAPE), a non-profit organization which represents state employees in employment issues; and C.W. Peterson, a Colorado taxpayer, appeal the trial court's summary judgment dismissing their claims of constitutional misconduct filed against the appellees, the Colorado Department of Administration (hereafter the Department), and five private corporations. ¹ The trial court determined that the employees had failed to exhaust available administrative remedies; that the Department's conduct did not violate the Civil Service Amendment, article XII, section 13, of the Colorado Constitution; and that a statute requesting the Department to enter into contracts for custodial services with certain community groups did not constitute substantive legislation in violation of article V, section 32, of the Colorado Constitution. We reverse and remand the case to the trial court for further proceedings.

I

The Department is responsible for supervising maintenance of certain state-owned buildings and grounds. § 24-30-102(1)(h), 10A C.R.S. (1988). Prior to 1987, the employees were state classified employees employed by the Department to provide custodial and security services at and in several of those buildings.

In 1987, the General Assembly adopted a footnote to the appropriations bill for fiscal year 1988 that stated as follows: "The Department is requested to contract for custodial services from community programs serving developmentally disabled persons, insofar as such services are available." Ch. 1, sec. 2, 1987 Colo.Sess. Laws 1, 4, 12 n. 9, 91. As a result of this legislation, the employees were terminated or transferred to lesser paying positions by the Department and the Department, through its Purchasing Division, entered into contracts with the five corporate appellees for custodial and security services at those buildings. ²

This civil action was filed in November 1987. The complaint alleged that because of the contracts some of the employees lost their jobs and others were transferred to less remunerative positions, resulting in loss of income, loss of seniority, loss of opportunity for advancement and loss of other benefits to which they were entitled as certified employees of the state personnel system. ³ The complaint contains two claims: that the conduct of the appellees violated the Civil Service Amendment, article XII, section 13, of the Colorado Constitution and that if such conduct were authorized by the footnote included in the appropriations statute, the footnote violated article V, section 32, of the Colorado Constitution. The complaint contained a request for a declaratory judgment, pursuant to C.R.C.P. 57, declaring that the appellees' conduct was prohibited by the Colorado Constitution and that the above-described contracts were illegal, null, and void. The employees requested additional relief in the form of a mandatory injunction directing the Department to reinstate them to their former positions and to reimburse them for lost wages and benefits. The complaint also contained a claim for attorney fees. The appellees individually filed motions for summary judgment.

On October 4, 1988, the trial court granted motions for summary judgment in favor of three of the corporate appellees: Jefferson County Community Center for Development Disabilities, Inc.; Platte River Industries, Inc.; and Danguard Services, Inc. of Colorado. On November 13, 1989, the trial court entered summary judgment in favor of the Department and dismissed with prejudice all claims asserted by the employees. The trial court concluded that the employees had failed to exhaust their administrative remedies before filing this civil action and, therefore, the trial court lacked jurisdiction to consider their claims. After determining that CAPE and Petersen had standing to assert their claims, the trial court concluded that article XII, section 13, of the Colorado Constitution did not prohibit the Department from hiring independent contractors to perform custodial and security services in the state-owned buildings and that the footnote to the appropriations act did not constitute substantive legislation in violation of article V, section 32, of the Colorado Constitution. The trial court subsequently certified its summary judgments as final, pursuant to C.R.C.P. 54(b).

II

A

Summary judgment is a drastic remedy and will be granted only if the evidence clearly establishes the absence of any genuine issue of material fact. Dominguez Reservoir Corp. v. Feil, 854 P.2d 791, 795 (Colo.1993); Peterson v. Halsted, 829 P.2d 373, 375 (Colo.1992); Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007, 1009 (Colo.1992). See C.R.C.P. 56. There are no genuine issues as to any material facts with respect to the issues before us. We therefore may address the questions of law reached by the trial court.

B

The employees contend that the trial court erred in dismissing their claims for failure to exhaust administrative remedies by filing protests to their terminations with the State Personnel Board (hereafter the Board). They acknowledge that in general failure to exhaust available administrative remedies will bar a plaintiff's attempt to obtain judicial review of executive agency action, but argue that in this case their claims fall within the exception to the rule providing that a plaintiff need not exhaust administrative remedies when administrative relief is inadequate or futile. We agree with this argument.

A plaintiff's failure to exhaust administrative remedies may deprive a court of jurisdiction to grant the requested relief. Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo.1983). It is well established that "[w]here administrative remedies are provided by statute, the statutory procedure must be followed when the matter complained of is within the jurisdiction of the administrative authority." Denver-Laramie-Walden Truck Line, Inc. v. Denver-Fort Collins Freight Serv., Inc., 156 Colo. 366, 370, 399 P.2d 242, 243 (1965). This rule prevents piecemeal application for judicial relief and unwarranted interference by the judiciary in the administrative process. See Moschetti v. Liquor Licensing Auth., 176 Colo. 281, 285, 490 P.2d 299, 301 (1971).

The policies of avoiding fragmented adjudication of issues and conserving judicial resources that support the requirement of exhaustion of administrative remedies are not furthered, however, when available administrative remedies are ill-suited for providing the relief sought and when the matters in controversy consist of questions of law rather than issues committed to administrative discretion and expertise. Collopy v. Wildlife Comm'n, 625 P.2d 994, 1006 (Colo.1981); see Hamilton v. City and County of Denver, 176 Colo. 6, 11, 490 P.2d 1289, 1292 (1971). Thus we have recognized that a party need not exhaust available administrative remedies "when the administrative agency does not have the 'authority to pass on the question raised by the party seeking judicial action.' " Fred Schmid Appliance & Television Co. v. City and County of Denver, 811 P.2d 31, 33 (Colo.1991) (quoting Gramiger, 660 P.2d at 1281).

The claims for relief asserted in the complaint filed in this case require a determination of the facial constitutionality of legislation that eliminates funding for twenty-seven full-time equivalent positions in the Department and requesting the Department to contract with private employers for the services previously provided by the employees. The complaint did not allege that the Department acted contrary to or in excess of its legislative authority. Rather, it raised two constitutional issues for adjudication: whether the Department's conduct in contracting for custodial and security services violated article XII, section 13, of the Colorado Constitution and whether the request contained in the appropriations statute violated article V, section 32, of the Colorado Constitution. Both of these issues are questions of constitutional law. The employees specifically state in the statement of facts section of their brief that the Department entered into contracts with private vendors for custodial services historically performed by state classified employees as a result of the appropriations bill. The Department does not contest this characterization of the facts. To address either of the employees' claims, therefore, it is necessary to determine whether the legislation under which the Department acted was, on its face, unconstitutional.

During oral argument the appellees suggested that the employees were actually seeking job reinstatement and back pay and that such personnel matters are particularly suited to the administrative expertise of the Department and the Board. However, while the employees requested injunctive relief to regain their former positions, some of them have apparently been assigned to other state positions and may...