Givan v. City of Colorado Springs, 92CA1428

• Decision Date: 18 November 1993
• Docket Number: No. 92CA1428,92CA1428
• Citation: 876 P.2d 27
• Parties: David L. GIVAN, Counterclaim Plaintiff-Appellant and Cross-Appellee, v. CITY OF COLORADO SPRINGS, a Home Rule City and a Colorado municipal corporation, Counterclaim Defendant-Appellee and Cross-Appellant. . IV
• Court: Colorado Court of Appeals

Page 27

876 P.2d 27

David L. GIVAN, Counterclaim Plaintiff-Appellant and Cross-Appellee, v. CITY OF COLORADO SPRINGS, a Home Rule City and a Colorado municipal corporation, Counterclaim Defendant-Appellee and Cross-Appellant.

No. 92CA1428.

Colorado Court of Appeals Div. IV.

Nov. 18, 1993.

As Modified on Denial of Rehearing

Jan. 6, 1994.

Petition and Cross-Petition for

Certiorari Granted June 20, 1994.

Cornish and Dell'Olio, Craig M. Cornish, Colorado Springs, for counterclaim plaintiff-appellant and cross-appellee.

James G. Colvin, II, City Atty., Stacy L. Rouse, Sr. Corporate Atty., Colorado Springs, for counterclaim defendant-appellee and cross-appellant.

Opinion by Judge CRISWELL.

Plaintiff, City of Colorado Springs (City), initiated this action under C.R.C.P. 106(a)(4) to have the district court review an order of the City's municipal court declaring that the City had no proper grounds to terminate the employment of defendant, David L. Givan. Defendant asserted a counterclaim under 42 U.S.C. § 1983 (1982), alleging that the City had violated his rights to substantive due process of law; he also sought to assert an additional counterclaim based upon a claimed breach of contract. The trial court upheld the municipal court's decision and dismissed the City's C.R.C.P. 106(a)(4) claim, from which dismissal the City appeals. It also entered a judgment dismissing defendant's due process claim and refused to allow him to assert his breach of contract counterclaim. He appeals from that judgment and order. We affirm the trial court's dismissal of the City's complaint, but reverse its judgment and order dismissing defendant's counterclaims.

Pursuant to its municipal code, the City has adopted a written policy respecting municipal employment, called the "Personnel Policies and Procedures Manual" (manual). It is undisputed that the manual is applicable to defendant's employment with the City.

The manual provides that each newly hired employee subject to its terms must serve a six-month probationary period, and upon satisfactory completion of such probation, he or she becomes a "permanent" employee. While there is no direct statement that a permanent employee can only be terminated for cause, the manual defines "discharge" as "an involuntary separation from employment for cause." In addition, the manual contains a listing of "disciplinary offenses" and "dischargeable offenses" for which an employee may be disciplined or discharged. The City concedes that a permanent employee covered by it terms, such as plaintiff, may not be discharged or otherwise disciplined without cause.

One of the "dischargeable offenses" listed in the manual is "conviction of a felony." This provision, however, is modified by other provisions of the manual. Under these latter provisions, an employee is required to notify his or her department head of any conviction within five working days. Upon such notification, the department head, the appropriate deputy city manager, and the director of personnel "shall determine the proper action to be taken."

The manual provides that, in determining the appropriate action to be taken:

Factors considered may include the nature and type of the crime, the employee's City position, the employee's prior job performance, the employee's length of service, and the employee's fitness to perform. The City reserves the right to discipline an employee, up to and including discharge, for conviction of any local, state, or federal criminal laws which, in its sole discretion, renders the employee unfit to perform their (sic) job, brings disrepute upon, and/or compromises the integrity of the City of Colorado Springs. (emphasis supplied)

The manual grants to a department head the right to discharge an employee by giving to the employee a letter of discharge informing the employee "of the violation or incident causing such action." Should the employee be dissatisfied with the department head's action, an appeal may be taken first to the appropriate deputy city manager and then to the city manager, each of whom must "hear" the appeal and provide a "written response."

If still dissatisfied, the employee may appeal to the municipal court, which has the authority to call witnesses and to receive evidence. However, the manual makes clear that the municipal court's review is not to extend further than to determine "whether the City Manager exceeded his jurisdiction or abused his discretion."

Prior to his discharge, defendant had been employed by the City in several capacities most recently as an electronic working foreman. In October 1989, he was convicted of the felony of incest based upon a plea of guilty. The incidents leading to his conviction occurred in 1985 and 1986 and involved his adopted daughter. As a sentence, he was placed on supervised probation for a period of five years and required to continue his participation in an incest perpetrator's group.

Based solely upon this conviction, defendant was discharged from his employment with the City in December 1989. His appeal to the deputy city manager was denied, and he thereupon appealed to the city manager, who held an evidentiary hearing at which three witnesses testified for the City and some 15 witnesses were called by defendant. At the conclusion of this evidentiary hearing, the city manager upheld defendant's discharge.

Defendant appealed to the municipal court in accordance with the manual. Without taking additional evidence, but based solely upon the record made before the city manager, the municipal court initially determined that the city manager had abused his discretion in upholding defendant's discharge because no reasonable person, considering the evidence produced, could have concluded that such discharge would be appropriate. Later, after a remand from the district court for further findings, the municipal court determined that the city manager's decision was "so devoid of competent evidentiary support ... that the decision to terminate employment can only be explained as an arbitrary and capricious exercise of authority."

The City sought review of the municipal court's decision under C.R.C.P. 106(a)(4) asserting that, because the record made before the city manager contained competent evidence to support his decision, the municipal court abused its discretion in rejecting the city manager's decision.

Defendant asserted two counterclaims under 42 U.S.C. § 1983. In the first, he asserted that the City deprived him of his property in violation of the substantive due process requirements of the Fourteenth Amendment by discharging him for arbitrary and capricious reasons. The second, later withdrawn by defendant, asserted that such discharge violated his rights to equal protection. Later, he sought to amend his counterclaims by asserting a state law claim for willful breach of contract, based upon the City's discharge of him and its failure and refusal to reinstate him in spite of the municipal court's finding that his discharge was arbitrary.

In response to various cross-motions for summary judgment, the district court concluded that the municipal court did not abuse its discretion in acting upon defendant's discharge and, therefore, dismissed the City's claim under C.R.C.P. 106(a)(4). In addition, it concluded that defendant had not presented any evidence of a due process violation and dismissed defendant's § 1983 claim. Finally, concluding that defendant's contract claim was not rationally related to the City's C.R.C.P. 106(a)(4) claim, it refused to allow him to assert such a claim in the instant action.

I. The City's C.R.C.P. 106(a)(4) Claim.

The City contends that the trial court erred in upholding the municipal court's decision here because (a) the trial court applied the wrong standard of review, (b) the manual grants to the City the absolute unfettered discretion to discharge an employee convicted of a felony, and (c) in any event, the evidence presented to the city manager was competent to sustain his decision. We hold that, even if the standard of review advocated by the City is applied, the district court's judgment dismissing its C.R.C.P. 106(a)(4) claim merits affirmance.

A.

The manual is unique to the extent that it establishes as the last step in the administrative process an appeal to the municipal court. And, it requires that court to review the city manager's decision on essentially the same basis that the district court is required to review an administrative tribunal's decision under C.R.C.P. 106(a)(4).

Given this procedure, the City argues that the review by the municipal court is an intermediate judicial review to which the City has subjected its administrative employment decisions and that the municipal court's decision is not a part of the City's administrative decision-making process. It argues, therefore, that the district court should have reviewed the city manager's decision to determine whether that decision was arbitrary and without evidentiary support and not the decision of the municipal judge.

In Empiregas, Inc. of Pueblo v. County Court, 713 P.2d 937, 938 (Colo.App.1985), it was held that, when reviewing a district court judgment in C.R.C.P. 106(a)(4) proceedings, the court of appeals "is in the same position as the district court" and should review the administrative tribunal's decision, not the decision of the district court. However, we have reviewed the entire administrative record here, and because we conclude that the municipal court properly determined that that record does not support the city manager's decision, the district court's judgment is entitled to be affirmed whichever standard of review is used.

B.

In its brief, the City appears to argue that, because the manual provides that "the City" reserves the right to discipline an employee for a conviction which, "in its sole judgment," renders an employee "unfit to perform [his or her] job" or "brings disrepute upon" or "compromises...