McCauley v. Colo. Dep't of Revenue
| Decision Date | 24 February 2022 |
| Docket Number | Court of Appeals No. 20CA1344 |
| Citation | 511 P.3d 655,2022 COA 25 |
| Parties | Doris MCCAULEY, Complainant-Appellee and Cross-Appellant, v. COLORADO DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, DRIVER'S LICENSE SECTION, Respondent-Appellant and Cross-Appellee, and State Personnel Board, Appellee. |
| Court | Colorado Court of Appeals |
Finger Law, P.C., William S. Finger, Casey J. Leier, Evergreen, Colorado, for Complainant-Appellee and Cross-Appellant
Philip J. Weiser, Attorney General, Vincent E. Morscher, Senior Assistant Attorney General, Stephen J. Woolsey, Special Assistant Attorney General, Denver, Colorado, for Respondent-Appellant and Cross-Appellee
Philip J. Weiser, Attorney General, Billy L. Seiber, First Assistant Attorney General, Amy R. Lopez, Assistant Attorney General, Denver, Colorado, for Appellee
Opinion by JUDGE GRAHAM*
¶ 1 Respondent, Colorado Department of Revenue, Division of Motor Vehicles, Driver's License Section (Department), appeals the order of the State Personnel Board (Board) affirming the determination of an administrative law judge (ALJ) that the Department's refusal to accept the withdrawal of resignation of complainant, Doris McCauley, was contrary to rule or law.
¶ 2 On cross-appeal, McCauley argues that the Board correctly ruled on the withdrawal issue but erroneously reversed the ALJ's award of attorney fees.
¶ 3 We agree with the Department on both the withdrawal and attorney fees issues. Therefore, we affirm in part, reverse in part, and remand so the ALJ can amend the decision that awarded McCauley reinstatement, back pay, and lost benefits.
¶ 4 In February 2014, McCauley, then a state-certified employee of the Department, submitted a notice of voluntary resignation to the Department because she had found another job. After researching the new job, McCauley determined that its benefits were less desirable than those offered by the Department, so she sought to withdraw her notice of voluntary resignation.
¶ 5 Relying on an outdated version of Board Rule 7-5, which McCauley had located in the Department's employee handbook on the Department's website, she believed she had two business days to withdraw her resignation. The repealed Department of Personnel and Administration Rule 7-5, 4 Code Colo. Regs. 801-1 (2012) provided:
An employee who has submitted a notice of resignation at least 10 working days before its effective date may withdraw a resignation by the close of two business days after giving notice of resignation. The day that notice of resignation is given shall not be counted. ... The appointing authority must approve a timely withdrawal of resignation. Approval of a request to withdraw a resignation when that request is made more than two business days after the notice of resignation is within the discretion of the appointing authority.
¶ 6 McCauley was unaware, however, that Rule 7-5 was repealed almost a year earlier, in March 2013, and there was no longer any rule in effect that controlled whether an employee was permitted to withdraw a resignation. Although the handbook said that "subsequent revisions" to Board rules could cause "conflicting statements" with the handbook, it does not appear from the record that McCauley did any additional research to determine whether this outdated version of Rule 7-5 was still in effect in February 2014.
¶ 7 McCauley attempted to withdraw her resignation within the two-day period that had been provided by the repealed Rule 7-5. Recognizing that Rule 7-5 had been repealed, and in the absence of any controlling rule, the Department declined to accept McCauley's withdrawal of resignation.1
¶ 8 McCauley timely appealed the Department's refusal to accept her withdrawal to the Board, and it was referred to ALJ DeForest.
The Department filed a motion for summary judgment, arguing that after the repeal of Rule 7-5, employees no longer had any right to withdraw a resignation. Attached to that motion were affidavits from Department of Personnel and Administration staff who had engaged in the process to eliminate Rule 7-5. Those affidavits attested to the affiant's position that the elimination of Rule 7-5 also eliminated an employee's right to withdraw a voluntary resignation. ALJ DeForest denied the motion for summary judgment, determining that Rule 7-5 did not create a right to withdraw a notice of resignation but instead limited a right of withdrawal that she concluded was inherent in Colorado Constitution article XII, section 13 (8).
¶ 9 After the denial of the motion for summary judgment, the parties proceeded to an evidentiary hearing.2 ALJ Tyburski issued an amended initial decision, finding in favor of McCauley. ALJ Tyburski agreed with ALJ DeForest's analysis and concluded that Rule 7-5 operated as a limit on the constitutional right to withdraw a resignation, and that in the absence of a rule, an employee may withdraw a resignation any time before it becomes effective.
¶ 10 She also determined that the Department's refusal to accept the withdrawal of resignation violated Rule 7-1, which requires an appointing authority to "communicate, or make a good-faith effort to communicate, with an employee before conducting any involuntary separation." Dep't of Pers. & Admin. Rule 7-1, 4 Code Colo. Regs. 801-1 (2014). Indeed, she concluded that by refusing to allow the withdrawal, the Department had "involuntarily separated" McCauley from employment, apparently in order to fit McCauley's resignation within the provisions of Rule 7-4, which require active negotiation between the employer and the employee where a resignation is forced or coerced. Dep't of Pers. & Admin. Rule 7-4, 4 Code Colo. Regs. 801-1 (2014).
¶ 11 Finally, ALJ Tyburski awarded McCauley attorney fees from the date that the order denying summary judgment was served on the Department, reasoning that, at that point, the Department was aware that its position was contrary to rule or law. Therefore, the ALJ concluded that the Department was "stubbornly litigious" for insisting on an evidentiary hearing even though it had no new evidence to support its position that the repeal of Rule 7-5 allowed it to reject McCauley's withdrawal of resignation. See § 24–50–125.5, C.R.S. 2021; Dep't of Pers. & Admin. Rule 8-33, 4 Code Colo. Regs. 801-1 (2014).
¶ 12 The amended initial decision reinstated McCauley's employment and awarded her damages in the form of back pay and benefits less any income she earned from the date of her separation from employment to the date of her reinstatement.
¶ 13 The Department appealed the ALJ's amended initial decision. The Board issued an order that affirmed the conclusion of law that said the Department's refusal to accept McCauley's withdrawal of resignation was contrary to rule or law, but it reversed the award of attorney fees.
¶ 14 McCauley then appealed the Board's reversal of attorney fees. A division of this court determined that the amended initial decision was not a final appealable order because it did not state a specific sum of back pay and benefits that McCauley should be awarded. See McCauley v. Dep't of Revenue, 2019 WL 1398585 (Colo. App. No. 17CA0921, Mar. 28, 2019) (not published pursuant to C.A.R. 35(e) ). It issued a mandate vacating the Board's order and remanding the case to the Board with instructions to further remand to the ALJ to determine the amount of the award.
¶ 15 In January 2020, ALJ Tyburski held a conference and awarded McCauley about $78,000 in back pay and lost benefits through the date of January 23, 2020. The Board adopted these damages.
¶ 16 We affirm the Board's April 19, 2017, order with respect to attorney fees but reverse as to the Board's conclusion that the Department's refusal to accept McCauley's withdrawal of resignation was contrary to rule or law.
¶ 17 According to the Department, former Rule 7-5 was the sole source of law that allowed an employee to withdraw a resignation before it became effective. Meanwhile, the Board and McCauley contend that Rule 7-5 was instead a limitation of that right, so in the absence of a rule, the Colorado Constitution affords employees the unfettered opportunity to withdraw a resignation up until the point it becomes effective.
¶ 18 We give deference to an agency's interpretation of its rules unless the rules clearly compel a contrary result, see Chase v. Colo. Oil & Gas Conservation Comm'n , 2012 COA 94, ¶ 23, 284 P.3d 161, but review constitutional provisions de novo, Gessler v. Colo. Common Cause , 2014 CO 44, ¶ 7, 327 P.3d 232. Because there was no rule on point at the time McCauley sought to withdraw her resignation, ALJ Tyburski interpreted the Colorado Constitution as creating an unfettered right to withdraw a resignation up until the point the resignation becomes effective. We conclude that ALJ Tyburski erred in applying a constitutional interpretation that was unfounded, and in the absence of a constitutional provision, statute, or Board rule, the Department was not compelled to accept McCauley's withdrawal of resignation. In addition, we conclude that ALJ Tyburski wrongly applied Rule 7-1 because there was no factual basis for concluding that the Department involuntarily separated McCauley from employment.
¶ 19 The state personnel system is established by article XII, sections 13, 14, and 15 of the Colorado Constitution and is legislatively defined by title 24, article 50 of the Colorado Revised Statutes. Because it was never intended that the constitution would set forth all the features of the state personnel system, Colorado Constitution article XII, section 14 created the Board, whose job is to adopt, amend, and repeal rules to implement the personnel system. Colo. Ass'n of Pub. Emps. v. Dep't of Highways , 809 P.2d 988, 993 (Colo. 1991).
¶ 20 We look first to the constitution for guidance on whether former Rule 7-5...
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