City and County of Denver v. Gibson

• Decision Date: 20 November 1975
• Docket Number: No. 75--021,75--021
• Citation: 37 Colo.App. 130,546 P.2d 974
• Parties: The CITY AND COUNTY OF DENVER, a Municipal Corporation, et al., Plaintiffs-Appellees, v. Houston GIBSON, Commissioner, et al., Defendants, and Lawrence J. Britton, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 974

546 P.2d 974

37 Colo.App. 130

The CITY AND COUNTY OF DENVER, a Municipal Corporation, et al., Plaintiffs-Appellees, v. Houston GIBSON, Commissioner, et al., Defendants and Lawrence J. Britton, Defendant-Appellant.

No. 75--021.

Colorado Court of Appeals, Div. I.

Nov. 20, 1975.

Rehearing Denied Dec. 26, 1975.

Certiorari Denied March 1, 1976.

Max P. Zall, City Atty., Robert D. Dowler, Asst. City Atty., Denver, for plaintiffs-appellees.

Geer, Goodwin & Chesler, P.C., Edward O. Geer, Denver, for defendant-appellant.

COYTE, Judge.

Defendant-appellant, Lawrence J. Britton, brings this appeal from an action instituted by plaintiffs-appellees, the City and County of Denver, Et al., pursuant to C.R.C.P. 106(a)(4), in which the district court held that the Civil Service Commission (Commission) had usurped its jurisdiction and abused its discretion in directing that Lieutenant Britton be promoted to the rank of Captain in the Denver Police Department (Department). We affirm.

The circumstances which prompted this suit are as follows: On October 18, 1971, the Commission approved an 'eligible register' for the rank of Captain in the classified service of the Department. Appellant was ranked in the eleventh position on the register with a score of 71.75%. Of the eleven officers ranked, all except appellant were certified for the post, and eight were subsequently appointed Captain by the Manager of Safety. On March 24, 1973, appellant petitioned the Civil Service Commission to grant him a hearing, alleging that he had been improperly ranked on the Civil Service Examination for Captain and therefore deprived of fair consideration for the post.

A hearing was conducted by the Commission, which on September 6, 1973, issued findings of fact that went unchallenged by appellees in the district court. The Commission found that Britton had been dismissed from the Department on or about November 19, 1968. Upon Britton's protesting his dismissal, a hearing before the Commission was held, and the charges were found to be without merit. His reinstatement was ordered as of August 7, 1969.

Following his reinstatement, Britton was assigned a clerical position on the midnight to 8 A.M. work shift, answering the telephone in the detective bureau. Based on the above, the Commission found that a conspiracy to punish Britton on account of his having been reinstated had developed between the then Chief of Police and certain other supervisory personnel. The Commission concluded that Britton, having served in the punishment assignment, was unable to compete fairly in either the merit or oral portions of the 1971 examination. Adjusting appellant's examination score accordingly, they determined that he should have occupied the eighth position. Since the original occupant of the eighth position had been certified and appointed Captain, the Commission ordered that Britton be promoted to Police Captain as of the date of the promotion of the candidate ranked as eighth, and that he receive all back pay, seniority, and other incidental benefits retroactive to that date.

Plaintiffs-appellees then filed this suit pursuant to C.R.C.P. 106 for review of the Commission's findings and order. The district court held in favor of plaintiffs, finding that the Commission had exceeded its jurisdiction and usurped the power and discretion of the Manager of Safety contrary to the provisions of the Denver City Charter and that the Commission's order of September 6, 1973, promoting defendant to captain was void. Defendant thereupon instituted this appeal.

Since the findings of the Commission were unchallenged in the lower court, the sole issue on appeal is whether the order of the Commission was beyond its jurisdiction and therefore void.

Administrative agencies cannot exceed the authority conferred upon them by statute. Flavell v. Department of Welfare, 144 Colo. 203, 355 P.2d 941. Furthermore, acts of administrative agencies which exceed the scope of their delegated powers are void. State of Colorado ex rel. Colorado Civil Rights Commission v. Adolph Coors Corp., 29 Colo.App. 240, 486 P.2d 43. It is incumbent upon courts of law, not to stand idly by and allow the unrestricted exercise of authority not granted by statute or to permit the unjustified exercise of discretion. Colorado State Board of Nurse Examiners v. Hohu, 129 Colo. 195, 268 P.2d 401. Thus, in the instant case, regardless of the equities involved, we are bound to determine whether the authority conferred on the Civil Service Commission includes the power to order the promotion of a candidate unfairly prejudiced in his examination by the actions of his superiors.

In the recent case of Spickard v. Civil Service Commission, 31 Colo.App. 450, 505 P.2d 32, we held that employment with the Denver Police Department is governed by the provisions of the Denver City Charter. While the Commission has broad discretion in dealing with employees subject to their jurisdiction, the Commission must defer to the Charter as organic law. Spickard, supra.

The relevant provisions of the Charter create a Department of Safety which Has full charge and control of the police department, Denver City Charter § A 9.1, which department shall be...