Smith v. City and County of Denver, 87CA1877

Decision Date31 August 1989
Docket NumberNo. 87CA1877,87CA1877
Citation789 P.2d 442
PartiesDoral SMITH, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, Defendant-Appellee. . III
CourtColorado Court of Appeals

Hackenthal, McNeill & Aucoin, George C. Aucoin, Lakewood, for plaintiff-appellant.

Stephen H. Kaplan, City Atty., and Darlene M. Ebert, Asst. City Atty., Denver, for defendant-appellee.

Opinion by Judge MARQUEZ.

Plaintiff, Doral Smith, appeals an adverse judgment entered after a trial to the court upon the counterclaims of the defendant, City and County of Denver (City). We affirm.

Plaintiff and several other retired police officers filed a complaint against the City and others concerning matters which, along with one of the City's seven counterclaims against plaintiff, were resolved in a separate trial. This appeal concerns certain of the City's remaining counterclaims, which involve the following facts, as summarized from the trial court's undisputed findings and the record.

In 1973, while in charge of the District 2 police station, plaintiff organized a band called Squad IV, whose members were Denver police officers. Although the band proved to be a community relations success, the City denied funding for the band but nevertheless urged plaintiff to continue operating the band and to seek private donations to fund it. Plaintiff used some of his own funds to meet band expenses.

After plaintiff was appointed division chief of the technical services division in 1975, he brought the band members from District 2 and placed them under his immediate command. The trial court found that the band members' only job as police officers was to play in the band, and plaintiff acknowledged at trial that their work was "mainly playing in the band." The City paid salaries to the band members for their on-duty services of playing in the band. Eventually, plaintiff incorporated the band as a for-profit Colorado corporation.

Pursuant to a letter from the city attorney's office, the band members were allowed to work off duty, and to keep the funds generated by any paid engagements occurring when they were off duty. However, the band also played numerous paid engagements while on duty. The proceeds from each of these on duty engagements were turned over to plaintiff or deposited into accounts which he controlled and expenditures were made from these accounts by plaintiff directly, with his approval, or at his direction.

Proceeds were used to purchase musical instruments and related supplies as well as vans for the band's use. Expenditures were also made for unspecified "public relations" activities. Numerous charges were made on the band's credit cards for meals and drinks, and funds were expended for travel outside of Denver, and for other miscellaneous expenses. The trial court also found that plaintiff took out a number of loans, which he personally secured, in the name of the band, at least one of which was a personal loan for plaintiff's use. To some extent the loans were paid back, and the vans and the band equipment were eventually turned over to the City.

In entering judgment against plaintiff, the trial court required an accounting to be made of moneys received for performances while the band members were on duty and it ordered that such moneys received and not spent on band expenses be paid over to the city treasurer. Of those moneys, which totalled $21,266.26, the court credited plaintiff for $11,337.41 of his own funds that he used to pay off the van and an additional $1,000 credit for a loan plaintiff personally made to the band. This resulted in a net amount due the City of $8,928.85. Also, the court awarded the City $300 in connection with the City's other counterclaim.

I.

Plaintiff contends that the trial court erred in finding that he was an officer of the City within the meaning of the City Charter, in finding that he was acting in his official capacity when he collected fees as director of Squad IV activities, and in requiring an accounting for proceeds received. We find no error in the trial court's resolution of these matters.

The trial court based its decision in part upon Denver City Charter § A5.11 which provides:

"All moneys arising from taxes ... fees ... and from any other source whatsoever, which may be collected or received by any officer of the city and county, or any department thereof, in his official capacity, for the performance of any official duty, shall be paid into the treasury.... No officer, deputy, clerk or employee of such officer, shall receive or accept any fee, compensation or payment, other than his salary ... for any work or service performed by him of any official nature, or under color of office whether performed during or after official business hours." (emphasis added)

The trial court also relied upon Denver City Charter § A5.13 which provides as follows:

"Every officer or person collecting any fee, commission, percentage, allowance or compensation for the performance of any official service or duty of any kind or nature, or rendered in any official capacity, or by reason of any official duty or employment, shall deliver to the Manager of Revenue each business day all such collections received during the preceding business day." (emphasis added)

Construing those provisions together, the trial court concluded that the money received for performances of the band while the members of the band were on duty should have been turned over to the City. We agree with the trial court's conclusion.

Generally, the rules of statutory interpretation apply to municipal charters and ordinances as well as statutes. See Reams v. City of Grand Junction, 676 P.2d 1189 (Colo.1984); Darnall v. City of Englewood, 740 P.2d 536 (Colo.App.1987). When such enactments are facially unambiguous,...

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  • Murr v. Civil Serv. Comm'n of City & Cnty. of Denver
    • United States
    • Colorado Court of Appeals
    • 4 avril 2019
    ...ordinary rules of statutory construction." Alpenhof, LLC v. City of Ouray , 2013 COA 9, ¶ 10, 297 P.3d 1052 ; Smith v. City & Cty. of Denver , 789 P.2d 442, 445 (Colo. App. 1989). ¶21 However, we must strictly construe charters, and no powers are to be exercised except those expressly confe......
  • Cherry Creek Aviation, Inc. v. City of Steamboat Springs
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    • 16 avril 1998
    ...matter must be construed as a whole to ascertain legislative intent and to avoid inconsistencies and absurdities. Smith v. City & County of Denver, 789 P.2d 442 (Colo.App.1989). It is the duty of the trial court to adopt, when possible, a construction that does not invalidate an ordinance. ......
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    • United States
    • Colorado Court of Appeals
    • 13 mars 2003
    ...Ass'n, 68 P.3d 555 (Colo.App.2003). The general rules of statutory construction apply to municipal charters. Smith v. City & County of Denver, 789 P.2d 442 (Colo.App.1989). However, we must strictly construe charters, which confer only the powers expressed or necessarily implied. City of En......
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    • United States
    • Colorado Court of Appeals
    • 20 avril 2006
    ...that discloses that error, for a judgment is presumed to be correct until the contrary affirmatively appears."); Smith v. City & County of Denver, 789 P.2d 442 (Colo.App.1989). We therefore reject Revenue's contention that the trial court lacked subject matter jurisdiction over this Revenue......
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