[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Arapahoe County District Court No. 16CV32444, Honorable
Kenneth M. Plotz, Judge
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 Sheriffs
employee manual (the Manual) constitute an implied contract
of employment that the Sheriff breached when he fired
Cummings. In denying the Sheriffs summary judgment motion,
the district court agreed with Cummings. The Sheriff brings
this interlocutory appeal under C.A.R. 4.2, challenging the
district courts 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 Colorados 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 courts 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 Assemblys 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
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 courts denial of
summary judgment with respect to the specific rights granted
by section 30-10-506, but otherwise reverse the courts
denial of summary judgment on Cummings implied contract
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 Manuals policies and was
dishonest in the course of the investigation of the original
charges against him.
9] After exhausting his remedies within the
Sheriffs 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 Sheriffs
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 Manuals policies.
13] The district court denied the Sheriffs 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 Sheriffs 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.
The District Court Correctly Denied The Sheriffs 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
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 & OBrien, P.C., 990 P.2d 78, 83 (Colo. 1999).
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.
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 Assemblys
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