Opinion
Aug. 14, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 750
William O. DeSouchet, Jr., Alamosa, for plaintiffs-appellees.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Jeffrey I. Sandman, Asst. Atty. Gen., Denver, for defendants-appellants.
ENOCH, Judge.
The Colorado Civil Rights Commission and Solomon E. Gallegos appeal from a district court judgment setting aside an order of the Commission in a proceeding arising under the Colorado Antidiscrimination Act of 1957. C.R.S.1963, 80--21--1 et seq.
In January 1970, Solomon E. Gallegos applied for a position as a policeman with the City of Alamosa. The Personnel board appointed by the Alamosa City Council gave Gallegos an oral examination and a written examination, known as the Modified Alpha 9 Test. Gallegos was placed on an eligibility list dated February 5, 1970, and, upon the basis of his score on the examination, he ranked sixth on the list. A vacancy appeared on the police force and, the first three applicants on the list being unavailable, the applicant ranking fourth was hired. On April 18, 1970, a new eligibility list was issued upon which Gallegos was ranked fourth. Another vacancy occurred on May 2, 1970, and the first ranked applicant was appointed.
On June 3, 1970, Gallegos filed a complaint with the Commission alleging that the Alamosa City Council, acting through its employees, the City Manager, and the Chief of Police, had discriminated against him by refusing to hire him as a policeman. The discrimination was alleged to be based in whole or in part on Gallegos' national origin or ancestry.
The hearing officer, after a hearing made findings of fact upon which he concluded that there was discrimination in the refusal to hire Gallegos. The order of the hearing officer became the final order of the Commission.
The Alamosa City Council, the City Manager, and the Chief of Police commenced this action to review the final order of the Commission. The district court set aside the Commission's order, and the Commission and Gallegos have appealed. We affirm.
The district court set aside the order of the Commission on the grounds that the Commission lacked jurisdiction since the proceeding was not brought against any party meeting the statutory definition of 'employer.' The complaint filed by Gallegos did not join the City of Alamosa, but named only the council and the two city employees. In the complaint Gallegos alleged that there was discrimination against him in violation of C.R.S.1963, 80--21--6. This section provides in part that it shall be a discriminatory or unfair employment practice:
'For an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation against any person otherwise qualified, because of race, creed, color, sex, national origin or ancestry.' 1969 Perm.Supp., C.R.S.1963, 80--21--6(2).
1969 Perm.Supp., C.R.S.1963, 80--21--2(5) provides in part that:
"Employer' shall mean the state of Colorado or any political subdivision, commission, department, institution, or school district thereof, and every other person employing persons within the state . . ..'
The Commission's order, among other things, required that the named respondents, as well as all other agencies and departments of the City of Alamosa, cease and desist from discriminatory and unfair employment practices with regard to Gallegos or any present or prospective employees.
The City of Alamosa, not its council, officers, or employees, is the 'employer' within the statutory definition. The municipal corporation itself is the political subdivision of the state within the meaning of the statute. The City Council and the City employees named in the complaint are not authorized by the city charter to, nor do they, individually employ persons. The power to appoint to employ is solely that of the municipal corporation and its corporate officers and its employees are merely agents who carry out the exercise of that power. Under the circumstances where the alleged discriminatory act is the refusal to hire, the employer, City of Alamosa, must be named as a party.
The Commission and Gallegos contend that the joinder of the City Council and the City Manager is sufficient to obtain jurisdiction since they have responsibility for the personnel administration of the City. The Council and City Manager, although responsible for the affairs of the City, are agents of the municipal corporation and are not the corporation itself. See City of Princeton v. Woodruff, 230 Ind. 536, 104 N.E.2d 748. The Alamosa City Charter, art. 1, sec. 2, provides that the City 'may, by the name of the City of Alamosa, sue and defend, plead and be impleaded in all courts and places.' An action against the council or members of any governing group of a municipal corporation is not to be equated with an action against the corporate entity. City of Danville v. Wilson, 395 S.W.2d 583 (Ky.). An action commenced against a municipal corporation should be brought in its corporate name and not against the individuals composing it, its council, officers, or employees. Glidewell v. Hughey, 314 S.W.2d 749 (Mo.); Buckner v. Clay, 306 Ky. 194, 206 S.W.2d 827.
The Commission and Gallegos also assert that the City of Alamosa is not an indispensable party who must be joined because the Commission's order against plaintiffs will effectively grant the relief desired by Gallegos. This argument is rejected since the relief requested by Gallegos would require action to be taken by the City. See Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95. The district court properly set aside the order of the Commission.
In view of our holding that the Commission lacked jurisdiction to determine the matter, it is unnecessary to consider the other allegations of error raised.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.