PREVIOUSLY ANNOUNCED AS "NOT PUBLISHED PURSUANT TO
C.A.R. 35(e)" ON December 6, 2018, IS NOW DESIGNATED FOR
Personnel Board Case No. 2016B034
Announced January 24, 2019 Greg D. Rawlings P.C., Greg D.
Rawlings, Denver, Colorado, for Complainant-Appellee
J. Weiser, Attorney General, Katherine Aidala, Assistant
Attorney General, Denver, Colorado, for Respondent-Appellant
J. Weiser, Attorney General, Leanne B. De Vos, Senior
Assistant Attorney General, Billy Seiber, First Assistant
Attorney General, Denver, Colorado, for Appellee
1 The Department of Corrections, Denver Reception and
Diagnostic Center (DOC), appeals the order of the Colorado
State Personnel Board (Board) reinstating appellee, Mathew
Mark Stiles, because his termination from DOC was arbitrary
and capricious. For the reasons described below, we affirm
the Board's order.
2 DOC hired Stiles as a part-time correctional officer in
August 2010. In December 2010, Stiles became a full-time
employee, and, in 2011, he achieved state-certified status.
In 2013, DOC transferred Stiles to a boiler room position in
the facility. Every performance evaluation since Stiles'
hiring date rated him as a competent employee, and Stiles
never received any corrective or disciplinary actions during
3 Beginning in 2015, Stiles experienced several unexpected
and stressful events in his personal life, including an
admitted affair by his wife, his teenage daughter's
diagnosis of and emergency hospitalization for schizophrenia,
and disputes with his daughter's birth mother concerning
his daughter's condition. Stiles sought professional help
through the Colorado State Employee Assistance Program.
Stiles' personal challenges never adversely affected his
job performance. But the related stress of these challenges
caused Stiles to experience bouts of insomnia.
4 Following an emotional counseling session with his wife and
an argument with his daughter's birth mother on Friday,
September 25, 2015, Stiles was unable to sleep. To alleviate
his insomnia, Stiles smoked some marijuana around midnight.
On Monday morning (September 28), Stiles returned to work and
was randomly selected for drug testing. He complied with the
testing, and, the next day, he submitted a confidential
incident report to DOC admitting his marijuana use and
explaining the extenuating circumstances that led to it. On
October 2, DOC received the test results, which revealed a
positive result for THC, the main psychoactive chemical in
5 On October 13, Stiles received a hand-delivered Notice of
Rule 6-10 Meeting. The notice, dated October 9, was signed by
the appointing authority, Warden David Johnson, and informed
Stiles of an upcoming Rule 6-10 meeting concerning his
continued employment in light of the test result. On October
19, Stiles met with Warden Johnson and provided an
explanation for the positive test result. He was accompanied
and supported by his immediate supervisor, Lieutenant James
DeTello, who confirmed that Stiles was a valuable employee.
On that same date, Lieutenant DeTello submitted Stiles'
final performance review, which provided an overall rating of
Level II (meets expectations) and a Communications and
Interpersonal Skills rating of Level III (exceptional).
6 On November 2, Warden Johnson issued a notice of
disciplinary action immediately terminating Stiles. Stiles
appealed his termination to the Board. An Administrative Law
Judge (ALJ) conducted a hearing and issued an initial
decision. That decision rescinded Stiles' termination,
modified the discipline to a ten percent pay reduction for
six months, and ordered back pay and benefits. In reaching
his decision, the ALJ found that Warden Johnson's
decision was arbitrary, capricious, and contrary to rule or
law. In particular, the ALJ found that Warden Johnson (1)
failed to candidly and honestly consider all of the evidence
he procured, as required by Department of Personnel &
Administration Board Rule 6-9, 4 Code Colo. Regs. 801-1,
particularly Stiles' lack of prior disciplinary history
and his extenuating mitigating circumstances; and (2) imposed
discipline that was not within the range of reasonable
alternatives by failing to consider the disciplinary
alternatives set forth in the DOC regulation directed at
marijuana use, DOC Admin. Reg. 1450-36(IV)(A)(1). On review,
the Board adopted the ALJ's initial decision, and this
7 DOC contends that the ALJ employed an incorrect standard of
review and improperly reweighed the evidence when he reviewed
Warden Johnson's disciplinary action. DOC argues that the
ALJ was required to defer to Warden Johnson's findings
and that such deference supports Stiles' termination. We
are not persuaded, for three reasons. First, the Rule 6-10
meeting is informal and does not sufficiently protect the
property interests of a state-certified employee accused of
misconduct. Second, section 24-50-125(4), C.R.S. 2018,
provides for an adversarial proceeding at which the employee
is entitled to representation by counsel of choice, and it
requires the Board to make written findings of fact and
conclusions of law - a hearing our ...