Could the Colorado state personnel director require Clinical Security Officers at the Pueblo mental health institute to either become certified peace officers or be reclassified out of the security occupation group?

Opinion 09-02: Pueblo mental health institute Clinical Security Officers were misclassified, and the personnel director's reclassification call was entitled to deference

Plain-English summary

Clinical Security Officers at the Colorado Mental Health Institute at Pueblo (CMHIP) sat in the state's "Enforcement and Protective Services" job classification, alongside Correctional and Youth Security Officers. The state personnel director told DHS the classification was wrong because the Enforcement and Protective Services group, by its glossary definition, required statutory peace officer status. CMHIP's Clinical Security Officers had no peace officer status under § 16-2.5-101, which lists which positions are peace officers. The director said they should either get certified as peace officers (by legislation adding their position to the article 2.5 list and obtaining P.O.S.T. certification) or be reclassified, with Health Care Technician suggested. The AG agreed that the director's decision was reasonable: the personnel director has constitutional and statutory authority to classify state positions, his interpretation of his own glossary and class series description had a reasonable basis in law, and the on-the-ground duties at CMHIP combined security and psychiatric-technician work, fitting outside Enforcement and Protective Services as the director defined it. Because administrative classification decisions get judicial-style deference, the director's call would stand.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Colorado Mental Health Institute at Pueblo serves forensic patients, including individuals committed after a not-guilty-by-reason-of-insanity adjudication. Its Clinical Security Officers worked in the Forensic units. Their duties combined security functions (perimeter and patient monitoring, physical searches, crisis intervention, restraint) with patient-care functions (medication administration, milieu management, patient teaching, documentation of progress).

The state personnel system is structured by Class Series Descriptions and a Job Evaluation Glossary. The Glossary definition of the Enforcement and Protective Services Occupational Group required that positions in the group "perform services where peace officer status is granted by statute with the authority and duty to enforce criminal laws," and that they "satisfy requirements set forth in statute to carry out their commission and duties," and "shall or may" require P.O.S.T. Board certification. The Glossary also said "occupations that have peace officer status, but do not have a statutory P.O.S.T. Board certification requirement, are not included in this occupational group."

Under § 24-7-101 and § 24-7-106, state institutions could employ "security officers," but those security officers were not peace officers without P.O.S.T. certification and legislative designation under § 16-2.5-101, which lists peace officer positions. Correctional Security Officers at CMHIP were listed as peace officers in § 16-2.5-140. Clinical Security Officers were not.

The personnel director's authority comes from Colo. Const. art. XII, § 14(4) (the civil service amendment) and from § 24-50-104(1)(b), which charges the director with classifying all state positions.

What the AG concluded at the time

The director had the authority to classify

The AG started with the constitutional and statutory grant of classification authority to the director. Article XII, § 14(4) of the Colorado Constitution gives the director responsibility for the personnel system. § 24-50-104(1)(b) makes the director responsible for classifying all state positions. Blake v. Department of Personnel had identified that responsibility as comparing relative levels of difficulty and differences in duties to set occupational classes.

Administrative deference applied

The opinion drew heavily on Colorado deference doctrine. Moore v. District Court and Denver v. Board of Assessment Appeals presumed validity for agency action within scope. Weld County Sch. Dist. RE-12 v. Bymer and Abromeit v. Denver Career Service Bd. extended deference to an agency's interpretation of its own statutes and personnel rules. The AG cited Alexander v. Richardson and Colorado Association of Public Employees v. Lamm for the rule that an agency interpretation only needs to be reasonable to merit great deference, and Roberts Construction for the principle that deference is especially appropriate when technical expertise is involved.

The director's reading of the Glossary was reasonable

The Glossary unambiguously required statutory peace officer status for positions in Enforcement and Protective Services. § 16-2.5-101 makes peace officer status a creature of express legislative designation under article 2.5; CMHIP Clinical Security Officers were not on that list. The AG concluded the director's reading aligned with the statutory text and was therefore reasonable on its face.

The PDQ duties did not match the class series description

The Class Series Description said "[positions in mental health institutions or youth/juvenile areas may participate in work of a clinical treatment or counseling nature, but the assignment is primarily security and control and does not include professional treatment, counseling, therapy, or social work." High Gear and Toke Shop v. Beacom had defined "primarily" as "in the first place." The CMHIP PDQ for Clinical Security Officers described patient care duties (assessment, milieu management, medication administration, patient teaching, evaluation of treatment effectiveness) that went beyond the "primarily security" assignment the Class Series Description contemplated. Reclassification into a Health Care Technician series, where the patient-care duties fit, was a reasonable choice.

Either path complied with the personnel system

The director offered two routes. Route one: have the General Assembly add CMHIP Clinical Security Officers to § 16-2.5-101's list and obtain P.O.S.T. certification, after which they would qualify for the Enforcement and Protective Services group. Route two: reclassify the positions out of Enforcement and Protective Services. Both routes addressed the misclassification; only the second was within the director's unilateral authority.

Common questions

Did the AG say Clinical Security Officers had to be fired or have their pay cut?

No. The opinion was about classification, not about employment status or compensation directly. Reclassification to Health Care Technician would carry a different pay band and different career path, but the opinion did not opine on the compensation effects, only on the legal authority to reclassify.

Did the AG say the director was correct, or only that the director's decision could not be overturned?

The AG said the director's decision had a reasonable basis in law and was warranted by the record. Under Colorado deference doctrine, that is enough for the decision to stand on judicial review. The AG did not attempt to substitute its own classification judgment for the director's; the framework only asks whether the agency call is reasonable.

Why did Correctional Security Officers at CMHIP keep their classification when Clinical Security Officers did not?

Correctional Security Officers are listed as peace officers in § 16-2.5-140 and may be P.O.S.T. certified, so they meet the Glossary's statutory peace officer status requirement for the Enforcement and Protective Services group. Clinical Security Officers were not so listed.

Did the General Assembly later add Clinical Security Officers to article 2.5?

The opinion did not predict legislative action and only addressed the law as it stood in 2009. A reader interested in current peace officer designations should check the current text of C.R.S. § 16-2.5-101 et seq. and any amendments since 2009.

Citations

• Colo. Const. art. XII, § 14(4) — civil service amendment vesting personnel system administration in the personnel director.
• C.R.S. § 24-50-104(1)(b) — director's responsibility for classifying all state positions.
• C.R.S. § 24-50-101(3)(c) — director's consultant services to executive branch agencies.
• C.R.S. § 24-7-101, § 24-7-106 — state institutions may employ security officers; security officers are not peace officers absent P.O.S.T. certification and legislative authorization.
• C.R.S. § 16-2.5-101 — only persons designated under article 2.5 are peace officers.
• C.R.S. § 16-2.5-140 — designating CMHIP Correctional Security Officers as peace officers.
• Blake v. Department of Personnel, 876 P.2d 90 (Colo. App. 1994) — Colorado Court of Appeals case identifying classification authority as the director's.
• Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998) — Colorado Supreme Court deference rule for an agency's interpretation of its own statutes.
• Abromeit v. Denver Career Service Bd., 140 P.3d 44 (Colo. App. 2005) — deference standard for an agency interpreting its own personnel rules.
• High Gear and Toke Shop v. Beacom, 689 P.2d 624 (Colo. 1984) — Colorado Supreme Court definition of "primarily" as "in the first place."

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-09-2-Whether-the-State-Personnel-Director-can-Require-Clinical-Security-Officcers-Employed-at-the-Colorado-Mental-Health-Institute-at-Pueblo-to-be-Certified-as-Peace-Officers-or-Reclassified-a.pdf

Original opinion text

STATE OF COLORADO

John W. Suthers
Attorney General

DEPARTMENT OF LAW

Cynthia H. Coffman
Chief Deputy Attorney General

Office of the Attorney General
State Services Building
1525 Sherman Street - 7th Floor
Denver, Colorado 80203
Phone (303) 866-4500

Daniel D. Domenico
Solicitor General

FORMAL OPINION OF JOHN W. SUTHERS Attorney General

No. 09-02
AG Alpha No. HS AD AGBCR
April 6, 2009

Brad Mallon, Director of the Colorado Department of Human Services ("DHS") Division of Human Resources, requested an opinion from this office concerning the question of whether Clinical Security Officers employed at the Colorado Mental Health Institute at Pueblo ("CMHIP") must be reclassified unless they become Peace Officers.

QUESTION PRESENTED AND CONCLUSION

Question: Are Clinical Security Officers employed at CMHIP properly classified? If not, must they be either reclassified as Health Care Technicians or certified as Peace Officers in order to retain their classification?

Answer: The General Assembly has given the State Personnel Director ("Director") the authority to establish classifications for state employees and to oversee the classification system for all state agencies. The Director determined that the Clinical Security Officers were not properly classified. Making classification determinations is the Director's responsibility, and his determination was reasonable and, therefore, must be accorded deference.

DISCUSSION

The request for this Attorney General Opinion arose because the Director advised DHS that the CMHIP Clinical Security Officers need to either become Peace Officers or the positions should be reclassified to Health Care Technician. A review of the relevant documentation and law leads to this opinion that it was reasonable for the Director to conclude that Clinical Security Officers are improperly classified and that the Director's decision is entitled to deference.

A. The Director is charged with classifying positions in the State Personnel System and his decisions are entitled to deference.

The Director is responsible for the administration of the state personnel system and laws enacted pursuant to the State Constitution. Colo. Const. art. XII, § 14(4). The Director must provide oversight for managing the personnel system, including "consultant services to executive branch agencies . . . to further their professional management of human resources in state government." § 24-50-101(3)(c), C.R.S. Pursuant to § 24-50-104(1)(b), C.R.S., the Director is tasked with classifying all state personnel system positions. See also Blake v. Department of Personnel, 876 P.2d 90, 96 (Colo. App. 1994) (it is the Director's responsibility to establish occupational classes by comparing the "relative level of difficulties and the differences in duties and responsibilities of each class.")

An administrative agency acting within the scope of its authority is presumed to make valid and constitutional decisions. Moore v. District Court, 184 Colo. 63, 67, 518 P.2d 948, 951 (Colo. 1974); Denver v. Board of Assessment Appeals, 802 P.2d 1109, 1111 (Colo. App. 1990). Deference should be given to the interpretations of statute by the officer or agency charged with its administration. Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550, 557 (Colo. 1998); see also Abromeit v. Denver Career Service Bd., 140 P.3d 44, 49 (Colo. App. 2005) (interpretation of personnel rules by the agency charged with enforcement of those rules is generally entitled to great deference). An agency's interpretation is to be accepted if it has a reasonable basis in law and is warranted by the record. Abromeit, id.

An agency's interpretation of its statutes need only be reasonable in order to merit great deference. Alexander v. Richardson, 451 F.2d 1185, 1187 (10th Cir. 1972); Colorado Association of Public Employees v. Lamm, 677 P.2d 1350, 1357 (Colo. 1984). Deference is especially appropriate if the agency's expertise or technical knowledge is involved. Roberts Construction Co. v. Small Business Administration, 657 F. Supp. 418 (D. Colo. 1987). The Director is required to have administrative expertise, has broad responsibilities, and her decisions are presumed valid. Bernstein v. Livingston, 633 P.2d 519, 521-22 (Colo. App. 1981).

B. CMHIP Clinical Security Officers do not have statutory peace officer status as required by the Director's guidance on position classifications. Their duties include a blend of security and psychiatric technician. Therefore the Director's opinion that these positions should be reclassified is reasonable.

The Director's designee, David Kaye, informed the DHS Human Resources Director that CMHIP's Clinical Security Officers are incorrectly classified because positions in the Enforcement and Protective Services Occupational Group must have statutory peace officer status. See Letter from Kaye to Mallon dated December 17, 2007, pg. 1. Mr. Kaye also stated that after reviewing the duties of these positions, he determined that they combine both security and psychiatric technician duties. As a result, they should be reclassified in a different Occupational Group such as Health Care Technician. Id.

1. Background on Class Series Descriptions & Position Description Questionnaires.

Positions in the state personnel system with similar duties are grouped together into a "class" (e.g. correctional security officers, youth security officers, and clinical security officers). Groups of similar classes are then further placed under the larger umbrella of "Occupational Group" (e.g. Enforcement and Protective Services). A description of the work within each Occupational Group and the specific factors for the group are set forth in a "Class Series Description." The Class Series Description identifies the concept of and job factors for each class in the Occupational Group. To assist in defining terms and determining proper classifications, the Director relies on a "Job Evaluation Glossary" ("Glossary").

All State agencies maintain a Position Description Questionnaire ("PDQ") for each position within their department. The PDQ identifies the position title (i.e. Clinical Security Officer II) and provides information on the purpose of the position and a description of the job duties. The job description section of the PDQ sets forth the percentage of the time each specific job duty is performed. The job duties of the position must fall within the duties for that classification contained in the Class Series Description and comport with the definitions in the Glossary.

2. CMHIP Clinical Security Officers do not have peace officer status, contrary to the requirement in the Glossary.

The Clinical Security Officer class is contained within the Enforcement and Protective Services Occupational Group. This group also includes the classes of Correctional Security Officer and Youth Security Officer. The Glossary defines the Enforcement and Protective Services Occupational Group as follows: "[t]hese occupations perform services where peace officer status is granted by statute with the authority and duty to enforce criminal laws. . .[p]ositions in this group must satisfy requirements set forth in statute to carry out their commission and duties, and 'shall or may' require certification by the Peace Officers Standards and Training (P.O.S.T.) Board as specified by statute." Glossary, p. 2. It also states that "occupations that have peace officer status, but do not have a statutory P.O.S.T. Board certification requirement, are not included in this occupational group." Id.

Pursuant to § 24-7-101, C.R.S., state institutions and departments may employ "security" officers. Section 24-7-106 states that persons employed by the state as security officers shall not be designated as peace officers without completing P.O.S.T. Board certification and without legislative authorization under § 16-2.5-101, C.R.S. Section 16-2.5-101(1) states that only persons designated under that article are peace officers, whether they are certified by the P.O.S.T. Board or not. Clinical Security Officers are not designated by article 2.5 as peace officers.

It was reasonable for the Director to determine that Clinical Security Officers do not fit within the Enforcement and Protective Services Occupational Group because Clinical Security Officers are not granted peace officer status by statute. Therefore, the Director's finding that peace officer status was required for all positions within the Enforcement and Protective Services Occupational Group has a reasonable basis in law, and should be given deference.

3. The Director reasonably concluded that the Class Series Descriptions & Position Description Questionnaires show that Clinical Security Officers are misclassified.

The Class Series Description states that work in this group "entails custody and security responsibilities over offenders, youth offenders/residents, or psychiatric clinical care clients as to their housing, treatment, rehabilitation, education, health care, recreation, transportation, and/or employment...." See Class Series Description for Correctional, Youth, or Clinical Security Officer, Description of Occupation Work, p.1. It also states that the "[w]ork involves oversight, supervision, crisis intervention, or evaluation to assure the physical safety and security of property and others."

The "Concept of the Class" section of the Class Series Description, states that "[positions in mental health institutions or youth/juvenile areas may participate in work of a clinical treatment or counseling nature, but the assignment is primarily security and control and does not include professional treatment, counseling, therapy, or social work." See Class Series Description for Correctional, Youth or Clinical Security Office, p.3. (Emphasis added). The Colorado Supreme Court has defined "primarily" as "in the first place." High Gear and Toke Shop v. Beacom, 689 P.2d 624, 632 (Colo. 1984). See also Webster's New Twentieth Century Dictionary, 1428 (2nd ed. 1979) ("primarily" defined as "at first; in the first instance").

CMHIP's PDQ for Clinical Security Officers provides information on the position and describes the job duties, including the percentage of time spent on each specific duty. In section II.C. of the PDQ, under the "General Information" title, the purpose of the position is described as follows:

Provide for the establishment and maintenance of safe, secure and therapeutic environment on high-security Forensic units. Provide required in-service and training related to patient control and containment and provide feedback to team. Develop and ensure security policies and practices including physical searches, patient monitoring, physical plant integrity and management of dangerous patient(s). Provide quality patient care through the assessment of patient and family needs, and Milieu management, crisis intervention, patient teaching, and administration of medication, and evaluation of the effectiveness of treatment. Provide accurate documentation of the patients' progress (or lack of progress) toward established goals. Establish and utilize effective communication with co-workers and patients. Participate in unit maintenance including: accurately transcribing orders; filing of medical records; completion of census/accountability sheet; conducting ward checks and contraband checks; and, supervising patients during activities.

See Clinical Safety Security Officer II PDQ, position #3658, p.1.

In section III. of the PDQ under the "Job Description" section, current functional attributes of job duties are listed, along with the percentage of time devoted to each of the various duties:

25% Clinical Skills: Assist/teach patients with illness by demonstrating a working knowledge of mental/physical illness and implementing appropriate therapeutic approaches. Utilizes interviewing/counseling techniques under supervision of an RN, psychiatrist, psychologist, and social worker, according to the individual patient's POC. Act as patient advocate. Participates as a team member in plan and care formulations and reviews, reporting and contributing pertinent information. Monitors patient on special precautions. Adheres to infection control procedures.

25% Safety and Security: Provide safe/secure environment through policy development, controlling critical situations, & milieu management, (including counseling, medication), & inspection of alarm systems, communication devices, perimeter checks, physical plant integrity, contraband searches (patient, property & facility). Ensure Fire and CTI drills are conducted per policy. Chair &/or participate on committees to identify & address safety/security issues. Responds to changing patient conditions/behaviors by modifying interventions/security considerations. Provides direction to coworkers/team regarding safety & security issues.

10% Direct Nursing Care: Provide a healthy and therapeutic environment by assisting and teaching skills specific to patient's needs/diagnosis. Administer medication and medical treatments in accordance with physician order, patient POC and Psychiatric Technician Act. Accurately transcribes physician orders. Reports and contributes pertinent information, conferring with all other disciplines to enhance planning/provision of nursing care.

10% Control and use of force: Provide safe & secure movement of high-security patients off living area, transport patients to yard, gymnasium, visits, conference room, court & community reintegration sights, providing security specific to IFP & CMHIP policy. Determine appropriate level of external control & assume the lead in intervening to control assaultive & aggressive patient behavior on assigned & other units (from verbal de-escalation to physical restraint) in accordance to policy & procedure. Monitor patient behavior through scheduled checks to prevent dangerous situations.

10% Monthly Inservice and Development of Staff: Serve as trainer and resource for safe and effective management of patient safety and security (including Verbal Judo and Continuum of Therapeutic Interventions). Upgrade knowledge of all aspects of mental illness, medications, behavioral aspects, & new techniques by attending Division & Agency training. Provide recommendations and ensure adherence to polices/procedures related to security issues.

5% Documentation: Provide accurate account of patients' progress in treatment, physical condition, behaviors observed per CMHIP documentation policy/procedure to include 1:1's groups, medical and crisis intervention, milieu management, response to medication, and correspondence from community agencies. Provide testimony when necessary. Participate in unit level PM/PI program including auditing. Coordinates and completes documentation of critical incidents, fire drills, code zero drills, room searches, building searches, and memorandums to supervisors re: security. Participates in Code 0 Drills.

5% Safety and Security Protocols: Maintain tracking loss of CTI drills and safety/security checks and inspections, documentation of searches and contraband checks. Serves as instructor for coworkers on effective management of dangerous, potentially violent individuals. Ensures members of team and competent to manage safety and security situations.

5% Hygiene and Unit Maintenance: Provide a healthy and therapeutic environment by assisting and/or teaching self-maintenance and daily hygiene skills and supervision/direct aid of proper hygiene techniques. Maintain unit cleanliness and a working knowledge of cleaning solution used, performing general office duties required and securing supplies needed to give patient quality care.

5% Communication: Communicates with team members, patients, ancillary department (including Public Safety) to enhance safety and ensure a seamless continuum of provision of patient care, agency and community safety. Participates in team meetings, committees and cross-shift reports to ensure that information specific to the unit, patient and staff safety is addressed.

Clinical Safety Security Officer II PDQ, position #3658, pp.3-4.

The "general information" section of the PDQ states that, in addition to safety and security functions, this position provides a "therapeutic" environment, provides "quality patient care through the assessment of patient and family needs, patient teaching, and administration of medication...," documents patient progress towards goals, and files medical records. This articulates the dual nature of the position and how it is not defined as primarily security or primarily therapeutic.

The job description section of the PDQ shows that safety and security duties account for approximately 50% of the job (Safety & Security - 25%; Control and Use of Force - 10%; Monthly Inservice and Development of Staff - (both) 10%; Documentation (both); Communication (both); Safety and Security Protocols - 5%). Additionally, some duties listed as security do not even involve security functions. For instance, under the 25% Safety and Security section it lists "counseling, medication." Finally, under the 10% Monthly Inservice and Development of Staff it states "upgrade knowledge of all aspects of mental illness, medications, behavioral aspects, & new techniques by attending Division & Agency training." These are not security functions and are more akin to clinical duties.

The determination by the Director that the duties of the Clinical Security Officer are a combination of security and psychiatric technician duties and should be reclassified is supported by an analysis of the Class Series Description and PDQ. Therefore, the determination is entitled to deference. See Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d at 557.

CONCLUSION

The Director has the legal authority to set classifications for state employees, including those at issue here, and to oversee the implementation of the classification system. The Director's opinion that Clinical Security Officers must be reclassified has a reasonable basis in law and is supported by the record. Since the Clinical Security Officers lack peace officer status, they are not eligible to be placed in the Enforcement And Protective Services Occupational Group. The Director's determination that the mixed duties outlined in the PDQ show that this position should be reclassified as Health Care Technician is not unreasonable. As a result, DHS must defer to the Director's opinion that Clinical Security Officers are improperly classified and must be reclassified to another Occupational Group.

Issued this 6th day of April, 2009.

JOHN W. SUTHERS
Colorado Attorney General