Khelik v. City & Cnty. of Denver

• Decision Date: 07 April 2016
• Docket Number: Court of Appeals No. 15CA0283
• Parties: Anass KHELIK, Plaintiff–Appellant, v. CITY AND COUNTY OF DENVER, a Municipal Corporation, and Career Service Board of the City and County of Denver, Defendants–Appellees.
• Court: Colorado Court of Appeals

411 P.3d 1020

Anass KHELIK, Plaintiff–Appellant,

v.CITY AND COUNTY OF DENVER, a Municipal Corporation, and Career Service Board of the City and County of Denver, Defendants–Appellees.

Court of Appeals No. 15CA0283

Colorado Court of Appeals, Div. A.

Announced April 7, 2016

Foster Graham Milstein & Calisher, LLP, Chip G. Schoneberger, Daniel S. Foster, Marcy Ongert, Melanie MacWilliams–Brooks, Denver, Colorado, for Plaintiff–Appellant.

D. Scott Martinez, City Attorney, Franklin A. Nachman, Assistant City Attorney, Denver, Colorado, for Defendants–Appellees.

Opinion by CHIEF JUDGE LOEB

¶ 1 In this C.R.C.P. 106 action, plaintiff, Anass Khelik, appeals from the district court's judgment affirming an order of the City and County of Denver's Career Service Board (Board) relating to disciplinary proceedings against him by the Denver Sheriff Department (DSD). The sole issue on appeal is whether the Board abused its discretion by misinterpreting a DSD disciplinary rule and concluding that a charge of conduct unbecoming does not require the DSD to prove actual harm to the City or the DSD. Because we conclude the Board's interpretation of that rule is reasonable, we perceive no abuse of discretion and, therefore, affirm the judgment.

I. Background and Procedural History

¶ 2 The Board was created by the Denver City Charter and is responsible for "adopting, administering, and enforcing rules necessary to foster and maintain" a merit-based personnel system in the City and County of Denver; the Board governs human resources issues, including disciplinary matters, for all City and County of Denver employees. Denver Rev. Mun. Code 18–1, 18–2; City and County of Denver, Career Service Rules 2–10 (Feb. 10, 2012), https://perma.cc/UTU9–TMTB. Employees of the DSD are governed by these Career Service Rules as well as the DSD's own disciplinary rules (DSD Rules); the DSD is a division of the Department of Safety.

¶ 3 Khelik is a sergeant in the DSD and, thus, is subject to both the Career Service Rules and the DSD Rules.

¶ 4 In 2012, Ashley Kilroy, the Deputy Manager of Safety for the Department of Safety, authored and delivered to Khelik a disciplinary notice suspending him without pay for inappropriate interactions with one of the female officers under his command and retaliating against her for stating her intention to file a sexual harassment complaint. Briefly, the allegations underlying the disciplinary action were that Khelik began circulating rumors that the officer was pregnant with his child, that he made inappropriate sexual jokes, and that he told her that he loved her in her formal annual review meeting.¹ During this meeting, the officer stated she could file a sexual harassment complaint, and Khelik allegedly responded that he would sign the complaint for her. The day after the annual meeting, the officer was moved to a new position that Kilroy found was less desirable than the officer's previous position.

¶ 5 In her notification letter to Khelik, Kilroy cited Career Service Rule 16–60(L) regarding discipline and dismissal and then cited DSD Rules related to harassment, sexual harassment, conduct prejudicial, and retaliatory conduct. The notification specified that Khelik had violated all of the enumerated DSD Rules. Kilroy imposed a two-day suspension for Khelik's conduct relating to harassment and a thirty-day suspension for his retaliatory conduct.

¶ 6 Khelik appealed his suspension to a hearing officer in the Career Service Authority. During the two-day hearing, Kilroy testified as to her reasoning regarding the rule violations. She specifically testified that she charged Khelik with violating DSD Rule 300.11.6 Conduct Prejudicial, because it encompasses broader conduct than Career Service Rule 16–60(Z) for Conduct Prejudicial. She elaborated that DSD Rule 300.11.6 is unique because it included the paramilitary organization charge of conduct unbecoming, which was intended by the committee that drafted the rule to govern situations where law enforcement officers should be held to a higher standard than other career service employees due to their significant authority over ordinary citizens.

¶ 7 As relevant here, the hearing officer interpreted DSD Rule 300.11.6 to require a showing of harm to the DSD because it was "nearly identical" to Career Service Rule 16–60(Z), which, according to prior Board decisions, does require a showing of harm.² The hearing officer further concluded that the DSD had not made a showing of actual harm below and, therefore, Khelik had not violated DSD Rule 300.11.6.

¶ 8 The DSD filed a petition for review with the Board, challenging the hearing officer's interpretation of DSD Rule 300.11.6 on the grounds that it amounted to an erroneous interpretation of an agency regulation and that it set bad policy precedent.³

¶ 9 In a detailed written order, the Board vacated the hearing officer's interpretation of DSD Rule 300.11.6 and concluded that the conduct unbecoming charge under that rule did not require a showing of actual harm to the City or the DSD. In its reasoning, it noted that Career Service Rule 16–60(Z) was materially different from DSD Rule 300.11.6 because the DSD Rule has significant additional language, specifically, language including the charge of conduct unbecoming and two further subsections which are not included in Career Service Rule 16–60(Z).

¶ 10 Khelik appealed the Board's order to the Denver District Court, which then affirmed. Khelik now appeals to this court, asserting that a conduct unbecoming charge under DSD Rule 300.11.6 requires a showing of actual harm and that the Board's decision should be reversed.

II. Standard of Review and Applicable Law

¶ 11 C.R.C.P. 106(a)(4)(I) provides:

Where 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: (I) Review shall be limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.

¶ 12 Thus, in a C.R.C.P. 106(a)(4) action, "judicial review of a governmental agency exercising its quasi-judicial role ... is limited to whether the body has exceeded its jurisdiction or abused its discretion."

City of Commerce City v. Enclave W., Inc., 185 P.3d 174, 178 (Colo.2008). We review the decision of the Board, not that of the district court. See Woods v. City & Cty. of Denver, 122 P.3d 1050, 1053 (Colo.App.2005). We sit in the same position as the district court when reviewing an agency decision under C.R.C.P. 106(a)(4). Roalstad v. City of Lafayette, 2015 COA 146, ¶ 13, 363 P.3d 790. Therefore, we review de novo whether the agency has abused its discretion. Id.

¶ 13 An agency abuses its discretion if its decision is not reasonably supported by any competent evidence in the record, or if the agency has misconstrued or misapplied applicable law. Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff's Dep't, 196 P.3d 892, 899–900 (Colo.2008) ; Roalstad, ¶ 13. An action by an administrative agency is not arbitrary or an abuse of discretion when the reasonableness of the agency's action is open to a fair difference of opinion, or when there is room for more than one opinion. Bennett v. Price, 167 Colo. 168, 172, 446 P.2d 419, 420–21 (1968).

¶ 14 "In reviewing the agency's construction, we rely on the basic rules of statutory construction, affording the language of the provisions at issue their ordinary and common sense meaning." Enclave W., Inc., 185 P.3d at 178. "Our primary task in interpreting statutes and municipal enactments is to give effect to the intent of the drafters, which we do by looking to the plain language." Waste Mgmt. of Colo., Inc. v. City of Commerce City, 250 P.3d 722, 725 (Colo.App.2010). If the language of the provision at issue is clear and the intent of the legislative body that enacted it may be discerned with certainty, we need not resort to other rules of statutory interpretation. Id. When construing an ordinance in the C.R.C.P. 106(a)(4) context, "we give effect to every word and, if possible, harmonize potentially conflicting provisions." Enclave W., Inc., 185 P.3d at 178.

¶ 15 The use of the disjunctive "or" in a list reflects a choice of equally acceptable alternatives. Willhite v. Rodriguez–Cera, 2012 CO 29, ¶ 18, 274 P.3d 1233 ; People v. Swain, 959 P.2d 426, 430 n. 12 (Colo.1998). In fact, "when the word ‘or’ is used in a statute, it is presumed to be used in the disjunctive sense, unless legislative intent is clearly to the contrary." Armintrout v. People, 864 P.2d 576, 581 (Colo.1993).

¶ 16 When a number of acts are joined in a single sentence without any attempt to differentiate them through an organizational device, the drafter intended to describe alternative means of committing the same offense. People v. Morales, 2014 COA 129, ¶ 56, 356 P.3d 972. Similarly, subsections demarcated by a semicolon and the word "or" are interpreted to be disjunctive and denote alternative ways of committing a single crime. E.g., People in Interest of M.C., 2012 COA 64, ¶ 16, 292 P.3d 1030. Colorado courts have also concluded that when a statute is divided into two subsections, even without the use of the word "or," the subsections are "disjunctive in the very nature of the construction of the section." People v. Barry, 2015 COA 4, ¶ 98, 349 P.3d 1139 (quoting Cortez v. People, 155 Colo. 317, 320, 394 P.2d 346, 348 (1964) ).

¶ 17 In a C.R.C.P. 106 action, a reviewing court will give "deference to the interpretation provided by the officer or agency charged with the administration of the code or statute unless that interpretation is inconsistent with the legislative intent manifested in the text of the statute or code." Waste Mgmt. of Colo., 250 P.3d at 725. In that regard, "[t]he agency's interpretation of the rule should be given...