City of Colorado Springs v. Givan

• Decision Date: 05 June 1995
• Docket Number: No. 94SC47,94SC47
• Citation: 897 P.2d 753
• Parties: 10 IER Cases 1168 The CITY OF COLORADO SPRINGS, a home rule city and Colorado municipal corporation, Petitioner/Cross-Respondent, v. David L. GIVAN, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

Page 753

897 P.2d 753

10 IER Cases 1168

The CITY OF COLORADO SPRINGS, a home rule city and Colorado municipal corporation, Petitioner/Cross-Respondent, v. David L. GIVAN, Respondent/Cross-Petitioner.

No. 94SC47.

Supreme Court of Colorado,

En Banc.

June 5, 1995.

James G. Colvin II, City Atty., Stacy L. Rouse, Sr. Corporate Atty., Colorado Springs, for petitioner/cross-respondent.

Cornish & Dell'Olio, Craig M. Cornish, Colorado Springs, for respondent/cross-petitioner.

Justice MULLARKEY delivered the Opinion of the Court.

Petitioner, the City of Colorado Springs (the City), discharged one of its employees, the respondent, David Givan (Givan), upon his conviction of felony incest. Pursuant to the provisions of the City's Personnel Policies and Procedures Manual (PPPM), Givan appealed the City's decision to the municipal court. The municipal court found that the City's decision constituted an abuse of discretion and ordered Givan reinstated.

The City filed for review of the decision of the municipal court in the district court pursuant to C.R.C.P. 106(a)(4), and Givan filed a counterclaim pursuant to 42 U.S.C. § 1983 on grounds that his dismissal violated his constitutional substantive due process rights. The district court upheld the findings of the municipal court on grounds that the municipal court did not abuse its discretion, but entered summary judgment for the City on Givan's substantive due process claim and denied Givan's request to amend his complaint to include a breach of contract claim. The court of appeals affirmed the district court's ruling under C.R.C.P. 106, but reversed the district court's entry of summary judgment and denial of Givan's request to amend the complaint. Givan v. City of Colorado Springs, 876 P.2d 27 (Colo.App.1993).

On the City's petition to this court, we granted certiorari and now reverse the judgment of the court of appeals. ¹

I.

Givan had been employed by the City of Colorado Springs for twenty years when, in October of 1989, he pled guilty to and was convicted of felony incest in violation of section 18-6-301, 8B C.R.S. (1986). ² The incest conviction was based on Givan's sexual abuse of one of his two adopted daughters. While Givan was charged with a single incident of sexual contact, according to the record, there was a history of abuse that began with fondling when the girl was between four and six years old, culminated in sexual intercourse when the girl was ten years old, and continued for one to two years after that. Although Givan initially denied the allegations of abuse, he ultimately confessed to the charges and pled guilty. He was sentenced to five years of supervised probation and required to continue treatment in an incest perpetrators group.

At the time of his conviction, Givan was an electronic working foreman in the Water Division of the City's Utilities Department. As required by the City's PPPM, Givan reported the conviction to the head of the Water Division, Edward Bailey. Under the PPPM, conviction of a felony is grounds for discharge from City employment. Accordingly, Bailey conducted a pre-termination meeting with Givan and determined that discharge was the proper action to be taken.

Pursuant to the PPPM, Givan appealed his discharge first to Deputy City Manager of Utilities, James Phillips, then to City Manager, Roy Pederson, both of whom affirmed Bailey's decision. As the final recourse under City procedures, Givan appealed to the municipal court which found the discharge to be an abuse of discretion and reversed the City's decision.

The City filed for review of the municipal court's decision in the district court pursuant to C.R.C.P. 106. On appeal, the City argued that because the record before the City Manager contained competent evidence to support the decision to discharge Givan, the municipal court had abused its discretion in reversing the City Manager's decision. Givan asserted a counterclaim under 42 U.S.C. § 1983 (1994) ³ on grounds that the city had deprived him of property in violation of the substantive due process requirements of the Fourteenth Amendment to the United States Constitution by discharging him for arbitrary and capricious reasons. He later sought to amend his counterclaim to include a state law claim for willful breach of contract.

The district court dismissed the City's claim and held that the municipal court did not abuse its discretion in reversing the City's decision to discharge Givan. It also entered summary judgment dismissing Givan's section 1983 claim and refused to allow him to amend the pleadings to include a breach of contract claim. The court of appeals affirmed the judgment of the district court and held that the City's decision to terminate Givan was not supported by competent evidence. However, it found that material issues of fact remained concerning Givan's section 1983 claim and that the trial court erred in refusing to consider Givan's breach of contract claim because it was a compulsory counterclaim.

II.

A.

We review this case pursuant to C.R.C.P. 106(a)(4) which 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 for 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.

When reviewing a decision under C.R.C.P. 106(a)(4), a court considers whether an erroneous legal standard was applied by the governmental body. Electric Power Research Inst. v. City & County of Denver, 737 P.2d 822, 826 (Colo.1987). C.R.C.P. 106(a)(4) also

permits a district court to reverse a decision of an inferior tribunal only if there is "no competent evidence" to support the decision. "No competent evidence" means that the ultimate decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority.

Ross v. Fire & Police Pension Ass'n, 713 P.2d 1304, 1308-09 (Colo.1986) (citations omitted); Sellon v. City of Manitou Springs, 745 P.2d 229, 235 (Colo.1987). We have held that for purposes of judicial review "competent evidence is the same as substantial evidence." Colorado Municipal League v. Mountain States Telephone, 759 P.2d 40, 44 (Colo.1988).

Substantial evidence ... "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," ... and must be enough to justify, if the trial were before a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.

Id. (citations omitted).

Under C.R.C.P. 106, the appropriate consideration for an appellate court is "whether there is sufficient evidentiary support for the [decision reached by the] administrative tribunal," not whether there is adequate evidentiary support for the lower court's decision on reviewing the record. Id. at 1309 (emphasis added). Therefore, an appellate court is in the same position as the district court in reviewing an administrative decision under Rule 106. Empiregas, Inc. v. Pueblo County Court, 713 P.2d 937, 939 (Colo.1985).

The municipal court's ruling in this case was issued as the final appeal available to an employee under the Personnel Policies and Procedures promulgated by the City Manager pursuant to City ordinance. The PPPM requires a full evidentiary hearing and a written response at each level of appeal within the city hierarchy. Under the procedures in effect at the time of Givan's discharge, after appealing to the City Manager, an employee could make one final appeal to the municipal court. However, the municipal court is not authorized to independently determine whether discharge is appropriate. The PPPM provides that the parties may only present evidence to the municipal judge that had been introduced at the hearing before the City Manager. Further, the scope of review by the municipal judge can not "extend ... further than to determine whether the City Manager exceeded his jurisdiction or abused his discretion." Accordingly, the scope of review of the City Manager's disciplinary decision authorized under the PPPM is the same as that applied under C.R.C.P. 106(a)(4).

Because the review by the municipal court authorized under the PPPM in this case is the same as that authorized under C.R.C.P. 106(a)(4), we are in the same position as the municipal court in reviewing the decision to discharge Givan in this case. We therefore must determine whether there is any competent evidence supporting the City Manager's decision under the PPPM, not whether there was competent evidence supporting the municipal court's determination. ⁴

1.

The PPPM gives the City authority to discharge an employee for "conviction of a felony" and for conduct unbecoming a City employee. Discharge is not automatic, however. The PPPM mandates certain procedures that the City must follow before discharging an employee for any reason. It requires that:

No permanent employee shall be discharged without being afforded a pre-termination meeting. Such a meeting shall be conducted by the Department/Division Head or the City Manager.

Prior to the meeting the employee must receive notice of the purpose of the meeting; at the meeting the employee must receive an explanation of the allegations, of the supporting evidence, and reasons for the proposed termination; and the employee must be given an opportunity to respond. The final decision must be communicated in writing to the employee, and a letter of discharge provided. The employee then has the opportunity to appeal the termination decision, according to who made the initial discharge decision, to the Department/Division Head, then to the Deputy City Manager or the City Manager, and finally...