dissenting.
I respectfully dissent.
The majority opinion treats and disposes of the case as one involving a unilateral mistake, i.e., a mistake of law or fact by Royal. If that were the case, their inference that Royal changed his mind and should not be allowed to set aside the agreement would be correct.
I, as did the district court, view the situation as one in which the parties did not reach a meeting of the minds on the question of continuity of employment.
Royal understood the agreement would provide for continuity of employment with the State of Colorado, albeit outside the Department. Indeed, the Division Personnel Administrator for the Department of Institutions admitted during consideration of Royal’s appeal before the Board that the intent of the agreement was “to put Mr. Royal back into the system ... but not with the Department of Institutions.”
In this regard, Royal contemplated that the agreement would contain provisions for lay off procedures in accordance with the rules of the state personnel system. See Colorado State Personnel System Rules and Regulations Article II, 9-3-l(a); Article II, 9-2-4; Article IV, 9-4-l(A-F); and Article VI, 9-6-2. During proceedings before the hearing officer, the Division Personnel Administrator confirmed that the lay off rules would be applied and that the agreement, to the best of his knowledge, was “in accordance with the Rules and Regulations of the State Personnel System.”
Accordingly, Royal contends that he understood the agreement to provide for retention rights which permit a certified employee to “bump” a noncertified employee in another department, see Rules, Article II, 9-2-4, and which provide continuity of employment for salary, seniority and leave purposes. See Rules, Article VI, 9-6-2. Indeed, the Division Personnel Administrator testified at the proceedings before the hearing officer that he had attempted to illustrate the problem at the time the stipulation was read into the record, but had been interrupted. He indicated that continuity of employment was contemplated, but he was not certain how to get Royal back into the system. The Board, on the other hand, argues that the agreement was simply to put Royal on the reemployment list, which would provide him with the opportunity to fill vacant positions with the State.
It is true that the phrase “to put Mr. Royal back into the system” could mean that Royal was to be given the opportunity to become reemployed with the State at some point. However, it is precisely this ambiguity which illustrates that the parties were never in agreement on what is admittedly the crucial element of the agreement —Royal’s continuity of employment with the State. Royal thought the agreement was to provide him with retention rights; the Board did not.
The Board contends that Royal, via the stipulation, effectively waived the right normally afforded state employees. However, as the district court noted, it could not be given effect because there was no meeting of the minds regarding Royal's continuity of employment. There being no agreement as to an essential term of the stipulation, no binding contract resulted. Federal Lumber Co. v. Wheeler, 643 P.2d 31 (Colo.1981). It is significant to me that Royal neither cashed the warrant issued to him by the state, nor signed the stipulation when it was reduced to writing.
Therefore, I agree with the district court that the stipulation should not be enforced and that the appropriate course of action is to remand the matter back to the agency for rehearing.