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Denver Police Protective Association v. City and County of Denver

Court of Appeals of Colorado, Seventh Division

February 22, 2018

Denver Police Protective Association, Plaintiff-Appellee,
v.
City and County of Denver, Colorado, Defendant-Appellant.

         City and County of Denver District Court No. 15CV33862 Honorable Ross B.H. Buchanan, Judge

          Olson Law Firm, LLC, Sean T. Olson, Denver, Colorado, for Plaintiff-Appellee

          Kristin M. Bronson, City Attorney, Robert D. Nespor, Assistant City Attorney, Kristin George, Assistant City Attorney, Denver, Colorado, for Defendant-Appellant.

          BERGER JUDGE.

         ¶ 1 In this collective bargaining dispute, the district court held that defendant, the City and County of Denver (Denver), was obligated to engage in collective bargaining with plaintiff, the Denver Police Protective Association (DPPA), over a Denver Police Department (DPD) policy requiring certain of its officers to wear and use body-worn cameras (BWCs). The district court concluded that BWCs constituted "personal safety and health equipment, " and thus are a mandatory subject of collective bargaining.

         ¶ 2 As it did in the district court, Denver contends that BWCs are not "personal safety and health equipment" and therefore it had no obligation to engage in collective bargaining over the DPD's policies regarding BWCs. We agree with Denver, hold that BWCs are not "personal safety and health equipment, " and reverse the district court's judgment.

         I. Relevant Facts and Procedural History

         ¶ 3 Denver and DPPA are parties to a collective bargaining agreement. That agreement implements the Charter of the City and County of Denver (Charter), [1] which sets forth Denver's obligations regarding collective bargaining with certain of its employees.

         ¶ 4 The Charter provides that "Police Officers shall have the right to bargain collectively with [Denver] and to be represented by an employee organization in such negotiations." Charter § 9.8.3(A). However, this right is not unlimited.

         ¶ 5 The Charter describes three categories of subjects of collective bargaining. First, there are mandatory subjects of bargaining. These include compensation, the number of hours in the workweek, and "[p]ersonal safety and health equipment." Charter § 9.8.3(B)(i), (iii), (v). The second category describes permissive subjects of bargaining. Denver may, but is not required to, bargain over these subjects. This category includes "[o]fficer safety and health matters except as provided in 9.8.3(B)(v) [personal safety and health equipment]." Charter § 9.8.3(D)(vii).[2]

         ¶ 6 In 2015, the DPD promulgated, without bargaining or consultation with DPPA, a policy regarding the use of BWCs. The policy requires "patrol officers and corporals assigned to all six police Districts, the Gang Unit and Traffic Operations" to wear and use BWCs. Immediately after the policy was announced, DPPA contended that the wearing and use of BWCs was a mandatory subject of bargaining, and it demanded that Denver bargain. Denver refused.

         ¶ 7 DPPA filed suit, alleging that Denver violated the collective bargaining agreement by implementing the BWC policy without first bargaining in good faith with DPPA. The parties filed cross-motions for summary judgment. DPPA argued the BWC policy fell under either "compensation, " "the number of hours in the workweek, " or "personal safety and health equipment, " and thus was a mandatory subject of bargaining. Denver contended that while the wearing and use of BWCs might bear upon "officer safety and health matters, " BWCs were not "personal safety and health equipment, " and Denver had no obligation to bargain over the wearing and use of BWCs.

         ¶ 8 The district court granted summary judgment in favor of DPPA. It first concluded that BWCs did not fall under "compensation" or "the number of hours in the workweek, " conclusions that are not challenged on appeal. The court then concluded that "BWCs are a unique piece of equipment with a significant safety dimension integral to their purpose, despite arguably being secondary to their evidence-gathering purposes, and therefore qualify as 'personal safety and health equipment' within the meaning of the Charter." Consistent with this conclusion, the district court ordered Denver to bargain over the implementation of the BWC policy.

         II. Body-Worn Cameras Are Not "Personal Safety and ...


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