Opinion
No. 77-1087
Decided October 26, 1978. Rehearing denied December 21, 1978. Certiorari denied March 12, 1979.
Upon being terminated as receptionist for district attorney, plaintiff brought action for reinstatement and for back pay. District court dismissed action, and plaintiff appealed.
Affirmed
1. COUNTIES — Caption of Complaint — Specific Statutory Requirement — "County of Adams" — Adequate — Acquire Jurisdiction. Although statute provides that suit against the county should be instituted using the phrase, "the Board of County Commissioners of the County of Adams," where the caption of plaintiff's complaint instead used the terms "the County of Adams" and "the Board of County Commissioners of Adams County," plaintiff's complaint was adequate to acquire jurisdiction over Adams County.
2. District Attorney — State Officer — Union Agreement — With County — Not Binding on Him — District Attorney's Employee — Discharged — Violation of Agreement — No Claim Stated. The district attorney is a state officer serving in a particular judicial district, independent of the county government, with authority to hire and fire his own employees, and since he is not an agent or employee of the county, union agreements entered into by the county are not binding upon district attorney; consequently, where discharged employee asserted claim against the county commissioners arguing that her termination had been in violation of agreement between the county and a public employee's union, and where that employee was properly determined to be solely employed by district attorney's office, her complaint failed to state a claim upon which relief could be granted.
Appeal from the District Court of Adams County, Honorable Jean J. Jacobucci, Judge.
Hubert M. Safran, Edward M. Billeck, for plaintiff-appellant.
S. Morris Lubow, County Attorney, Jennifer K. Brown, Assistant County Attorney, for defendants-appellees, The County of Adams and the Board of County Commissioners of the County of Adams and Walter Murphy as Personnel Director.
Robert J. Braswell, Assistant District Attorney, Marc P. Mishkin, Deputy District Attorney, for defendant-appellee Paul Q. Beacom.
Plaintiff Veda I. Anderson's employment with the Adams County District Attorney's Office was terminated when the job requirements were altered. She appeals an order of the district court dismissing her suit for reinstatement and for back pay. We affirm.
Plaintiff had been employed as a receptionist by the District Attorney's Office since 1967. Prior to the time District Attorney Paul Q. Beacom took office in January 1977, he determined that the office receptionist position required bilingual abilities, and therefore notified plaintiff that her services would no longer be needed. Plaintiff contends that this action violated a union contract between Adams County and a public employees' union and that as a county employee and a union member, her rights are protected by the contract. She also claims that her employment was protected under a County Employees' Manual issued by the County Commissioners.
Following an unsuccessful attempt to gain reinstatement through the union grievance procedure, the plaintiff filed suit against the Board of County Commissioners, its individual members, Walter Murphy as County Personnel Director, and District Attorney Paul Q. Beacom. Her complaint was dismissed as to the County Commissioners and Murphy for failure to state a claim upon which relief could be granted. Plaintiff moved for rehearing on this issue. Subsequently, the trial court ordered dismissal of plaintiff's complaint as to defendant Beacom, and the next day denied plaintiff's motion for rehearing as to the dismissal of the Commissioners and Murphy.
Plaintiff's notice of appeal states only that she is appealing the order denying a rehearing. The dismissal of Beacom was not appealed, and therefore the trial court's dismissal as to him must be affirmed. C.A.R. 3(c); In re Marriage of Peterson, 40 Colo. App. 115, 572 P.2d 849 (1977).
[1] We reject the argument of the County Commissioners that plaintiff failed to acquire jurisdiction over Adams County because she did not sue the county in its proper name. Section 30-11-105, C.R.S. 1973, provides that suit should be instituted using the phrase, "the Board of County Commissioners of the County of Adams." The caption of plaintiff's complaint instead used the terms "the County of Adams" and "the Board of County Commissioners of Adams County." Cf. Calahan v. County of Jefferson, 163 Colo. 212, 429 P.2d 301 (1967). Plaintiff's complaint is adequate where the proper subdivision of county government has been named.
[2] However, we affirm the trial court's dismissal of the complaint against the defendants County Commissioners and Murphy for failure to state a claim upon which relief could be granted. The trial court found that despite the fact that plaintiff's salary was paid by the County, her employment was controlled by the district attorney, and hence the terms of the union contract were inapplicable. The district attorney is a state officer serving in a particular judicial district, independent of the county government, with authority to hire and fire his own employees. Section 20-1-209, C.R.S. 1973. Furthermore, since the district attorney is not an agent or employee of the county, union agreements entered into by the county are not binding upon him.
Accordingly, we hold that plaintiff was an employee solely of the district attorney's office and no claim for relief was stated.
Judgment affirmed.
JUDGE SMITH and JUDGE BERMAN concur.