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 ...