Colorado § 24-50-112.5 - Selection system - definitions - rules - report - repeal.

§ 24-50-112.5. Selection system - definitions - rules - report - repeal.

(1) (a) The state personnel director shall establish procedures and directives necessary to implement a merit-based statewide selection system to be used uniformly by all principal departments. Such procedures and directives shall include, but are not limited to, procedures for acceptance of applications, job qualification standards for candidates, extension of eligible lists, consistent evaluation and examination procedures for equivalent job classifications, and development and administration standards for the comparative analysis process.

(b) (I) Appointments and promotions to positions shall be based on a fair and open comparative analysis of candidates based on objective criteria. Selections shall be made without regard to race, color, creed, religion, national origin, ancestry, age, sexual orientation, gender identity, gender expression, marital status, or political affiliation and without regard to sex or disability except as otherwise provided by law or subsection (8) of this section.

(II) As used in this subsection (1)(b):

(A) "Protective hairstyle" includes such hairstyles as braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.

(B) "Race" includes hair texture, hair type, hair length, or a protective hairstyle that is commonly or historically associated with race.

(2) Employment lists.

(a) Employment lists shall be used in the following order of priority: Departmental reemployment lists, promotional eligible lists, and eligible lists. Where there is no departmental reemployment list, an appointing authority may consider another department's reemployment list, together with eligible lists. Departmental reemployment lists shall contain the names of certified employees in a given department laid off for lack of work, lack of funds, or reorganization.

(b) Candidates shall be placed on an eligible list and ranked based on the comparative analysis. Qualified candidates shall receive veterans' preference as prescribed by section 15 of article XII of the state constitution and subsection (7) of this section. The person to be appointed to any position under the state personnel system shall be one of the six persons ranking highest on the eligible list or such lesser number as qualify.

(3) Comparative analysis of candidates.

(a) Each appointing authority shall develop the comparative analysis of candidates based on objective criteria to be used by the appointing authority. A comparative analysis must be a professionally accepted standard that compares specific job-related knowledge, skills, abilities, behaviors, and other competencies. A comparative analysis may include, but is not limited to, a written examination, oral board, or search committee. Only qualified applicants shall be included in a comparative analysis process. Applicants shall not be rejected solely because they do not have the education required, except where education is a prerequisite for a profession or is required by law. Where education is not a prerequisite or is not required by law, an applicant's experience shall be considered.

(b) Promotional comparative analysis shall be limited to qualified employees, including persons on reemployment lists. Performance evaluations may be utilized as part of a promotional comparative analysis plan.

(4) Appeals.

(a) Any person directly affected by the selection and comparative analysis process action may file a written appeal with the state personnel director. The appeal must be filed within ten days after the administration of the comparative analysis. The director or a designee of the director shall review the appeal in summary fashion on the basis of written material submitted in connection with such appeal, which may be supplemented by oral argument at the discretion of the director or designee.

(b) The state personnel director may convene an advisory panel of qualified human resource selection professionals, with one member selected by the aggrieved person, to assist the director in making a decision. Except as otherwise provided in paragraph (d) of this subsection (4), the director shall issue a written decision within ninety days after receipt of a timely appeal. The selection and comparative analysis process action may be overturned only if the director finds the action to have been arbitrary, capricious, or contrary to rule or law. If the director fails to issue a decision within said ninety-day period, the original comparative analysis and outcome shall be final. A written decision on any appeal filed pursuant to this subsection (4) or the outcome of an appeal resulting from the failure to issue such a decision shall be subject to judicial review pursuant to section 24-4-106, unless the matter is appealed to the state personnel board pursuant to paragraph (e) of this subsection (4).

(c) The state personnel director shall establish a process for timely resolving appeals within the ninety-day period and criteria for advisory panel selection and service. The process for resolving appeals shall specify that if an employee who has filed an appeal with the state personnel director also files an appeal with the state personnel board pursuant to section 24-50-123 or the Colorado civil rights division pursuant to section 24-50-125.3, only if the appeal filed with the board or the civil rights division arises out of the same incident as the appeal filed with the director, and if the appeal is filed before the expiration of the ninety-day period and before the director has issued a written decision, the ninety-day period shall be tolled until there is a final agency action by the board. The board shall establish rules for certification of a person to a position when an appeal is pending relative to the selection and comparative analysis process for that position.

(d) When an employee who has filed an appeal with the state personnel director pursuant to this subsection (4) also files an appeal with the state personnel board pursuant to section 24-50-123 or the Colorado civil rights division pursuant to section 24-50-125.3, the ninety-day period specified in paragraph (b) of this subsection (4) shall be tolled until there is a final agency action by the board only if the appeal filed with the board or the civil rights division arises out of the same incident as the appeal filed with the director, is filed before the expiration of the ninety-day period, and is filed before the director has issued a written decision.

(e) After the state personnel director's final decision pursuant to this subsection (4), any person directly affected by the comparative analysis process may file a written appeal with the state personnel board. The petition must be filed within ten days after the state personnel director's final decision has been received by the affected person. The board may grant the petition only when it appears that the decision of the appointing authority violates the comparative analysis standards set forth in this section, in any other provision of law, or in any rules or procedures relating to the comparative analysis process. The board shall review and summarily grant or deny a petition within one hundred twenty days of receipt of the petition. Any petition granted shall be determined in accordance with section 24-50-125.4.

(5) Appointments.

(a) Only a qualified candidate shall be appointed to a position in the state personnel system. A qualified employee may transfer between positions in the same class or to a different class at the same pay grade. The gaining organization shall assume all liability for the employee's base salary, credited leave accruals, and other applicable personnel system benefits.

(b) The board shall establish probationary periods for all persons who are initially appointed or promoted into a different position or who are in a position reallocated to a higher pay grade. The probationary period shall not exceed twelve months for any class or position. The person shall be certified to such class or position after satisfactory completion of any probationary period as demonstrated by performance evaluations. Unsatisfactory performance shall be grounds for dismissal of the person by the appointing authority during such probationary period without right of appeal. Any certified employee who is promoted to a different class or position and who fails to perform satisfactorily during the probationary period shall be reverted to a position in the former certified class or be disciplined.

(6) State auditor's employees. The state personnel director may, following consultation with the state auditor and consistent with the principles of separation of powers, establish special procedures governing appointment and promotion of employees of the state auditor's office. The procedures shall address the special situations, circumstances, and duties unique to employees of the state auditor's office. All procedures shall be consistent with sections 13, 14, and 15 of article XII of the state constitution.

(7) Veterans' preference for spouse.

(a) If a candidate is the spouse of a disabled veteran who is unable to work, and who can provide proof of such disability pursuant to paragraph (b) of this subsection (7), and who is eligible for preference in hiring pursuant to section 15 of article XII of the state constitution, the candidate is eligible for preference in hiring as follows:

(I) If a numerical method is used for the comparative analysis of candidates, five points shall be added to the comparative analysis score of the candidate.

(II) If a nonnumerical method is used for the comparative analysis of candidates, the candidate shall be added to the interview eligible list.

(b) To be eligible for preference pursuant to this subsection (7), a candidate who is the spouse of a disabled veteran must provide a letter, obtained by the disabled veteran from the United States department of veterans affairs, certifying that the veteran is a disabled veteran and is unable to work due to the nature of his or her disability as determined by the United States department of veterans affairs. For purposes of this subsection (7), the certification letter is valid for twelve months following the date of issuance by the United States department of veterans affairs. In addition, the candidate must provide proof that he or she is the legally recognized spouse of the veteran who obtained the letter pursuant to this paragraph (b).

(c) A candidate is not eligible for preference pursuant to this subsection (7) with respect to a promotional opportunity. Any promotional opportunity that is also open to persons other than employees for whom such appointment would be a promotion shall be considered a promotional opportunity for the purposes of this paragraph (c).

(8) Hiring preference pilot program for persons with disabilities.

(a) (I) The executive director of the department of labor and employment, in collaboration with the state personnel director, shall develop and implement a hiring preference pilot program for persons with disabilities applying for a position in the department.

(II) When the department uses a nonnumerical method under the pilot program for the comparative analysis of candidates for a position in the department, the department shall add all applicants who are eligible for the preference for people with disabilities and who meet all minimum and special qualifications under this subsection (8) to the referral list for interview.

(III) When the department uses a numerical method under the pilot program for the comparative analysis of candidates for a position in the department, the department shall add five points to the final score of the applicant when all elements of the selection process are completed, but prior to referral of an applicant for interview for the position.

(IV) An applicant is eligible for a preference under this subsection (8) if the candidate:

(A) Meets the minimum qualifications or any other requirements for the position;

(B) Is a person with a disability, as defined in the federal "Americans with Disabilities Act of 1990", 42 U.S.C. sec. 12101 et seq., as amended, who has voluntarily identified as a person with a disability on the application for the position and who has requested to participate in the pilot program; and

(C) Submits proof of a disability in a form and manner specified under the pilot program.

(V) An applicant may be given both the veteran's preference and a disability preference, but an applicant is not eligible for both a disabled veteran's preference and a disability preference.

(b) The pilot program is not available to a candidate seeking a promotion or to a person currently employed by the state.

(c) When the pilot program is developed under this subsection (8):

(I) The state personnel director shall adopt or amend rules as necessary to enable the implementation of the pilot program;

(II) The department shall implement the pilot program no later than January 1, 2023;

(III) The state personnel director may allow other principal departments to implement the pilot program for appointments to positions within those departments; and

(IV) The pilot program may not be used by any principal department after December 31, 2027.

(d) By November 1, 2027, any principal department that participates in the pilot program shall submit a report to the state personnel director. The state personnel director shall compile all reports and submit one final report to the house business affairs and labor committee and the senate business, labor, and technology committee, or any successor committees. The report must include at least the following information:

(I) The period when the pilot program was used by the department;

(II) The number of applicants for appointments within the department that opted to participate in the pilot program;

(III) The number of persons with disabilities who were appointed to positions within the department; and

(IV) Any other determining factors of data that may affect the implementation of a permanent program.

(e) As used in this subsection (8):

(I) "Department" means the department of labor and employment.

(II) "Pilot program" means the hiring preference pilot program, created in this subsection (8), for people with disabilities.

(f) This subsection (8) is repealed, effective December 31, 2027.

Source: L. 2001: Entire section added, p. 45, § 2, effective August 8. L. 2008: (1)(b) amended, p. 1603, § 29, effective May 29. L. 2010: (4)(b) and (4)(c) amended and (4)(d) added, (HB 10-1181), ch. 351, p. 1626, § 15, effective June 7. L. 2012: (1), (2)(b), (3), (4)(a), (4)(b), and (4)(c) amended and (4)(e) added, (HB 12-1321), ch. 260, p. 1348, § 9, effective January 1, 2013 (see editor's note). L. 2013: (2)(b) amended and (7) added, (HB 13-1008), ch. 16, p. 41, § 1, effective March 8. L. 2020: (1)(b) amended, (HB 20-1048), ch. 8, p. 20, § 11, effective September 14. L. 2021: (1)(b)(I) amended and (8) added, (SB 21-095), ch. 403, p. 2681, § 6, effective September 1; (1)(b)(I) amended, (HB 21-1108), ch. 156, p. 895, § 33, effective September 7. L. 2024: (1)(b)(II)(B) amended, (HB 24-1451), ch. 354, p. 2413, § 9, effective June 3.

Editor's note: (1) This section was added in 2001 and contains provisions, with amendments, formerly contained in §§ 24-50-111, 24-50-113, 24-50-115 (1), (2), (5), and (6), and 24-50-121.

(2) Section 14 of chapter 260, Session Laws of Colorado 2012, provides that amendments to this section are effective upon proclamation of the vote by the governor only if House Concurrent Resolution 12-1001 is passed by a vote of the people at the next general election. That resolution was approved by a vote of the registered electors of Colorado on November 6, 2012. The amendments to this section were effective upon the proclamation of the Governor, January 1, 2013. The vote count for the measure was as follows:

YES: 1,276,432

NO: 988,542

(3) Amendments to subsection (1)(b)(I) by HB 21-1108 and SB 21-095 were harmonized.

Cross references: (1) For the legislative declaration contained in the 2008 act amending subsection (1)(b), see section 1 of chapter 341, Session Laws of Colorado 2008.

(2) In 2012, provisions of this section were amended by the "Modernization of the State Personnel System Act". For the short title and the legislative declaration, see sections 1 and 2 of chapter 260, Session Laws of Colorado 2012.

(3) For the short title ("Creating a Respectful and Open World for Natural Hair Act of 2020" or "CROWN Act of 2020") and the legislative declaration in HB 20-1048, see sections 1 and 2 of chapter 8, Session Laws of Colorado 2020.

(4) For the legislative declaration in SB 21-095, see section 1 of chapter 403, Session Laws of Colorado 2021. For the legislative declaration in HB 21-1108, see section 1 of chapter 156, Session Laws of Colorado 2021.

ANNOTATION

Annotator's note. Since § 12-50-112.5 is similar to §§ 24-50-111, 24-50-113, 24-50-115, and 24-50-121 as they existed prior to the 2001 amendment to part 1 of article 50 of title 24, which resulted in the relocation of provisions, relevant cases construing those provisions have been included in the annotations to this section.

Provision requiring appointment of person highest in eligible list constitutional. The provisions requiring the appointment to particular places in the personnel system of persons standing highest in the eligible list are not in conflict with § 1 of art. IV, Colo. Const. People ex rel. Walker v. Capp, 61 Colo. 396, 158 P. 143 (1916).

The appointment of one not standing highest in the list is void. People ex rel. Walker v. Capp, 61 Colo. 396, 158 P. 143 (1916).

A "necessary ingredient" of the "rule of three" is the appointing authority's right to select any of the highest three applicants. Conde v. State Dept. of Pers., 872 P.2d 1381 (Colo. App. 1994).

So long as the integrity of the competitive examination process was not compromised and so long as the appointing authority's decision did not rest on factors such as race, color, creed, or gender, it is certainly not clearly established that, under the state personnel system, an official must select a particular applicant. Conde v. State Dept. of Pers., 872 P.2d 1381 (Colo. App. 1994).

Because subsection (2)(b) grants the appointing authority discretion to choose among the three highest ranking applicants for a position, a public employee has no due process right to be selected for promotion. Teigen v. Renfrow, 511 F.3d 1072 (10th Cir. 2007).

Method of testing rests within the discretion of the board, with which the court cannot interfere except in the clearest case of abuse. Hewitt v. Civil Serv. Comm'n, 114 Colo. 561, 167 P.2d 961 (1946) (decided under former law).

Director's authority to establish uniform procedures for use by principal departments in determining when promotional examinations may be used is constitutional under § 14 of art. XII of Colo. Const. Colorado Ass'n of Pub. Employees v. Lamm, 677 P.2d 1350 (Colo. 1984).

Employees are not permanently frozen into the same position just because they are hired under the state personnel system. State government faces an ever-changing array of social problems, and agencies must have the flexibility to create solutions to those problems, including transferring workers to different positions as circumstances warrant. Dept. of Human Servs. v. May, 1 P.3d 159 (Colo. 2000).

Subsection (6) establishing probationary periods for new employees, those transferred to different positions at their request, and those reallocated to a higher pay grade is constitutional and consistent with § 13(10) of art. XII, Colo. Const., which mandates probationary periods for newly appointed employees. Colorado Ass'n of Pub. Employees v. Lamm, 677 P.2d 1350 (Colo. 1984) (decided prior to 1984 amendment).

Employee was a probationary employee. Director of personnel's interpretation of rules adopted by the state personnel board which relate to the satisfactory completion of a twelve-month probationary period before certification status can be obtained is authorized pursuant to the director's authority under Colo. Const. art. XII, § 14(4), and his interpretation that the probationary period may be extended for the length of time that an employee is off the payroll for any reason is neither arbitrary nor capricious. Therefore, the board's determination that the employee was a probationary employee was not in error where the expiration of the twelve-month period occurred while the employee was on an authorized leave without pay. Zurek v. Dept. of State, 754 P.2d 390 (Colo. App. 1987).

Evidence of unsatisfactory performance. Implicit in department witness's statement that employee would not have been dismissed if he had performed his reassigned duties is that employee was reassigned because of unsatisfactory performance of his original duties. Zurek v. Dept. of State, 754 P.2d 390 (Colo. App. 1987).

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).

Probationary employee entitled to predisciplinary meeting prior to discharge for unsatisfactory performance because of personnel board rule and was entitled to back pay with offset for substitute earnings or unemployment compensation during remaining probationary period. Dept. of Health v. Donahue, 690 P.2d 243 (Colo. 1984).

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. Serv., 796 P.2d 77 (Colo. App. 1990).

Absent a disciplinary hearing, department must revert an employee to previously held position following an unsuccessful probationary period or, if no appropriate vacancy exists, accord employee any retention rights employee may have pursuant to § 24-50-124 and any rules promulgated pursuant to that section. Martinez v. Dept. of Pers., 159 P.3d 631 (Colo. App. 2006).

Statute is rendered meaningless if an appointing authority can delay filling a position by causing funds to be unavailable in order to deny a former employee's right to reemployment. Ehrle v. Dept. of Admin., 844 P.2d 1267 (Colo. App. 1992).