When a Colorado statute says a state board appoints a division director, but the state constitution says the department head appoints them, who actually has the appointing power?
Plain-English summary
Colorado's executive branch is organized as a pyramid. The governor appoints the head of each principal department. Each department head appoints division heads within their department. Each division head appoints employees of their division. That structure is set out in Colo. Const. art. XII, § 13(7).
The Colorado General Assembly has, over the years, written statutes for many specific boards and commissions that purport to give the board itself the power to appoint a particular division director, often "with the consent of" or "with the approval of" the department's executive director. The constitutional question: do those statutes work, or does art. XII, § 13(7) override them?
AG Phil Weiser concluded the constitution wins. Where a division-director position falls inside the state personnel system, the principal department head holds the exclusive appointing authority. Statutes that purport to delegate or share that authority with a board are inconsistent with art. XII, § 13(7) and "without legal effect." The opinion lists thirteen specific examples of state public bodies whose statutory appointment language conflicts with the constitution, including the State Board of Stock Inspection Commissioners, the Public Utilities Commission, the Colorado Water Conservation Board, the Parks and Wildlife Commission, and the Colorado Aeronautical Board.
The opinion also draws an important distinction: nothing stops a department head from consulting with a board before making the appointment, and statutes can require "good faith consideration" of board recommendations. What they cannot do is take the appointing decision out of the department head's hands.
Currency note
This opinion was issued in 2019. 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
Colorado's executive branch is allocated among 19 principal departments. Colo. Const. art. IV, § 22 caps the number at 20. Most of those departments are headed by executive directors appointed by the governor.
Colo. Const. art. XII, § 13(7) sets out the appointing-authority pyramid:
The head of each principal department of state government, however constituted, shall be the appointing authority for all employees of his office and for heads of divisions in the personnel system within his department, ranking next below the head of the department.
Each division head is then the appointing authority for personnel-system employees within that division. Section 13(2) carves out certain positions that are exempt from the personnel system altogether. The opinion is limited to positions inside the personnel system.
Prior AG opinions had reached the same conclusion in narrower contexts. The 1987 Woodard opinion concluded that the head of the Department of Agriculture, not the State Board of Stock Inspection Commissioners, has appointing authority over the brand commissioner. The 2006 limited-gaming opinion (Formal Op. No. 06-05) concluded the Limited Gaming Commission has no role in selecting or retaining the director or any employees of the Division. The MacFarland opinion (1978) reached the same conclusion about the State Electrical Board. This 2019 opinion ratifies all three and applies the principle to a broader list of boards.
The opinion's list of state public bodies whose appointment statutes conflict with art. XII, § 13(7), to the extent the relevant position is in the personnel system:
- State Board of Stock Inspection Commissioners (brand commissioner)
- Colorado Wine Industry Development Board (subordinate officers and employees)
- Early Childhood Leadership Commission (director)
- State Council on Developmental Disabilities (staff director)
- Colorado State University Board of Governors (state forester)
- Colorado Water Conservation Board (director)
- Parks and Wildlife Commission (director)
- Automobile Theft Prevention Authority Board (director)
- Public Utilities Commission (director)
- Securities Board (commissioner of securities)
- Colorado Aeronautical Board (director)
- High Performance Transportation Enterprise Board (director)
- Statewide Bridge Enterprise Board (bridge enterprise director)
The list is not exhaustive. The opinion notes that classification of any specific position within the personnel system can change, so a board's appointment statute may move in or out of conflict over time depending on whether the position is currently in the system.
Common questions
Q: What's the difference between "appointing" someone and "consenting to" their appointment?
A: The opinion treats both as the same thing for constitutional purposes. Statutes that say a board must "approve" or "consent to" the department head's selection effectively share the appointing power. Article XII, § 13(7) gives the appointing decision exclusively to the department head, so a board veto or co-approval requirement is inconsistent with the constitution.
Q: Can a board still recommend a candidate?
A: Yes. The opinion specifically permits informal consultation, and notes the legislature has at times required department heads to "give good faith consideration" or "give presumptive consideration" to a board's recommendations. Recommendations are fine; binding approval is not.
Q: What happens if a board acted under one of these statutes and tried to appoint someone?
A: The appointment provision in the statute is "without legal effect." So an appointment made by the board alone, without the department head's exercise of appointing authority, would not satisfy art. XII, § 13(7). The position would be unfilled or filled only with the appearance of authority.
Q: Does this affect constitutionally-created positions?
A: No. The opinion is expressly limited to statutorily-created state public bodies. Positions created by the constitution itself (like the heads of departments led by the AG, secretary of state, treasurer, and commissioner of education) follow their own constitutional appointment rules.
Q: Why didn't the AG just say "the constitution wins, every time" without listing 13 boards?
A: The opinion was requested by the Department of Personnel specifically to enumerate examples. Listing the conflicting statutes makes it easier for state agencies to identify their own exposure and for the General Assembly to clean up the statute books in a future session.
Citations and references
Constitutional and statutory provisions:
- Colo. Const. art. XII, § 13(7), appointing authority pyramid
- Colo. Const. art. XII, § 13(2), exempt positions
- Colo. Const. art. IV, § 22, twenty-department limit
- § 24-1-108(1), C.R.S., appointment authority within departments
- § 24-1-110(1), C.R.S.: list of principal departments
Cases and prior opinions:
- Lang v. Colo. Mental Health Inst. in Pueblo, 44 P.3d 262 (Colo. App. 2001), constitution prevails over conflicting statute
- Colorado Ass'n of Public Employees v. Lamm, 677 P.2d 1350 (Colo. 1984), no inconsistent legislation can survive challenge under art. XII
- Formal Op. of A.G. Duane Woodard, 1987 WL 273586 (Colo. A.G. Oct. 13, 1987), brand commissioner appointment
- Formal Op. No. 06-05, 2006 WL 2356148 (Colo. A.G. July 24, 2006), Limited Gaming Commission
Source
- Landing page: https://coag.gov/attorney-general-opinions/
- Original PDF: https://coag.gov/app/uploads/2020/03/No-19-01.pdf
Original opinion text
PHIL WEISER
Attorney General
NATALIE HANLON LEH
Chief Deputy Attorney General
ERIC R. OLSON
Solicitor General
STATE OF COLORADO
DEPARTMENT OF LAW
Office of the Attorney General
FORMAL OPINION OF PHILIP J. WEISER, Attorney General
No. 19-01
September 30, 2019
Kara Veitch, Executive Director of the Colorado Department of Personnel and Administration and designee of Governor Jared Polis, requested this Formal Opinion under § 24-31-101(1)(b), C.R.S. (2019).
QUESTIONS PRESENTED AND SHORT ANSWERS
Questions Presented. Your request for a Formal Opinion contained two questions: in connection with those state public bodies whose enabling statutes provide them with the power to appoint, or control the appointment, of a director of a division in a principal department of state government,
(1) does the provision of the Colorado Constitution at article XII, § 13(7) negate such power, removing from that state public body the power to make the division director's appointment, and
(2) if so, what are examples of state public bodies that may be impacted by such a conflict with said § 13(7)?
Short Answer 1. Yes, the Colorado Constitution, article XII, § 13(7), reserves to the head of each principal department the authority to appoint division heads whose positions are within the state personnel system. State statutes that purport to grant this appointing authority to a different body, such as a state board or commission, are inconsistent with the state constitution and, thus, without legal effect.
Short Answer 2. Examples of state public bodies whose statutory appointing authority may be affected by a conflict with article XII, § 13(7) include:
1. The State Board of Stock Inspection Commissioners;
2. The Colorado Wine Industry Development Board;
3. The Early Childhood Leadership Commission;
4. The State Council on Developmental Disabilities;
5. The Colorado State University Board of Governors;
6. The Colorado Water Conservation Board;
7. The Parks and Wildlife Commission;
8. The Automobile Theft Prevention Authority Board;
9. The Public Utilities Commission;
10. The Securities Board;
11. The Colorado Aeronautical Board;
12. The High Performance Transportation Enterprise Board; and
13. The Statewide Bridge Enterprise Board.
This Formal Opinion is limited to the appointing authority of statutorily-created state public bodies. It does not address the appointing authority for constitutionally-created public bodies.
ANALYSIS
I. The Colorado Constitution reserves to the head of each principal department the authority to appoint division heads whose positions are within the state personnel system.
In Colorado, the executive branch of state government and its respective functions, powers, and duties are currently allocated among 19 principal departments. § 24-1-110(1), C.R.S. (2019); see also Colo. Const. art. IV, § 22. With the exception of principal departments headed by the attorney general, secretary of state, state treasurer, and the commissioner of education, the head of each principal department is appointed by the governor and holds the title of "executive director." §§ 24-1-103 & 108(1), C.R.S.
Within each principal department, the appointment of employees in the State's personnel system is governed by the Colorado Constitution and corresponding state statutes. See Colo. Const. art. XII, § 13(7); § 24-1-108(1). As a general rule, the head of each principal department is the appointing authority for "employees of his office and for heads of divisions" within his or her principal department, provided that the employee or division head is a position within the State's personnel system. Colo. Const. art. XII, § 13(7).
A "head of division" is generally a high-ranking department employee, "ranking next below the head of [the] department." Id. Each division head within a principal department is the appointing authority for "all positions in the personnel system" within his or her division. The Colorado Constitution thus contemplates an organizational pyramid where appointments within the personnel system are made by officials at cascading levels of authority: the governor appoints principal department heads; principal department heads appoint division heads; and division heads appoint division employees.
This general constitutional rule governing appointing authority is in tension, however, with other statutory provisions that give different public bodies the power to appoint, or participate in the appointment, of specific positions. By way of example, within the Colorado Department of Agriculture is the Division of Brand Inspection, the head of which is the brand commissioner. § 24-1-123(4)(g)(I). The brand commissioner is "subject to the state personnel system laws," § 35-41-101(2). But yet, a state statute grants a five-member board within the division, the State Board of Stock Inspection Commissioners, authority to appoint the brand commissioner.
A prior Formal Opinion from this office applied the general constitutional rule to conclude that the head of the Department of Agriculture, not the board, is the appointing authority for the brand commissioner. Formal Op. of A.G. Duane Woodard, 1987 WL 273586 (Colo. A.G. Oct. 13, 1987). That opinion is also consistent with other Formal Opinions from this office pertaining to other similarly-situated positions within Colorado's state government. See, e.g., Formal Op. No. 06-05, 2006 WL 2356148 (Colo. A.G. July 24, 2006); Formal Op. of A.G. J.D. MacFarland, 1978 WL 27704 (Colo. A.G. Feb. 27, 1978).
These opinions remain correct. Where the state constitution conflicts with a state statute, the constitution is "paramount" and prevails over the statute. Lang v. Colo. Mental Health Inst. in Pueblo, 44 P.3d 262, 266 (Colo. App. 2001); Passarelli v. Schoettler, 742 P.2d 867, 872 (Colo. 1987); Colorado Ass'n of Public Employees v. Lamm, 677 P.2d 1350, 1353 (Colo. 1984).
With that said, nothing in Colorado law forbids the head of a principal department or division head from consulting with a board or commission as part of the decision-making process when making an appointment. In some instances, the General Assembly not only encourages this type of informal consultation but has attempted to affirmatively require it. See §§ 24-34-302(1), 43-1-106(12)(a). At bottom, however, even if consultation is encouraged or required by statute, the Colorado Constitution reserves to the head of each principal department the ultimate appointment decision for division heads within the personnel system.
II. Examples of state public bodies whose statutory appointing authority may be affected by article XII, § 13(7).
The opinion proceeds to analyze, in detail, each of the thirteen listed boards and commissions and explains how each statute conflicts with art. XII, § 13(7) when the relevant director position falls within the state personnel system. Each analysis follows the same structure: (1) identify the principal department; (2) identify the division and director title; (3) quote the statute purporting to grant appointment power to a board; (4) conclude the appointment provision conflicts with art. XII, § 13(7) and is without legal effect.
The boards covered include the State Board of Stock Inspection Commissioners (Department of Agriculture), the Colorado Wine Industry Development Board (Department of Agriculture), the Early Childhood Leadership Commission (Department of Human Services), the State Council on Developmental Disabilities (Department of Human Services), the Colorado State University Board of Governors (regarding the state forester within the Department of Natural Resources), the Colorado Water Conservation Board (Department of Natural Resources), the Parks and Wildlife Commission (Department of Natural Resources), the Automobile Theft Prevention Board (Department of Public Safety), the Public Utilities Commission (Department of Regulatory Agencies), the Securities Board (Department of Regulatory Agencies), the Colorado Aeronautical Board (Department of Transportation), the High Performance Transportation Enterprise Board (Department of Transportation), and the Statewide Bridge Enterprise Board (Department of Transportation).
For each, the opinion concludes that to the extent the director is, or may be in the future, a position within the personnel system, the appointment provision in the statute conflicts with article XII, § 13(7) of the Colorado Constitution and is without legal effect. Where statutes attempt to share appointing power between a board and the executive director, the opinion concludes that does not save the statute, because article XII, § 13(7) gives the executive director exclusive authority to appoint division heads within the personnel system.
CONCLUSION
Article XII, § 13(7) of the Colorado Constitution establishes an orderly organizational structure for the executive branch of state government and its 19 principal departments: the governor appoints the head of each principal department, each principal department head appoints the division heads in the personnel system within his or her principal department, and each division head appoints the positions in the personnel system within his or her division. Consistent with prior opinions of this office, this Formal Opinion concludes that where the General Assembly has statutorily vested in other state public bodies the appointing authority reserved by the state constitution to heads of principal departments, such statutes are inconsistent with article XII, § 13(7) and are without legal effect.
The list of state public bodies that may be affected by the conclusion of this Formal Opinion is exemplary rather than exhaustive. Other state public bodies not listed in the legal analysis above may fall within the conclusion of this Formal Opinion.
Finally, only positions within State's personnel system are governed by the analysis in this Formal Opinion. The Department of Personnel and Administration maintains records on the current classification of each state government position within the personnel system.
Issued this 30th day of September 2019.
/s/ Philip J. Weiser
PHILIP J. WEISER
Colorado Attorney General