ADMINISTRATIVE DEFERENCE IN COLORADO.

• Author: Hart, Melissa

Colorado has been described by one scholar as an "intermediate deference" state.1 That is probably a fair description, though it might also be characterized as a generous one. The reality is that the Colorado Supreme Court has described its position on deference to the state's administrative agencies in varied and sometimes inconsistent formulations.2

Indeed, even within one single decision, a careful reader can find multiple slightly different deference standards, all with citations to relevant precedent. Perhaps most striking is this paragraph from Coffman v. Colorado Common Cause3:

Moreover, we must give particular deference to the reasonable interpretations of the administrative agencies that are authorized to administer and enforce a particular statute. Tivolino Teller House, Inc. v. Fagan, 926 P.2d 1208, 1211 (Colo.1996). On review, an agency decision will be sustained unless arbitrary or capricious, section 24-4-106(7), C.R.S. (2004), or unsupported by the evidence or contrary to law, Regents of the Univ. of Colorado v. Meyer, 899 P.2d 316, 317 (Colo.App.1995). However, although we find persuasive an administrative interpretation of statute that is a reasonable construction consistent with public policy, Aurora v. Bd. of County Comm'rs, 919 P.2d 198, 203 (Colo.1996), it is for this court to determine all questions of law, interpret applicable statutes, and apply such interpretations to the facts, Meyer, supra. Likewise, even though an agency construction of statute should be given appropriate deference, its interpretation is not binding on this court. See El Paso County Bd. of Equalization v. Craddock, 850 P.2d 702, 704 (Colo.1993).4

In this one paragraph, first we see the importance of according "particular deference" to the agency tasked with enforcing a statute.5 However, what follows is the observation that the court will only "find persuasive an administrative interpretation," with the understanding that it is ultimately the court's job to interpret the law.6 Finally, the opinion says that an agency's interpretation is entitled to "appropriate deference" but is "not binding" on courts.7 Colorado's case law on deference to agency interpretation includes all of these approaches.8

It was only recently, however, that the Colorado Supreme Court was asked directly to take a position on whether the state aligned its law with federal law on the relationship between courts and administrative agencies. The ask came in a wage claim dispute, Nieto v. Clark's Market, Inc.,9 and, as discussed further below, the court declined to adopt federal law on administrative deference.10 This essay begins by describing the interpretive challenges presented in Nieto and the court's approach to those challenges. It then considers where the law of deference to agencies stands in Colorado, given that the state has decided to chart its own path rather than adopt the federal approach.

1. NIETO V. CLARK'S MARKET

In Nieto, the Colorado Supreme Court faced the question of how to interpret the provisions of the Colorado Wage Claim Act11 related to employer-provided vacation pay.12 The case required the court to reconcile several different provisions of the Wage Act and in particular to determine whether they should be read together to create a separate "vesting" requirement for earned vacation pay.13 It also forced the court to confront directly what kind of deference it should accord the interpretation of the statute promulgated by the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics ("CDLE"), the state agency responsible for enforcing the Wage Act.14

1. The Colorado Wage Claim Act and Vacation Pay

   The subsection of the Wage Act that directly addresses vacation pay provides that:

   "Wages" or "compensation" means: ... (III) Vacation pay earned in accordance with the terms of any agreement. If an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee. (15) This provision standing alone suggests that vacation pay is due when it is "earned" and "determinable." However, complicating matters, "wages" and "compensation" are also generally defined at section 8-4-101(14)(a)(I), which provides that "[n]o amount is considered to be wages or compensation until such amount is earned, vested, and determinable." (16) And section 8-4-109(1)(a) requires that "wages or compensation for labor or service earned, vested, determinable, and unpaid" be paid immediately upon an employee's discharge. (17) Given these statutory provisions, the court was confronted with the question of whether vacation pay must be "vested" to be payable at the end of an employment relationship and, if so, what "vesting" means in the context of vacation pay. (18)

   This question carries particular significance because the Wage Act does not itself create substantive rights beyond the right to payment at regular intervals, a prohibition on deductions from wages other than those specified by...