v. City & Cty. of Denver

2019 COA 8, 436 P.3d 604

• Court: Colorado Court of Appeals
• Decided: January 24, 2019
• Docket: 17CA1662, Roybal
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY January 24, 2019

2019COA8

No. 17CA1662, Roybal v. City & Cty. of Denver — Municipal Law — City and County of Denver — Charter of the City and County of Denver — Denver Revised Municipal Code

In this case, a division of the court of appeals concludes that

the City and County of Denver’s Career Service Authority Board

correctly interpreted sections 2.6.2 and 2.6.4 of the Charter of the

City and County of Denver. The division analyzes the Charter,

along with relevant Career Service Rules, Denver Revised Municipal

Code provisions, and state statutes, and concludes that the

Manager of Safety may authorize a designee within the department,

other than the Deputy Manager of Safety, for the purposes of hiring,

disciplining, and terminating employees of the Denver Sheriff

Department. The division also concludes that the Board did not improperly

promulgate or retroactively apply a new Career Service Rule in this

case by discussing and implementing the policy behind an existing

Career Service Rule during its review of the pre-disciplinary

proceedings.

Accordingly, the division affirms the district court’s judgment,

which affirmed the Board’s decision and order, which, in turn,

affirmed the termination of plaintiff’s employment with the Denver

Sheriff Department. COLORADO COURT OF APPEALS 2019COA8

Court of Appeals No. 17CA1662 City and County of Denver District Court No. 16CV33995 Honorable Edward D. Bronfin, Judge

Robert Roybal,

Plaintiff-Appellant,

v.

City and County of Denver, a Colorado municipal corporation; and Department of Safety for the City and County of Denver,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE TERRY Taubman and Fox, JJ., concur

Announced January 24, 2019

Elkus & Sisson, P.C., Lucas Lorenz, Donald C. Sisson, Denver, Colorado, for Plaintiff-Appellant

Kristin M. Bronson, City Attorney, Charles T. Mitchell, Assistant City Attorney, Natalia S. Ballinger, Assistant City Attorney, Denver, Colorado, for Defendants- Appellees ¶1 Under sections 2.6.2 and 2.6.4 of the Charter of the City and

County of Denver (Charter), is the authority to hire, discipline, and

terminate Denver Sheriff Department (DSD) employees limited

solely to the Manager of Safety (Manager) and the Deputy Manager

of Safety (Deputy)? Based on the plain language of the relevant

Charter sections, we conclude that the answer to this question is

“no.” And under the facts of this case, we also conclude that the

City and County of Denver’s Career Service Authority Board (Board)

did not improperly promulgate and retroactively apply a Career

Service Rule (C.S.R.) to this case.

¶2 Plaintiff, Robert Roybal, contends that the district court erred

in affirming the decision and order of the Board, which affirmed the

termination of his employment with the DSD. We affirm the

judgment of the district court.

I. Background

¶3 Roybal was a Deputy Sheriff for the DSD. After an

investigation, the Department of Safety’s Civilian Review

Administrator, Shannon Elwell (Administrator), determined that

Roybal had violated multiple rules, warranting disciplinary action,

and terminated his employment.

1 ¶4 Roybal appealed the termination to a career service hearing

officer, arguing that his conduct had not violated any rules. After

conducting a de novo review of the Administrator’s decision, the

hearing officer affirmed Roybal’s termination.

¶5 Roybal then appealed the hearing officer’s decision to the

Board, reasserting that his conduct violated no rules and

contending that his termination was void as an ultra vires act.

Roybal argued that the Charter reserved the authority to discipline

or terminate DSD employees solely to the Manager or to the Deputy.

The Board affirmed the hearing officer’s decision.

¶6 Roybal appealed the Board’s order to the district court under

C.R.C.P. 106(a)(4), asserting that the Board abused its discretion in

affirming the hearing officer’s decision. The district court concluded

that the Charter was unambiguous and that the Administrator had

disciplinary authority to terminate Roybal’s employment. The

district court also rejected Roybal’s claim that the Board abused its

discretion in determining that procedural errors committed by the

DSD during the pre-disciplinary process did not require Roybal’s

termination to be reversed, and the court affirmed the Board’s

order.

2 II. Disciplinary Authority Under the Charter

¶7 Roybal contends that, under the Charter, the authority to

discipline and terminate DSD employees rests solely with the

Manager or the Deputy, to the exclusion of the Administrator, and

therefore his termination was void as an ultra vires act. We

disagree.

A. Standard of Review and Applicable Law

¶8 C.R.C.P. 106(a)(4) provides that the district court may review

actions and provide relief “[w]here any governmental body or officer

or any lower judicial body exercising judicial or quasi-judicial

functions has exceeded its jurisdiction or abused its discretion, and

there is no plain, speedy and adequate remedy otherwise provided

by law.”

¶9 “In an appeal of a C.R.C.P. 106(a)(4) proceeding, the appellate

court is in the same position as the district court concerning review

of an administrative board’s decision.” Shupe v. Boulder Cty., 230

P.3d 1269, 1272 (Colo. App. 2010). We therefore review the

decision of the administrative body itself, not that of the district

court, and review de novo whether the agency abused its discretion.

Khelik v. City & Cty. of Denver, 2016 COA 55, ¶ 12. As relevant

3 here, an agency abuses its discretion if it has misconstrued or

misapplied the law. Id. at ¶ 13.

1. Statutory Interpretation Principles

¶ 10 “The authority of a city’s career service board is derived from

that municipality’s city charter.” City of Englewood v. Englewood

Career Serv. Bd., 793 P.2d 585, 586 (Colo. App. 1989).

¶ 11 We apply the rules of statutory interpretation to municipal

charters and ordinances. Smith v. City & Cty. of Denver, 789 P.2d

442, 445 (Colo. App. 1989). We begin with the plain meaning of the

charter’s and ordinance’s language, reading words and phrases in

context and construing them according to common usage. Marshall

v. Civil Serv. Comm’n, 2016 COA 156, ¶ 15. If the language is

unambiguous, we do not alter its plain meaning nor look any

further. Cook v. City & Cty. of Denver, 68 P.3d 586, 588 (Colo. App.

2003).

¶ 12 We also construe charter provisions pertaining to the same

subject matter as a whole to ascertain legislative intent and avoid

inconsistencies and absurdities. Id. If a charter provision is

susceptible of more than one reasonable interpretation, “the

interpretation suggested by the city’s executive and legislative

4 bodies is persuasive.” Id. Similarly, we “defer to the interpretation

of an administrative rule or regulation by the agency charged with

its administration.” Ross v. Denver Dep’t of Health & Hosps., 883

P.2d 516, 519 (Colo. App. 1994); see also Regents of the Univ. of

Colo. v. City & Cty. of Denver, 929 P.2d 58, 61 (Colo. App. 1996)

(“The agency’s interpretation [of a rule it is charged with enforcing]

is to be accepted if it has a reasonable basis in law and is

warranted by the record.”).

¶ 13 “Under the charter of the City and County of Denver, it is the

Board which both promulgates and administers the Career Service

Authority Rules and whose interpretation is therefore entitled to

deference.” Ross, 883 P.2d at 519.

2. Charter Provisions

¶ 14 Charter section 2.6.1 creates the Department of Safety and

provides that that Department, subject to the supervision and

control of the Mayor, shall have “full charge and control” of the

DSD. Charter section 2.6.2 creates the position of Manager to be in

charge of the Department of Safety. It also provides that the

Manager “may appoint a Deputy Manager of Safety, who shall in

addition to any other duties assigned perform such functions and

5 exercise such powers of the Manager as the Manager may

specifically assign to such Deputy.” Id.

¶ 15 Section 2.6.4 relates to the DSD. Among other things, that

section specifies that the Mayor appoints the Sheriff; the Sheriff

appoints deputy sheriffs; and the Sheriff has full charge and

custody of Denver jails. See id. Section 2.6.4 provides that the

Manager “shall be deemed the appointing authority pursuant to

Career Service requirements for purposes of hiring, discipline and

termination of Deputy Sheriffs and other employees within the

Sheriff Department.” Id.

¶ 16 Relatedly, C.S.R. 16, titled “Code of Conduct and Discipline,”

specifies the rules, grounds for discipline, and disciplinary process

for City and County of Denver employees. C.S.R. 16-15, which

substantively encompasses former C.S.R. 16-70, states that

“[a]ppointing authorities may delegate in writing any authority given

to them under this Rule 16 to a designee within his or her

department or agency.”

6 B. Discussion

1. Arguments Based on the Charter and Rules

¶ 17 Roybal contends that the Administrator lacked the authority

to discipline or terminate DSD employees, and that only the

Manager or Deputy has such authority. He bases his argument on

Charter sections 2.6.2 and 2.6.4, which, as noted above, create and

give authority to the Manager. He argues that because section

2.6.2 specifically allows the Manager to delegate authority to a

Deputy, it constrains the delegation authority in section 2.6.4 such

that the Manager may not delegate authority to anyone other than

the Deputy. We disagree.

¶ 18 The Board relied on its decision in a previous unrelated

disciplinary action, where it concluded that the plain language of

section 2.6.4 permits the Manager to designate someone — not

necessarily a Deputy — with the authority to discipline employees

of the DSD. We agree with this conclusion.

¶ 19 According to section 2.6.2, the Manager has the discretion to

appoint a Deputy, and the Deputy may perform “such functions

and exercise such powers” as the Manager may assign. But the

7 Charter does not limit the Manager’s delegation authority to the

Deputy.

¶ 20 There is also no indication in section 2.6.4 that the Manager’s

authority is limited when assigning functions or powers to others.

Section 2.6.4 separately addresses the management, hiring, firing,

responsibilities, and compensation of DSD employees. It provides

the Manager with the authority to appoint others for the “purposes

of hiring, discipline and termination of Deputy Sheriffs and other

employees within the Sheriff Department.” Id. Under section 2.6.4,

the Manager is an “appointing authority pursuant to Career Service

requirements.” Id. This language is unambiguous and does not

limit the Manager’s authority to delegate responsibilities to others.

¶ 21 Reading the sections together because both concern the

Manager’s authority, see Cook, 68 P.3d at 588, we conclude that

sections 2.6.2 and 2.6.4 provide the Manager with separate

authority to delegate.

 Section 2.6.2 states that the Manager may appoint a

Deputy to perform “such functions and exercise such

powers” as the Manager may delegate.

8  Section 2.6.4 states that the Manager is the appointing

authority for purposes of hiring, discipline, and

termination of DSD employees. The “Career Service

requirements” referenced in section 2.6.4 provide at

C.S.R. 16-15 that “[a]ppointing authorities” may delegate

“any authority given to them under this Rule 16 to a

designee within his or her department or agency.”

¶ 22 Because section 2.6.4 gives the Manager appointing authority,

and C.S.R. 16-15 allows the Manager to delegate disciplinary

authority to a “designee within his or her department,” the Manager

was permitted to designate the Administrator as a disciplinary

authority. And contrary to Roybal’s contention, we do not discern

any conflict between the C.S.R. and the Charter.

¶ 23 Therefore, the Board did not err when it concluded (1) that the

Charter and the C.S.R. do not limit the Manager’s ability to

designate authority solely to the Deputy, and (2) that the Manager

was permitted to delegate disciplinary authority to the

Administrator.

9 2. Arguments Based on Municipal Code Provisions and State Statutes

¶ 24 Roybal next asserts that Denver Revised Municipal Code

(D.R.M.C.) sections 14-122 and 18-6(e), and section 30-10-506,

C.R.S. 2018, collectively declare that the Manager performs the

duties of a Sheriff and that only a Sheriff can fire employees. He

argues that these sections also demonstrate that the termination by

the Administrator was unauthorized. We reject these arguments.

¶ 25 D.R.M.C. section 18-6(e) provides that “[i]t shall be unlawful

for any department head or other officer of the city to willfully

promote, discipline, or terminate any employee of the city except in

strict conformance with the terms of the career service provisions of

the charter and the career service rules.” Because Roybal’s

termination conformed to the Charter and the C.S.R., we perceive

no violation of this code provision.

¶ 26 D.R.M.C. section 14-122 provides that “[p]ursuant to Section

A9.1 of the Charter, the manager of safety exercises the powers and

performs the duties of sheriff under the laws of the state.” Section

30-10-506 provides that a sheriff may appoint deputies and “may

revoke such appointments at will.” However, a sheriff must also

10 adopt personnel policies, including those concerning the review of

revocation of appointments, and must provide a deputy with notice

of a proposed revocation, as well as an opportunity to be heard

prior to such revocation. Id.

¶ 27 To the extent Roybal implies that the statute prohibits

delegation of the Manager’s authority, Denver’s home rule status

would preclude the statute from superseding the D.R.M.C. See

Colo. Const. art. XX, § 6; see also Fraternal Order of Police, Colo.

Lodge No. 27 v. City & Cty. of Denver, 926 P.2d 582, 586 (Colo.

1996).

¶ 28 Having determined that the Manager could delegate this

authority to the Administrator, we further conclude that the Board

did not abuse its discretion in so ruling.

3. Charter Section 2.6.4

¶ 29 In his reply brief, Roybal contends that the language of

Charter section 2.6.4 refers to the requirements of the career

service personnel system and not to the C.S.R. He argues that

section 2.6.4 therefore invokes section 9.1.1 of the Charter, rather

than C.S.R. 16, rendering Rule 16 inapplicable.

11 ¶ 30 Because Roybal raises this issue for the first time in his reply

brief, we do not address it. See Vitetta v. Corrigan, 240 P.3d 322,

330 (Colo. App. 2009) (“[W]e do not consider appellate arguments

raised for the first time in a reply brief.”).

III. Disciplinary Proceedings

¶ 31 Roybal contends that procedural errors in the pre-disciplinary

process require reversal of his termination and that the Board

abused its discretion in concluding otherwise. The procedural

errors he cites are (1) that only one division chief was present at the

disciplinary hearing, rather than the required two division chiefs,

and (2) that the Sheriff did not initiate the discipline by written

recommendation to the Manager. According to Roybal, in making

these errors, the Board effectively created a new C.S.R., without

following its own rulemaking procedures, and applied the rule

retroactively to his case to excuse the DSD’s violations of its own

policies. We reject these contentions.

¶ 32 Even if we assume that these two procedural errors occurred

during the pre-disciplinary process, the Board ruled that the

hearing officer did not err in upholding Roybal’s termination. In so

ruling, the Board reasoned that

12 Career Service Rule 16-72(D) [renumbered to 16-47(D)] provides that an Agency’s failure to strictly follow all pre-disciplinary guidelines set out in the Rules will not constitute grounds for reversing the discipline unless the failure to follow those rules substantially violated the rights of the employee. While this Rule only applies to the failure to follow Career Service Rules (rather than the Agency rules alleged by [Roybal]), we believe the policy expressed in this rule is sound and applicable to rules or procedures allegedly violated by the Agency in pre-disciplinary proceedings. Unless the violation of internal rules resulted in a substantial violation of [Roybal’s] rights, said rules violations will not be grounds for disturbing imposed discipline. In this case, we find that [Roybal] received a full and fair pre- disciplinary process and that any irregularities in that process were trivial and in no way had an adverse impact on the rights of the [Roybal].

¶ 33 We determine that the Board did not engage in rulemaking,

and we also agree with its reasoning that the occurrence of alleged

procedural errors did not warrant a reversal of Roybal’s

termination.

¶ 34 The Board has a duty to “[c]ertify that personnel actions

involving employees in the career service personnel system,

including . . . disciplinary actions, and terminations are taken in

strict accordance with the career service provisions of the charter,

13 career service rules, and any applicable ordinance of the city.”

D.R.M.C. § 18-2(a)(5). The Board is charged with “enforc[ing] rules

necessary to foster and maintain a merit-based personnel

system . . . , including but not limited to rules

concerning . . . grievance procedures, and appeals from actions of

appointing authorities to the Board and any hearing officers

appointed by the Board.” Charter § 9.1.1(A). “Dismissals,

suspensions or disciplinary demotions of non-probationary

employees in the Career Service shall be made only for cause . . . .”

Charter § 9.1.1(B). The C.S.R. vests hearing officers with the

“authority to hear and decide all appeals permitted by this Rule 19”

and requires hearing officers to “perform the functions necessary to

implement and maintain a fair and efficient process for appeals.”

C.S.R. § 19-30(A). The Board then must “[i]ssue a decision in

writing, affirming, modifying, or reversing the hearing officer’s

decision.” C.S.R. § 19-70.

¶ 35 Merely discussing and implementing the policy of a C.S.R.

does not implicate quasi-legislative rulemaking by the Board. See

Charter § 9.1.1(A). The Board’s mention of C.S.R. 16-72(D) was

limited to explaining its reasoning in concluding that trivial

14 deviations from pre-disciplinary regulations do not warrant the

reversal of a termination decision.

¶ 36 We perceive no error in the Board’s finding that Roybal

“received a full and fair pre-disciplinary process and that any

irregularities in that process were trivial and in no way had an

adverse impact on [his rights].”

IV. Sufficiency of Evidence

¶ 37 In his opening brief, Roybal contends that the district court

erred in affirming his termination because the record did not

contain sufficient evidence to support a finding that his conduct

violated any rules warranting disciplinary action. However, because

Roybal’s reply brief withdrew this issue as a basis for the appeal, we

do not address it. See In re Marriage of Morton, 2016 COA 1, ¶ 37

(declining to address issues withdrawn by counsel at oral

argument).

V. Motion to Strike

¶ 38 We deny Roybal’s motion to strike portions of the answer brief

that include citations to an unpublished opinion of another division

of this court. We have disregarded any prohibited citations in that

brief.

15 VI. Conclusion

¶ 39 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE FOX concur.