Colorado § 24-50.5-104 - Complaints by state personnel system employees - limitation period.

§ 24-50.5-104. Complaints by state personnel system employees - limitation period.

(1) Any employee in the state personnel system may file a written complaint with the state personnel board within ten days after the employee knew or should have known of a disciplinary action alleging a violation of section 24-50.5-103 if the employee demonstrates that reasonable communication to the employee's supervisor, appointing authority, or member of the general assembly has occurred in regard to the alleged violation. Within ten days after receiving the complaint, the state personnel board shall send a copy of the complaint to the affected state agency and shall provide the employee with written notice that the complaint has been received and docketed and that sets forth the process for reviewing such complaint. The affected state agency shall submit a written response to the complaint within forty-five days after the date the complaint was filed with the state personnel board. The state personnel board shall set the matter for review in accordance with section 24-50-123 or for hearing to commence not later than ninety days after the receipt of the written response filed by the agency. The hearing date may be continued once only for good cause shown for no longer than thirty days with the approval of the state personnel board. Any hearing conducted pursuant to this section shall take precedence over any other matter pending before the state personnel board.

(2) If the state personnel board after hearing determines that a violation of section 24-50.5-103 has occurred, the state personnel board shall order, within forty-five days after such hearing, the appropriate relief, including, but not limited to, reinstatement, back pay, restoration of lost service credit, and expungement of the records of the employee who disclosed information, and, in addition, the state personnel board shall order that the employee filing the complaint be reimbursed for any costs, including any court costs and attorney fees, if any, incurred in the proceeding. Such reimbursement shall be made out of moneys appropriated to the agency that employs such employee. Judicial review of any determination by the state personnel board under this subsection (2) may be had in accordance with section 24-4-106.

(3) It shall be a defense in any grievance or appeal before the state personnel board that the disciplinary action against an employee was initiated in violation of section 24-50.5-103, and the issue of the violation of section 24-50.5-103 shall be determined by the state personnel board as a part of the related grievance or appeal. The failure to raise any such defense shall bar any subsequent cause of action for a violation of section 24-50.5-103 arising out of the same set of facts at issue in the related grievance or appeal.

(4) Whenever the state personnel board determines that an appointing authority or supervisor has violated section 24-50.5-103, the appointing authority or supervisor shall receive a disciplinary action which shall remain a permanent part of the appointing authority's or supervisor's personnel file, and a copy of the disciplinary action shall be provided to the employee. The disciplinary action shall be appropriate to the circumstances, from a mandatory minimum of one week suspension or equivalent up to and including termination. In considering the appropriate disciplinary action pursuant to this subsection (4), the appointing authority or supervisor of the appointing authority or supervisor who has committed such violation shall consider the nature and severity of the retaliatory conduct involved.

(5) The state personnel board shall promulgate rules consistent with the provisions of this article that establish the procedures for filing complaints with the state personnel board under this section and that identify the rights and obligations of employees under this article.

Source: L. 79: Entire article added, p. 966, § 1, effective June 15. L. 97: Entire section amended, p. 1417, § 1, effective July 1. L. 2006: (1) and (2) amended, p. 99, § 1, effective August 7.

ANNOTATION

When public employee is wrongfully terminated, he is entitled to damages under § 24-50.5-104 (2), but only such damages as will make employee whole. Any award of back pay must have deducted from it any compensation which employee earned from other sources after his termination which, but for his termination, he would not have earned. Lanes v. O'Brien, 746 P.2d 1366 (Colo. App. 1987).

Claimant is bound by reductions as well as raises in pay and benefits adopted for all employees after the date of claimant's termination. Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990).

Expenses incurred to secure and maintain other employment may be set off against claimant's compensation from such other employment which must be deducted from back pay award. Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990).

Board may award interest, even if interest is not formally requested by claimant. Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990).

"Costs" referred to in § 24-50.5-104 (2) do not include attorney fees, in absence of a showing that the public employee's discharge was frivolous, in bad faith, malicious, a means of harassment, or otherwise groundless. Lanes v. O'Brien, 746 P.2d 1366 (Colo. App. 1987).

In a case where state auditor has violated the Whistleblower act, there is no requirement in statute that an independent auditor be appointed to investigate information concerning waste of public funds or mismanagement. Lanes v. O'Brien, 746 P.2d 1366 (Colo. App. 1987).

The board lacks subject matter jurisdiction to consider the complaint of an employee of the office of information technology who was not transferred to the office from another state agency, as nontransferred employees of the office are not in the state personnel system. Gieck v. Office of Info. Tech., 2020 COA 81, 467 P.3d 1277.