Summary
In Kanaly, the Court of Appeals considered statutory language granting the treasurer the power to fix the salaries of his employees with approval of the board of county commissioners.
Summary of this case from Beacom v. Bd. of County Comm'rsOpinion
No. 71-107
Decided August 9, 1972. Rehearing denied August 29, 1972. Certiorari granted November 13, 1972.
Action for declaratory judgment and in the nature of mandamus by county treasurer and his appointed employees seeking to require Board of County Commissioners to approve certain salaries of the employees as fixed by the treasurer. From dismissal of complaint, plaintiffs appealed.
Reversed
1. COUNTIES — Salaries — Treasurer's Employees — Fixed — Treasurer — County Commissioners — Burden — Unreasonableness. County treasurer is empowered to fix the salaries of his employees, and where a question is raised as to the reasonableness of such salaries, the burden is on the Board of County Commissioners to establish their unreasonableness by competent evidence.
2. ATTORNEY AND CLIENT — Action — County Treasurer — Relative Powers — Fix Salaries — Entitled — Reasonable Fees Incurred. In action brought by county treasurer to determine relative powers of his office and Board of County Commissioners in regard to fixing salaries of treasurer's employees, the county treasurer is entitled to recover reasonable attorney's fees incurred in prosecuting such action.
Appeal from the District Court of Mesa County, Honorable James J. Carter, Judge.
Younge, Hockensmith, Robb Griffin, James M. Robb, for plaintiffs-appellants.
Gerald J. Ashby, County Attorney, for defendants-appellees.
The plaintiffs-appellants are the Treasurer of Mesa County (Treasurer) and his appointed employees (Employees). The defendants-appellees are the members of the Board of County Commissioners of Mesa County (Board). Treasurer's and Employees' complaint sought a writ of mandamus requiring the Board to approve certain salaries fixed by the Treasurer and requested a declaratory judgment construing and interpreting the relative rights, powers and duties of the Treasurer and the Board under provisions of C.R.S. 1963, 56-2-10. The Board filed its answer, and as one of its defenses asked that the complaint be dismissed. The Treasurer and Employees then filed a motion for summary judgment. The trial court, in dismissing the complaint, held, inter alia, that the Commissioners are vested with the exclusive power to determine the salaries of the Treasurer's employees. We do not agree with the court's interpretation of the Commissioner's rights under C.R.S. 1963, 56-2-10.
The facts are brief and undisputed. The Treasurer fixed certain salaries in 1969 and 1970 for his employees for the calendar years of 1970 and 1971. The Board refused to approve any of the salaries either year and set different salaries which ranged from five to fifteen dollars per month less than those fixed by the Treasurer.
C.R.S. 1963, 56-2-10 provides:
"Compensation of deputies and assistants. — The county clerks, county treasurers, county assessors and county superintendents of schools of the respective counties may appoint such deputies, assistants, and employees as shall be necessary at such compensation, payable monthly, as shall be fixed by said officers with the approval of the boards of county commissioners of their respective counties." (Emphasis added.)
Disposition of this appeal requires determination of the legislative intent in its use of the phrase "with the approval of the boards." The trial court's interpretation that the Board is thereby vested with exclusive power to set the salaries would obviously negate and render meaningless the apparent authority given to the Treasurer in the first instance to fix the salaries. Such an interpretation is not consistent with the legislative history of this particular provision nor with the case law that has developed relative to similarly worded statutes.
In 1891, the legislature provided that Treasurer's employees "shall be paid salaries . . . to be fixed by the board." Colo. Sess. Laws 1891, p. 313 § 17. The Treasurer was given no authority in the determination of his employees' salaries. This legislation was subsequently amended in certain minor respects in 1899, 1915 and 1917, each amendment continuing to vest in the board exclusive power to fix salaries. Colo. Sess. Laws 1899, Ch. 134 § 17; Colo. Sess. Laws 1915, Ch. 89 § 2580; Colo. Sess. Laws 1917, Ch. 73 § 2580.
However, in 1919, the legislature made a major change in the delegation of powers and responsibility and enacted the forerunner of the present statute. Colo. Sess. Laws 1919, Ch. 109 § 14, provided that the Treasurer could employ his deputies and assistants "and their compensation and time of service shall be fixed by the official appointing them, with the approval of the Board of County Commissioners." It is apparent from this alteration that the legislature intended to divest the Board of the exclusive power to fix the salaries and to vest some meaningful power and authority in the Treasurer.
Our Supreme Court's interpretation of several different statutes wherein elected officials have been given the authority to fix the salaries of their employees, confirms this conclusion. In Smith v. Miller, 153 Colo. 35, 384 P.2d 738, the court was called upon to interpret C.R.S. '53, 39-16-1 and 56-3-8, which provided that the judges of the district courts "shall fix" the salaries of its employees. C.R.S. '53, 39-16-1 had the limiting phrase, "subject to the approval" of the board and C.R.S. '53, 56-3-8 had a similar phrase, "as shall be approved" by the board. Although this case was basically decided on the principle of the constitutional separation of powers between the judicial and administrative branches of government, it is significant to note that in relation to the terms "approval" and "approved," the court held that where a question is raised as to the reasonableness of the salaries, "the burden is on the board to establish such facts [the unreasonableness] by competent evidence." See also Board of County Commissioners v. Morning, 72 Colo. 200, 210 P. 326.
In Watson v. Board of County Commissioners, 80 Colo. 14, 249 P. 1, the county treasurer and board were involved in a controversy concerning the 1921 statute which is basically the same statute as the one involved in the case at hand. In Watson, the treasurer had appointed an assistant and the board had paid the assistant's salary monthly as fixed by the treasurer and then by unilateral action on the part of the board, the salary was reduced. The Supreme Court held that the board had approved the employment and the salary by its action and that it did not have the power to change the salary by its own independent action. It is evident from this case that the authority vested in the Board under the phrase, "with the approval of the board" does not give the Board unbridled power to change salaries fixed by the Treasurer. If the Board does not have the power to unilaterally change a salary, it does not have the power to unilaterally fix the salary. See Board of County Commissioners v. Madan, 90 Colo. 10, 5 P.2d 866.
A county superintendent of schools sued the county commissioners in Schroeder v. Board of County Commissioners, 152 Colo. 313, 381 P.2d 820, because of a conflict which arose under C.R.S. '53, 56-2-10 (now C.R.S. 1963, 56-2-10). In Schroeder, the board refused to allow two salary items in the superintendent's budget which in effect terminated two positions. The trial court heard testimony and determined that the secretarial assistant and the vacation period employee were not necessary and affirmed the board's action. In reversing, the Supreme Court referred to Commissioners v. Morning, supra, and stated:
"In the case at bar the action of the County Commissioners was a more serious invasion by the province of the Superintendent of Schools. By eliminating the salary the Commissioners eliminated the position, and, in effect, substituted its determination of the necessity for an assistant when the prerogative is vested by law in the duly elected county official. The court in entering the finding determining that the assistant was not necessary also invaded the province of the executive branch of the government and likewise was as powerless to take such action as were the Commissioners."
The most recent pronouncement by the Supreme Court concerning a statute similar to C.R.S. 1963, 56-2-10, involved the interpretation of the authority of a District Attorney and county commissioners pursuant to the provisions of C.R.S. 1963, 45-3-12(2). In Johnson v. Board of County Commissioners, 174 Colo. 350, 483 P.2d 1344, the board had refused to pay its pro rata share of the salary of the Deputy District Attorney and a clerk typist. In upholding the position of the District Attorney, the court stated:
"The statute which provides the basis for this decision grants the District Attorney the right to staff his office, as the trial court determined. The only remaining question is that relating to the challenge of the Board of County Commissioners to the employment of the clerk-typist by the District Attorney and approval of the budget proposed by the District Attorney. Certainly, it would be an unreasonable interpretation of the statute to declare that the County Commissioners must rubber-stamp the hiring of an employee or the salary of the employees appointed by the District Attorney. However, the burden is upon the Board of County Commissioners, if they choose to challenge the wisdom of the District Attorney's decision to employ personnel to staff his office in accordance with the statute, to show that there is no reasonable necessity for such employment and that in employing personnel the District Attorney acted arbitrarily, capriciously, and abused his discretion in making such appointment and in setting the salary for such appointed employee. For a parallel situation, see Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963). See also Schroeder v. Board of County Commissioners, 152 Colo. 313, 381 P.2d 820 (1963), and Board of County Commissioners of Routt County v. Morning, 72 Colo. 220, 210 P. 326 (1922)."
[1] Considering the legislative history of C.R.S. 1963, 56-2-10, and the cases cited, we hold that the Treasurer is empowered to fix the salaries of his employees and where a question is raised as to the reasonableness of the salaries, the burden is on the Board to establish the unreasonableness by competent evidence.
[2] The Treasurer also contends that his office is entitled to reasonable attorney's fees incurred in prosecuting this action. We agree. Unlike the situation in Commodore Mining Co. v. People ex rel. Reynolds, 82 Colo. 77, 257 P. 259, the present case involves two public entities. The County Commissioners are represented by the county attorney at no personal expense. It would be inequitable to require another county official, acting in his official capacity, to bear personally the burden of attorney's fees and costs in a case such as this against the Commissioners to have determined an issue of respective powers of the two governmental bodies.
Judgment is reversed and the cause remanded with directions to set aside the judgment of dismissal, to reinstate the complaint and for further proceedings not inconsistent with this opinion.
JUDGE COYTE and JUDGE PIERCE concur.