Arapahoe County District Court No. 16CV32444 Honorable
Kenneth M. Plotz, Judge
S. Bove P.C., Mark S. Bove, Denver, Colorado, for
A. Carl, Arapahoe County Attorney, Daniel C. Perkins, Senior
Assistant County Attorney, Erin L. Powers, Senior Assistant
County Attorney, Littleton, Colorado, for
& Evans, L.L.C., Mark S. Ratner, Denver, Colorado, for
Amicus Curiae Colorado Counties, Inc.
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
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
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. 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
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.
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. See Trinity Broad. of
Denver v. City of Westminster, 848 P.2d 916 (Colo.
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 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.
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.
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.
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
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 § 24 (1981) -
and second, that ...