v. City & Cty. of Denver , 436 P.3d 604 ( 2019 )

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.
16