v. Arapahoe Cnty. Sheriff's Office , 2021 COA 122 ( 2021 )

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
September 9, 2021
2021COA122
No. 20CA0621, Cummings v. Arapahoe Cnty. Sheriff’s Office —
Government — County Officers — Sheriff — Deputies
A division of the court of appeals applies the holding from
Cummings v. Arapahoe County Sheriff’s Department, 2018 COA 136,
to a sheriff’s personnel policy granting notice of an investigation and
provides guidance as to the scope of Cummings and section 30-10-
506, C.R.S. 2020. Because the subject policy did not effectuate the
specific right section 30-10-506 grants a deputy — the right to
notice “of the reason for the proposed revocation” of his employment
— the division concludes the policy was not contractually binding.
Accordingly, the district court erred by instructing the jury to
consider the sheriff’s compliance with the policy in determining
whether he breached an implied employment contract.
COLORADO COURT OF APPEALS 2021COA122
Court of Appeals No. 20CA0621
Arapahoe County District Court No. 16CV32444
Honorable Kenneth M. Plotz, Judge
Michael Cummings,
Plaintiff-Appellee,
v.
Arapahoe County Sheriff’s Office and Tyler S. Brown, in his capacity as Sheriff
of Arapahoe County,
Defendants-Appellants.
JUDGMENT REVERSED
Division VII
Opinion by JUDGE FOX
Dunn and Pawar, JJ., concur
Prior Opinion Announced August 5, 2021, WITHDRAWN
OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
C.A.R. 35(e)” ON August 5, 2021, IS NOW DESIGNATED FOR PUBLICATION
Announced September 9, 2021
Mark S. Bove, P.C., Mark S. Bove, Greenwood Village, Colorado, for Plaintiff-
Appellee
Ronald A. Carl, County Attorney, Erin L. Powers, Senior Assistant County
Attorney, Daniel C. Perkins, Senior Assistant County Attorney, Rebecca M.
Taylor, Assistant County Attorney, Littleton, Colorado, for Defendants-
Appellants
¶1 Defendants, the Arapahoe County Sheriff’s Office and Tyler S.
Brown (collectively, the Sheriff), appeal the judgment entered on a
jury verdict finding them liable for breaching an implied
employment contract with former deputy Michael Cummings.
Specifically, the Sheriff argues that the district court erred by (1)
instructing the jury to consider whether he violated section 306(I)(4)
of the Sheriff’s Policy and Procedure Manual (the Manual); and (2)
denying his post-trial motion to enter judgment for the Sheriff
notwithstanding the verdict. The Sheriff also invites us to
reconsider the holding in Cummings v. Arapahoe County Sheriff’s
Department, 2018 COA 136 (Cummings I), which decided the
Sheriff’s pretrial interlocutory appeal. While we decline to revisit
Cummings I, we agree with the Sheriff that the district court erred
by instructing the jury to consider whether he violated section
306(I)(4) and therefore reverse the judgment.
I. Background
¶2 Cummings developed and taught a specialized driver training
course entitled Vehicle Counter Ambush Techniques (VCAT). After
Cummings taught the VCAT course in June 2015, a lieutenant filed
a complaint alleging Cummings violated numerous policies,
1
including a policy entitled “ADM 310.A.2 Truthfulness,” while
instructing. Cummings then received a notice of complaint from
the Internal Affairs Section of the Arapahoe County Sheriff’s Office
(IAS) that read, in relevant part, as follows:
From June 14, 2015 to June 17, 2015,
Sergeant Michael Cummings was the lead
instructor for a [VCAT] class taught at the
Arapahoe County Sheriff’s office driving track.
It is alleged [that] Sergeant Cummings used
his personal vehicle as part of training
scenarios on the track without authorization,
did not report damage to county vehicles, and
did not ensure all county vehicles used for
training were inspected by the County Shops
afterwards. It is also alleged that Sergeant
Cummings allowed the use of “NOVA” rounds
without notifying [Sheriff’s office] personnel in
the area who were not part of his class . . . .
Possible policy violations include:
310.A.1-Obedience of Laws, Directives and
Orders
310A.2-Accountability and Responsibility
310A.6-Conduct Unbecoming of a Member or
Auxiliary
510-General Vehicle Operations
402-Driving Training/Driving Facility
¶3 IAS investigated these allegations, provided the investigatory
file to Cummings, met with Cummings in person to discuss the
allegations, and later issued a memo concluding that, while
Cummings did not violate policy “310A.2-Accountability and
2
Responsibility,” he violated three other policies. The memo
proposed to demote Cummings in rank to “Deputy C.”
¶4 Cummings appealed the IAS decision to a disciplinary hearing
panel, which held a hearing in November 2015 to consider all the
information in Cummings’ investigatory file, including whether
Cummings had been untruthful. After considering the testimony,
including Cummings’ statements and additional evidence after the
hearing, the panel concluded that Cummings should be terminated
because he was untruthful during the investigatory process. After
additional review, the Sheriff upheld the panel’s recommendation
and fired Cummings shortly thereafter.
¶5 Cummings sued the Sheriff, asserting, among other things,
that the written employment policies in the Manual constituted an
implied employment contract that the Sheriff breached when he
fired Cummings. Specifically, Cummings alleged that, while the
Sheriff supplied the reasons for the initial IAS investigation, the
Sheriff did not afford him notice of the charges that eventually led
to his termination and thus denied him an adequate opportunity to
defend himself. After the district court denied the Sheriff’s motion
to dismiss the implied contract claim, the Sheriff moved for
3
summary judgment, contending that (1) the at-will language in
section 30-10-506, C.R.S. 2020, prevented him from promulgating
binding personnel policies; (2) the Manual’s disclaimers, coupled
with separate disclaimers that Cummings signed annually,
precluded any implied contract claim; and (3) he had not violated
the Manual’s policies.
¶6 The district court held that the Manual created an implied
contract of employment and denied the Sheriff’s motion for
summary judgment. The Sheriff immediately appealed, and a
division of this court held that, while section 30-10-506 grants
deputies “the right of notification ‘of the reason for the proposed
revocation’ of their employment, and ‘an opportunity to be heard by
the sheriff’ before their employment is terminated,” the statute does
not make other personnel policies binding unless the sheriff elects
to make them so. Cummings I, ¶ 6 (quoting § 30-10-506).
Accordingly, the division affirmed the district court’s “denial of
summary judgment with respect to the specific rights granted by
section 30-10-506, but otherwise reverse[d] the court’s denial of
summary judgment on Cummings’ implied contract claim.” Id. at
¶ 7.
4
¶7 After Cummings rested his case-in-chief at trial, the Sheriff
moved for a directed verdict. The Sheriff argued that Cummings
had “failed to set forth evidence that he was deprived of either
notice of the proposed reasons for his termination or the
opportunity to be heard[,] or that . . . the [S]heriff failed to follow
specific provisions in the policy manual that deprived him of either
of those.” The district court held that Cummings had made a prima
facie case that the Sheriff did not give him adequate notice of the
charges that eventually led to his termination but dismissed
Cummings’ claims “regard[ing] . . . the issue of [a] fair hearing.”
¶8 After the close of evidence, Cummings asked the district court
to instruct the jury to consider whether the Sheriff complied with
section 306(I)(4) of the Manual — requiring the Sheriff to provide a
notice of complaint to employees under IAS investigation outlining,
among other things, the allegations against them and “[a] list of
possible Code of Conduct violations.” The Sheriff responded that
the court should not reference section 306(I)(4) in the jury
instructions because that section does not effectuate the language
of section 30-10-506. The Sheriff argued that, while section 30-10-
506 requires sheriffs to notify deputies “of the reason for the
5
proposed revocation,” section 306(I)(4) merely concerns notifying
deputies who are under investigation. The district court rejected
the Sheriff’s argument and included section 306(I)(4) in the jury
instructions.
¶9 The jury found that the Sheriff complied with the Manual’s
section 306(M)(4) (notice of proposed revocation) but failed to
comply with section 306(I)(4) (notice of investigation) and awarded
Cummings $153,578 in damages. The Sheriff moved for judgment
notwithstanding the verdict, arguing that (1) the jury’s verdict that
the Sheriff did not violate section 306(M)(4) mandated judgment in
his favor as a matter of law; (2) the district court improperly
included section 306(I)(4) in the jury instructions; and (3) the
district court should reduce Cummings’ damages to $1.00 because
his alleged breach of section 306(I)(4) could not have caused those
damages. The district court denied the motion, holding that
Cummings provided adequate evidence “from which a finder of fact
could reasonably find that the notice of reasons for termination
were insufficient and thus find that [the Sheriff] violated
[Cummings’] due process rights under the law.” This appeal
followed.
6
II. We Decline to Revisit Cummings I
¶ 10 The Sheriff invites us to revisit Cummings I. We decline to
reconsider that decision.
¶ 11 The doctrine of the law of the case is a discretionary rule of
practice directing that prior relevant rulings made in the same case
generally are followed. DeForrest v. City of Cherry Hills Village, 990
P.2d 1139, 1142 (Colo. App. 1999). “[C]onclusions of an appellate
court on issues presented to it as well as rulings logically necessary
to sustain such conclusions become the law of the case.” Hardesty
v. Pino, 222 P.3d 336, 340 (Colo. App. 2009) (quoting Super Valu
Stores, Inc. v. Dist. Ct., 906 P.2d 72, 78–79 (Colo. 1995)).
¶ 12 But, in a later appeal,
when the decision in question issued from the
same appellate court, a different division of
that court may exercise its discretion and
decline to apply the law of the case doctrine,
. . . only “if it determines that the previous
decision is no longer sound because of
changed conditions or law, or legal or factual
error, or if the prior decision would result in
manifest injustice.”
Saint John’s Church in Wilderness v. Scott, 2012 COA 72, ¶ 9
(quoting Vashone-Caruso v. Suthers, 29 P.3d 339, 342 (Colo. App.
2001)).
7
¶ 13 The Sheriff argues that, in Cummings I, the division’s
interpretation of section 30-10-506 erroneously “mandate[d] the
creation of an implied contract . . . despite the lack of statutory
language suggesting or warranting a contractual remedy and
despite the parties expressly disclaiming any intent to be bound.”
The Sheriff is correct that section 30-10-506 does not expressly
prescribe a contractual remedy if a sheriff violates the due process
rights of a deputy. However, the division in Cummings I determined
that the General Assembly legislatively overruled, at least in part,
the supreme court’s decision in Seeley v. Board of County
Commissioners, 791 P.2d 696, 698-700 (Colo. 1990), which declined
to recognize an implied breach of employment contract claim where
a deputy alleged “violation of an employee manual promulgated by
[the sheriff] which contained disciplinary and termination
procedures.”1
¶ 14 Cummings I reasonably concluded that, because the General
Assembly’s intent in amending section 30-10-506 was to overturn
1 Despite the Sheriff’s request, the Colorado Supreme Court
declined to review Cummings I. Arapahoe Cnty. Sheriffs Dep’t v.
Cummings, No. 18SC730, 2019 WL 2178081 (Colo. May 20, 2019)
(unpublished order).
8
Seeley, sheriffs’ departments must adopt some personnel policies,
and to the extent those policies effectuate the specific due process
provisions of the statute, violation of those policies may form the
basis of an implied employment contract claim. See Cummings I,
¶¶ 20-33, 42-43. That the Sheriff sought to disclaim the due
process requirements is immaterial because “[p]arties may not
contract to abrogate statutory requirements and thereby contravene
the public policy of this state.” Id. at ¶ 43 (citing Peterman v. State
Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo. 1998)).
¶ 15 Accordingly, we decline the Sheriff’s invitation to reconsider
Cummings I. See DeForrest, 990 P.2d at 1142.
III. Section 306(I)(4) of the Manual Does Not Effectuate Section
30-10-506’s Specific Due Process Provisions
¶ 16 The Sheriff argues that the district court erred by instructing
the jury to consider whether he complied with section 306(I)(4) of
the Manual. Specifically, the Sheriff argues that section 306(I)(4)
does not effectuate the specific due process requirements of section
30-10-506 because section 306(I)(4) addresses notice of an
investigation, not notice of the “reason for the proposed revocation.”
9
§ 30-10-506; see also Cummings I, ¶ 6. We agree with the Sheriff
and therefore reverse that portion of the judgment.
A. Preservation and Standard of Review
¶ 17 Cummings argues that the Sheriff failed to preserve the
argument that the district court should not have submitted section
306(I)(4) to the jury, but the record belies that assertion. As noted
above, the Sheriff argued, unsuccessfully, that the district court
should not include section 306(I)(4) in the jury instructions.
Accordingly, the Sheriff preserved this issue. See In re Estate of
Owens, 2017 COA 53, ¶ 21 (“Where an issue was brought to the
district court’s attention and the court ruled on it, it is preserved for
appellate review; no talismanic language is required to preserve an
issue.”).
¶ 18 We review de novo whether a given jury instruction correctly
states the law. Chapman v. Harner, 2014 CO 78, ¶ 4. Similarly, we
review de novo (1) whether a district court properly applied the law
of the case, Hardesty, 222 P.3d at 339, and (2) questions of
statutory interpretation, Wolf Ranch, LLC v. City of Colorado
Springs, 220 P.3d 559, 563 (Colo. 2009).
10
¶ 19 In interpreting a statute, we give the words and phrases of the
statute their plain and ordinary meanings according to the rules of
grammar and common usage. Jefferson Cnty. Bd. of Equalization v.
Gerganoff, 241 P.3d 932, 935 (Colo. 2010). We must read the
language at issue in the context of the statute as a whole and the
context of the entire statutory scheme, giving consistent,
harmonious, and sensible effect to all parts of a statute. Id.B. Analysis
¶ 20 Section 30-10-506 reads as follows:
Each sheriff may appoint as many deputies as
the sheriff may think proper and may revoke
such appointments at will; except that a sheriff
shall adopt personnel policies, including
policies for the review of revocation of
appointments. Before revoking an
appointment of a deputy, the sheriff shall
notify the deputy of the reason for the
proposed revocation and shall give the deputy
an opportunity to be heard by the sheriff.
In Cummings I, the division concluded that this statute “grants two
unwaivable rights to the deputies: the right of notification ‘of the
reason for the proposed revocation’ of their employment, and ‘an
opportunity to be heard by the sheriff’ before their employment is
terminated.” Cummings I, ¶ 6. The division also concluded that
11
sheriffs must adopt personnel policies, all of which may be
nonbinding “except for the two statutory rights noted” in section 30-
10-506. Id. Accordingly, the division affirmed the district court’s
decision to allow Cummings “to pursue an implied contract claim
based on rights conferred in the Manual” that “effectuate the due
process rights granted by section 30-10-506.” Id. at ¶¶ 60-61.
¶ 21 The district court instructed the jury on two Manual
provisions, section 306(I)(4) and section 306(M)(4). Section 306(I)(4)
of the Manual specifies that
[a] Notice of Complaint shall be prepared and
provided to the accused member in any
Internal Affairs Investigation (to include Fast
Track investigations), immediately and in
person by the supervisor or deputy inspector.
A copy of the Notice of Complaint shall be
provided to each member of the accused
member’s Chain of Command to include the
Undersheriff and Sheriff. The notice shall
include . . .
a. The allegations, and;
b. A list of possible Code of Conduct
violations, and;
c. Any special procedures, and;
d. The member’s rights and
responsibilities relative to the
investigation.
e. A signed and witnessed
acknowledgment of receipt.
12
Section 306(M)(4) states, among other things, that “[t]he Sheriff
shall notify a member of the reason for the proposed termination
and give the member an opportunity to be heard.” In ruling that
section 306(I)(4) effectuated the specific due process rights granted
by section 30-10-506 and thus should be submitted to the jury, the
district court said,
I do believe . . . the [jury] should be instructed
with regard to [sections (I)(4) and (M)(4)]. And I
understand the argument now of the [Sheriff]
that [(I)(4)] just says notice of an investigation,
but I also think that’s part of the notice, part
of the entire notice.
¶ 22 While section 306(I)(4) is clearly a notice provision, it does not
address notice “of the reason for the proposed revocation,” § 30-10-
506, of a deputy’s employment. Section 306(I)(4) addresses the
notice sheriffs provide deputies of an investigation into alleged
misconduct, which may or may not result in disciplinary action, let
alone termination. And as the Sheriff points out, it would not be
possible to notify a deputy of the reasons for his proposed
termination before investigators have determined if the deputy
should be terminated in the first place. That is especially true here,
where some of the alleged untruthfulness that resulted in
13
Cummings’ termination occurred during the investigatory process.
Indeed, after the initial investigation, Cummings’ proposed
discipline was a demotion, not termination.
¶ 23 Thus, under a plain reading of the statute and Manual, we
conclude that section 306(I)(4) does not effectuate the specific right
granted by section 30-10-506. Section 306(I)(4) grants deputies
additional notice beyond what section 30-10-506 requires and,
under Cummings I, the Sheriff could (and did) disclaim that this
notice created any contractual right. This reading “give[s] effect to
every word and render[s] none superfluous because we ‘do not
presume that the legislature used language idly and with no intent
that meaning should be given to its language.’” Lombard v. Colo.
Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008) (quoting
Colo. Water Conservation Bd. v. Upper Gunnison River Water
Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005)). Our conclusion
is also bolstered by the fact that section 306(M)(4) closely mirrors
the language of section 30-10-506 and thus clearly effectuates the
notice and hearing rights provided therein.
¶ 24 Cummings argues that section 306(M)(4) is not “uniquely
important” and that, considering the Manual in its entirety, section
14
306(I)(4) is an integral part of procedural protections that effectuate
the specific due process rights section 30-10-506 grants. But the
statute does not require sheriffs to provide robust notice at all
phases of a sheriff’s internal disciplinary process; it merely requires
that sheriffs — when they intend to revoke a deputy’s appointment
— notify the deputy of the reasons for that “proposed revocation”
and provide the deputy an opportunity to be heard.
¶ 25 Cummings also argues that Cummings I’s use of the term
“effectuate” suggests that multiple Manual provisions addressing
due process broadly could form the basis of an implied contract
claim beyond “only the right to notice and an opportunity to be
heard.” While the Sheriff certainly could have promulgated
additional policies that effectuate the specific due process rights
granted by section 30-10-506, including (but not limited to) policies
addressing the form or timing of the notice of the proposed
revocation or procedural rules concerning the termination hearing,
section 306(I)(4), which deals exclusively with notice of an
investigation, does not effectuate the specific notice right granted by
the statute: “the sheriff shall notify the deputy of the reason for the
proposed revocation.” § 30-10-506 (emphasis added).
15
¶ 26 Accordingly, we conclude that, under Cummings I, the district
court erred in instructing the jury to consider whether the Sheriff
complied with section 306(I)(4) when determining whether he
breached an implied contract with Cummings. We therefore reverse
the district court’s judgment.
¶ 27 In light of our disposition, we need not address the Sheriff’s
remaining contentions.
IV. Conclusion
¶ 28 The judgment is reversed.
JUDGE DUNN and JUDGE PAWAR concur.
16