First Regular Session
Sixty-second General Assembly
LLS NO. 99-0650.01 Bart Miller HOUSE BILL 99-1261
STATE OF COLORADO
BY REPRESENTATIVE Tate;
also SENATOR Perlmutter. ENGROSSED
JUDICIARY
A BILL FOR AN ACT
101 CONCERNING MEASURES TO CORRECT UNDERUTILIZATION OF PROTECTED
102 CLASSES IN THE STATE PERSONNEL SYSTEM.
Bill Summary
(Note: This summary applies to this bill as introduced and does
not necessarily reflect any amendments that may be subsequently
adopted.)
For purposes of referrals for positions in the state personnel
system, defines the terms "availability", "job group", "protected class",
"reasonable recruiting area", and "underutilization".
Where a state agency underutilizes one or more protected classes
in a job group, permits the agency to: Enhance the entry of protected
class members to such job group by hiring a trainee or an intern; allow
temporary or provisional employees and disabled persons to take
promotional examinations; authorize the filling of available jobs on an
appropriate alternating basis with protected class members by making
class membership an additional condition of employment; or choose from
among the next 7 candidates on the eligible list for the position on an
appropriate alternating basis.
Requires specific annual approval of the state personnel director
for use of the hiring procedures authorized in this bill and specifies that
statistics used in making such determinations be released annually.
Specifies that in no case may more than one of such procedures be used
in combination to fill the same position in the state personnel system.
1 Be it enacted by the General Assembly of the State of Colorado:
2 SECTION 1. Part 1 of article 50 of title 24, Colorado Revised
[ ] denotes HOUSE amendment. { } denotes SENATE amendment.
Capital letters indicate new material to be added to existing statute.
Dashes through the words indicate material to be deleted from existing statute.
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1 Statutes, is amended BY THE ADDITION OF A NEW SECTION to
2 read: &nbs p;
3 [24-50-115.4. Underutilization selection procedures - legislative
4 declaration. (1) THE GENERAL ASSEMBLY HEREBY FINDS, DETERMINES,
5 AND DECLARES THAT:
6 (a) THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
7 AMENDMENT TO THE UNITED STATES CONSTITUTION REQUIRES A
8 COMPELLING GOVERNMENTAL INTEREST TO JUSTIFY CLASSIFICATIONS
9 BASED ON RACE;
10 (b) RACIAL PREFERENCES IN HIRING ARE SUBJECT TO THE STRICT
11 SCRUTINY STANDARD OF REVIEW BY THE COURTS, WHICH REQUIRES
12 EVIDENCE OF PAST DISCRIMINATION;
13 (c) THIS EVIDENTIARY STANDARD MAY BE MET BY CONVINCING
14 EVIDENCE OF STATISTICAL UNDERUTILIZATION OF PROTECTED CLASS
15 MEMBERS, AS DEFINED IN PARAGRAPH (c) OF SUBSECTION (2) OF THIS
16 SECTION, AND OTHER DIRECT EVIDENCE OF DISCRIMINATION;
17 (d) THE PROCEDURES CONTAINED IN THIS SECTION WILL WORK TO
18 ALLEVIATE THE STATISTICAL UNDERUTILIZATION OF PROTECTED CLASS
19 MEMBERS IN THE STATE PERSONNEL SYSTEM AND ARE NARROWLY
20 TAILORED TO MEET THAT PURPOSE; AND
21 (e) THE IMPLEMENTATION OF THE PROCEDURES CONTAINED IN THIS
22 SECTION SHOULD BE PERFORMED IN A MANNER THAT COMPLIES WITH THE
23 REQUIREMENTS OF FEDERAL AND STATE LAW.
24 (2) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE
25 REQUIRES:]
26 (a) "AVAILABILITY" MEANS THE PROPORTION OR NUMBERS OF
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1 PROTECTED CLASSES POSSESSING THE REQUISITE SKILLS FOR EMPLOYMENT
2 IN A GIVEN JOB GROUP.
3 (b) "JOB GROUP" MEANS THE GROUPING OF STATE JOB CLASSES BY
4 SIMILAR CONTENT, WAGE, AND OPPORTUNITY FOR THE PURPOSE OF
5 CONDUCTING A UTILIZATION ANALYSIS.
6 (c) "PROTECTED CLASS" MEANS AFRICAN AMERICANS, HISPANICS,
7 AMERICAN INDIANS OR ALASKA NATIVES, ASIAN OR PACIFIC ISLANDERS,
8 WOMEN, AND PERSONS WITH DISABILITIES.
9 (d) "REASONABLE RECRUITING AREA" MEANS:
10 (I) FOR ADMINISTRATIVE, PROFESSIONAL, AND TECHNICAL
11 CLASSES, THE ENTIRE STATE;
12 (II) FOR ALL OTHER CLASSES, THE LOCAL AREA OF THE STATE
13 DETERMINED TO BE MOST APPROPRIATE BY THE STATE PERSONNEL
14 DIRECTOR BASED ON THE MOST RECENT EMPLOYMENT DATA FROM
15 AVAILABLE SOURCES INCLUDING, BUT NOT LIMITED TO, FEDERAL
16 STATISTICS FOR STANDARD METROPOLITAN STATISTICAL AREAS.
17 (e) "UNDERUTILIZATION" MEANS UTILIZATION OF A PROTECTED
18 CLASS AT A RATE [SUBSTANTIALLY] LESS THAN THE AVAILABILITY OF THAT
19 PROTECTED CLASS IN THAT JOB GROUP WITHIN A REASONABLE RECRUITING
20 AREA.
21 [(3)] WHERE AN AGENCY UNDERUTILIZES ONE OR MORE PROTECTED
22 CLASSES IN A JOB GROUP, AND ENTRY TO THAT JOB GROUP BY
23 UNDERUTILIZED PROTECTED CLASS MEMBERS COULD BE ENHANCED
24 THROUGH THE USE OF A TRAINEE OR INTERN APPOINTMENT, THE STATE
25 PERSONNEL DIRECTOR MAY ESTABLISH AND ADMINISTER A TRAINEE OR
26 INTERN LEVEL FOR A JOB CLASSIFICATION IN THAT JOB GROUP. POSITIONS
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1 IN THAT JOB CLASSIFICATION SHALL BE FILLED AS THEY BECOME OPEN, ON
2 AN APPROPRIATE ALTERNATING BASIS BETWEEN PROTECTED CLASSES AND
3 THOSE OTHERWISE REFERABLE.
4 [(4) ](a) WHERE ANY AGENCY UNDERUTILIZES ONE OR MORE
5 PROTECTED CLASSES IN THE JOB GROUP IN WHICH A PROMOTIONAL
6 EXAMINATION IS TO BE GIVEN, A TEMPORARY OR PROVISIONAL EMPLOYEE
7 WHO IS A MEMBER OF A PROTECTED CLASS THAT THE AGENCY
8 UNDERUTILIZES IN THE JOB GROUP MAY TAKE ANY PROMOTIONAL
9 EXAMINATION FOR WHICH THE PERSON IS QUALIFIED.
10 (b) ANY TEMPORARY OR PROVISIONAL EMPLOYEE WHO IS A PERSON
11 WITH A DISABILITY MAY TAKE A PROMOTIONAL EXAMINATION FOR WHICH
12 THE PERSON IS QUALIFIED.
13 [ ]
14 (5) WHERE AN AGENCY UNDERUTILIZES ONE OR MORE PROTECTED
15 CLASSES IN A JOB GROUP, AND NO MEMBER OF ONE OF THE UNDERUTILIZED
16 PROTECTED CLASS OR CLASSES IS IN THE TOP THREE ON THE ELIGIBLE LIST,
17 THE AGENCY MAY REQUEST THAT UP TO THE NEXT SEVEN CANDIDATES BE
18 REFERRED IF A MEMBER OF AN UNDERUTILIZED PROTECTED CLASS IS
19 WITHIN THAT GROUP OF CANDIDATES. THE STATE PERSONNEL DIRECTOR
20 IS AUTHORIZED TO APPROVE SUCH A REQUEST IN MAKING REFERRALS FROM
21 THE ELIGIBLE LIST. WHEN SUCH A REQUEST IS MADE TO FILL MULTIPLE
22 VACANCIES, THEN, ON AN APPROPRIATE ALTERNATING BASIS, EVERY OTHER
23 ADDITIONAL CANDIDATE SO REFERRED SHALL BE THE HIGHEST-SCORING
24 MEMBER OF ONE OF THE UNDERUTILIZED PROTECTED CLASSES.
25 (6) IN ALL CASES, USE OF THE METHODS AUTHORIZED IN
26 SUBSECTIONS [(3) TO (5)] OF THIS SECTION SHALL REQUIRE SPECIFIC ANNUAL
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1 APPROVAL BY THE STATE PERSONNEL [DIRECTOR BASED ON CONVINCING
2 EVIDENCE OF UNDERUTILIZATION.] THE STATE PERSONNEL DIRECTOR
3 SHALL ANNUALLY RELEASE STATE EMPLOYMENT STATISTICS USED IN
4 MAKING SUCH DETERMINATION. IN NO CASE SHALL MORE THAN ONE OF
5 THE METHODS AUTHORIZED IN SUBSECTIONS [(3) TO (5)] OF THIS SECTION BE
6 USED IN COMBINATION FOR THE SAME APPOINTMENT TO THE STATE
7 PERSONNEL SYSTEM.
8 SECTION 2. Effective date - applicability. (1) This act shall
9 take effect at 12:01 a.m. on the day following the expiration of the
10 ninety-day period after final adjournment of the general assembly that is
11 allowed for submitting a referendum petition pursuant to article V,
12 section 1 (3) of the state constitution; except that, if a referendum petition
13 is filed against this act or an item, section, or part of this act within such
14 period, then the act, item, section, or part, if approved by the people, shall
15 take effect on the date of the official declaration of the vote thereon by
16 proclamation of the governor.
17 (2) The provisions of this act shall apply to applications for
18 positions in the state personnel system on or after the applicable effective
19 date of this act.