Could the Colorado governor order mandatory unpaid furloughs of state executive-branch employees, and could the order pick and choose which departments, divisions, or positions were exempt?

Opinion 09-05: The governor could order mandatory unpaid state-employee furloughs and exempt specific departments or positions

Plain-English summary

The 2009-2010 Long Bill (Senate Bill 09-259) cut all personal-services lines with twenty or more FTE by 1.8 percent. The governor wanted to know whether he could meet that cut with mandatory unpaid furloughs of executive-branch employees, and whether he could exempt departments or positions for operational reasons. The AG said yes on both counts. The governor's authority did not turn on a specific furlough statute. It came from Colo. Const. art. IV, § 2, which vested supreme executive power in the governor, and from the Colorado Supreme Court's separation-of-powers cases (MacManus v. Love, Anderson v. Lamm, Colorado General Assembly v. Owens) confirming that the governor administers appropriated funds and allocates staff and resources to operate state government. Two specialized statutes (§ 24-2-102(4) for revenue insufficiency and § 24-50-109.5 for legislatively-declared fiscal emergency) might also support furloughs, but neither was triggered: the governor was managing within the Long Bill, not below it, and the General Assembly had declined to declare a fiscal emergency. The equal-pay clause (Colo. Const. art. XII, § 13(8)) required equal pay for equal work, which the State Personnel Director satisfied through job classifications and pay plans (Dempsey v. Romer); it did not require every position in a classification to be furloughed identically. Limits would still apply: the governor could not exempt or include workers based on age or sex without violating the Colorado Anti-Discrimination Act.

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 opinion was set in the wake of the 2008-2009 financial crisis. The General Assembly had cut personal-services line items in the Long Bill by 1.8 percent. Cabinet leaders needed to absorb that cut without across-the-board layoffs. Mandatory unpaid furlough days were the natural tool, but Colorado statutes did not say in plain terms that the governor had furlough authority over executive branch employees outside a declared fiscal emergency.

Three statutory provisions could plausibly have applied. Section 24-2-102(4) gave the governor authority, on a finding of insufficient revenue to carry on functions of state government, to order suspension or discontinuance of a function. Section 24-50-109.5 said that if the General Assembly declared a fiscal emergency, the governor must act to limit personnel expenditures, with furloughs listed as a permissible action. Section 24-2-106 contemplated the governor restricting the number of employees to the minimum necessary for efficient operation.

But the governor's question was framed differently. He had the Long Bill in hand and was operating within its appropriation, not announcing that revenues had fallen below it. So the AG framed the analysis as a constitutional executive-power question rather than a statutory one.

What the AG concluded at the time

The governor's authority is constitutional, not statutory

Colo. Const. art. IV, § 2 vests the "supreme executive power" of the state in the governor. The legislature appropriates funds, but once appropriated, the governor administers them to "accomplish [their] purpose." Anderson v. Lamm. The Colorado Supreme Court in Colorado General Assembly v. Owens had said directly that the governor's power to administer appropriated funds includes "executive authority to allocate staff and resources, make contracts, enter into agreements, or limit the general administration of the federal funds it receives." Furloughs are a standard tool for any executive matching planned payroll to available appropriations. The AG read the Owens line of cases as supplying the authority directly, with no need to find a furlough-specific statute.

Section 24-2-102(4) and § 24-50-109.5 did not displace the constitutional source

§ 24-2-102(4) keys off a governor's finding that revenues are insufficient to carry on the functions of government, then permits suspension or discontinuance of a given function. The AG noted Bardsley v. Dep't of Pub. Safety as construing this statute. But the governor in 2009 was managing within the appropriated personal-services line, not announcing a revenue shortfall below the appropriation. So § 24-2-102(4) was not yet triggered.

§ 24-50-109.5 keys off a legislative declaration of fiscal emergency. The General Assembly had declined to issue such a declaration in the 2009 session. So § 24-50-109.5 was also not implicated.

The absence of those statutory triggers did not strip the governor of authority. It only meant the governor was acting on inherent executive power, not on a statutory directive.

Out-of-state authority pointed the same way

The AG cited Council 13 v. Commonwealth (Pa. Commw. Ct. 2008), which had construed Pennsylvania's parallel "supreme executive power" clause and affirmed (in dicta) the governor's authority to order mandatory furloughs. The AG also pointed to a California Superior Court decision (Profs Eng'rs in Cal. Gov't v. Schwarzenegger) upholding furloughs there.

Selective exemptions did not violate equal pay for equal work

Colo. Const. art. XII, § 13(8) required equal pay for equal work for classified employees. The State Personnel Director satisfied that requirement by setting job classifications under § 24-50-104(6)(b)(I) and pay plans under § 24-50-104(5)(a). Dempsey v. Romer had explained that "equal pay for equal work" prohibited preferential compensation treatment for persons equally qualified performing substantially similar services, but the State's classification and pay-plan structure satisfied the constitutional requirement. The AG concluded that the governor could exempt specific positions, divisions, or departments from a furlough order without violating equal pay for equal work, because furloughed employees still received equal pay for the work they actually did; they were just doing less work.

The AG flagged the obvious limits: the governor could not target furloughs by age, sex, or other protected category. The Colorado Anti-Discrimination Act (§ 24-34-401 et seq.) and federal civil rights laws would constrain those choices.

Common questions

Could the governor furlough employees in the legislative or judicial branches, or in the AG's own office, the State Treasurer's office, or higher education?

The opinion expressly limited itself to executive agencies headed by the governor's office or by Executive Directors he appointed. The legislative branch, judiciary, AG, Treasurer, Secretary of State, and higher education were outside the scope of the opinion.

Did the General Assembly have to authorize the furlough?

No. The AG's reasoning was that the governor's furlough authority came from the constitution. The General Assembly's role was to appropriate funds; once it did, the governor administered them. A legislative authorization would have made the question easier statutorily but was not constitutionally required.

Could the governor order furloughs even if the Long Bill had not cut the personal-services line?

The AG's analysis was framed around the 1.8 percent cut, but the broader principle was the governor's authority to allocate staff and resources within an appropriation. Whether the same authority would extend to imposing furloughs in the absence of any cut would have raised separate questions about administrative purpose and good faith that the opinion did not reach.

Did the AG say furloughs would not implicate any contractual or grievance procedure?

No. The opinion addressed the governor's legal authority to issue a furlough order. It did not address how the order would interact with merit-system grievance procedures, individual contracts, or collective negotiations.

Citations

• Colo. Const. art. IV, § 2 — supreme executive power vested in the governor.
• Colo. Const. art. III — separation of powers among legislative, executive, and judicial branches.
• Colo. Const. art. V, § 32 — General Assembly's appropriation power and balanced-budget mandate.
• Colo. Const. art. XII, § 13(8) — equal pay for equal work for classified employees.
• C.R.S. § 24-2-102(4) — governor's authority to suspend or discontinue functions on a finding of insufficient revenue.
• C.R.S. § 24-50-109.5 — fiscal emergency declaration and personnel-expenditure controls including furloughs.
• C.R.S. § 24-50-104(5)(a), (6)(b)(I) — State Personnel Director's pay-plan and classification authority.
• MacManus v. Love, 499 P.2d 609 (Colo. 1972) — Colorado Supreme Court holding on the General Assembly's plenary appropriation power.
• Anderson v. Lamm, 579 P.2d 620 (Colo. 1978) — Colorado Supreme Court holding on the governor's authority to administer appropriations.
• Colorado General Assembly v. Owens, 136 P.3d 262 (Colo. 2006) — Colorado Supreme Court holding that the governor has executive authority to allocate staff and resources.
• Dempsey v. Romer, 825 P.2d 44 (Colo. 1992) — Colorado Supreme Court holding on the equal-pay-for-equal-work clause.
• Council 13 v. Commonwealth, 954 A.2d 706 (Pa. Commw. Ct. 2008) — Pennsylvania Commonwealth Court dicta affirming a parallel state governor's furlough authority.

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-09-5-Regarding-the-Governors-Power-to-Order-Mandatory-Unpaid-Furloughd-for-State-Employees-in-Executive-Agencies.pdf

Original opinion text

STATE OF COLORADO
DEPARTMENT OF LAW

John W. Suthers
Attorney General

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. 09-05
AG Alpha No. EX AD AGBCW
July 16, 2009

Governor Bill Ritter, Jr., through his Chief Legal Counsel Thomas M. Rogers, III, requested an opinion from this office on whether the Governor may order mandatory furloughs for State employees in executive agencies, and, if so, whether he may order mandatory furloughs in a particular department or departments, but exclude otherwise similarly-situated positions in other departments from these furloughs; and whether he may exempt from mandatory furloughs positions with particular duties or positions in particular agencies or divisions?

QUESTIONS PRESENTED AND ANALYSIS

Question 1: In order to meet personal services budget cuts, may the Governor order mandatory unpaid furloughs for State employees in executive agencies?
Answer 1: The Governor has the executive power to allocate staff and resources, which includes the ability to furlough executive agency employees during a fiscal crisis.

Analysis

The General Appropriations Bill, or Long Bill, provides for the appropriation of funds for the expenses of the executive, legislative, and judicial departments of the state. The General Assembly is required to create a balanced budget; "No appropriation shall be made, nor any expenditure authorized by the general assembly, whereby the expenditure of the state, during any fiscal year, shall exceed the total tax then provided for by law. . . ." In the Fiscal 2009/2010 Long Bill (Senate Bill 09-259), the General Assembly cut all personal services lines with twenty or more full-time equivalent employees ("FTEs") by 1.8%. Personal services lines are specific line items in the Long Bill that are used to pay the salaries of State employees.

The Governor requested a formal opinion regarding the scope of his authority to order mandatory furloughs of certain State employees to meet a portion of the personal services cut. Although the Governor's authority to order closure of executive agencies if he believes there are insufficient revenues for expenditure is clear in statute, the authority to order furloughs to meet the decreased budget stems from his inherent and explicit supreme executive power as established by the Colorado Constitution.

A. The Governor has inherent authority to manage the expenses and expenditures of executive agencies.

The Governor is vested with the supreme executive power of the state. The legislative power of the state is vested in the General Assembly and the judicial power in the Supreme Court and lesser courts. This separation of powers is intended as a check upon the arbitrary exercise of power for the protection of society and security of private rights and individual interests. However, "in the exercise of political and governmental powers the governor is independent, or at most, is answerable only to the high court of impeachment, or, as in the case of other elective officers, to the people." Greenwood Cemetery, 28 P. at 1126 (citation omitted).

The General Assembly holds plenary power to appropriate State funds, subject only to constitutional limitations. MacManus v. Love, 499 P.2d 609, 610 (Colo. 1972). Once the General Assembly appropriates the funds, the Governor takes over to "administer the appropriation to accomplish its purpose." Anderson v. Lamm, 579 P.2d 620, 623 (Colo. 1978). At this point, the executive branch has the authority and obligation to administer those funds. In re Interrogatories Submitted by General Assembly on House Bill 04-1098, 88 P.3d 1196, 1200 (Colo. 2004). The Governor has the authority and duty to use the funds to run state government. Anderson, 579 P.2d at 623. The Constitution invests the Governor with discretion to take acts to defray the costs of government as needed. In re Appropriations by the General Assembly, 22 P. 464, 468 (Colo. 1889). The administration of funds includes the ability to allocate staff and resources to operate state government. Colorado General Assembly v. Owens, 136 P.3d 262, 268 (Colo. 2006).

In Colorado General Assembly v. Owens, the Supreme Court examined the relationship between the General Assembly's authority to appropriate and the Governor's authority to administer funds. The Court made clear that the Governor has the "executive authority to allocate staff and resources, make contracts, enter into agreements, or limit the general administration of the federal funds it receives." Id.

The Governor's authority to allocate staff and resources includes the authority to order executive agencies to manage the 1.8% personal services cut by furloughing employees. Furloughs are one of the tools generally available to executives with insufficient funds to meet planned payroll. Like any other executive, the Governor has the inherent authority to use this tool to match the payroll of the departments he manages with the funds available to him.

The Governor is tasked with keeping State government running within his proposed budget that is reviewed and modified by the General Assembly. § 24-37-301, C.R.S. By ordering his executive directors to direct mandatory furloughs, the Governor is acting within his executive power. This is consistent with the legislature's acknowledgement that the Governor, within his executive authority, can and should restrict the number of employees to the minimum necessary for efficient operation of the State. § 24-2-106, C.R.S.

B. The Governor's authority to order furloughs is not dependent on statute.

The Governor suggests in his request that the authority to order mandatory furloughs resides in part in § 24-2-102(4), C.R.S. Under this statute, the Governor, upon determining that there are insufficient revenues to carry on functions of State government, may order a suspension or discontinuance of a given function. Bardsley v. Dep't of Pub. Safety, 870 P.2d 641, 646-47 (Colo. App. 1994). The Governor's opinion request, however, was based on passage of the "Long Bill" with the 1.8% decrease in personnel expenditures and prior to June 2009 reports that revenues dropped even lower than projected in the FY 2009/2010 budget. So, § 24-2-102(4) does not apply to the situation addressed in this formal opinion because the Governor is attempting to manage the executive departments he controls based on the budget passed by the General Assembly, not based on the subsequently-announced revenue deficit. If the Governor determines that expected revenues will not meet planned expenditures in the FY 2009/2010 budget, then § 24-2-102(4) may be implicated. Until he makes such a finding, however, § 24-2-102(4) has no impact on my analysis.

Similarly, § 24-50-109.5, C.R.S., provides that if the General Assembly declares a fiscal emergency, the Governor must act to limit personnel expenditures and identifies furloughs as a permissible action. § 24-50-109.5(2), C.R.S. During budget discussions in this year's legislative session, however, the General Assembly declined to issue a joint resolution declaring a fiscal emergency under § 24-50-109.5, C.R.S. Accordingly, this section also is not relevant to my conclusion.

Questions 2 & 3: In order to meet the personal services budget cuts, may the Governor order mandatory furloughs in a particular department or departments, but exclude otherwise similarly-situated positions in other departments from these furloughs? May the Governor exempt from mandatory furloughs State positions with particular duties or positions in particular agencies or divisions?

Answer: Yes. The Governor can exempt or exclude executive agencies or specific positions from mandatory furloughs under his supreme executive authority.

Analysis

As stated previously, the Governor has the authority and duty to administer the funds appropriated by the General Assembly to run state government. Anderson, 579 P.2d at 623. For personnel, the General Assembly must allocate "adequate appropriations . . . to carry out the purposes of [Article XII, §§ 13 and 14 of the Colorado Constitution]." Colo. Const. art. XII, § 14(5). The General Assembly has the Constitutional responsibility to determine the "amount of revenue to be expended in carrying out the public policies of the state." Dempsey v. Romer, 825 P.2d 44, 56 (Colo. 1992). Once the General Assembly appropriates the funds, the Governor takes over to "administer the appropriation to accomplish its purpose . . . ." Anderson, 579 P.2d at 623 (internal quotations and citations omitted). The administration of funds includes the ability to allocate staff and resources to operate state government subject to limitations imposed by the legislature. General Assembly, 136 P.3d at 268.

The Civil Service Amendments to the Colorado Constitution neither restrict nor restrain the Governor from identifying departments or positions that are exempt from a mandatory furlough order. The Colorado Constitution requires that classified employees "hold their respective positions during efficient service or until reaching retirement age, as provided by law. They shall be graded and compensated according to standards of efficient service which shall be the same for all persons having like duties." Colo. Const. art. XII, § 13(8). This provision requires equal pay for equal work, but does not restrict the Governor's authority or ability to exempt departments or positions from a mandatory furlough.

The equal pay for equal work clause was interpreted by the Supreme Court to "prohibit. . . preferential compensation treatment for persons equally qualified who perform substantially similar services." Dempsey, 825 P.2d at 51. Consequently, the State Personnel Director creates job classifications with defined duties and responsibilities. Id. at 49; § 24-50-104(6)(b)(I), C.R.S. The Director then creates pay plans and ranges for these classifications. § 24-50-104(5)(a), C.R.S. This creation of job classifications and corresponding pay plans satisfies the constitutional requirement of equal pay for equal work. Dempsey, 825 P.2d at 56-57. For example, the Constitution does not require that the Governor treat an Administrative Assistant III at the Department of Public Safety the same as an Administrative Assistant III at the Department of Agriculture.

The Governor may determine that divisions, programs, positions, or entire departments require continuing operations and that employees therein are exempt from mandatory furloughs. The Colorado Constitution requires equal pay for equal work, that State employees with like duties be graded and compensated according to the same standards; it does not require that every position within a classification or an executive department be treated identically. Employees who are furloughed receive less pay, but they also work less, in keeping with the equal pay for equal work requirement.

Of course, the Governor's authority to order furloughs is not without limit. For example, the Governor could not order mandatory furloughs for all workers over the age of 40 or just for female workers, as either action would violate the Colorado Anti-Discrimination Act. See generally § 24-34-401, et seq., C.R.S., and federal civil rights laws. None of these limits is implicated in the questions presented here, however.

CONCLUSION

The Governor has the authority to order mandatory furloughs in order to meet the personal services budget cuts. The Colorado Constitution vests the supreme executive authority in the Governor and this includes the power to mandate furloughs. Further, the Governor has the authority to exclude departments, divisions, programs, and positions from any order of mandatory furloughs.

Issued this 16th day of July, 2009.

JOHN W. SUTHERS
Colorado Attorney General