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Home My WebLink About800727.tiff mcmoRAnDum,.. a 7 I � • To Board of Commissioners DamJanuary 22 . 1980 COLORADO• From J. Robert Lowenbach, Assistant County Attorney Subject: Publication of Salaries of County Employees Attached hereto you will find my memorandum regarding publication of salaries . We have scheduled this for discussion at a work session on February 4th at 3 : 00 o 'clock. If you agree with my recommendation, I will be 'prepared to file an action for Declara- tory Judgment on February 5th. J. Robert owenbach JRL:ta • cc: Don Warden Cp0ht� Ca 'S i C1t j Rg \960 U MP • a ' c, 00° • pia 800727 J / f,', b / I y• l P r . m rmoRAnDU( WilDeTo Tom Date January 21 , 1980 COLORADO From Bob Lowenbach Subject. Publication of Salaries of County Employees ISSUES: You asked me to research the issue of whether or not Weld County is required by the provisions of 30-25-111, CRS 1973, to publish on a monthly basis the individual salaries of Weld County employees. The specific issues which must be resolved in order to answer this ques- tion are as follows: 1. Does the Colorado Public Records Act, 24-72-101, et seq. , 1973, and specifically, 24-72-204 , CRS 1973, require Weld County to deny access to individual salaries of County employees? The answer to this question turns on whether or not the specific salary information is an integral: part of an employee 's personnel file. Another sub-issue within this larger issue is whether or not a document such as the Budget Planning Report which denotes salary by position title only is open for public inspection pur- suant to the Open Records Act. 2. Does 30-25-111, CRS 1973, standing alone, require the County to publish on a monthly basis , the individual salaries of County employees? This question necessarily involves the determination of whether or not the salary which an employee has earned is a "Claim and expenditure" as envisioned by the Legislature which enacted this section. 3. If the Colorado Public Records Act does in fact protect salaries of County employees from public disclosure, and the provisions of 30-25-111 , CRS 1973 , require the publi- cation of the salaries of County employees, which statute prevails? CONCLUSIONS : Based on my review of the relevant statutes and case law, as well as District Court cases in Mesa County and Jefferson County, my con- clusions are as follows : 1. The Colorado Public Records Act protects salaries of indivi- dual employees from public disclosure inasmuch as the salaries Memo to Tom David::::- Page 2triN January 21, 1980 of public employees are an integral part of an employee' s personnel file. Budget Planning or similar reports which list a position title and the salary to be paid are also protected from public disclosure inasmuch as those records are gleaned from individual personnel files and the position descriptions are in many cases easily connected to specific employees . 2. 30-25-111, CRS 1973, does not require the County to publish on a monthly basis the individual salaries of County em- ployees . - 3 . Even if 30-25-111, CRS 1973, did require the County to pub- lish on a monthly basis the individual salaries of County employees , the later enactment of the Colorado Public Records Act with the protection granted for personnel files, pro- hibits the County from publishing the individual salaries of County employees. DISCUSSION: • 1. My conclusion that the Colorado Public Records Act prohibits the inspection or publication of individual salaries of County employees is based upon 24-72-204 , CRS 1973, which provides in pertinent part: (3) (a) "The custodian shall deny the right of inspection of the following records , unless otherwise provided by law. . . (II) Personnel Files, except applications and performance ratings. . ." In view of this statute, the question becomes whether or not an individual County employee ' s salary becomes any less a part of his personnel file by virtue of the fact that said salary is fed into a computer along with other identi- fying information and comes out either on a "monthly manning document" (which shows the employee ' s gross pay) , or the monthly "check register document" (which shows the employee 's net pay) . It is my conclusion that the mere placing of the employee' s name and salary on these monthly print outs makes his salary no less a part of his personnel file than had that information remained physically within the confines of his personnel file. Clearly, an employee 's salary is dependant upon information such as his job classification, his longevity, and his performance ratings , all of which are integral parts of his personnel file. In addition, Memo To Tom David Page 3 s`r January 21, 1980 each piece of information about an individual employee which is listed on the "monthly manning document" and the "check register document" is included within the physical confines of the individual employee ' s personnel file. The Personnel Department and the Payroll Division treat the information contained on the "monthly manning document" and "check register document" as confidential information. In practice, no one besides the employee himself, or the employee' s supervisor, is entitled to inspect the informa- tion contained in these documents any more than outside persons would be allowed to inspect the source of those documents, that is , the employee' s individual personnel file. From a review of the statute quoted above, it is clear that applications and performance ratings are expressly excepted by the Act from the confidentiality afforded to all other personnel file records . A basic rule of statutory construc- tion is that when a statute contains an express exception other exceptions will not be implied. • New York Indemnity Company v. Industrial Commission of Colorado, 86 Colo. 364 , 281 P. 740 (1929) . The reason and logic behind this rule of statutory construction is sound. If the Legislature had intended to exclude salary records from the protection granted to other items in an individual 's personnel file, they would have specifically excluded such records as they did in the case of applications and performance ratings. There are no cases which interpret the specific provision of the Colorado Public Records Act as it relates to salaries. This provision of the Colorado Public Records Act is however, quite similar to a provision of the Federal Freedom of Infor- mation Act. That Act at 5 USC, 552 (b) (6) prohibits the disclosure of, "Personnel and medical files and similar files , the disclosure of which would constitute a clearly unwarranted invastion of personal privacy; . . . " The case of Campbell v. U.S. Civil Service Commission, 539 F. 2d 58 (10th Circuit 1976) interpreted the above quoted section of the Freedom of Infor- mation Act. The court in that case found as follows : "The disclosure of the personnel records in the instant case would be a serious invasion of privacy. Matters such as an individual 's job classification, his salary and information as to over-classification are. . .personal and capable of causing embarrassment. " 539 F. 2d at 62 . 'Memo To Tom David Page 4 January 21, 1980 See also Columbia Packing Company, . Inc. v. U.S. Department of Agriculture, 417 F. Supp. 651 (D. Mass . 1976) , aff. 563 F. 2d 495 (First Circuit 1977) , wherein the court found that the precise salary records of individual employees were a part of their personnel files and were thus protected from disclosure. The reasoning employed by the Plaintiff in the District Court case of Jefferson County v. Sentinel Newspapers is convincing. In its memorandum brief, dated April 9 , 1979, the County stated as follows : "The (defendant) would seem to suggest that a government such as the County could legally pervert the Colorado Public Records Act 's intent to protect an individual ' s right of privacy in one of two ways : (1) By removing information from a confidential record or file and placing this confidential informa- tion on a 'list' , (2) Or by transferring con • - fidential information to another governmental agency for computerization or other internal governmental use. If this argument is correct, the confidentiality portion of the Colorado Public Records Act is a mockery. Under such a theory, a governmental agency could vitiate an individual ' s right to privacy regarding confidential information held in that agency' s files by merely transferring that information to another agency's files; by computerizing the information; or by just making a list of the information, which may well be stored elsewhere than in the individual employee:personnel files. . . .Obviously, none of these lists are kept in the individual personnel files of the County employees' , but just as obviously, the lists contain the same information as is contained in the individual personnel files . If the foregoing argument is accepted, this personnel information is no longer a personnel record and the information is now open to public inspection. By such reasoning, the Colorado Public Records Act prohibition against public inspection of an employee ' s personnel record becomes a farce and a nullity. The County submits that this cannot be the case. " • Memo To Tom David te,, f; Page 5 January 21, 1980 The District Court Judge in the Jefferson County case did not agree with the reasoning of the plaintiff. It is clear however, that the judgment of the District Court in Jefferson County is not binding upon any other judicial district in the State. It is my conclusion, that if the Appeals Courts of the State of Colorado were given an opportunity to rule on this precise issue, that they would conclude that indivi- dual salary records are a part of the employee ' s personnel file and thus protected from public scrutiny under the pro- visions of the Colorado Public Records Act. With respect to the question of whether or not the Personnel Budget Planning Report is equally protected from public scrutiny under the provisions of the Colorado Public Records Act, I must conclude that it is equally protected. I base this conclusion on two factors . First, the fact that the information necessary to establish the levels of salary (i.e. , longevity, performance ratings , job classification) are clearly gleaned from the personnel files of the indivi- dual employees. The second reason for my conclusion that this document should be afforded the game protection, is the relative ease with which I was able to determine from this document the salaries of numerous employees in depart- ments other than County Attorney. I must conclude from the ease with which I was able to determine what other employees were being paid, that other individuals even remotely familiar with the conduct of county government would be able to deter- mine from this document the exact salaries of specific em- ployees . It is therefore my conclusion that the only records which may be disclosed under the Colorado Public Records Act re- garding salaries of employees, are computations of the total salaries for a given department, such as the "Salary Expense Summary" together with a statement as to the total number of employees in each department. Even then, if a particular department contains only one employee, that department' s salary expenditure may not be published without violating the Colorado Public Records Act. 2. The question of whether 30-25-111, CRS 1973, requires the County to publish on a monthly basis the individual salaries of county employees is a very close question. This question • can only be resolved through a determination of what the intent of the Legislature was with respect to the publication of individual salaries at the time that the statute was enacted. This question, in turn, involves an interpretation • ' Memo To Tom David r • ' Page 6 January 21, 1980 of the term "Claim and expenditure" as used in the statute. 30-25-111, CRS 1973 , provides in pertinent part as follows : " (1) It is the duty of the board of county commissioners of each county to publish in at least one legal newspaper in the county a report of each claim and expenditure by it allowed and paid and taxes rebated, dis- closing the name .of and the amount paid to each individual or firm, a description of the services and materials furnished to the county, and, as to other items , the nature of the claim and disclosing the fund charged with each expenditure. Such report shall contain a statement of each contract for the expenditure of money not paid immediately made by the board of county commissioners, disclosing the nature and purpose of the contract, the parties thereto, and the amounts involved therein. Such report shall be published at least monthly within thirty days following the end of the period for which made. " An examination of this statute in its original form reveals that if required publication of the proceedings of the county commissioners , "as relate to allowance of bills , letting of contracts, and the granting or rebates of taxes or assess- ments . " The statute further provided that sufficient detail was to be given so as to "inform the public as to the amount claimed, the amount allowed, from what fund paid and was was furnished, . . . " Colorado Session Laws , 1899, Chapter 60 at 147 . This statute was updated and recodified in 1953 with the term "claims and expenditures" appearing in place of the term "bills" . Thus , the crucial question is whether or not by the amendment of this section the Legislature intended to broaden the scope of the items which were to be published, or merely intended to clean up the language of the statute to make it more consistent. It is my conclusion that the latter was the Legislature' s intent inasmuch as if they had intended to expand upon the previous law they would certainly have done it much more clearly. Having concluded that the Legislature' s amendment in 1953 was merely housekeeping in nature, the question is whether or not the Legislature, when it originally enacted this statute in 1899 , contemplated that the individual salaries of county employees should be published on a monthly basis. I must , Memo to Tom David Page 7 e January 21, 1980 • conclude from the language of the 1899 statute that the Legislature had no such intent. It appears clear from that language that the purpose of the Act was to require the county to publish information concerning external claims upon the county. There is clearly a public interest served by publication of these expenditures inasmuch as it permits the public to evaluate whether or not the county is showing favoritism in the awarding of contracts or the purchase of materials. Those external claims made upon the county are clearly treated differently by the county. With respect to external claims, the county requires claim vouchers for the payment of services and materials furnished the county, whereas the county does not require an employee to submit a claim voucher each month for the payment of his salary. • The conclusion of the Jefferson County District Court, while not binding on Weld County, was that the Legislature never contemplated that the county would be required to publish individual salaries paid by it to its employees. That court, in its judgment of July 30, 1979 , reasoned as follows : "It should be noted that the statute conjunc- tively speaks of 'Claim and expenditure' . Had the Legislature intended that every expendi- ture, regardless of its basis be published, it would have been a simple matter to omit the word 'Claim' because it would certainly be surplusage. Thus, we must conclude that only those expenditures based on a claim against the county must be published. The ultimate question, then, is whether or not the expendi- ture of monies for salaries constitutes payments of claims against the county. . .Further evidence that it was not intended that salary payment constitutes a claim is found in 30-25-112 , CRS 1973, which provides a method of appeal for one who files a claim against the county which is disallowed. This section presupposes that the county has some discretion in the payment of claims and can allow or disallow them. Clearly, the county has no discretion to disallow a salary which has been earned by an employee for work per- formed under a contract of employment. It , •Memo To Tom David:: Page 8 (� ( i January 21, 1980 • is the opinion of the court, therefore, that it was never contemplated that the county would be required to publish individual salaries paid by it to its employees. " The Amended Judgment of the District Court of Mesa County in Walker v. Saunders , et al . , Civil Action No . 9706, is not helpful in reaching a conclusion as to the issues raised in this memo. The issue in the above cited case was not whether salaries were included in the definition of "claims and expenditures" , but rather whether the county was publish- ing their monthly proceedings with such detail as to inform the public as to "the amount claimed, the amount allowed, from what funds paid, and what was furnished, and in the case of rebate of taxes or assessments, the amount so re- bated and the reasons for the same . " Id. While a persuasive argument could be mounted for the opposite view, it is my conclusion that the Legislature never contem- plated that the county would be requited under this statute to publish the individual salaries of its employees. 3. It is my conclusion that even if. 30-25-111, CRS 1973, does require the county to publish on a monthly basis the indivi- dual salaries of county employees, the later enactment of the Colorado Public Records Act with the protection granted for personnel files prohibits the county from publishing the individual salaries of county employees. This conclusion is based upon my reading of the Rules of Statutory Construction contained in 2-4-201, et seq. , CRS 1973. Specifically, 2-4-205, CRS 1973 , provides as follows : Special or local provision prevails over general. If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irrecon- cilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail. Assuming that the two provisions are irreconcilable as I have assumed for the purposes of this discussion, the more specific and more recently enacted rule provided in the Colorado Public Records Act would prevail over the more general provision Memo To Tom David...., Page 9 ,^N January 21, 1980 provided by 30-25-111, CRS 1973 . The provisions of 2-4-206, CRS 1973, would also indicate that the provisions of the Colorado Public Records Act prevail over the provisions of 30-25-111, CRS 1973, inasmuch as that statute provides that in the case of two irreconcilable statutes , the statute with the latest effective date prevails over the statute with the earlier effective date. It is therefore my conclusion that even if a court were to find that the provisions of the two statutes in question are irreconcilable, the provisions of the Colorado Open Records Act would prevail inasmuch as that Act contains a special pro- vision which was enacted later than the general provisions of 30-25-111, CRS 1973. RECOMMENDATION: The provisions of 24-72-206, CRS 1973, provide as follows : "Any person who willfully and :'knowingly violates • the provisions of this part two is 'guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $100. 00, or by imprisonment in the County Jail for not more than 90 days, or by both such fine and imprisonment. " 30-25-111 (3) , CRS 1973, provides : "Any willful violation of any provision of this section by any county commissioner or by any per- son acting as clerk or otherwise for the board of county commissioners in connection with such pub- lished reports and the statements contained therein is a misdemeanor, and any person convicted of any violation shall be punished by a fine not exceeding $100. 00. These two statutory provisions, acting together, place the Commissioners in the proverbial position of being "between a rock and a hard place. " If the Commissioners decide to publish the salaries of the employees , they are potentially subjecting themselves to liability under the Colorado Public Records Act. On the other hand, if they refuse to allow inspection or publication of the salaries they may be viola- ting the provisions of 30-25-111, CRS 1973 . Memo To Tom David " r" Page 10 January 21, 1980 Inasmuch as the issues discussed in this memorandum have not been addressed by any appeals court in the State of Colorado, it would be my recommendation that the Board of County Commissioners authorize the commencement of a Declara- tory Judgment action for the purpose of obtaining an inter- pretation of the applicability of these two statutes. The absence of such a decision by the court, together with the demand which has been made by the Weld County newspapers for publication of the salaries , makes the decision to protect information regarding individual salaries, as I have suggested, somewhat risky, potentially subjecting the county to criminal penalties. Sincerely, tide- J. 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