Renteria v. Colorado State Dept. of Personnel, 89SA460

• Decision Date: 20 May 1991
• Docket Number: No. 89SA460,89SA460
• Citation: 811 P.2d 797
• Parties: Carlos M. RENTERIA, Plaintiff-Appellant/Cross-Appellee, v. COLORADO STATE DEPARTMENT OF PERSONNEL, Joann Soker, State Personnel Director, and Colorado Department of Labor and Employment, John J. Donlon, Executive Director, Defendants-Appellees/Cross-Appellants.
• Court: Colorado Supreme Court

Page 797

811 P.2d 797

Carlos M. RENTERIA, Plaintiff-Appellant/Cross-Appellee, v. COLORADO STATE DEPARTMENT OF PERSONNEL, Joann Soker, State

Personnel Director, and Colorado Department of Labor and

Employment, John J. Donlon, Executive Director,

Defendants-Appellees/Cross-Appellants.

No. 89SA460.

Supreme Court of Colorado,

En Banc.

May 20, 1991.

As Modified on Denial of Rehearing

June 10, 1991.

Eva Camacho Woodard, Lakewood, for plaintiff-appellant/cross-appellee.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Michael P. Serruto and Paul H. Chan, Asst. Attys. Gen., Human Resources Section, Denver, for defendants-appellees/cross-appellants.

Justice MULLARKEY delivered the Opinion of the Court.

The appellant, Carlos Renteria (Renteria), appeals ¹ from a Denver District Court decision holding that section 24-50-104(3)(g), 10B C.R.S. (1988), governs the reallocation of his state position, and is constitutional. Because the district court held that the State Department of Personnel's Individual Allocation Review Panel improperly placed the burden of proof on the plaintiff, it remanded the case back to the Panel. We affirm in part, reverse in part, and remand with directions.

I.

Renteria is a certified state employee who is employed by the Labor Standards Unit of the Division of Labor, a subdivision of the defendant, the Department of Labor and Employment (DOLE). Until July 21, 1988, Renteria held the position and performed the duties of Supervisory Investigator I. According to the written job description, identified as a PC-8, the person in this position was responsible for planning, implementing and monitoring the functions of the Labor Standards Unit under the general supervision of the Deputy Director and the Director of the Division of Labor. A major duty of the position included supervising at least two other investigators and clerical workers. The pay grade for the position was 91.

On July 21, 1988 Renteria's supervisor, Robert Husson ("Husson" or the "appointing authority"), revised Renteria's job description by writing a new PC-8 which eliminated the duties involving supervision and implementation of enforcement procedures. Those duties later were included in a new job description, Administrative Officer III. Because the revised job description for Renteria's position no longer included supervisory duties, specifically supervision of at least two investigators, the position could not remain in the Supervisory Investigator class. DOLE claims that the revision of Renteria's job description was part of an ongoing reorganization of the Labor Standards Unit. Renteria alleges instead that the revision of the job description and the eventual abolition of his supervisory position constituted a form of discipline.

On the same day that he rewrote the PC-8, Husson requested a "desk audit" of Renteria's position, which is a review of a position's duties to ensure that it is properly allocated under the State Personnel System. Renteria maintains that Husson only orally informed him on July 21 that henceforth he would be performing the duties of a lower level investigator and that Husson told him that he was being replaced because of his supervisory style. When Renteria asked for an opportunity to correct his performance, Husson allegedly replied that Renteria would never be able to change because he was a military veteran. Soon thereafter, Husson created the new position of Administrative Officer III. Renteria did not apply for that vacancy and the position was filled. ²

Steve Calvert, a personnel analyst employed by DOLE, conducted the desk audit and notified Renteria of the preliminary decision to downgrade his position to the Investigator class by a letter dated November 10, 1988, based on the results of the desk audit. This meant that Renteria's position would be decreased by 10 pay grades from 91 to 81 with a resulting salary decrease of $546 per month. In the letter, he advised Renteria that the preliminary decision would become final unless Renteria responded to him within 10 days. He also described in detail an employee's right to appeal allocation decisions to the State Personnel Director ("the Director") pursuant to section 24-50-104(3)(g) within 10 days after the decision becomes final. Renteria subsequently filed an appeal with the Director and the Director referred his appeal to a three-member Individual Allocation Review Panel ("the Panel") as authorized by section 24-50-104(3)(g). The Director also advised Renteria that any claims of discrimination relating to the reallocation could be raised only before the State Personnel Board ("the Board") and the Director informed him that she had directed a copy of his appeal letter to the Board. Renteria pursued his discrimination claim before the Board and it was dismissed. The record does not indicate the content of the discrimination claim.

In his appeal to the Panel, Renteria alleged that the reassignment of his supervisory duties which resulted in the reallocation decision was a pretext for a disciplinary action taken against him out of personal animosity. By written decision dated January 30, 1988, the Panel upheld the reallocation decision, but stated that it did not have the authority to consider Renteria's allegation that the reassignment of duties that resulted in the revised PC-8 was a disciplinary action. The Panel concluded by stating that Renteria had not met his burden of proving that the auditor was arbitrary and capricious and that the agency action should be upheld.

Renteria sought judicial review of the Panel's decision pursuant to section 24-4-106, 10A C.R.S. (1988), and also alleged that section 24-50-104(3)(g) violated his right to a hearing before the State Personnel Board under Article XII, Section 13, of the Colorado Constitution and his right to due process under Article II, Section 25, of the Colorado Constitution and the Fourteenth Amendment to the United States Constitution.

By written order, the district court held that the agency action was controlled by section 24-50-104 which governs allocation decisions and not by section 24-50-125, 10B C.R.S. (1988), which governs disciplinary actions; the procedures contained in section 24-50-104(3)(g) were not unconstitutional; the Panel improperly placed the burden of proof on the employee; and Renteria was not entitled to attorney's fees. In accordance with its holding on the burden of proof, the court ordered that the matter be remanded to the Panel for rehearing and decision pursuant to section 24-50-104(3)(g) and required the agency to demonstrate that the reallocation was not arbitrary, capricious or contrary to law. This appeal and cross-appeal followed.

II.

Renteria brings two constitutional claims. First, he claims that section 24-50-104(3)(g) violates Article XII, Section 13(8), of the Colorado Constitution. Second, he claims that section 24-50-104(3)(g) is unconstitutional because its procedure deprived him of due process of law under the state and federal constitutions.

We will analyze these claims in light of several well-established principles. First, we note that a statute is presumed to be constitutional unless the party challenging the statute's constitutionality can prove the statute unconstitutional beyond a reasonable doubt. See Anderson v. Colorado Dep't of Personnel, 756 P.2d 969, 975 (Colo.1988). Second, whenever it is reasonable and practical, a statute must be construed in a manner consistent with constitutional requirements. See Romero v. Sandoval, 685 P.2d 772, 776 (Colo.1984). Finally, when a statute is susceptible to both constitutional and unconstitutional interpretations, we must adopt the constitutional interpretation of the statute. See Parish v. Lamm, 758 P.2d 1356, 1364 (Colo.1988); Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 947-48 (Colo.1985).

For the reasons discussed below, we hold that Renteria has failed to prove that the statute is unconstitutional under Article XII, Section 13(8). Because we hold that Renteria has a right to a hearing before the Board under section 24-50-125 separate and apart from his right to appeal the reallocation decision to the Director, we do not reach his due process claims.

A.

We now turn to Renteria's claim under Article XII, Section 13(8). In the case before us, Renteria was afforded an appeal to the Director pursuant to section 24-50-104(3)(g), which provides:

Any employee directly affected by the allocation of a position to a class may file a written appeal of such allocation with the state personnel director within ten days after notice of the allocation. The appeal shall be heard by the state personnel director or, at his delegation, a three-member panel within sixty calendar days after the written appeal has been received by the state personnel director. Said director or panel shall review the appeal in summary fashion on the basis of written material which may be supplemented by oral argument at the discretion of the director or panel. Said director or panel shall issue a written decision within thirty calendar days after completion of the hearing. The allocation decision may be overturned only if the director or panel finds it to have been arbitrary, capricious, or contrary to rule or law. If the director or panel does not issue such decision within thirty calendar days of completion of the hearing, the allocation decision shall be final. Any decision of the panel or final action of the state personnel director shall be subject to judicial review pursuant to section 24-4-106....

According to this section, Renteria filed his appeal to the Director within ten days of receiving the notice of allocation of his position. On appeal, the Director's Panel reviewed whether the position represented by the revised PC-8 was properly reallocated from the Supervisory Investigator class to the Investigator class. It did not address the issue of...