Marshall v. City of Denver

• Decision Date: 20 October 2016
• Docket Number: Court of Appeals No. 15CA1447.
• Citation: 401 P.3d 96
• Parties: Brian MARSHALL, Plaintiff–Appellant, v. CIVIL SERVICE COMMISSION of the City and County of Denver, and City and County of Denver, a municipal corporation, Defendants–Appellees.
• Court: Colorado Court of Appeals

401 P.3d 96

Brian MARSHALL, Plaintiff–Appellant,

v.CIVIL SERVICE COMMISSION of the City and County of Denver, and City and County of Denver, a municipal corporation, Defendants–Appellees.

Court of Appeals No. 15CA1447.

Colorado Court of Appeals, Div. III.

Announced October 20, 2016

Olson Law Firm, LLC, Sean T. Olson, Denver, Colorado, for Plaintiff–Appellant

Cristal Torres DeHerrera, City Attorney, Richard A. Stubbs, Assistant City Attorney, John–Paul C. Sauer, Assistant City Attorney, for Defendants–Appellees

Opinion by JUDGE WEBB

¶ 1 Does the Denver City Charter (the Charter) resolve who should bear the burden of proof in an employee's appeal of adverse personnel action—the employee or the City department that imposed it? And if the Charter does not do so, then is the Civil Service Commission of the City and County of Denver (the Commission) free to impose that burden on the employee by rule, as it did in this case? These questions have not been answered in any appellate opinion.

¶ 2 First, we conclude that the Charter does not resolve who should bear the burden of proof. Second, we conclude that the Commission is free to impose the burden by rule, so long as the rule is consistent with the Charter. Discerning no inconsistency, we affirm the district court's judgment upholding the Commission's ruling against police officer Brian Marshall because he failed to satisfy his procedural burden of proving his suspension to have been "clearly erroneous" under rules adopted by the Commission.

I. Factual and Procedural History

¶ 3 The Executive Director of Safety (the Director)¹ imposed a ten-day suspension without pay on Marshall because he had used excessive force in arresting a suspected drunk driver. Marshall appealed. A hearing officer found that Marshall had proven the Director's action to have been clearly erroneous. The Director appealed to the Commission. The Commission disagreed and reversed the hearing officer's decision.

¶ 4 Marshall then challenged the Commission's decision in district court under C.R.C.P. 106(a)(4). The court upheld the Commission's decision. And now, Marshall has appealed the district court's decision.

¶ 5 On appeal, Marshall's sole contention is that by imposing the burden on him to show that the Director's action was clearly erroneous, the Commission violated the Charter.² This contention is bookended by section 9.4.15(C) of the Charter and section 9(B) of Commission Rule 12.

¶ 6 Section 9.4.15(C) of the Charter frames the basic procedural requirements for employee discipline and authorizes the Commission to adopt further procedural rules:

At a disciplinary hearing the member in person or by counsel, may offer evidence in support of his or her written objections. The [Director], acting through the City Attorney as counsel, shall offer evidence in justification of the departmental action. The hearing shall be recorded by a reporter or by an electronic recording device and a full record made. The Commission may adopt rules regarding pre-hearing matters and the conduct of the hearing .

(Emphasis added.)

¶ 7 Four provisions of Commission Rule 12 bear on the burden of proof. As relevant here:

• Section 8(D)(1) states in part:

All hearings shall follow the provisions of Section 24–4–105(7), (8), and (9)(a) of the Colorado Administrative Procedure Act....

• Section 8(D)(2) states in part:

The Department of Safety shall proceed first and, acting through the City Attorney as counsel, shall offer evidence in justification of the departmental action , that is, the Department of Safety shall present sufficient evidence to create a reasonable inference of the correctness of the sustained Rule violation(s) and the imposed penalty(s) as contained in the Departmental Order of Disciplinary Action.

(Footnote omitted.)

• Section 8(D)(3) states:

The Classified Member in person, or by counsel, may offer evidence in support of his or her written objections to the Departmental Order. The Petitioner shall be considered the proponent of an order seeking reversal or modification of the discipline imposed.

(Footnote omitted.)

• Under Rule 12, section 9(B)(1)(b)—as the "proponent"—the employee must show that the disciplinary action was "clearly erroneous."

II. Preservation and Standard of Review

¶ 8 Marshall's contentions on appeal were raised before the Commission and in the district court. Thus, they are preserved.

¶ 9 "Because the case here turns on interpretation of the city's charter, a legal issue, our review is de novo." N. Ave. Ctr., L.L.C. v. City of Grand Junction , 140 P.3d 308, 310 (Colo. App. 2006). Even so, courts defer to the interpretation of a statute or a regulation by the agency charged with its administration, provided the interpretation has a reasonable basis in the law and is supported by the record. Nededog v. Colo. Dep't of Health Care Policy & Fin. , 98 P.3d 960, 962 (Colo. App. 2004). As well, final agency action is subject to reversal only if it is arbitrary or capricious, contrary to law, an abuse of discretion, in excess of jurisdiction, based on clearly erroneous findings, or unsupported by substantial evidence. § 24–4–106(7), C.R.S. 2016.

¶ 10 In an appeal under C.R.C.P. 106(a)(4), the court of appeals is in the same position as the district court. City of Colorado Springs v. Givan , 897 P.2d 753, 756 (Colo. 1995). That is, review is limited to the decisions of the hearing officer and the Commission. See Puckett v. City & Cty. of Denver , 12 P.3d 313, 314 (Colo. App. 2000).

III. Discussion

¶ 11 Marshall advances two contentions against the Commission's imposing the burden of proof on him. First, he argues that the procedural rules adopted by the Commission conflict with section 9.4.15 of the Charter because the Charter requires that the burden of proof remain with the Director. Second, he asserts that unspecified "general principles" of the Charter preclude the Commission from weakening employment protections by imposing the burden of proof on City employees. We address and reject these contentions in turn.

A. The Procedural Rules Adopted by the Commission Do Not Conflict With Charter Section 9.4.15

¶ 12 Because "[a] municipal charter is the equivalent of a statute or other legislation," when interpreting such a charter courts apply the principles of statutory interpretation. Friends of Denver Parks, Inc. v. City & Cty. of Denver , 2013 COA 177, ¶ 41, 327 P.3d 311. According to one of those principles, when an agency exercises rulemaking authority, "[a] rule may not modify or contravene an existing statute, and any rule that is inconsistent with or contrary to a statute is void." Colo. Consumer Health Initiative v. Colo. Bd. of Health , 240 P.3d 525, 528 (Colo. App. 2010). Otherwise, a home-rule city, like the General Assembly, may permit an agency to promulgate rules and regulations to carry out the legislative purposes of the power granted to the agency without adopting a specific formula to guide agency rulemaking. Martinez v. Colo. Dep't of Human Servs. , 97 P.3d 152, 157 (Colo. App. 2003).

¶ 13 With these principles in mind, Marshall argues that the procedural rules requiring him to bear the burden of proof before the Commission conflict with the Charter. Specifically, he asserts that because section 9.4.15(C) describes the parties' burdens differently—the "[Director] shall offer evidence" while the disciplined or discharged employee "may offer evidence"—it requires that the burden of proof remain with the Director to justify any disciplinary decision. We interpret the Charter differently.

¶ 14 To begin, Marshall admits that the Charter does not expressly address the burden of proof. Applying principles of statutory interpretation, Marshall's argument that the Charter implicitly places the burden of proof on the Director faces two hurdles. It does not get over either of them.

¶ 15 First, when construing statutes, courts start with "the plain meaning of the statutory language, reading words and phrases in context and construing them according to common usage." In re Estate of Ramstetter , 2016 COA 81, ¶ 16, ––– P.3d ––––, 2016 WL 2962493. Doing so here, the language of section 9.4.15(C) of the Charter—"the [Director] shall offer evidence in justification"—requires only that the Director present an unspecified quantum of evidence. Thus, Commission Rule 12, section 8(D)(2)'s requirement of "sufficient evidence to create a reasonable inference of the correctness of the sustained Rule violation(s) and the imposed penalty(s)" comports with the Charter on this evidentiary requirement. This is so because both formulations are consistent with imposing the burden of production on the Director. See Owens v. Republic of Sudan , No. CV 01–2244 (JDB), 174 F.Supp.3d 242, 2016 WL 1170919, at *25 (D.D.C. Mar. 23, 2016) (explaining that the burden of production in administrative law "is the amount of evidence constituting enough to justify, if the trial were to a jury, a refusal to direct a verdict ..." (quoting Kay v. FCC , 396 F.3d 1184, 1188 (D.C. Cir. 2005) )); accord Pike v. S.C. Dep't of Transp. , 343 S.C. 224, 540 S.E.2d 87, 91 (S.C. 2000) ("A burden of production generally means the burden on a party to come forward with evidence in order to defeat a directed verdict motion."); see generally 2 McCormick on Evidence § 336 (Kenneth S. Broun ed., 5th ed. 1999).

¶ 16 In contrast, Marshall's suggested interpretation would expand "shall offer evidence" into a mandate that the Director bear the ultimate burden of proof before the Commission. Cf . People in Interest of A.D.G. , 895 P.2d 1067, 1070 (Colo. App. 1994) (" ‘Burden of proof’ means the obligation to establish the truth of a proposition."). We reject Marshall's invitation to read such language into the Charter. See Williams v. Dep't of Pub. Safety , 2015 COA 180, ¶ 85, 369 P.3d 760 (The court "must accept the General Assembly's choice of language and not add or imply words that simply are not there.").

¶ 17 Second, the Charter delegates unlimited rulemaking...