Opinion
No. 74-597
Decided September 23, 1975. Rehearing denied October 23, 1975. Certiorari denied December 8, 1975.
Discharged town clerk brought action to regain former position and for damages. Trial court dismissed the complaint for failure to state a claim, and plaintiff appealed.
Affirmed
1. MUNICIPAL CORPORATIONS — Georgetown — Not Subject — General Laws — Original Charter — Controlling. The town of Georgetown has never elected to become subject to the general laws for municipal corporations; its original charter is therefore the sole measure of its powers, rights, and liabilities except in so far as that charter has been amended, or is in conflict with the Constitution.
2. Georgetown — General Laws — Inapplicable — Purely Local Matters — Appointment — Removal — Municipal Officers. The provisions governing those municipalities as were organized under the general state laws and governing those specially chartered municipalities as have elected to be governed by those laws are not applicable to Georgetown, at least on matters of purely local concern such as the appointment and removal of municipal officers and employees.
3. Municipal Ordinance — Georgetown — Controls — Discharge of Town Clerk — No Requirement — Charge in Writing — Opportunity of Hearing. Where, pursuant to its charter authority, Georgetown adopted an ordinance relative to the appointment of a town clerk, which ordinance contained no requirement that a charge in writing and a opportunity of hearing be given prior to discharge of that clerk, that ordinance, being consistent with the special charter of the town, is in full force and effect and is valid, and takes precedence over any general statutory provision to the contrary.
4. Discharge of Employees — No Notice — No Written Charges — No Hearing — Power Implicit. Absent an applicable state statute or a specific ordinance, implicit in the power of a city or town to hire municipal employees is the power to discharge them at any time without necessity of written charges and hearing thereon.
Appeal from the District Court of the County of Clear Creek, Honorable Ronald J. Hardesty, Judge.
William Tucker, for plaintiff-appellant.
William L. Jones, Bradley, Campbell Carney, Daniel T. Moyle, for defendants-appellees.
Plaintiff, Elizabeth Glenn, appeals from a judgment dismissing her complaint for failure to state a claim for relief. We affirm.
Glenn alleged that she was employed by Georgetown as town clerk from August 1968 until September 24, 1974, when she was discharged by defendant Brent Kruger, police judge and ex-officio mayor, acting on behalf of the other named defendants as members of the town Board of Selectmen. She further alleged that she received no charges in writing or otherwise, and was given no opportunity for a hearing. She therefore commenced this action, seeking restoration to her former office, damages, and other relief.
Defendant's motion to dismiss the complaint was granted and, when Glenn did not amend her complaint within the 30 days allowed, judgment of dismissal was entered. The only issue raised on appeal is Glenn's contention that her discharge was invalid for non-compliance by the Board of Selectmen with § 31-3-306, C.R.S. 1973, which permits removal of the town clerk (recorder) only after written charges and an opportunity for a hearing, and that, therefore, her complaint should be reinstated. We do not agree.
Georgetown exists under and by virtue of a charter granted by Colorado Territory. Private Acts, Joint Resolutions, and Memorials, 7th Session of the Legislative Assembly, 1868, page 8. See Georgetown v. Bank of Idaho Springs, 99 Colo. 519, 64 P.2d 132. In article V thereof, section 31 specified that the Board of Selectmen shall have power "to regulate the election of corporate officers, and to provided for removing from office any person holding office created by ordinance, in certain cases."
In 1872, the territorial legislative assembly amended the charter, Colo. Territorial Laws 9th Session, p. 201, to provide:
"That the Board of Selectmen of Georgetown, shall have the power to provide by ordinance for the appointment of a town clerk . . . and all other officers . . . and their removal from office . . . . " (emphasis added)
In 1877, the general assembly repealed all general laws providing for the organization and government of incorporated cities and towns, and enacted a new act in relation to municipal corporations, G.L. 1877, pp. 874-919. However, that act exempted special charter municipalities from its operation. See § 31-1-101, C.R.S. 1973. The status of special charter municipalities was clarified in 1879 by what is now § 31-1-102, C.R.S. 1973. That statute provided that:
"Every city or town incorporated previous to the third day of July, 1877, which shall choose to retain such organization, shall in the enforcement of the powers or the exercise of the duties conferred by the special charter or general law under which the same shall be incorporated, proceed in all respects as provided by such special charter or general law." Colo. Sess. Laws 1879, p. 196.
[1,2] The town of Georgetown has never elected to become subject to the general laws for municipal corporations. "Its original charter is therefore the sole measure of its powers, rights, and liabilities except in so far as that charter has been amended, or is in conflict with the Constitution." Georgetown v. Bank of Idaho Springs, supra. The only charter provisions or amendments applicable to appointment or removal are as set forth above.
"Hence the provisions which govern such municipalities as were organized under the general state laws and such specially chartered municipalities as have elected to be governed by those laws are not applicable to the defendant town," Georgetown v. Bank of Idaho Springs, supra, at least on matters of purely local concern such as the appointment and removal of municipal officers and employees. Ratcliff v. Kite, 36 Colo. App. 261, 541 P.2d 88; see Four-County District v. Commissioners, 149 Colo. 284, 369 P.2d 67.
[3] Pursuant to its charter authority, the town adopted an ordinance (Town Ordinance No. 12) which is still in effect and which specifies:
"That there shall be appointed by the Board of Selectmen . . . one Attorney, one Clerk, one Treasurer, one Surveyor, one Town Marshall and one Street Commissioner, who shall hold their offices respectively, during the pleasure of the Board of Selectmen." (emphasis added)
Under its terms, there is no requirement for "a charge in writing and an opportunity of hearing being given" Cf. § 31-3-302, C.R.S. 1973. This ordinance, being consistent with the special charter of the town, is in full force and effect and is valid, Georgetown v. Bank of Idaho Springs, supra, and takes precedence over any general statutory provision to the contrary.
[4] Even if there were no ordinance dealing with the appointment or removal of the town clerk, the general statute on the local matter of removal of municipal officers on which Glenn relies, § 31-3-306, C.R.S. 1973, does not apply to Georgetown. Sections 31-1-101 and 102, C.R.S. 1973; Georgetown v. Bank of Idaho Springs, supra. Absent an applicable state statute or a specific ordinance, "implicit in the power of a city or town to hire is the power to discharge at any time without notice and without necessity of written charges and hearing thereon." Mitchell v. Eaton, 176 Colo. 473, 491 P.2d 587; Ratcliff v. Kite, supra.
Judgment affirmed.
JUDGE PIERCE and JUDGE STERNBERG concur.