Kirkmeyer v. Department of Local Affairs
2011 Colo. App. LEXIS 489
Colo. Ct. App.2011Background
- Kirkmeyer, a former state SES employee, sought return to a vacant traditional pay plan position after her SES contract expired.
- She challenges the nonrenewal and separation under the SES contract, and the SHC that allegedly guaranteed a return to vacancy in the traditional plan.
- Contract terms included a May 1 nonrenewal notice provision, a choice between contract salary and statutory lid, and waivers of many state personnel rights upon nonrenewal.
- Governor Ritter's administration rejected the SHC as inconsistent with Colorado law, and Kirkmeyer was not returned to a traditional position at contract end.
- The Board initially dismissed for lack of subject matter jurisdiction; on appeal, the court remanded to determine rights under the SHC, with further Board proceedings anticipated.
- The trial court granted summary judgment rejecting the SHC as unenforceable; on appeal, the court reverses and remands for Board-driven resolution of SHC rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of 24-50-104(5)(c) facially or as applied | Kirkmeyer contends 5(c) creates a parallel system and violates Art. XII, §18. | DOLA asserts 5(c) precludes return to outside position and contracts waive rights. | As applied, 5(c) is moot; facial challenge rejected; statute interpreted to apply only while in SES. |
| Interpretation of the SHC and its enforceability | SHC granted guaranteed return to traditional plan positions upon nonrenewal. | SHC is ambiguous or unenforceable under 5(c) and Board Rules; may be waived/limited. | SHC is ambiguous; Board must determine rights on remand; summary judgment reversed. |
| Effect of Board Rules on the SHC and rights | Rules should not defeat rights guaranteed by the SHC or merit-based system. | Rules control post-SES rights and may preclude traditional-plan reinstatement. | Constitutional interpretation deferred; rules remain for Board proceedings; no prejudice to decision on remand. |
| Standing and as-applied challenges to 5(c) | Kirkmeyer has standing to challenge the SHC as applied to her. | Only in SES; standing limited; as-applied challenges moot if interpretation favors respondents. | Kirkmeyer has as-applied standing; but relief tied to Board interpretation of SHC on remand. |
| Summary judgment on Gonzales' decision | Gonzales erred in not offering a traditional-plan position due to SHC issues. | Decision aligned with SHC interpretation and 5(c). | Summary judgment reversed; governance hinges on Board's ultimate SHC interpretation. |
Key Cases Cited
- Department of Institutions v. Kinchen, 886 P.2d 700 (Colo. 1994) (merit-based secure employment; efficient service concept)
- Kirkmeyer v. Dep't of Local Affairs, 2011 WL 1168818 (Colo. App. 2011) (not published; Board hearing scope on remand)
- Jaramillo v. People, 183 P.3d 665 (Colo. App. 2008) (statutory interpretation and rights post-employment)
- Flakes v. People, 153 P.3d 427 (Colo. 2007) (standing to challenge statute where not directly affected)
- Romero v. People, 179 P.3d 984 (Colo. 2007) (statutory interpretation in context of Nevada-like framework)
- Renteria v. Colorado State Dep't of Personnel, 811 P.2d 797 (Colo. 1991) (avoidance principle; constitutional avoidance when possible)