Vukovich v. Civil Service Com'n of City and County of Denver, 91CA0601

• Decision Date: 21 May 1992
• Docket Number: No. 91CA0601,91CA0601
• Citation: 832 P.2d 1126
• Parties: Christopher VUKOVICH, Plaintiff-Appellant, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF DENVER, and Edward Sullivan, Roger Cisneros, Deborah Wagner and Jane Woodhouse, in their official capacity as Commissioners of the Civil Service Commission of the City and County of Denver, Manuel L. Martinez, Manager of Safety, and Aristedes Zavares, Chief of Police, and The City and County of Denver, a municipal corporation, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 1126

832 P.2d 1126

Christopher VUKOVICH, Plaintiff-Appellant, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF DENVER, and Edward Sullivan, Roger Cisneros, Deborah Wagner and Jane Woodhouse, in their official capacity as Commissioners of the Civil Service Commission of the City and County of Denver, Manuel L. Martinez, Manager of Safety and Aristedes Zavares, Chief of Police, and The City and County of Denver, a municipal corporation, Defendants-Appellees.

No. 91CA0601.

Colorado Court of Appeals Div. III.

May 21, 1992.

Solomon & Lindquist-Kleissler, Carmen S. Danielson, Denver, for plaintiff-appellant.

Daniel E. Muse, City Atty., Geoffrey S. Wasson, Asst. City Atty., Denver, for defendants-appellees.

Opinion by Chief Judge STERNBERG.

In this C.R.C.P. 106 action, the plaintiff, Christopher Vukovich, a Denver police officer, challenges an order of the Denver Civil Service Commission that reversed an order of a hearing officer and terminated the plaintiff's employment. The district court affirmed the Commission's order, and we affirm the judgment of the district court.

Plaintiff was involved in an altercation with a citizen in which he struck the citizen in the face with his police baton, knocking out several of his teeth. Although plaintiff alleged he was acting in self-defense, the police chief charged him with use of excessive force and "willfully departing from the truth," and he was terminated upon the recommendations of the chief and the manager of safety.

After an administrative hearing on the termination, a hearing officer found that the citizen was passing by the scene of a disturbance on the opposite side of the street, that the police officer made contact with him there, that he struck the citizen with considerable force at least twice in the face, knocking out several teeth, that the citizen did not pose a threat of physical harm to the police officer, and that the officer's force was excessive. Additionally, he found that the officer departed from the truth in claiming that he was acting in self defense. The hearing officer, thus, sustained both charges against the police officer, but he nevertheless ordered that the plaintiff's termination be modified to a one-year suspension without pay.

The hearing officer's decision was based on his review of disciplinary actions involving other policemen which resulted in dismissal, as well as disciplinary actions for departure from the truth and excessive force. He concluded that, in light of the discipline imposed in these cases, dismissal of the plaintiff was too severe.

The city appealed the hearing officer's decision to modify the discipline, contending that the decision impaired the police chief's ability to maintain administrative control of the department. The Commission agreed and reinstated the plaintiff's dismissal, and the district court affirmed.

The plaintiff contends that, under the Denver City Charter, the Commission functions as an appellate body with authority to overturn factual findings of a hearing officer only in cases in which there is not competent evidence in the record to support the findings. He also argues that the Commission erred in concluding that the hearing officer's decision involved policy considerations that might have an effect beyond the case at hand.

I.

We consider first whether the Commission exceeded its authority by reversing the hearing officer.

Prior to 1987, in police department disciplinary actions, the Commission made all findings of facts and conclusions of law and imposed discipline accordingly. However, pursuant to the city charter's amendment in 1987, the Commission is now required to appoint a hearing officer to hear evidence and make written findings affirming, reversing, or modifying the disciplinary action imposed by the department. Denver City Charter C5.73-2(3) through (5).

Furthermore, Denver City Charter C5.73-2(7) now provides that if the hearing officer's decision is appealed to the Commission, it shall:

Rely only upon the evidence presented to the hearing officer except when the appeal is based on new and material evidence. All factual findings by...