CO Code § 24-50-125 (2021)
2021 Colorado Code|Title 24 - Government - State|Article 50 - State Personnel System - Department of Personnel|Part 1 - Department of Personnel|§ 24-50-125. Disciplinary Proceedings - Appeals - Hearings - Procedure - Definitions

  A person certified to any class or position in the state personnel system may be dismissed, suspended, or otherwise disciplined by the appointing authority upon written findings of failure to comply with standards of efficient service or competence or for willful misconduct, willful failure or inability to perform his duties, or final conviction of a felony or any other offense which involves moral turpitude, or written charges thereof may be filed by any person with the appointing authority, which shall be promptly determined. In considering the conviction of a crime, the board shall be governed by the provisions of section 24-5-101.   (1.5) (a) In considering any disciplinary action pursuant to this section against an employee who is certified to any class or position in the state personnel system for engaging in violent behavior or a threat of violent behavior against another person while on duty, the appointing authority shall give predominant weight to the safety of the other person over the interests of the employee. For purposes of this subsection (1.5), "violent behavior" means any act or threat of physical, verbal, or psychological aggression or the destruction or abuse of property by any individual. A threat may include a veiled, conditional, or direct threat in verbal, written, electronic, or gestural form, resulting in intimidation, harassment, harm, or endangerment to the safety of another person or property.    If the appointing authority finds that the employee has engaged in violent behavior or a threat of violent behavior against another person, the appointing authority may take such disciplinary action as the appointing authority deems appropriate, up to and including termination, taking into consideration the harm or risk of harm to the person created by the employee's actions. Nothing in this subsection (1.5)(b) affects the constitutional or statutory due process rights afforded to an employee who is certified to any class or position in the state personnel system.    This subsection (1.5) applies regardless of whether the employee has been charged with or convicted of a crime.       Any certified employee disciplined under subsection (1) of this section shall be notified in writing by the appointing authority, by certified letter or hand delivery, no later than five days following the effective date of the action, of the action taken, the specific charges giving rise to such action, and the employee's right of appeal to the board. The notice shall include a statement setting forth the time limit for filing an appeal with the board, the address of the board, the requirement that the appeal be in writing, and the availability of a standard appeal form. Upon failure of the appointing authority to notify the employee in accordance with this subsection    Within ten days after the receipt of the notification required by subsection (2) of this section or within such additional time as may be permitted by the board in unusual cases for good cause shown, the employee may petition the board for a hearing upon the action taken. Upon receipt of such petition, the board shall grant a hearing to the employee. If the employee fails to petition the board within ten days or within such additional time granted by the board, the action of the appointing authority shall be final and not further reviewable.    The hearing shall be held within ninety days of receipt of the employee's appeal pursuant to the provisions of section 24-50-125.4. The employee shall be entitled to representation of his or her own choosing at his or her own expense, consistent with the rules of the Colorado supreme court concerning the unauthorized practice of law. The board shall cause a verbatim record of the proceedings to be taken and shall maintain the record. At the conclusion of the hearing, but not later than forty-five days after the conclusion of the hearing, the board shall make public written findings of fact and conclusions of law affirming, modifying, or reversing the action of the appointing authority, and the appointing authority shall thereupon promptly execute the findings of the board.    In addition, upon request by the employee or the employee's representative and within the period provided in section 24-50-125.4 (2), the board shall hold a hearing on an appeal for any certified employee in the state personnel system who protests any action taken that adversely affects the employee's current base pay as defined by board rule, status, or tenure. A probationary employee shall be entitled to all the same rights to a hearing as a certified employee; except that such probationary employee shall not have the right to a hearing to review any disciplinary action taken pursuant to subsection (1) of this section while a probationary employee. This subsection    Disciplinary hearings shall be limited to those specified in this section.    Failure, without good cause, of an employee or his representative to appear at a hearing shall be deemed a withdrawal of his appeal, and the action of the appointing authority shall be final. Failure, without good cause, of the appointing authority or his representative to appear at a hearing shall be deemed cause to dismiss the case and to award the employee all rights, salaries, and benefits as though the employee had won the appeal.     (2), the employee shall be compensated in full for the five-day period and until proper notification is received.   (5) shall not apply to appeals brought pursuant to section 24-50-104.   Source: L. 72: R&RE, p. 173, § 1. C.R.S. 1963: § 26-1-25. L. 73: p. 518, § 22. L. 77: (5) amended, p. 1221, § 3, effective August 2. L. 81: (6) added, p. 1202, § 21, effective July 1. L. 83: (4) amended, p. 985, § 1, effective May 16; (5) amended, p. 852, § 6, effective May 31. L. 84: (4) and (5) amended and (7) added, p. 712, § 10, effective July 1. L. 93: (5) amended, p. 19, § 3, effective March 4. L. 2005: (2), (4), and (5) amended, p. 634, § 3, effective May 27. L. 2020: (1.5) added, (HB 20-1153), ch. 109, p. 439, § 4, effective June 16.   Cross references: (1) For protection of state employees from disciplinary actions under certain circumstances, see article 50.5 of this title.   (2) For the legislative declaration in HB 20-1153, see section 1 of chapter 109, Session Laws of Colorado 2020.   ANNOTATION   Analysis    I. General Consideration.    II. Procedure.    III. Determination of Dismissal.    IV. Judicial Review.     I. GENERAL CONSIDERATION.   Law reviews. For article, "Constitutional Law", which discusses Tenth Circuit decisions dealing with due process rights in the termination of government employees, see 65 Den. U. L. Rev. 519 (1988). For article, "ADR at the State Personnel Board", see 18Colo. Law. 911 (1989). For article, "Recent Developments in Administrative Law", see 31Colo. Law. 45 (Aug. 2002).   Annotator's note. Relevant cases construing former C.R.S. 1963, §§ 26-5-3 and 26-5-23, and former CSA, C. 36, §§ 2 and 4, have been included in the annotations to this section.   Rules governing discharge of employees to be strictly followed. When a state agency promulgates rules governing the discharge of its employees which are more stringent in favor of the employee than due process would require, the agency must strictly comply with those rules. Shumate v. State Pers. Bd., 34 Colo. App. 393, 528 P.2d 404 (1974); Dept. of Health v. Donahue, 690 P.2d 243 (Colo. 1984).   And if probationary employee discharged after flawed predisciplinary meeting, and legal injury is of an economic nature, compensation should be equal to the injury. Employee should be awarded back pay for unexpired probationary term with an offset for any substitute earnings or unemployment compensation received during this period, restoring employee to position she would have been in if flawed predisciplinary meeting had never occurred and she had simply been dismissed at end of probationary term. Dept. of Health v. Donahue, 690 P.2d 243 (Colo. 1984).   Probationary employee is entitled to a hearing on an appeal to the board of a dismissal for any disciplinary grounds other than unsatisfactory job performance. Where employee was discharged for making false or deceptive statements on his employment application regarding both his reasons for leaving his previous employment and his criminal record and for failing to report having been charged with the same crime after beginning employment with the department and the employee appealed his discharge, the employee is entitled to a full evidentiary hearing on the merits of his appeal. Maurello v. Dept. of Corr., 804 P.2d 280 (Colo. App. 1990); Williams v. Colo. Dept. of Corr., 926 P.2d 110 (Colo. App. 1996).   Dismissal invalid if not in compliance with rules. Where the procedures for the dismissal of a civil service employee are not strictly followed, the dismissal is invalid and the employee must be reinstated. Shumate v. State Pers. Bd., 34 Colo. App. 393, 528 P.2d 404 (1974).   <b> Contracts with private sector vendors for services pursuant to <cite class="occo"><a href="gov.co.crs.title.24.html#t24-statepersonnelsystemandstateemployees-ar50-s24-50-128" target="_self">§ 24-50-128</a></cite> violate this section </b> which sets forth the state personnel system structure created by § 13 of article XII of the state constitution, including provision for terminating positions historically performed by state employees. Colo. Ass'n of Pub. Emp. v. Dept. of Hwys., 809 P.2d 988 (Colo. 1991).   Hearing officer properly placed burden of proof on department of institutions as proponent of order upholding dismissal in proceeding involving state employee's appeal of termination. Kinchen v. Dept. of Insts., 867 P.2d 8 (Colo. App. 1993).   The burden of proof is on the certified state employee to prove that she was terminated involuntarily and, once the employee prevails upon that issue, then it will be the appointing authority's burden to prove that the termination imposed was justified by the factual circumstances. Harris v. State Bd. of Agric., 968 P.2d 148 (Colo. App. 1998).   II. PROCEDURE.   Board reviews actions of department head. The state department of personnel does not oversee the state personnel board's activities. Rather, the board reviews the actions of the head of the personnel department. Spahn v. Dept. of Pers., 44 Colo. App. 446, 615 P.2d 66 (1980).   Discharge must result from action of board after hearing. Employees in personnel system obtain their positions through competitive examination, not through the favor of an employing authority, and their discharge therefrom must result from action by the state personnel board, taken after due hearing on charges preferred, as required by fundamental law. McDevitt v. Corfman, 108Colo. 571, 120 P.2d 963 (1941); Reeb v. Civil Serv. Comm'n, 31 Colo. App. 488, 503 P.2d 629 (1972).   The 10-day limitation set forth in subsection (3) is mandatory. Filing of a petition for appeal with the board or a request for an extension of time in which to file an appeal within the 10-day period is a condition precedent to further action. State Pers. Bd. v. Gigax, 659 P.2d 693 (Colo. 1983).   This section requires that an employee dissatisfied with a decision of the board file either a petition for review or a request for extension of time within the 10-day limit or the decision becomes final. State Pers. Bd. v. Gigax, 659 P.2d 693 (Colo. 1983).   An employee's time to appeal does not run if notice is not given pursuant to subsection (2). Renteria v. State Dept. of Pers., 811 P.2d 797 (Colo. 1991).   Where employee was not sent notice of right of appeal pursuant to subsection (2) but had pursued appeal of allocation claim before personnel director's appointed panel under <cite class="occo"><a href="gov.co.crs.title.24.html#t24-statepersonnelsystemandstateemployees-ar50-s24-50-104" target="_self">§ 24-50-104</a></cite> (3)(g), director should have transferred disciplinary claim to personnel board for hearing under this section. Renteria v. State Dept. of Pers., 811 P.2d 797 (Colo. 1991).   Hand delivery of notice of a predisciplinary meeting did not violate subsection (2) requiring notice by certified mail, since it was notice for purposes of an administrative suspension and, although it directed the complainant employee to turn in her keys and stay away from the campus, it did not constitute disciplinary action under this section because it did not affect the complainant's current base pay, status, or tenure. Harris v. State Bd. of Agric., 968 P.2d 148 (Colo. App. 1998).   Written charges are required for removal or discipline. Employees in the personnel system who have been permanently certified to positions may be removed or disciplined only upon written charges, to be promptly determined by the board upon inquiry and after an opportunity has been afforded the employee to be heard. McDevitt v. Corfman, 108Colo. 571, 120 P.2d 963 (1941); Reeb v. Civil Serv. Comm'n, 31 Colo. App. 488, 503 P.2d 629 (1972).   Personnel board must hold a hearing upon the petition of an employee. Dept. of Insts. v. Kitchen, 886 P.2d 700 (Colo. 1994).   Subsection (5) limits neither the jurisdiction of the board to conduct hearings nor an employee's right to appeal to the board. Reductions in the workforce and reorganizations can be abused when implemented for the purpose of terminating a disfavored or targeted employee. To foreclose an appeal by an employee affected by a layoff would be to deny any administrative recourse for conduct of an employer or appointing authority which violates the purposes of the state personnel system. Hughes v. Dept. of Higher Educ., 934 P.2d 891 (Colo. App. 1997).   Discharge without charges or hearing is void. A state personnel board rule which attempts to subject those who have been certified permanently into the classified personnel system to the hazards of discharge by an authority other than the board, the latter approving, with no preferring of charges, and without a hearing, is void. McDevitt v. Corfman, 108Colo. 571, 120 P.2d 963 (1941).   As are board orders. Orders of the board for a discharge made without a compliance with this section are null and without effect. State Civil Serv. Comm'n v. Lehl, 108Colo. 397, 118 P.2d 1080 (1941).   Personnel board cannot remove water commissioner without any notice or hearing whatever, on the ground that he is an alien and, therefore, he is not, and never was, eligible to the position. State Civil Serv. Comm'n v. Lehl, 108Colo. 397, 118 P.2d 1080 (1941).   Police officer was constitutionally discharged without hearing where appeal provided before board. Where a police officer is discharged from classified service by an executive order of the chief of police and the city manager of safety without an opportunity to be heard, he is not denied due process where the procedure followed is pursuant to city charter provisions which establish an orderly procedure for an appeal and review before the personnel board. Cain v. Civil Serv. Comm'n, 159Colo. 360, 411 P.2d 778 (1966).   Employee's failure to receive a predisciplinary meeting prior to employee's reversion to a former position from a higher position violated employee's procedural rights but reinstatement to higher position with full back pay is a windfall for the employee since reversion was due to unsatisfactory performance. McCoy v. Dept. of Soc. Servs., 796 P.2d 77 (Colo. App. 1990).   Hearing under section is not a criminal prosecution; it is an administrative hearing. Jones v. Civil Serv. Comm'n, 176Colo. 25, 489 P.2d 320 (1971).   The rules of evidence and procedure are less strict in a hearing under this section than in a criminal prosecution. Jones v. Civil Serv. Comm'n, 176Colo. 25, 489 P.2d 320 (1971).   The appointing authority has the burden of proof in disciplinary hearings before the personnel board. Dept. of Insts. v. Kitchen, 886 P.2d 700 (Colo. 1994).   A hearing pursuant to subsection (4) is a de novo hearing at which the administrative law judge makes credibility, factual, and legal findings without deference to the appointing authority. Stiles v. Dept. of Corr.,2019 COA 10, __ P.3d __.   The hearing before the personnel board is de novo in character. Dept. of Insts. v. Kitchen, 886 P.2d 700 (Colo. 1994).   The appointing authority must establish just cause for discharge by a preponderance of the evidence at a hearing before the personnel board. Dept. of Insts. v. Kitchen, 886 P.2d 700 (Colo. 1994).   Defense of entrapment has no application to a proceeding under this section for the violation of a departmental rule. Jones v. Civil Serv. Comm'n, 176Colo. 25, 489 P.2d 320 (1971).   III. DETERMINATION OF DISMISSAL.   Bill of particulars is not necessary for finding of guilt. It was not error for the state personnel board to find a public employee guilty of an offense for which he was not charged in a bill of particulars, when that offense was a violation of a rule and the employee was chargeable with knowledge of that rule. Jones v. Civil Serv. Comm'n, 176Colo. 25, 489 P.2d 320 (1971).   Acquittal of criminal charge by court of competent jurisdiction is conclusive determination on the issue of guilt and operates as a bar to a redetermination of the same issue by the board. Reeb v. Civil Serv. Comm'n, 31 Colo. App. 488, 503 P.2d 629 (1972).   Refusal to accept assignment sufficient to justify removal of name from classified list. The undisputed evidence showing that the plaintiff refused, without justification, to accept the assignment of duty given him and absented himself without leave for a period in excess of five days was sufficient to justify the ruling and order of the state personnel board in removing his name from the classified list. Kenny v. State Civil Serv. Comm'n, 141Colo. 422, 348 P.2d 367 (1960).   An employee may be discharged for falsifying an application for city employment. Cain v. Civil Serv. Comm'n, 159Colo. 360, 411 P.2d 778 (1966).   Filing of lawsuit by employee would not by itself be sufficient ground for the dismissal of the employee, unless conduct involves insubordination and disloyalty. Where the grounds for dismissal are not limited solely to the mere act of filing a lawsuit, but also deal with allegations that the employee's actions and conduct involve insubordination, disloyalty, and other acts unbecoming to a state employee, the dismissal is valid. Paris v. Civil Serv. Comm'n, 184Colo. 207, 519 P.2d 323 (1974).   IV. JUDICIAL REVIEW.   Court cannot substitute its judgment for board's. In reviewing the findings made by the state personnel board in carrying out its duties, the supreme court may not substitute its judgment for that of the board. Stevens v. Civil Serv. Comm'n, 172Colo. 446, 474 P.2d 156 (1970).   Findings of fact supported by competent evidence in record must be upheld. Stevens v. Civil Serv. Comm'n, 172Colo. 446, 474 P.2d 156 (1970); Bishop v. Dept. of Insts., 831 P.2d 506 (Colo. App. 1992).   A presumption of administrative regularity and constitutionality attaches to the multitude of personnel decisions made daily by public agencies. State Pers. Bd. v. District Court, 637 P.2d 333 (Colo. 1981).   Reasons supportable in record to be shown. Where the Denver city charter mandates that the personnel board give "due weight" to the police chief's necessity for administrative control when reviewing or modifying his disciplinary actions, and where there is a disparity in penalties imposed by the board and the chief, the reasons supportable in the record must be shown by the board in order to ascertain whether its action was arbitrary and an abuse of its discretion. Lawless v. Bach, 176Colo. 165, 489 P.2d 316 (1971).   In determining whether evidence admitted by board was in error, proper test is whether the board abused its discretion. Jones v. Civil Serv. Comm'n, 176Colo. 25, 489 P.2d 320 (1971).   For purposes of this section, willful misconduct is not limited only to the violation of written or stated agency rules and no error was made by the state board of personnel in affirming state employee's termination. Bishop v. Dept. of Insts., 831 P.2d 506 (Colo. App. 1992).   Money judgment for accrued salary improper. In an action in mandamus to compel the restoration of a state employee under the classified personnel system to a position from which he has been summarily removed, the trial court errs in including in its decree granting relief a money judgment for accrued salary, the appropriate order in that respect being one directing the board to certify its approval of vouchers covering the withheld payments for the period to which the controversy applies. Civil Serv. Comm'n v. Lehl, 108Colo. 397, 118 P.2d 1080 (1941).   Costs are not taxable against the state upon judicial review of board's action with respect to a discharge of an employee. Shumate v. State Pers. Bd., 34 Colo. App. 393, 528 P.2d 404 (1974).