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Murr v. Civil Service Commission of City

Court of Appeals of Colorado, Seventh Division

April 4, 2019

Randy Murr and Devin Sparks, Plaintiffs-Appellants,
v.
Civil Service Commission of the City and County of Denver and City and County of Denver, a municipal corporation, Defendants-Appellees.

          City and County of Denver District Court No. 14CV30044 Honorable Ross B.H. Buchanan, Judge.

          Announced April 4, 2019 Sean T. Olson, Denver, Colorado, for Plaintiffs-Appellants.

          Kristin M. Bronson, City Attorney, Richard A. Stubbs, Assistant City Attorney, Robert A. Wolf, Assistant Director, CAO Human Services Section, Denver, Colorado, for Defendants-Appellees.

          OPINION

          CASEBOLT [*] JUDGE.

         ¶ 1 Appellants, Randy Murr and Devin Sparks, two Denver Police Department (DPD) officers (the Officers) formerly employed by appellee the City and County of Denver (the City) appeal the district court's order upholding their termination from the DPD for committing deceptive acts in connection with an incident involving excessive use of force. They argue that appellee the Civil Service Commission of the City and County of Denver (the Commission) erroneously interpreted the Charter of the City and County of Denver (Charter) to grant the Manager of Safety (MOS) implied authority to reopen their disciplinary matter, rescind the discipline previously imposed, and order more severe penalties, all after the order became final and the time for appealing it had expired. We agree with the Officers.

         I. Factual and Procedural History

         ¶ 2 On April 4, 2009, the Officers arrested two men outside a Denver nightclub late at night. A high activity location observation (HALO) security camera, capable of recording video but not audio, showed M.D., one of the men, talking on his cell phone, standing near where the Officers were arresting the other individual. It also showed that Sparks approached M.D., threw him face first onto the pavement, and struck him nine to ten times on the leg with a "SAP tool" as he lay in a fetal position. M.D. did not fight back. Sparks then forcefully dragged M.D. to a police car, and M.D. was taken to a hospital and treated for serious injuries caused by Sparks.

         ¶ 3 A fifteen-month investigation ensued. The Officers justified this use of force in several official statements by claiming that M.D. had aggressively resisted and had been preparing to strike Sparks. Murr averred that he saw M.D. try to punch Sparks. But after being confronted with the HALO camera footage, Murr later said that he had only assumed he had seen this alleged act of aggression. Following the investigation, the Deputy Chief of Police recommended that Sparks only be docked three days of pay, and that Murr only be suspended for three days.

         ¶ 4 Per Charter procedure, the MOS reviewed these recommendations. On July 19, 2010, the MOS issued orders as to both officers. The MOS imposed no discipline against Sparks for his actions in arresting M.D. and did not find that Sparks had used inappropriate force. Instead, the MOS found only a violation of a DPD policy requiring officers to write accurate incident reports. The MOS accepted the Deputy Chief's recommendations as to Sparks, ordering a "three day fine," payable by working three days without pay or having twenty-four hours deducted from his leave bank. The MOS also accepted the Deputy Chief's recommendation as to Murr (based on the same policy violation), ordering him suspended for three days. Together, these decisions constitute what we will call the "first disciplinary order." Neither Officer chose to appeal the first disciplinary order to the Commission within the ten-day period authorized by the Charter.

         ¶ 5 Shortly after the decision became public, a local television station obtained a copy of the security camera footage and broadcast a story about the incident, asking eyewitnesses to come forward. Two persons responded; neither had been approached or interviewed by police on the evening of the arrest or at any time thereafter.

         ¶ 6 When the MOS became aware of these two new witnesses, and without knowing what they had to say, he rescinded the first disciplinary order on August 19, 2010; ordered the DPD investigation reopened based on the possibility of new evidence; and remanded the matter. According to his own later testimony, the MOS did so because, after the HALO camera footage became public, many of his friends and colleagues across the country criticized the first disciplinary order as too lenient.

         ¶ 7 The Officers brought an action in the Denver District Court seeking to enjoin the MOS from issuing new disciplinary orders, asserting that the MOS was without authority to rescind a disciplinary order and issue a new one after the deadline for filing an appeal had passed without one being taken. The Denver District Court denied injunctive relief.

         ¶ 8 The next phase of the DPD investigation lasted approximately nine months. The DPD interviewed the two eyewitnesses, who corroborated what the video showed. The only new evidence they provided was that M.D. had repeatedly screamed, "I'm not resisting" and "You don't have to hit me," or something similar while he was on the ground.

         ¶ 9 The DPD also re-interviewed Sparks and Murr. Sparks stuck to his previous story, as did Murr, although the latter changed his story on several key details. After the supplemental investigation concluded, the Chief of Police recommended that both Officers be dismissed. A new MOS (the previous one had resigned shortly after rescinding the first disciplinary order) issued new disciplinary orders (the second disciplinary order) to the Officers, finding that they had both violated a provision of the DPD Rules and Regulations (RR), RR-112.2, "Commission of a Deceptive Act," by claiming that the arrestee had tried to assault Sparks. The MOS also found that Sparks had violated RR-306, "Inappropriate Force." The MOS terminated the employment of both Officers.

         ¶ 10 The Officers timely appealed the second disciplinary order. They argued that the MOS did not have power, authority, or jurisdiction to rescind the first disciplinary order, reopen the matter, and issue the second disciplinary order. A three-person hearing panel granted their motion for summary judgment, concluding that the first disciplinary order had become final once the ten-day period for appealing it to the Commission had lapsed, and that nothing in the Charter authorized the MOS's reassertion of jurisdiction over the matter.

         ¶ 11 The MOS appealed to the full Commission. In its "Decision and Final Order" dated April 9, 2012, the Commission reversed the hearing panel, holding that the Charter conferred on the MOS an implied power to "rescind and/or modify a disciplinary order once the ten-day appeal deadline has passed when new and material evidence justifies such modification." The Commission stated that the MOS's "broad disciplinary authority" over the DPD "necessarily implied" the power to reconsider disciplinary orders. It further held that the MOS could exercise this power for "a reasonable period of time," where "reasonableness" would "turn on the specific circumstances of the case." The Commission articulated a test for determining whether evidence was "new and material" and remanded the case to the hearing panel.

         ¶ 12 On remand, the hearing panel found that the MOS "had a reasonable basis to rescind in light of some credible new and material evidence obtained." The panel affirmed Sparks's discipline but reversed that of Murr, concluding that the evidence against Murr was insufficient to show that he had committed a deceptive act. One panel member dissented on procedural grounds, asserting that the new witnesses' information was an insufficient reason to reopen the investigation because (1) allowing an incomplete investigation to serve as grounds for such reopening would mean that the "door to completing of an investigation will never be closed" and (2) the new witnesses' information was not material.

         ¶ 13 The MOS appealed and was granted a stay of that portion of the decision reversing Murr's dismissal. The Officers filed cross-appeals, again maintaining that the MOS lacked authority under the City Charter to rescind the first disciplinary order.

         ¶ 14 In its December 9, 2013, decision, the Commission reaffirmed its prior decision concluding that the MOS had implied power to rescind the first disciplinary order, and held that the MOS's actions - including the rescission of the first disciplinary order and subsequent promulgation of the second disciplinary order - were "reasonable" because the MOS acted "within a reasonable period of time" and because his actions were properly based on "new and material evidence," in accordance with the test the Commission had articulated in its April 9, 2012, decision. The Commission also upheld the panel's affirmance of Sparks's discipline but reversed the panel's conclusion that Murr had not violated RR-112.2 because he lacked the necessary intent. The Commission then reinstituted Murr's termination.

         ¶ 15 The Officers sought review in the Denver District Court in a new C.R.C.P. 106(a)(4) action, asserting that (1) the MOS did not have the authority to rescind the first disciplinary order once the ten-day appeal deadline had passed; (2) even if the MOS had this authority, he did not exercise it reasonably in this case; and (3) the Commission's reinstatement of Murr's termination should be reversed because the Commission abused its discretion by not holding itself bound by the hearing panel's determination that Murr lacked the necessary intent to violate RR-112.2.

         ¶ 16 On November 29, 2017, in a lengthy order, the district court affirmed the entirety of the Commission's Decision and Final Order, finding that the statutory purpose behind the Charter's "broad delegation" to the MOS of administrative and disciplinary authority over Denver police officers would be contravened by the rigid jurisdictional limitations urged by the Officers. The court further concluded that the Commission acted reasonably when it articulated and applied the four-part "new and material evidence" test to determine that the MOS had properly rescinded his prior disciplinary order. And the court determined that the Commission had a reasonable basis for reinstating Murr's termination.

         II. Jurisdiction, Power, and Authority

         ¶ 17 The Officers contend that the Charter does not expressly or impliedly grant the MOS the power to rescind a disciplinary order after the order becomes final and the time for appealing that order to the Commission expires. We agree and therefore reverse the second ...


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