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It started with the publication of a report in September 1995. The state auditor sent inquiries to the other 49 states and got responses from 30 of them, with 47% of the states that responded indicating they provided additional leave benefits similar to Colorado’s injury leave. The department also polled three local employers about the availability of injury leave in the marketplace by contacting its vendor of third-party surveys.
By November 1996, the director of the Colorado Department of Personnel repealed a provision on the books that provided benefits and full pay for employees on injury leave for 90 days. The department adopted a new procedure that gave agencies the power to terminate employees who aren’t able to return to work after six months of continuous leave due to illness or injury.
The Colorado Association of Public Employees filed a complaint challenging the decision, closely followed by the Colorado State Patrol Protective Association.
They asserted the repeal of the previous policy was improper because the director didn’t comply with survey requirements in state statute. CAPE and the protective association claimed the director neglected to use an independent survey to determine prevailing practices for fringe benefits and that the director didn’t “meet and confer” with employee representatives about the survey.
The district court agreed, set aside the repeal and concluded the new procedure was void.
The department and the executive director appealed but only contested the portion of the district court order that set aside the repeal. Together, they contended the court erred in determining the director needed to meet the survey requirements but the Colorado Court of Appeals disagreed.
The appeals court noted that if a court finds an agency action is a denial of a statutory right, overreaches statutory jurisdiction or isn’t in line with state law, the court needs to set aside the action and rule it unlawful.
The department argued the director acted generally in accordance with the authority granted in state law but the appeals court determined that even if the contention was correct, it doesn’t sustain the repeal at issue in the appeal.
The appellate court also noted the provision of the statute the department referenced didn’t grant any specific authority to the director but only outlined general responsibilities. The court went on to explain that nothing in that section related to survey methodology and it didn’t relieve the director of the duty to comply with the law cited by CAPE and the protective association.
The director and the department also asserted the law CAPE and the protective association referenced only applied to annual salary and fringe benefits surveys but the appeals court disagreed. It noted the director had statutory authority to prescribe the amount and conditions of various types of leave including sick leave.
The 1992 version of that law, the court explained, provided the “director must determine prevailing rates from surveys conducted by independent public and private agencies.” The law also provided the methodology for determining prevailing practice and the appeals court concluded the director needed to comply with the survey procedures.
The department and the director also claimed the director wasn’t able to comply or essentially complied with the requirement to use a third-party survey but the appeals court wasn’t persuaded because they never supported that contention in the appeal.
They also argued the director wasn’t acting within the scope of the law that required meeting and conferring with management and employees. The Court of Appeals disagreed though, ruling the director needed to meet in good faith with management and employee representatives before selecting and utilizing public or private surveys.
The appeals court affirmed the district court order.
Colorado Department of Personnel
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