     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.


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                           IV.   Conclusion

¶ 39   The Board’s order is affirmed.

       JUDGE GROVE and JUDGE TAUBMAN concur.




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