dissenting:
The majority opinion holds that the employees were not required to exhaust their administrative remedies. It then proceeds to examine whether the Department of Administration’s conduct violated article XII, section 13, of the Colorado Constitution (the Civil Service Amendment). I disagree with the majority and would hold that the employees were required to exhaust their administrative remedies. Because the employees failed to do so, this court should not consider their claim that the Department of Administration’s actions violated the Civil Service Amendment. Under my approach, however, we must then address the constitutionality of the footnote to the 1987 “long bill,” or general appropriations statute. I find Colorado Ass’n of Public Employees v. Department of Highways, 809 P.2d 988 (Colo.1991), to be dispositive on that issue, and I would hold the footnote unconstitutional. Therefore, I respectfully dissent.
I
In Part IIB of the opinion, the majority holds' that the individual employees were not required to exhaust available administrative remedies because the State Personnel Board (the Board) does not have the authority to determine facial challenges to the constitutionality of legislation. However, by treating all of the employees’ claims in this case as “facial” in nature, the majority ignores the traditional distinction between constitutional challenges to a statute on its face and challenges to a statute as applied. In my view, this characterization of the employees’ claims as purely facial challenges is erroneous and unduly restricts the Board’s constitutional and statutory authority to handle personnel disputes. The employees here seek reinstatement to their former positions with back pay. This can be nothing but a claim that the long bill footnote, as interpreted by the Department of Administration and applied by the Department to these employees, is unconstitutional under the Civil Service Amendment. I believe that the exhaustion rule is still applicable and bars the employees’ claims for reinstatement and back pay.1
A party need not exhaust available administrative remedies when the agency does not have the authority to decide the issue raised. Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo.1983). This rule has been applied when the constitutionality of a statute which the agency seeks to administer is challenged as facially invalid. Bernard Schwartz, Administrative Law § 8.37, at 518 (2d ed. 1984). See also Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); Arapahoe Roofing & Sheet Metal, Inc. v. City and County of Denver, 831 P.2d 451, 454 (Colo.1992); Kuhn v. State Dept. of Revenue, 817 P.2d 101, 104 (Colo.1991), cert. dismissed, — U.S. —, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992); Clasby v. *1202Klapper, 636 P.2d 682, 684 (Colo.1981); Kinterknecht v. Industrial Comm’n, 175 Colo. 60, 67, 485 P.2d 721, 724 (1971). Administrative review is unnecessary under these circumstances since “the administrative process is unlikely to contribute anything to the resolution of the challenge.” Schwartz, § 8.37, at 518.
However, not every constitutional issue defeats the exhaustion requirement. Johnson v. Utah State Retirement Office, 621 P.2d 1234, 1237 (Utah 1980). See also Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 20, 94 S.Ct. 1028, 1038, 39 L.Ed.2d 123 (1974). On the contrary, courts still require exhaustion when a party challenges the constitutionality of a statute as applied by an agency. Schwartz, § 8.37, at 519. See, e.g., W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 88 S.Ct. 450, 19 L.Ed.2d 546 (1967), reh’g denied, 390 U.S. 913, 88 S.Ct. 814, 19 L.Ed.2d 886 (1968); Abbott v. Burke, 100 N.J. 269, 495 A.2d 376 (1985); Matters v. City of Ames, 219 N.W.2d 718, 720 (Iowa 1974).
The reasons for requiring exhaustion in the case of an “as applied” challenge are obvious. A court should not determine whether a statute is unconstitutionally administered before the available avenues of administration have been explored by the agency. Schwartz, § 8.37, at 519. See also Metcalf v. Swank, 444 F.2d 1353, 1357 (7th Cir.1971), vacated on other grounds, 406 U.S. 914, 92 S.Ct. 1778, 32 L.Ed.2d 113 (1972). Courts would also be put in the difficult position of deciding constitutional questions in a factual vacuum. DuBois Clubs, 389 U.S. at 312, 88 S.Ct. at 452.
In applying these principles to the facts of this case, the majority treats the entirety of the employees’ complaint as a facial challenge to the constitutionality of the appropriations statute. Based on this characterization, the majority then easily concludes that exhaustion is unnecessary since the Board “has no authority to determine whether acts of the legislature are constitutional on their face.” Maj. op. at 1198.
The majority fails to explain, however, why each of the employees’ claims for relief requires “a determination of the facial constitutionality of legislation.” Id. at 1197 (emphasis added). In fact, the employees’ complaint challenges the 1987 long bill footnote both on its face and as applied. In one claim, the employees argue that the footnote itself violated article V, section 32, of the Colorado Constitution. This is clearly a facial challenge to the constitutionality of the statute. The employees’ other claim for relief, although constitutional in nature, is very different. In this claim, the employees assert that the Department of Administration’s decision to privatize (or to contract out custodial services previously provided by the employees), violated the Civil Service Amendment. This claim is a challenge to the constitutionality of the footnote as applied to the employees by the Department of Administration.
Whereas the employees’ facial challenge to the footnote itself may have excused a failure to exhaust administrative remedies, their challenge to the statute as applied to them by the Department of Administration does not. Resolution of this latter claim is not purely a question of law requiring no administrative expertise. Instead, it requires factual determinations concerning what the Department of Administration in fact did. Determinations such as these should be made first by the administrative officials who are especially equipped to inquire into the facts. Schwartz, § 8.37, at 519. See also Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 19, 26 (1975).
We have also recognized that the Board has an essential role in elaborating upon the framework of the state personnel system contained in the Civil Service Amendment. Colorado Ass’n of Public Employees v. Department of Highways, 809 P.2d 988, 993 (Colo.1991). In fact, the Board was specifically created to establish rules implementing the constitutional provisions *1203pertaining to civil service. See Colo.Const. art. XII, § 14(3). Privatization in particular implicates the personnel system as a whole, requiring standards established by statute or Board rule. Department of Highways, 809 P.2d at 995. Given the Board’s expertise in this matter, it is the most appropriate entity to initially determine whether an agency or appointing authority has violated the Civil Service Amendment.
The Department of Highways case illustrates the procedure that the employees involved in the present case should have followed if they wished to assert claims for reinstatement and back pay. Like the employees now before us, the Highways employees lost their jobs because the agency contracted with private vendors for the services formerly performed by the state employees. Id. at 990. The Department of Highways relied on various statutory authorities for its actions. The employees and CAPE challenged the terminations by appealing to the Board and later seeking judicial review of the Board’s adverse decision. One of the issues they raised was the constitutionality of a statute. Id. at 990 n. 1. By pursuing their administrative appeal rights in a timely manner, the Highways employees preserved for judicial review all constitutional issues, both facial and applied. Here, the employees have abandoned their “as applied” claims by failing to appeal to the Board. They have lost their claims to reinstatement and back pay.
In the past, we have held that a party cannot circumvent time limitations on the right to administrative review through artful pleading where the prescribed avenue of relief is adequate. See Clasby, 636 P.2d at 684. However, the majority opinion would lead to such a result. In the future, a party can simply bypass the personnel system by framing his or her dispute as a “facial” challenge to the constitutionality of a statute. This conclusion is unsound as a matter of public policy, and would render the Board’s authority meaningless.
The Board had the authority to consider the employees’ Civil Service Amendment claim. Therefore, this is not a case in which the employees’ administrative remedies were inadequate or in which complete relief could not have been obtained. Since the employees failed to exhaust the administrative remedies available to them, I would affirm the trial court’s judgment with respect to the employees’ claims.
II
Having determined that exhaustion was not required, the majority proceeds to examine whether the Department of Administration violated the Civil Service Amendment. In light of its conclusion that the Department’s conduct was unconstitutional, the majority declines to address whether a footnote to the 1987 long bill constituted substantive legislation in violation of article V, section 32, of the Colorado Constitution. Since I believe that the employees failed to exhaust their administrative remedies, the court should not consider the constitutionality of the Department’s conduct. However, we must address the facial validity of the footnote to the long bill.
The Department of Administration’s decision to contract out custodial and security work to private firms allegedly stems from a provision contained in a footnote to the 1987 long bill. This footnote provided that “[t]he Department is requested to contract for custodial services from community programs serving developmentally disabled persons, insofar as such services are available.” Ch. 1, part I n. 9, 1987 Colo.Sess. Laws 1, 91. The legislature also reduced the number of custodial FTE’s,2 but provided funds for the contracting out of those services.
The trial court determined that the legislature’s “request” was not mandatory and *1204was not, therefore, substantive legislation violating article V, section 32, of the Colorado Constitution. This court does not need to reach the merits of the substantive legislation contention, however. Even if the footnote did not constitute substantive legislation, it was constitutionally invalid under our decision in Department of Highways. When the long bill was enacted, there were no standards in existence by which the privatization plan could be implemented. See Department of Highways, 809 P.2d at 995. Therefore, the trial court judgment with respect to this issue should be reversed.
Accordingly, I respectfully dissent.
I am authorized to say that Chief Justice ROVIRA and Justice SCOTT join me in the dissent.
. The employees may have standing as taxpayers to seek declaratory relief. My point is that their failure to pursue administrative relief in a timely manner is fatal to their request as employees for reinstatement and back pay.
. An “FTE” is a "full time equivalent,” meaning one person employed full time for one year. Ch. 1, sec. 1(10), 1987 Colo.Sess. Laws 1, 3.