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Marshall v. Civil Service Commission of City and County of Denver

Court of Appeals of Colorado, Third Division

October 20, 2016

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.

         City and County of Denver District Court No. 14CV33395 Honorable Catherine A. Lemon, Judge

         JUDGMENT AFFIRMED.

          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

          Hawthorne and Vogt [*], JJ., concur

          WEBB JUDGE

         ¶ 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: ...

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