gavel court justice colorado

An employee who filed a whistleblower complaint against the state’s information technology office was not entitled to a hearing because he is not part of the civil service system, the Colorado Court of Appeals decided on Thursday.

In 2006, the General Assembly created the Governor’s Office of Information Technology, which began to assume all of the IT functions in state government. Today, the office employs over 900 people across 70 locations, with duties ranching from tech support to app development. At the time, the legislature provided that employees who were already part of the state’s civil service “shall retain all rights to the state personnel system and retirement benefits under the laws of this state” when they became employees of OIT.

The Colorado civil service system, created in 1918, protects employees and their jobs from political interference and is distinct from at-will hiring.

The office hired Jeffreyson Robert Gieck in 2015 as a senior developer. Two years later, he filed a whistleblower complaint to the State Personnel Board alleging that when he raised concerns about the project management software that OIT was using, he received a negative performance evaluation.

An administrative law judge held a hearing to determine the nature of Gieck’s work. Per the state constitution, employees whose work is solely in the governor or lieutenant governor’s offices are exempt from the civil service system. The judge found that Gieck did interact with other state agencies as a result of his duties, but because the legislature placed OIT in the governor’s office, he did not fall within the civil service system.

The board, which hears appeals from civil servants about adverse actions against them, subsequently agreed that it lacked jurisdiction to address Gieck’s complaint.

In his lawsuit challenging the decision, Gieck alleged that because the law creating OIT preserved employees’ status in the state personnel system, the protection applied to all employees of the office, not just those who transferred to it. He based his argument on the language the legislature used each time it merged duties and personnel into the office. OIT countered that the law only applied to existing employees who wound up in the office, and not new hires.

The Colorado Court of Appeals sided with OIT, with Judge Rebecca R. Freyre writing that “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.”

The Office of Innovation and Technology was the predecessor to OIT.

Addressing Gieck’s claim that it was unconstitutional to deny him civil service benefits while employees who transferred could retain them, Freyre concluded that the fact that governor’s office employees were grandfathered into the civil service system was proof that the General Assembly was not trying to “legislate around” the Constitution. The court affirmed the personnel board’s decision not to take up the whistleblower complaint.

The case is Jeffreyson Robert Gieck v. Governor’s Office of Information Technology.

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