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Cummings v. Arapahoe County Sheriff's Department

Court of Appeals of Colorado, Division A

September 6, 2018

Michael Cummings, Plaintiff-Appellee,
Arapahoe County Sheriff's Department and David C. Walcher, individually and in his capacity as Arapahoe County Sheriff, Defendants-Appellants.

          Arapahoe County District Court No. 16CV32444 Honorable Kenneth M. Plotz, Judge

          Mark S. Bove P.C., Mark S. Bove, Denver, Colorado, for Plaintiff-Appellee

          Ronald A. Carl, Arapahoe County Attorney, Daniel C. Perkins, Senior Assistant County Attorney, Erin L. Powers, Senior Assistant County Attorney, Littleton, Colorado, for Defendants-Appellants

          Hall & Evans, L.L.C., Mark S. Ratner, Denver, Colorado, for Amicus Curiae Colorado Counties, Inc.


          BERGER, JUDGE.

         I. Introduction and Summary

         ¶ 1 This lawsuit pits the Arapahoe County Sheriff (the Sheriff) against one of his former deputies, Michael Cummings, whose employment was terminated by the Sheriff. Cummings contends that the written employment policies promulgated by the Sheriff contained in the Sheriff's employee manual (the Manual) constitute an implied contract of employment that the Sheriff breached when he fired Cummings. In denying the Sheriff's summary judgment motion, the district court agreed with Cummings. The Sheriff brings this interlocutory appeal under C.A.R. 4.2, challenging the district court's denial of summary judgment.

         ¶ 2 Resolution of this appeal requires us to construe section 30-10-506, C.R.S. 2017, which governs the employment relationship between Colorado's elected sheriffs and the deputies they appoint. It provides in relevant part as follows:

Each sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will; except that a sheriff shall adopt personnel policies, including policies for the review of revocation of appointments. Before revoking an appointment of a deputy, the sheriff shall notify the deputy of the reason for the proposed revocation and shall give the deputy an opportunity to be heard by the sheriff.

§ 30-10-506.

         ¶ 3 In Seeley v. Board of County Commissioners, the Colorado Supreme Court authoritatively construed a prior version of this statute, holding that sheriffs' deputies were employees at will and that a sheriff "did not possess the statutory authority to limit his power to discharge [his deputies] 'at his pleasure.'" 791 P.2d 696, 700 (Colo. 1990).

         ¶ 4 As was its right, the General Assembly legislatively overruled the supreme court's decision by amending the statute in 2006. Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006); cf. Gallegos v. Phipps, 779 P.2d 856, 861 (Colo. 1989) (noting General Assembly's enactment of another statute "for the explicit purpose of" overruling the particular case).

         ¶ 5 We conclude that the General Assembly legislatively partly overruled Seeley because, contrary to Seeley, the General Assembly decided to grant certain employment rights to the deputies that are, at least in part, inconsistent with the concept of at-will employment as it is known in Colorado law.[1] Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006). But we also know from the plain language of the amended statute that in other respects, the General Assembly intended to preserve the doctrine of at-will employment.

         ¶ 6 Considering the plain language of the 2006 amendments, the legislative history, and commonly recognized rules of statutory construction, we conclude that section 30-10-506 does the following:

. It grants two unwaivable rights to the deputies: the right of notification "of the reason for the proposed revocation" of their employment, and "an opportunity to be heard by the sheriff before their employment is terminated.
. It requires each sheriff to "adopt personnel policies, including policies for the review of revocation of appointments," but except for the two statutory rights noted above, these policies need not be binding and sheriffs may reserve their right to depart from such policies in any particular case or matter. To that extent, the doctrine of at-will employment is preserved.
. It permits a sheriff to promulgate binding employment policies, and if the sheriff elects to do so, those policies are enforceable in accordance with their terms.

         ¶ 7 Applying this construction of section 30-10-506 to the facts presented in the Sheriffs summary judgment motion, but also considering the dispositive legal effect of clear and conspicuous disclaimers of any contractual relationship, we affirm the district court's denial of summary judgment with respect to the specific rights granted by section 30-10-506, but otherwise reverse the court's denial of summary judgment on Cummings' implied contract claim.

         II. Relevant Facts and Procedural History

         ¶ 8 Cummings was a deputy sheriff in Arapahoe County. The Sheriff terminated Cummings' employment, asserting that he violated several of the Manual's policies and was dishonest in the course of the investigation of the original charges against him.

         ¶ 9 After exhausting his remedies within the Sheriff's department, Cummings sued, asserting two claims for relief: wrongful discharge in violation of public policy and breach of an implied contract of employment based on the employment policies contained in the Manual.

         ¶ 10 Cummings contends that while the Sheriff informed him of the reasons for the initial investigation into his conduct, the Sheriff did not provide him with notice of the charges that eventually led to his termination. He also contends that the Sheriff denied him an adequate opportunity to defend himself by not following the procedural policies of the Manual during the disciplinary process.

         ¶ 11 The Sheriff moved to dismiss the wrongful termination claim under C.R.C.P. 12(b)(1) based on governmental immunity. The district court held a Trinity hearing on the wrongful discharge in violation of public policy claim and dismissed that claim with prejudice.[2] See Trinity Broad. of Denver v. City of Westminster, 848 P.2d 916 (Colo. 1993).

         ¶ 12 After the district court denied the Sheriff's motion to dismiss the implied contract claim for failure to state a claim, the Sheriff moved for summary judgment. He contended that the at-will language in section 30-10-506 prevented him from promulgating binding personnel policies; that the disclaimers contained both in the Manual itself and in separate, yearly disclaimers signed by Cummings precluded as a matter of law any implied contract claim; and that, in any event, he had not violated any of the Manual's policies.

         ¶ 13 The district court denied the Sheriff's motion, holding that there was an implied contract of employment. The district court reasoned that it was illogical to conclude that the General Assembly would at once require sheriffs to promulgate employment policies, but then authorize sheriffs to wholly ignore them. Thus, the court held that all provisions in an employment manual promulgated by a sheriff pursuant to section 30-10-506 were binding and formed an implied employment contract. As to the disclaimers, the court ruled that they were ineffective because they could not countermand the statutory requirement that the policies be binding. And, as to the Sheriff's argument that he did not violate any of the policies, the court concluded that disputed issues of material fact precluded summary judgment.

         ¶ 14 Although ordinarily an order denying summary judgment is not a final appealable order, the Sheriff petitioned for an interlocutory review of the order. Recognizing the internal conflicts within the statute, the district court certified its summary judgment order for interlocutory appeal under C.A.R. 4.2. Agreeing with the district court that the Sheriff met the requirements for an interlocutory appeal, and that this is a matter of substantial public concern, we granted the petition.

         III. The District Court Correctly Denied The Sheriff's Motion for Summary Judgment With Respect To The Specific Rights Granted by Section 30-10-506

         ¶ 15 For the same three reasons that he sought summary judgment in the district court, the Sheriff contends that the court erred in denying his motion for summary judgment.

         A. Standard of Review

         ¶ 16 We review a grant (or, when authorized by law, a denial) of summary judgment de novo. Geiger v. Am. Standard Ins. Co. of Wisc., 192 P.3d 480, 482 (Colo.App. 2008) (holding that we review a denial of summary judgment de novo). "Under C.R.C.P. 56(c), summary judgment may be granted if there is no genuine contested issue of material fact and the moving party is entitled to judgment as a matter of law." Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1212 (Colo. 2008). We grant the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts and resolve all doubts against the moving party. Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo. 1999).

         B. Rules of Statutory Interpretation

         ¶ 17 Resolution of this appeal requires us to determine the meaning of section 30-10-506, which is a question of law that we review de novo. Wolf Ranch, LLC v. City of Colorado Springs, 220 P.3d 559, 563 (Colo. 2009).

         ¶ 18 In interpreting a statute, we first give the words and phrases of the statute their plain and ordinary meanings according to the rules of grammar and common usage. § 2-4-101, C.R.S. 2017; Jefferson Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010). We consider the words and phrases of the statute both in the context of the statute itself and in the context of any comprehensive statutory scheme of which the statute is a part. Jefferson Cty. Bd. of Equalization, 241 P.3d at 935. By applying these principles, we attempt to determine the General Assembly's intended meaning of the words and phrases, and harmonize that meaning with the comprehensive statutory scheme. Id.

         ¶ 19 If the statutory language is susceptible to only one reasonable meaning, we enforce it as written and do not resort to other rules of statutory construction. Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997). However, if a statute is susceptible to more than one reasonable meaning, we employ other tools of statutory interpretation, including legislative history, to ascertain the General Assembly's intent. People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002).

         C. The Implied Contract Exception to At-Will Employment

         ¶ 20 In Colorado, an employee who is hired for an indefinite period is presumed to be an at-will employee, but this presumption may be rebutted. Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711-12 (Colo. 1987).

         ¶ 21 Policies contained in an employee manual addressing discipline or the termination of employment may, under some circumstances, serve as the basis for claims of either a breach of implied contract or promissory estoppel. Id. These claims may be asserted by both private and public employees. Adams Cty. Sch. Dist. No. 50 v. Dickey, 791 P.2d 688, 694 (Colo. 1990).

         ¶ 22 Employees claiming a breach of an implied contract of employment based on an employee manual bear the burden of rebutting the presumption of at-will employment. Keenan, 731 P.2d at 711. To do so, they must demonstrate:

first, that in promulgating the termination procedures the employer was making an offer to the employee - that is, the employer manifested his willingness to enter into a bargain in such a way as to justify the employee in understanding that his assent to the bargain was invited by the employer and that the employee's assent would conclude the bargain, Restatement (Second) of Contracts ยง 24 (1981) - and second, that ...

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