April 24, 2000.
J. Scott Detamore, Esq., Todd S. Welch, Esq., William Perry Pendley, Esq., Mountain States Legal Foundation, Todd Stubbs Welch, Colorado Interstate Gas Company, for Plaintiff.
Harry S. Morrow, Attorney General's Office, Marybeth Martin, Charles E. Leggott, Employment Litigation Section Civil Rights Division U.S. Department of Justice, for Defendants.
ORDER GRANTING MOTION TO DISMISS PARTY DEFENDANT
Governor Bill Owens seeks to have himself removed as a party defendant in this case. Owens contends he has no legal responsibility or authority over the creation and implementation of the Colorado Department of Transportation's disadvantaged business enterprise (DBE) program, which is at issue in this case. The governor asserts that since he has no legal responsibility or authority over the DBE program, he is not a party in interest in this case and should be dismissed as a defendant.
In response, the plaintiffs contend, generally, that the governor must remain a party in this action because the Transportation Commission has acted outside its authority in promulgating the DBE program and, as the supreme executive officer of the state, the governor has ultimate authority over the program.
To understand the issues in this case, some discussion of the structure of the Transportation Commission and the Colorado Department of Transportation must be set forth. In 1968, the Colorado General Assembly reorganized state government. See Administrative Organization Act of 1968, Colo. Rev. Stat. § 24-1-125 et seq. (1999). The general assembly created several principal departments within the executive branch including the Department of Highways (the name was later changed to the Department of Transportation). §§ 24-1-110(v), 128.7(1). The state legislature prescribed that each department should have a department head who, in the case of the Department of Transportation, is the executive director. §§ 24-1-128.7(1), 43-1-103. The state legislature also created (or actually continued the existence of) the Transportation Commission. §§ 24-1-128.7(2), 43-1-106. The transfer of power to the Transportation Commission was a "type 1" transfer. § 24-1-128.7(2). Commissions included in "type 1" transfers are "administered under the direction and supervision of" their principal department which in this case is the Department of Transportation, but the commission exercises "its prescribed statutory powers, duties, and functions, . . . independently of the head of the principal department." § 24-1-105(1) (emphasis added). "Under a type 1 transfer, any powers, duties, and functions not specifically vested by statute" in the commission are to be "performed under the direction and supervision of the head of the principal department" § 24-1-105(1), which in this instance would be the executive director of CDOT. § 43-1-103.
The Colorado General Assembly granted the Transportation Commission broad powers and duties, including the power and duty "[t]o formulate the general policy with respect to the management, construction, and maintenance of public highway and other transportation systems in the state. . . ." § 43-1-106(8)(a). The state legislature further provided that the Transportation Commission has the power to "do all other things necessary and appropriate in the construction, improvement, and maintenance of the state highway and transportation systems," § 43-1-106(8)(j), as well as to "make all necessary and reasonable orders, rules, and regulations in order to carry out" its functions, § 43-1-106(8)(k).
The governor contends that he should be dismissed as a party in this case because he "has no legal responsibility or authority for the creation and implementation of CDOT's DBE Program." He claims that the powers granted to the Transportation Commission are broad and he has been given no authority within the statutory framework for policy decisions such as that involving the DBE Program. In support of his argument that he has no legal authority, the governor points to the decision of the Colorado Supreme Court in State Highway Commission of Colorado v. Haase, 537 P.2d 300 (Colo. 1975), which involved a dispute between the commission and then-governor Lamm. Lamm opposed the commission's plan to go forward with the building of C-470 and tried to block the project by ordering the Executive Director of the Colorado Department of Highways not to submit information to the federal government which was required to facilitate the funding and construction of the highway. The commission filed a petition for writ of mandamus to compel the Chief Engineer of the Division of Highways to carry out its orders. The Colorado Supreme Court examined the powers and duties conferred on the commission by the state legislature and concluded that
[t]here is no language we can find in the Administrative Organization Act, nor in the statutes pertaining to highways — nor has any been cited to us — which gives to the Governor the authority he seeks to exercise. Therefore, . . . his directive was a nullity as the Commission by law exercises its prescribed statutory powers independently of the director . . . to whom the Governor's order was sent.Id. at 302.
The current governor has turned the tables and now seeks to use this decision as a shield. He asserts that he has no power over the Commission's decisions, including its decision to create and implement the DBE program.
The plaintiffs cite no legal authority giving the governor any power over policy-making decisions of the commission. However, the plaintiffs attempt to distinguish the Haase decision by asserting that the commission has gone beyond its legitimate powers. The plaintiffs maintain that the creation and implementation of the DBE program was outside the commission's powers and duties since the program amounts to "social engineering" and has no relation to transportation, which is the only legitimate function of the Transportation commission. The plaintiffs claim further that since the DBE program is outside the powers of the commission, it must be within some residual power of the governor as the supreme executive authority in the state and, thus, he must remain a party in this action.
As authority for their position, the plaintiffs cite a federal case in Texas which was vacated without opinion by the Fifth Circuit. In Houston Contractors Association v. Metropolitan Transit Authority of Harris County, 945 F. Supp. 1013 (S.D. Tex. 1996), vacated, 189 F.3d 467 (5th Cir. 1999), the plaintiff challenged the constitutionality of the defendant's DBE program. In examining the "legitimate ends" of the DBE program at issue, the trial court decided that the DBE program was not directly related to the defendant's legitimate function of providing transportation:
In performing its institutional function as a transportation agency, Metro has adopted a social program with a purpose collateral to facilities and operations for public transportation. This official solicitude for disadvantaged business enterprises is secondary to the transportation issue.Id. at 1016. The court acknowledged that while the State of Texas may have the authority to adopt social programs such as the DBE program, it never conferred any such authority on the defendant.Id. at 1017.
Similarly, in the instant case, the plaintiffs claim that CDOT and the Transportation Commission have acted outside of their legitimate powers and duties in creating a "social remediation program" unrelated and collateral to their only legitimate function — providing transportation. Assuming, arguendo, that this true, it does not mean that the governor has any legal responsibility for the DBE program.
The plaintiffs make a tortured argument to reach the result they want. They acknowledge that if the CDOT and the Transportation Commission lack the authority to create and implement the DBE program, "[c]learly such authority lies within the Colorado Legislature [sic]." Plaintiffs then make the totally unsupported conclusion that since the Colorado General Assembly has not acted, "the only other source [of authority] could be the Governor [sic]." (Pl.'s Resp. in Opp'n at 5.) They provide no legal support for the notion that if the legislative branch has not acted, the executive branch must necessarily have the power to act. Rather, they try to support their leap in logic by pointing to executive orders signed by previous governors of Colorado which relate to the DBE Program.
Article III of the Colorado Constitution explicitly prohibits any of the three departments of government — legislative, executive, or judicial — from exercising "any power belonging to either of" the other departments.
Governor Lamm signed two executive orders in 1979 and 1980. The first order established a 9% goal in all state-funded capital construction projects. The plaintiffs acknowledge that this order did not explicitly include the Department of Highways (CDOT's predecessor agency). (Pl.'s Resp. in Opp'n at 3 n. 1.) According to the plaintiffs, the commission went ahead and voluntarily established the same goal. Subsequently, in 1980, Governor Lamm issued an executive order directing that 9% of the highway funds be awarded to MBEs. The plaintiffs point out that Governor Owens has not repealed either of these orders and, thus, according to the plaintiffs, these executive orders establish the governor's authority over the DBE program.
The plaintiffs have not provided the court with copies of these executive orders. It would be prudent to file copies but defendant Owens does not contest the plaintiff's basic statement of the facts surrounding the orders.
Defendant Owens correctly points out that under the Colorado Supreme Court's decision in Haase, these executive orders are without legal effect inasmuch as they purport to direct the commission to do anything. In any event, the plaintiffs ignore the fact that the commission, of its own volition, decided to create the DBE program after the first executive order, which was not even directed at the commission and the second executive order was moot to the extent that the policy had already been made.
Plaintiffs further try to bootstrap a claim of involvement by the governor by asserting that CDOT itself admits in one of its manuals that the DBE program was "derived" from another executive order signed by former Governor Romer in 1987. Section 3 of the DBE Program Manual is entitled "Authority for the DBE Program." (Pl.'s Resp. in Opp'n, Ex. at 1.) In this section, the CDOT explains that the "program was established under the authority of the CDOT Executive Director and CDOT Policy Directive No. 611.0. . . ." (Id.) It goes on to state that the program was established " in accordance with" specific federal rules, federal laws, the state statute which grants policy-making authority to the commission, and Governor Romer's executive order. (Id.) The clear language of the manual indicates that the program was established "in accordance with" and not "derived" from the governor's order.
In any event, Governor Romer's executive order was a voluntary request, not a directives which implicitly recognized that the commission had already established a policy. According to the original complaint, Executive Order #D0055 87 provided as follows:
Once again, the parties have not provided the court with a copy of the order. The defendant refers to the plaintiff's rendition of the text of the executive order in its original complaint.
The Colorado Highway Commission has set a goal of 15 percent for minority business contracting on state highway projects. Since minority businesses in state highway contracting have a capacity that presents unique opportunities for minority business to participate in the business of the state, I am requesting that the highway commission examine the current goal of 15% and determine whether it should be increased so that minority businesses participate in state highway contracting at levels proportionate to the minority population of the State of Colorado.
(Compl. Declaratory Inj. Relief ¶ 19) (emphasis added).
The fact that a former governor issues an order asking the commission to re-examine its goals in connection with a policy the commission has already made does not in itself establish that the governor has any policy-making powers. Under the Haase decision, if any of these executive orders had directed the commission to create a policy, it would be without legal effect.
The Transportation Commission is an independent agency that is not within the direct control of the Governor's Office. It has broad statutory powers to create policy related to transportation. Even if its DBE program were deemed collateral to its primary function of providing transportation and outside of any reasonable interpretation of its broad powers, the governor still has no authority over the DBE program, given the separation of powers issue. To the extent that any previous governor ever attempted to direct the commission's policy with respect to the DBE program, any such attempt would have had no legal effect under the Colorado Supreme Court's decision in Haase. The governor simply has no legal authority over the Transportation Commission or any of its policies or programs. Thus, the governor should be dismissed from this action. Accordingly,
It is interesting to note that State Senator Dave Wattenberg recently introduced a bill which would turn 97 independent state boards and agencies into offices which would be more directly under the control of the governor. Senate Bill 213 proposes to change these boards, agencies, and commissions from "type 1" organizations to "type 2" organizations. "Type 2" organizations report directly to, and are controlled by, the head of the department who reports to the governor. Senator Wattenberg claims there are only a handful of agencies he truly wishes to "rein in a little" and turn into "type 2" agencies. See Fred Brown, Chain-of-command changes resisted, The Denver Post, April 7, 2000, at 14A.
IT IS ORDERED THAT the Motion to Dismiss Party Defendant is GRANTED and Defendant Bill Owens, Governor of the State of Colorado, is DISMISSED as a defendant, with the respective parties to pay their own costs.
Dated this 24th day of April, 2000 at Denver, Colorado.