Colorado § 24-50-125.5 - Recovery for improper personnel action.

§ 24-50-125.5. Recovery for improper personnel action.

(1) Upon final resolution of any proceeding related to the provisions of this article, if it is found that the personnel action from which the proceeding arose or the appeal of such action was instituted frivolously, in bad faith, maliciously, or as a means of harassment or was otherwise groundless, the employee bringing the appeal or the department, agency, board, or commission taking such personnel action shall be liable for any attorney fees and other costs incurred by the employee or agency against whom such appeal or personnel action was taken, including the cost of any transcript together with interest at the legal rate. Reimbursement of such attorney fees and other costs shall be made by the employee or the department, agency, board, or commission upon presentation by the employee or agency of a statement of the attorney fees and other costs incurred which has been approved by the state personnel board, and any such claim approved by the state personnel board against an agency shall be a charge on moneys appropriated to the department, agency, board, or commission. Each department, agency, board, or commission shall report to the joint budget committee each year concerning the number of claims made and the amount of moneys paid by the department, agency, board, or commission under this section during the previous fiscal year.

(2) Repealed.

Source: L. 79: Entire section added, p. 949, § 1, effective July 1. L. 81: (1) amended and (2) repealed, p. 1203, §§ 22, 23, effective July 1. L. 84: (1) amended, p. 713, § 12, effective July 1.

ANNOTATION

"Final resolution" contemplates a decision by the personnel board that concludes the appeal of a disciplinary action, not necessarily an evidentiary hearing on the appeal. Aragon v. Dept. of Corr., 140 P.3d 278 (Colo. App. 2006).

Employee entitled to attorney fees and costs because personnel board's failure to affirm rescission of corrective action after adopting hearing officer's findings that there was no factual basis for corrective action was arbitrary and capricious. Johnson v. Colo. Dept. of Institutions, 757 P.2d 147 (Colo. App. 1988).

Award of attorney fees is mandated by this section when employer had no grounds to seek the employee's discharge. Reference to "the personnel action" in this section focuses on the particular disciplinary action taken, not on whether there was a basis for imposing some discipline. Coffey v. Colo. Sch. of Mines, 870 P.2d 608 (Colo. App. 1993).

Denial of attorney fees in a personnel action where the university president obtained an attorney general opinion that contracting out employment would not be improper is supported by the record and shall not be overturned. Sutton v. Univ. of S. Colo., 870 P.2d 650 (Colo. App. 1994).

Award of attorney fees proper when request was timely and award was supported by substantial evidence. The department's action was groundless and taken in bad faith. Ehrle v. Dept. of Admin., 844 P.2d 1267 (Colo. App. 1992).

There was no abuse of discretion in denying attorney's fees, when administrative law judge found that neither the personnel action from which the proceeding arose nor the defense was instituted frivolously. Lucero v. Dept. of Institutions, 942 P.2d 1246 (Colo. App. 1996).

State personnel board order awarding attorney fees and costs must be set aside when findings of fact do not have a reasonable basis in law. Halverstadt v. Dept. of Corrs., 911 P.2d 654 (Colo. App. 1995).

State personnel board erred when it concluded that a complainant was not entitled to attorney fees and costs under this section because of a lack of bad faith. Statute employs the conjunction "or" in the list of reasons attorney fees and costs may be granted. As the administrative law judge found that the action was groundless, and that determination was unchallenged, granting of fees was appropriate. Hartley v. Dept. of Corrs., 937 P.2d 913 (Colo. App. 1997).

Applied in Mayberry v. Univ. of Colo. Health Sciences Center, 737 P.2d 427 (Colo. App. 1987); Dept. of Higher Educ. v. Singh, 939 P.2d 491 (Colo. App. 1997).