Kirkmeyer v. Dep't of Local Affairs

• Citation: 313 P.3d 562
• Decision Date: 31 March 2011
• Docket Number: No. 09CA0725.,09CA0725.
• Parties: Barbara KIRKMEYER, Plaintiff–Appellant, v. DEPARTMENT OF LOCAL AFFAIRS, State of Colorado and Susan E. Kirkpatrick, Executive Director in her official capacity, Defendants–Appellees.
• Court: Court of Appeals of Colorado

313 P.3d 562

Barbara KIRKMEYER, Plaintiff–Appellant,

v.DEPARTMENT OF LOCAL AFFAIRS, State of Colorado and Susan E. Kirkpatrick, Executive Director in her official capacity, Defendants–Appellees.

No. 09CA0725.

Colorado Court of Appeals, Div. V.

March 31, 2011.

Prior Version Recognized as Unconstitutional

West's C.R.S.A. § 24–50–114(2)Frank & Finger P.C., William S. Finger, Evergreen, Colorado, for Plaintiff–Appellant.

John W. Suthers, Attorney General, Stephanie Lindquist Scoville, Senior Assistant Attorney General, Vincent E. Morscher, First Assistant Attorney General, Denver, Colorado, for Defendants–Appellees.

Opinion by Judge WEBB.

Plaintiff, Barbara Kirkmeyer, formerly a state employee serving in the senior executive service (SES), a special pay plan, sought return to a vacant position in the traditional pay plan to which she had been certified, when her most recent annual SES contract expired. She appeals the summary judgment upholding her separation from state employment in favor of defendants, Colorado Department of Local Affairs (DOLA); Susan E. Kirkpatrick, in her capacity as DOLA's Executive Director; and Richard Gonzales, in his capacity as Executive Director of the Department of Personnel and Administration.¹ We reverse the summary judgment and remand with instructions for the trial court to stay further proceedings until Kirkmeyer's appeal to the Colorado State Personnel Board (Board) is final.

I. Introduction

A. Legal Background

Under the Colorado Constitution article XII, section 13(1), “[a]ppointments and promotions to offices and employments in the personnel system of the state shall be made according to merit and fitness ... without regard to race, creed, or color, or political affiliation.” Article XII, section 13(8) provides that “[p]ersons in the personnel system of the state shall hold their respective positions during efficient service or until reaching retirement age, as provided by law.” ²See Dep't of Institutions v. Kinchen, 886 P.2d 700, 704 (Colo.1994) (equating “failure to comply with standards of efficient service” with termination only for just cause).

The SES is a special pay plan in which up to 125 state employees negotiate annual contracts at higher salaries than are available in the traditional pay plan. § 24–50–104(5)(c)–(d), C.R.S.2010. As explained in the State Personnel Board Rules (Rules), 4 Code Colo. Regs. 801–1, the SES “is an alternative performance-based pay plan available for employees in positions that are in the management class” who are responsible for managing significant human and capital resources. Rule 2–11.

Creating and filling an SES position involves three steps. First, department heads nominate positions for inclusion in the SES pay plan; the State Personnel Director makes the final decision. Rule 2–11(A). Second, despite an employee's position being nominated for inclusion in the SES, the employee may choose to remain a classified employee in the traditional pay plan. Rule 2–12. Third, if an employee accepts an SES position, then the department and the employee negotiate an annual contract that is subject to nonrenewal for any reason. Rule 2–11(C).

The Rules also explain the consequences of nonrenewal. According to Rule 2–11(C):

[I]n consideration for a salary that exceeds the maximum of the management class, an employee entering into a senior executive service contract may be required to waive all appeal, disciplinary, grievance, and other rights and privileges of the state personnel system with respect to the expiration of the non-renewed contract. If the department head gives the employee written notice of non-renewal by May 1, the department head shall either separate the employee from state service upon expiration of the contract on June 30 or appoint the employee to a vacant non-senior executive service position for which qualified.

(Emphasis added.) Rule 2–13 states that:

Any employee entering or remaining in the [SES] pay plan on or after July 1, 2003, waives retention and reemployment rights with respect to any other position in the personnel system pursuant to Board Rule 1–19, but shall have reinstatement privileges with respect to any vacant position in the employee's current or previously certified class.

(Emphasis added.) And under Rule 1–19, “An employee may voluntarily and knowingly waive, in writing, all rights under the state personnel system, except where prohibited by state or federal law.”

B. Facts

In 2001, DOLA hired Kirkmeyer into the state classified personnel system. Within three years, she had been certified to a position in the management class. In 2004, Kirkmeyer's division director position was approved for placement in the SES.

Kirkmeyer entered into three SES contracts as division director. Her first and second SES contracts both contained the following phrase based on section 24–50–104(5)(c): “Employees in the senior executive service have no rights to positions outside of the senior executive service.” These contracts also provided: “Employees in the senior executive service have no layoff or retention rights except the right to receive 45 days' notice before positions are abolished.” However, they granted Kirkmeyer “retention rights to a vacant Management level position in the department for which she meets the minimum qualifications” if her position was abolished because of lack of funds, a statutory change, or reorganization.

The terms of her final SES contract, which ran from July 1, 2006 to June 30, 2007, and its nonrenewal frame the issues before us. Those provisions include, as relevant here:

4) If the Executive Director gives the employee written notice of non-renewal by May 1, the employee shall either be separated from state service upon expiration of the contract on June 30 or appointed to a vacant non-senior executive service position at either the contract salary or the statutory salary lid, whichever is lower;

...

7) Employees in the senior executive service have no retention or reemployment rights with respect to any other position in the state personnel system;

...

With respect to any separation from state service as a result of the expiration or non-renewal of this contract, the employee further voluntarily waives all appeal, disciplinary, grievance, and other rights and privileges of the state personnel system, except for the following rights specifically agreed to by the Executive Director[.]

But this contract also contains a final provision, which like the trial court we refer to as the safe harbor clause (SHC):

If the employee is not offered a contract for the 07–08 fiscal year, regardless of whether notice was timely given pursuant to State Personnel Rule 2–11(C) and without regard to paragraph 4 above, the employee shall be returned to the traditional classified pay plan at either the contract salary or the statutory salary lid, whichever is lower.

(Emphasis added.)

In deposition testimony, Kirkmeyer agreed with the statement that, “if [the contract had] said, ‘Employees in the senior executive service have no guarantee to positions outside of the senior executive service,’ that would be an accurate understanding.” However, she also testified that in signing the first and second SES contracts, she did not believe that she was “giving up any rights in the State personnel system,” and that without the SHC, she would not have signed the third contract.

2006 was a gubernatorial election year that would necessarily result in a new administration because the then-current governor was term-limited. Gonzales' predecessor caused the SHC to be drafted and invited all executive directors to include it in their divisions' 2006–2007 SES contracts. He testified that this provision responded to “fear and concern” on the part of long-term employees who had moved into SES positions that nonrenewal of their SES contracts by the new administration could preclude them from returning to classified positions.

Between December 2005 and August 2006, Kirkmeyer served as the acting Executive Director of DOLA. In that capacity, she attended a cabinet meeting where the SHC was presented and approved. She added it to her 2006–2007 contract. Out of concern over signing her own contract on behalf of DOLA, she obtained the signature of the governor's chief of staff.

After taking office in January 2007, Governor Bill Ritter appointed Kirkpatrick as the new Executive Director of DOLA. In February, Kirkpatrick sent Kirkmeyer, who had returned to her position as division director, a letter stating that because the SHC “is inconsistent with Colorado law, it will not be honored.” In April, Kirkpatrick sent Kirkmeyer a second letter “advis[ing] that your SES contract will not be renewed and, at the expiration of your SES contract, you will be separated from service” pursuant to paragraph 4 of the contract. When Kirkmeyer's contract ended, she was not returned to a position in the traditional pay plan.

C. Procedural History

1. Board Action

Upon receiving notice of nonrenewal of her SES contract and termination of her state employment, Kirkmeyer first appealed to the Board, asserting that DOLA violated the SHC by failing to offer her a position within the traditional pay plan, and that DOLA unlawfully discriminated against her based on political affiliation. The Board designated an administrative law judge (ALJ), who sua sponte dismissed Kirkmeyer's appeal for lack of subject matter jurisdiction because she “was not a certified employee under section 24–50–104(5)(c),” thus she had “no right to employment,” and she could not rely on the SHC for any post-SES employment rights due to the conflict with section 24–50–104(5)(c).

On appeal to this court, a division concluded that under the SHC, Kirkmeyer “was entitled at least to a hearing” regarding her right to compete for any open positions. Kirkmeyer v. Dep't of Local Affairs, 2009 WL 343934 (Colo.App. No. 07CA2566, Feb. 12, 2009) (not published pursuant to C.A.R. 35(f)) ( ...