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Gieck v. Office of Information Technology

2020 COA 81. No. 18CA1637. State Personnel System—Colorado Constitution—Office of Information Technology in the Office of the Governor—Whistleblower Act—Jurisdiction.

May 21, 2020


Gieck is employed as a senior developer with the Office of Information Technology in the Office of the Governor (GOIT). He was hired in March 2015. Gieck filed a complaint under the Whistleblower Act with the State Personnel Board (Board) alleging that his supervisor retaliated against him with a negative performance evaluation because he had raised concerns that GOIT was misusing a project management tool. GOIT moved to dismiss the complaint for lack of jurisdiction. After a hearing, an administrative law judge (ALJ) granted the motion. The Board affirmed the ALJ’s decision.

On appeal, Gieck contended that the Board’s order adopting the ALJ’s conclusion that the Board lacked subject matter jurisdiction over his complaint was legally erroneous because all GOIT employees have rights to the state personnel system, not just those who transferred from other state agencies to GOIT. In 2006, the General Assembly created GOIT, which effectively consolidated all state agencies’ information technology departments into a single department. The relevant statute grandfathered existing state employees into the state personnel system when they moved to GOIT but did not include new hires or employees who were not already in the classified system when GOIT was established. Therefore, as a non-transferring GOIT employee, Gieck is not part of the state personnel system. Employees who are not in the state personnel system may only bring a whistleblower complaint as a civil action in the district court. Thus, the Board lacked subject matter jurisdiction to consider Gieck’s complaint.

Gieck next contended that construing the GOIT statute to deny state personnel system benefits to him, while maintaining those benefits for employees who transferred to GOIT, violates the Colorado Constitution’s Civil Service Amendment, Colo. Const. art. XII, § 13. The Civil Service Amendment excepts employees in the governor’s and lieutenant governor’s offices from the state personnel system. There is no clear and unmistakable conflict between the statute creating and empowering GOIT and the Civil Service Amendment. Therefore, GOIT does not violate the Colorado Constitution.

The Board’s order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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