Opinion
No. 80CA0717
Decided April 30, 1981. Rehearing denied May 28, 1981. Certiorari granted August 4, 1981.
Appeal from the District Court of City and County of Denver, Honorable Edward E. Carelli, Judge.
Wegher Fulton, P.C., Paul A. Linton, for plaintiff-appellant.
J.D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Special Assistant Attorney General, Kenneth S. Lieb, Assistant Attorney General, for defendant-appellee.
Division II.
Plaintiff appeals from an order granting defendant's motion to dismiss plaintiff's complaint in the district court. We reverse.
Plaintiff was a certified employee of the Department of Social Services. He was dismissed from his employment on September 20 by letter, advising him of his dismissal and also advising him of his right to appeal the action to the State Personnel Board within 10 days of his receipt of the letter.
On November 19, plaintiff filed with the defendant Board his request for extension of time in which to file his appeal and his petition for appeal. On January 11, 1980, plaintiff received through his counsel, a letter advising him that the Board was prohibited from accepting an appeal outside the time limits provided in its rules and regulations and that it would not grant his request nor accept the appeal.
Plaintiff filed a C.R.C.P. 106 action seeking review of the Board's action. The court dismissed the complaint, apparently on the ground that the Board lacked jurisdiction to act on plaintiff's request because plaintiff had not met jurisdictional filing deadlines.
Department of Social Services Personnel Rules § 7-6-1 states:
"Any person desiring to appeal a disciplinary action shall, within 10 calendar days of receipt of notice of the action taken, file a written petition with the Board. The 10-day period may not be extended, except in exceptional cases for good cause shown. If the employee fails to petition the Board within 10 days or within the time as extended for good cause shown, the action of the appointing authority shall be final and not reviewable." (emphasis added)
Similarly, § 24-50-125(3), C.R.S. 1973, states:
"Within ten days after the receipt of the notification required by subsection (2) of this section or within such additional time as may be permitted by the board in unusual cases for good cause shown, the employee may petition, the board for a hearing upon the action taken. Upon receipt of such petition the board shall grant a hearing to the employee. If the employee fails to petition the Board within ten days or within such additional time granted by the board, the action of the appointing authority shall be final and not further reviewable." (emphasis added)
Neither provision requires that a request for an extension of time be filed within the stated 10 day period.
We rule that the provisions are unambiguous and that they both provide that the board may entertain a petition for review after the 10 day period and that it may grant a review of a dismissal if it finds that the petitioner had good cause for failing to file within the 10 day period. Therefore, we remand to the district court with directions that it remand the case to the Board and that the plaintiff in this action be granted a hearing on the issue of whether he had good cause for failing to file his appeal within the 10-day time limit.
The other issues raised by plaintiff are either without merit, or are premature.
The judgment is reversed and the cause is remanded for further proceedings as specified above.
JUDGE VAN CISE and JUDGE KELLY concur.