v. Governor's Office of Information Technology

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 21, 2020
2020COA81
No. 18CA1637, Gieck v. Governor’s Office of Information
Technology — Colorado Constitution — State Personnel
System; Government — Office of Information Technology —
State Employee Protection
In this whistleblower complaint case, a division of the court of
appeals interprets, for the first time, legislation creating the Office
of Information Technology in the Office of the Governor (GOIT),
section 24-37.5-103, C.R.S. 2019, to determine whether GOIT
employees hired after the legislation became effective are excepted
from the state personnel system under the Civil Service
Amendment, Colo. Const. art. XII, section 13. The division holds
that such employees are excepted under the Civil Service
Amendment and, therefore, the State Personnel Board has no
jurisdiction to consider a complaint filed by GOIT employees under
the Whistleblower Act. The division further holds that the GOIT
statute does not violate the Civil Service Amendment. Accordingly,
the division affirms the Board’s order dismissing the petitioner’s
complaint for lack of subject matter jurisdiction.
COLORADO COURT OF APPEALS 2020COA81
Court of Appeals No. 18CA1637
State Personnel Board Case No. 2017G074
Jeffreyson Robert Gieck,
Petitioner-Appellant,
v.
Office of Information Technology,
Respondent-Appellee,
and
Colorado State Personnel Board,
Appellee.
ORDER AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Grove and Taubman*, JJ., concur
Announced May 21, 2020
The Law Office of William J. O’Donnell, P.C., William J. O’Donnell, Centennial,
Colorado, for Petitioner-Appellant
Philip J. Weiser, Attorney General, Jack D. Patten, III, Senior Assistant
Attorney General, Denver, Colorado, for Respondent-Appellee
Philip J. Weiser, Attorney General, Amy Lopez, Assistant Attorney General,
Denver, Colorado, for Respondent-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 In 1918, Colorado’s citizens amended the state constitution
and created a personnel system for state government. Colo. Const.
art. XII, § 13 (Civil Service Amendment). The Civil Service
Amendment provided that the state personnel system “shall
comprise all appointive public officers and employees of the state,”
subject to some exceptions. Colo. Const. art. XII, § 13(2)(a). One of
those exceptions is employees in the Governor’s and Lieutenant
Governor’s offices “whose functions are confined to such offices and
whose duties are concerned only with the administration thereof.”
Colo. Const. art. XII, § 13(2)(a)(III).
¶2 In 2006, the General Assembly created an Office of
Information Technology in the Office of the Governor (GOIT), which
effectively consolidated all state agencies’ information technology
departments into a single department. See § 24-37.5-103, C.R.S.
2019. Importantly, the legislation permitted state employees who
were already part of the state personnel system to retain their
status and rights under the Civil Service Amendment when they
transferred to GOIT.
¶3 The petitioner, Jeffreyson Robert Gieck, is a GOIT employee
who was hired in March 2015. He filed a complaint under the
1
Whistleblower Act with the State Personnel Board (Board). As a
matter of first impression, we must interpret the interplay between
the Civil Service Amendment and the legislation creating GOIT to
decide whether the Board has subject matter jurisdiction to
consider Mr. Gieck’s complaint under section 24-50.5-104, C.R.S.
2019, or whether, by virtue of his employment in GOIT, he is
excepted from the Civil Service Amendment and should have filed
his complaint in the district court under section 24-50.5-105,
C.R.S. 2019. The Board found it had no jurisdiction.
¶4 Mr. Gieck challenges the Board’s order on two grounds. First,
he contends that the administrative law judge (ALJ) erroneously
interpreted the statute creating GOIT without properly considering
the language that allows only certain GOIT employees to retain
rights under the state personnel system. Alternatively, he contends
that if the statute creating GOIT allows for certain employees to be
exempt from the state personnel system and not others, then the
statute violates the Civil Service Amendment.
¶5 We conclude that Mr. Gieck is excepted from the Civil Service
Amendment as an employee in the Governor’s office and that the
statute does not violate the Civil Service Amendment. Accordingly,
2
we affirm the Board’s order adopting the findings and conclusions
of the ALJ that the Board lacked subject matter jurisdiction to
consider Mr. Gieck’s complaint and dismissing that complaint.
I. Factual and Procedural Background
¶6 In March 2015, GOIT hired Mr. Gieck as a Senior Developer.
This position supported a project management tool known as
“Clarity.” GOIT used Clarity to manage information technology
projects of all sizes, including projects from different state agencies.
GOIT also used Clarity to standardize information technology
resources for project management and project plans as examples
for other state agencies.
¶7 In May 2017, Mr. Gieck filed a “whistleblower complaint” with
the Board. He alleged that his supervisor retaliated against him
with a negative performance evaluation because he had raised
concerns that GOIT was misusing Clarity. GOIT disputed these
allegations and filed a motion to dismiss for lack of jurisdiction.
¶8 The first ALJ issued an order to Mr. Gieck to show cause why
the Board should not dismiss the complaint for lack of jurisdiction.
This ALJ preliminarily found (based only on the pleadings and not
on any evidence) that, because Mr. Gieck’s functions were not
3
“confined to the offices of the governor or the lieutenant governor,
and [were] not concerned only with the administration of the offices
of the governor or the lieutenant governor,” a hearing on the
jurisdictional question should be granted. The Board adopted the
preliminary recommendation and granted a hearing before a second
ALJ.
¶9 GOIT then filed a second motion to dismiss for lack of
jurisdiction, and Mr. Gieck responded. The ALJ permitted the
parties to engage in discovery and scheduled an evidentiary hearing
to determine whether Mr. Geick’s functions were confined to the
office of the Governor and concerned only with the administration
thereof, and thus whether the Board had subject matter
jurisdiction.
¶ 10 After holding the hearing and accepting the parties’ stipulated
facts, the ALJ found that, while Mr. Gieck primarily supported
GOIT’s internal projects and applications, he also worked with other
state agencies, including the Departments of Health Care Policy and
Financing, Public Health and Environment, and Revenue. The ALJ
recognized that Mr. Gieck often interacted with other state agencies
in fulfilling his role in GOIT to support Clarity, an application they
4
used. Nevertheless, the ALJ found that the General Assembly had
placed GOIT squarely in the Governor’s office, that the General
Assembly had enumerated GOIT’s responsibilities in section 24-
37.5-105, C.R.S. 2019, and that Mr. Gieck’s job description fell
within those statutory responsibilities. And because Colorado
Constitution article XII, section 13(2)(a)(III) excludes employees
whose functions are confined to the office of the Governor and
whose duties are concerned only with the administration of the
office of the Governor, the ALJ reasoned that the functions
enumerated in section 24-37.5-105 were, by definition, confined to
the office of the Governor and concerned with the administration
thereof. Noting that Mr. Gieck had not introduced any evidence
that he performed functions outside those listed in section 24-37.5-
105, the ALJ concluded that Mr. Gieck had failed to establish
subject matter jurisdiction in the Board and dismissed his
complaint. Mr. Gieck appealed to the Board, which affirmed the
ALJ’s decision.
II. Subject Matter Jurisdiction
¶ 11 Mr. Gieck contends that the Board’s order adopting the ALJ’s
conclusion that the Board lacked subject matter jurisdiction over
5
his complaint is legally erroneous. More specifically, he argues that
even though the statute creating GOIT transferred certain functions
originally spread out over various state information and technology
departments to the Governor’s office, the statutory language
expressly provided that GOIT employees still retained rights to the
state personnel system. Thus, he argues, all GOIT employees have
rights to the state personnel system, not just those who transferred
from other state agencies to GOIT. We disagree.
A. Standard of Review and Statutory Interpretation
¶ 12 We review an administrative agency’s decision for an abuse of
discretion, and we may reverse or modify that decision only if we
find “that the agency acted arbitrarily or capriciously, made a
decision that is unsupported by the record, erroneously interpreted
the law, or exceeded its authority.” Colo. Dep’t of Human Servs. v.
Maggard, 248 P.3d 708, 712 (Colo. 2011). When resolution of a
jurisdictional issue involves a factual dispute, the clearly erroneous
standard of review, not the de novo standard, applies to appellate
review of factual findings. Walton v. State, 968 P.2d 636, 643 (Colo.
1998). But, if the facts are not in dispute, the “issue is one of law,
and an appellate court is not bound by the [agency’s]
6
determinations.” Swieckowski v. City of Ft. Collins, 934 P.2d 1380,
1384 (Colo. 1997).
¶ 13 “[T]he question whether the district court or the board
correctly interpreted the applicable [statutes] is a question of law,
subject to de novo review.” C Bar H, Inc. v. Bd. of Health ex rel.
Jefferson Cty., 56 P.3d 1189, 1192 (Colo. App. 2002). Because the
facts were undisputed and largely stipulated, Mr. Gieck only
challenges the ALJ’s legal conclusions on appeal. Thus, we review
the ALJ’s statutory interpretation de novo.
¶ 14 When interpreting a statute, our primary task is to give effect
to the intent of the enacting body. In re Estate of Moring v. Colo.
Dep’t of Health Care Policy & Fin., 24 P.3d 642, 646 (Colo. App.
2001). To discern this intent, we first examine the plain language of
the statute and interpret its terms in accordance with commonly
accepted meanings. Id. “We construe a statute so as to give effect
to every word, and we do not adopt a construction that renders any
term superfluous.” Spahmer v. Gullette, 113 P.3d 158, 162 (Colo.
2005). “Where the language is clear, we do not look beyond the
plain meaning of the words or resort to other rules of statutory
7
construction.” Watson v. Pub. Serv. Co., 207 P.3d 860, 863 (Colo.
App. 2008).
¶ 15 A statute is ambiguous if it is reasonably susceptible of
multiple interpretations. Williams v. Kunau, 147 P.3d 33, 36 (Colo.
2006). Only when a statute is ambiguous do we look beyond the
“express statutory language for other evidence of legislative intent
and purpose, such as legislative history or other rules of statutory
construction.” Crandall v. City & Cty. of Denver, 238 P.3d 659, 662
(Colo. 2010). We may also consider the “consequences of a given
construction, and the end to be achieved by the statute.” People v.
Yascavage, 101 P.3d 1090, 1093 (Colo. 2004). But we avoid
strained, forced, or absurd interpretations. Smith v. Exec. Custom
Homes, Inc., 230 P.3d 1186, 1191 (Colo. 2010); In re Estate of
Moring, 24 P.3d at 646.
¶ 16 The Whistleblower Act protects state employees from
retaliation from an appointing authority or supervisor when an
employee discloses “information on actions of state agencies that
are not in the public interest.” § 24-50.5-101, C.R.S. 2019; see also
§ 24-50.5-103, C.R.S. 2019. To raise violations of the
Whistleblower Act, employees within the state personnel system
8
may file a written complaint with the Board. § 24-50.5-104.
Employees not in the state personnel system may only bring a “civil
action in the district court” alleging Whistleblower Act violations.
§ 24-50.5-105. A plaintiff raising such a claim “has the burden to
prove subject matter jurisdiction.” Ferrel v. Colo. Dep’t of Corr., 179
P.3d 178, 183 (Colo. App. 2007).
B. GOIT Statutory History
¶ 17 We begin with an overview of GOIT’s history and its creation.
In 1999, the General Assembly formed GOIT’s predecessor, the
Office of Innovation and Technology, and placed it in the Governor’s
office. Ch. 224, sec. 1, § 24-37.5-103, 1999 Colo. Sess. Laws 866.
The General Assembly also transferred the duties, functions, and
personnel of the Commission on Information Management from the
Department of Personnel to GOIT’s predecessor. Ch. 224, sec. 1,
§ 24-37.5-104, 1999 Colo. Sess. Laws 866; see § 24-37.5-104(1),
(2)(a), C.R.S. 2019. As relevant here, that statute provides as
follows:
Any such employees who are classified
employees in the state personnel system shall
retain all rights to the personnel system and
retirement benefits pursuant to the laws of
this state, and their services shall be deemed
9
to have been continuous. All transfers and
any abolishment of positions in the state
personnel system shall be made and processed
in accordance with state personnel system
laws and regulations.
§ 24-37.5-104(2)(b), C.R.S. 2019.
¶ 18 In 2006, the General Assembly replaced the Office of
Innovation and Technology with GOIT — an “office of information
technology” — in the “office of the governor.” Ch. 346, sec. 3, § 24-
37.5-103, 2006 Colo. Sess. Laws 1726. It provided that the office
would be headed by “the chief information officer, who shall be
appointed by the governor and who shall serve at the pleasure of
the governor.” § 24-37.5-103. And, similar to the statute creating
GOIT’s predecessor, the GOIT statute retained civil service
protections for existing state employees whose classified positions it
transferred to GOIT:
[A]ll employees of the office of innovation and
technology shall be transferred to [GOIT] and
shall become employees thereof. Such
employees shall retain all rights to the state
personnel system and retirement benefits
under the laws of this state, and their services
shall be deemed to have been continuous. All
transfers and any abolishment of positions in
the state personnel system shall be made and
processed in accordance with state personnel
system laws and rules.
10
§ 24-37.5-104(5)(b).
¶ 19 Finally, since GOIT’s creation, the General Assembly has
transferred additional duties, responsibilities, and personnel from
other state agencies to GOIT. See Ch. 284, sec. 2, § 24-37.5-104(6),
2008 Colo. Sess. Laws 1113-14 (transferring functions of the
general government computer center and telecommunications
coordination from the Department of Personnel to GOIT in 2008);
see also Ch. 107, sec. 2, § 24-37.5-104(7), 2010 Colo. Sess. Laws
358-60 (transferring functions of the enterprise facility for
operational recovery, readiness, response, and transition from the
Department of State and participating state agencies to GOIT in
2010). In doing so, it has employed the same language that “[a]ny
such employees who are classified employees in the state personnel
system shall retain all rights to the personnel system.” § 24-37.5-
104(6)(b)(II), 7(c)(II), C.R.S. 2019.
C. Arguments
¶ 20 Mr. Gieck urges us to conclude that his job is part of the state
personnel system, based on the consistent language described
above allowing classified state employees to retain their status when
moving to GOIT. He asserts that the General Assembly intended all
11
GOIT employees to be part of the state personnel system. He does
not dispute the ALJ’s factual findings that “the actual functions and
responsibilities of Mr. Gieck’s employment track the functions and
responsibilities which are codified under [section] 24-37.5-105.”
¶ 21 GOIT, on the other hand, argues that this language simply
“grandfathered” existing state employees into the state personnel
system when they moved to GOIT, but did not include new hires or
employees who were not already in the classified system when GOIT
was established. And, it continues, by enumerating GOIT’s specific
functions and placing GOIT squarely in the Governor’s office, the
General Assembly intended to exempt nontransferring employees,
like Mr. Gieck, from the state personnel system.
¶ 22 We conclude that the plain language of section 24-37.5-
104(2)(b), (5)(b), (6)(b)(II), and (7)(b)(III), and in particular the words
“such employees . . . shall retain,” evidences the General Assembly’s
intent to “grandfather” existing classified employees into the state
personnel system when their job functions are transferred to GOIT.
Therefore, Mr. Gieck, as a nontransferring GOIT employee, is not
part of the state personnel system, and the Board lacked subject
matter jurisdiction to consider his complaint.
12
D. Analysis
¶ 23 We begin our analysis with the Civil Service Amendment,
which exempts certain Governor’s office employees from the state
personnel system and note that it existed long before GOIT was
created. That amendment provides in relevant part:
(2)(a) The state personnel system shall
comprise all appointive public officers and
employees of the state, except the following . . .
(III) The employees in the offices of the
governor and the lieutenant governor whose
functions are confined to such offices and
whose duties are concerned only with the
administration thereof.
Colo. Const. art XII, § 13(2)(a)(III).1
¶ 24 The purpose of the state personnel system is “to protect
employees from arbitrary and capricious political action and to
insure employment during good behavior.” Coopersmith v. City &
1 The amendment originally exempted, among other employees,
“[t]he governor’s private secretary and three confidential employees
of his office.” Colo. Civil Serv. Emps. Ass’n v. Love, 167 Colo. 436,
442, 448 P.2d 624, 626 (1968) (emphasis added). In 1968, the
supreme court in Love interpreted “confidential employees” to mean
“employees of the Governor whose functions are confined to his
office and whose duties are concerned with the administration
thereof,” which is the language that was adopted in the 1969
amendment to the Civil Service Amendment and included above.
Id. at 451, 448 P.2d at 630.
13
Cty. of Denver, 156 Colo. 469, 479, 399 P.2d 943, 948 (1965). We
presume the General Assembly created GOIT knowing that its
nontransferring employees would be exempt from the state
personnel system. See Lang v. Colo. Mental Health Inst., 44 P.3d
262, 266 (Colo. App. 2001) (presuming that “the General Assembly
was aware of the existence of the state personnel system and its
constitutional underpinnings”).
¶ 25 We next examine the statutory language moving state
employees to GOIT to determine whether that language should be
applied to all GOIT employees, including nontransferring
employees. The relevant language provides:
[A]ll employees of the office of innovation and
technology shall be transferred to [GOIT] and
shall become employees thereof. Such
employees shall retain all rights to the state
personnel system and retirement benefits
under the laws of this state, and their services
shall be deemed to have been continuous. . . .
§ 24-37.5-104(5)(b).
¶ 26 No one disputes that the first sentence transferred employees
of the Office of Innovation and Technology to GOIT or that it solely
concerned the employees of the Office of Innovation and
Technology. Therefore, the following words “such employees” can
14
only refer to transferring employees of the Office of Innovation and
Technology. See Chandler-McPhail v. Duffey, 194 P.3d 434, 440
(Colo. App. 2008) (as a canon of statutory construction, referential
and qualifying words and phrases refer to the clause immediately
preceding them unless there is a contrary intention). Mr. Gieck
provides no reasoning or authority to support his assertion that
“such employees” refers to all employees of GOIT. Because his
interpretation is inconsistent with the General Assembly’s intent,
we reject it.
¶ 27 We next consider the language “shall retain” and conclude
that it further shows the General Assembly’s intent to grandfather
existing classified employees into the state personnel system,
knowing that new GOIT employees would be excepted from it under
the Civil Service Amendment. In this context, “shall” is mandatory
language indicating that the General Assembly intended to protect
state employees who were already part of the state personnel
system. See Aren Design, Inc. v. Becerra, 897 P.2d 902, 904 (Colo.
App. 1995) (“The use of the word ‘shall’ in the statute is presumed
to indicate a mandatory requirement.” (citing Colo. State Bd. of Med.
Exam’rs v. Saddoris, 825 P.2d 39, 43 (Colo. 1992))). Moreover, the
15
word “retain” means “to keep in possession or use.” Merriam-
Webster Dictionary, https://perma.cc/K4A6-U95E; see People v.
Zuniga, 80 P.3d 965, 969 (Colo. App. 2003) (concluding that the
“most common dictionary definition of ‘retain’ is ‘to keep in
possession or use’” (quoting Webster’s Third New Dictionary 1938
(1986))). Because the statute requires that employees “retain”
rights to the state personnel system, it demonstrates that the
General Assembly intended the transferring employees (here the
employees in the Office of Innovation and Technology) to “keep in
possession” the rights that they already had, i.e., their rights under
the state personnel system. Absent any language addressing the
status of nontransferring employees like Mr. Gieck, we presume the
General Assembly knew and intended that they would be excepted
from the state personnel system under the existing Civil Service
Amendment. See Rook v. Indus. Claim Appeals Office, 111 P.3d
549, 552 (Colo. App. 2005) (“We may not read into a statute a
provision not found in it.”).
¶ 28 Accordingly, we affirm the Board’s order adopting the ALJ’s
findings and conclusions that it lacked subject matter jurisdiction
to consider Mr. Gieck’s complaint.
16
III. Constitutionality
¶ 29 Mr. Gieck next contends that construing the GOIT statute to
deny state personnel system benefits to him, while maintaining
those benefits for employees who transferred to GOIT, violates the
Civil Service Amendment. We disagree.
A. Preservation and Standard of Review
¶ 30 GOIT disputes preservation of the constitutional issue. It
contends that we should not address Mr. Gieck’s constitutional
challenge because he did not raise it before the ALJ, and because
he should have sought declaratory relief in the district court. We
construe Mr. Gieck’s challenge as a facial challenge that we may
properly consider for the first time on appeal. Horrell v. Dep’t of
Admin., 861 P.2d 1194, 1199 (Colo. 1993) (facial challenges need
not be raised with the Board, which has no authority to consider
them); Celebrity Custom Builders v. Indus. Claim Appeals Office, 916
P.2d 539, 541 (Colo. App. 1995) (in cases involving direct review of
agency action, the court of appeals has initial jurisdiction to review
the constitutionality of a statute), as modified on denial of reh’g
(Oct. 12, 1995).
17
¶ 31 Because the application of a constitutional standard is a
question of law, we review this issue de novo. City of Greenwood
Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 440
(Colo. 2000). Unless the statute implicates a suspect classification
or impacts a fundamental right, we presume a statute’s
constitutionality. Id. Therefore, we “must presume that a statute is
constitutional unless the party challenging it proves its
unconstitutionality beyond a reasonable doubt.” Coffman v.
Williamson, 2015 CO 35, ¶ 13. We “must uphold the
constitutionality of a statute unless a ‘clear and unmistakable’
conflict exists between the statute and a provision of the Colorado
Constitution.” Id. (quoting E-470 Pub. Highway Auth. v. Revenig, 91
P.3d 1038, 1041 (Colo. 2004)).
B. Analysis
¶ 32 Relying on cases in which our supreme court has found a
constitutional violation when the General Assembly enacted
legislation effectively moving civil service jobs to areas outside the
state personnel system, Mr. Gieck argues that the GOIT statute
reflects the General Assembly’s attempt to legislate around the Civil
Service Amendment. GOIT, on the other hand, argues that the
18
cases cited by Mr. Gieck are inapposite. To resolve this dispute, we
must determine whether the GOIT statute is inconsistent with the
intent of the Civil Service Amendment and whether the General
Assembly set forth guidelines in the statute sufficient to decide the
applicability of the Civil Service Amendment. We conclude that the
statute provides sufficient guidance by grandfathering existing state
employees into the personnel system and remaining silent
concerning new hires.
¶ 33 In People v. O’Ryan, our supreme court held that the General
Assembly cannot change the title of an office to avoid the Civil
Service Amendment. 71 Colo. 69, 70, 204 P. 86, 87 (1922); see also
People ex rel. Kelly v. Milliken, 74 Colo. 456, 457, 223 P. 40, 40
(1923) (the General Assembly has the “power to abolish the office,
but it may not avoid the Constitution by abolishing the office and
creating a new one with duties substantially the same, to which
new officers are appointed”). Mr. Gieck does not allege, nor is there
any evidence in the record to show, that the statute creating GOIT
modified the title of a position or its duties to avoid the Civil Service
Amendment.
19
¶ 34 Additionally, unlike the cases on which Mr. Gieck relies, the
General Assembly specifically grandfathered the employment status
of those employees it transferred from other agencies to GOIT and
allowed them to retain their rights in the state personnel system —
it did not abolish any positions to circumvent the Civil Service
Amendment. And because the General Assembly placed GOIT in
the Governor’s office, it did not deprive new or non-transferred
employees of any previous rights.
¶ 35 Instead, we find more persuasive Department of Human
Services v. May, 1 P.3d 159 (Colo. 2000), in which the General
Assembly moved the educational services of the Lookout Mountain
Youth Services Center (Lookout Mountain) (a division of the human
services department that is part of the state personnel system) to
Metropolitan State College of Denver (Metro) (exempt from the state
personnel system under the Civil Service Amendment). Id. at 162-
63. Like Governor’s office employees, faculty members and
administrators of educational institutions are exempt from the state
personnel system under the Civil Service Amendment. See Colo.
Const. art. XII, § 13(2)(a)(VII).
20
¶ 36 In May, teachers at Lookout Mountain were allowed, but not
required, to apply for teaching positions at Metro. Id. at 163. If
they chose to do so and were hired, they became exempt from the
state personnel system under the Civil Service Amendment. Id.
Importantly, those who did not wish to teach at Metro or who were
not selected to teach could remain in positions within the state
personnel system. Id. Our supreme court held that this
arrangement did not violate the Civil Service Amendment because
(1) no employee was forced to leave a position within the state
personnel system; and (2) teachers were “fundamentally employees
of Metro, not the [Department of Human Services]” (where Lookout
Mountain was located) and were therefore “constitutionally exempt
from the personnel system.” Id. at 166. The court also noted:
Government is subject to unprecedented
demands in today’s world. We expect
innovation, success, efficiency, and economy.
Metro and [Department of Human Services] are
attempting to meet those demands in a way
that violates neither the letter nor the spirit of
the Civil Service Amendment.
Id. at 168.
¶ 37 Consistent with May, the General Assembly established GOIT
to address coordination and duplication problems arising from
21
agencies independently acquiring information resource technologies
and to coordinate and direct the use of communication and
information resources technologies by state agencies in a
cost-effective and efficient manner. See § 24-37.5-101(a)-(g), C.R.S.
2019. To accomplish this goal, GOIT was given the responsibilities
outlined in section 24-37.5-105, which include interacting and
working with other state agencies.
¶ 38 Furthermore, like May, the statute creating GOIT did not
deprive any civil service employees of the benefits of the state
personnel system. Certainly, the General Assembly could have
chosen to create an independent government agency outside of the
Governor’s office whose employees would be covered by the state
personnel system. Instead, it created GOIT in the Office of the
Governor, thereby excepting its nontransferring employees from the
Civil Service Amendment, but concurrently grandfathering into the
state personnel system existing state employees whose positions
were moved to GOIT. We hold that this does not present a “clear
and unmistakable” conflict between the statute creating and
empowering GOIT and the Civil Service Amendment to the Colorado
Constitution. See Coffman, ¶ 13.
22
IV. Conclusion
¶ 39 The Board’s order is affirmed.
JUDGE GROVE and JUDGE TAUBMAN concur.
23