ABUSE OF DISCRETION
A decision is an abuse of discretion if it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination or other considerations not intended by the governing law. In re Foley, CSA 19-06, 8 (11/10/06), citing Wong Wing Hang v. INS, 360 F.2d 715 (2nd Cir. 1966); Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2nd Cir. 1950).
ADVERSE EMPLOYMENT ACTION
An adverse employment action is employer conduct that results in a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits. In re Wehmhoefer, CSA 02-08, 3 (2/14/08) citing In re Boden, CSA 86-06, 2 (5/23/07); Burlington Indus., Inc. v. Ellerth, 118 S.Ct. 2257, 2268 (1998).
An appointing authority is defined in the rules as the municipal official designated by the annual appropriation ordinance to approve expenditures for a given appropriation. In re Lovin, CSA 27-06, 1 (Order 5/18/06); citing CSR Rule 1, Definitions.
ARBITRARY & CAPRICIOUS
The duty of a court reviewing agency action under the arbitrary or capricious standard is to ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made. In re Hamilton, CSA 100-09 & 107-09, 13 (9/17/10), citing Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir.1994).
A reviewing body must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment. In re Hamilton, CSA 100-09 & 107-09, 13 (9/17/10), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
A decision is an abuse of discretion if it is made without a rational explanation, departs from established policies, or rests on considerations not intended by the governing law. In re Hamilton, CSA 100-09 & 107-09, 13 (9/17/10), citing Wong Wing Hang v. INS, 360 F.2d 715, 719 (2nd Cir. 1965).
A discretionary agency action is capricious or arbitrary if the agency 1) fails to use reasonable diligence to procure facts necessary to its decision, 2) does not consider relevant evidence, or 3) bases its action on conclusions reasonable persons could not reach. In re Hamilton, CSA 100-09 & 107-09, 13 (9/17/10), citing Maggard v. Dept. of Human Services, 226 P.3d 1209, 1212 (Colo.App. 2009).
An act is arbitrary and capricious if a reasonable person, considering all the evidence in the record, would fairly and honestly be compelled to reach a different conclusion. In re Proctor, CSA 52-07, 3 (1/3/08), citing In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 5 (1/27/05); Wildwood Child & Adult Care Program, Inc. v. Colo. Dept. of Public Health Care and Environment, 985 P2d. 654, 658 (Colo. App. 1999).
CAUSE OF ACTION
The cause of action in an appeal is defined by the injury for which the claimant seeks redress and not by the legal theory on which the claimant relies. In re Cho, CSA 01-09, 3 (Order 1/21/09) citing 1B J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice § 0.410 (1) (2d Ed. 1988); Argus Real Estate, Inc. v E-470 Public Highway Authority, 109 P3d 604 (Colo. 2005).
DE NOVO HEARING
An appeal de novo means that evidence will be heard as though no previous action had been taken. In re Simpleman, CSA 31-06, 3 (10/20/06), citing Turner v Rossmiller, 532 P.2d 751 (Colo. App. 1975), affirmed In re Simpleman, CSB 31-06 (8/2/07); See also In re Martinez, CSA 30-06 (10/3/06).
A de novo hearing means the hearing officer makes findings of fact independently of the agency’s findings, assesses credibility, and resolves factual disputes. In re Clayton, CSA 128-05, 3 (3/21/06), citing Turner v. Rossmiller, 532 P. 2d 751 (Colo. App. 1975).
DISCIPLINE [See also Rule 16]
Discipline for cause means the employee violated a career service rule, agency order, executive order, or law. In re Allen, CSA 16-06, 3 (6/6/06); City Charter art. IX, §9.1.1.
DISHONESTY [See also §16-60 E & F]
Dishonesty is an act involving intent to deceive. In re Martinez, CSA 69-05 (1/4/06).
Dishonesty is the knowing communication by an employee of a false statement within the employment relationship. In re Stone, CSA 70-07, 9 (2/25/08).
Dishonesty is any misrepresentation made within the employment context. In re Mounjim, CSB 87-07, 5-6 (1/8/09).
INTIMIDATION [See also Rules 15-110 & 16-60 M]
Intimidation is defined as unlawful coercion; duress; putting in fear. In re Rivas, CSA 49-07, 10 (1/9/08), citing Black’s Law Dictionary 957 (4th ed.1951).
INVOLUNTARY DEMOTION [See also Rule 9-33 C]
Involuntary demotion with attendant loss of pay is defined as a demotion initiated through discipline, disqualification, or in lieu of separation during probation. In re Sullivan, CSA 44-08 (Order 6/13/08).
NEGLECT OF DUTY See also Rule16-60 A]
“Neglect of duty” implies failure to perform a duty. In re Martinez, CSA 30-06 (Order 10/3/06); See also In re Simpleman, CSA 31-06 (10/20/06).
Neglect of duty infers a reasonable duty was communicated to an employee and his utter failure to perform it. In re Gutierrez, CSB 65-11, 2 (4/4/13).
Objective standard does not permit consideration of the parties’ intent, rather the fact finder must evaluate conduct in light of how a reasonable person would act or respond in similar circumstances. In re Gutierrez, Colo.App. 65-11, 7-8, (5/19/16), citing Survey Sols., Inc. v. Indus. Claim Appeals Office, 956 P.2d 1275, 1276 (Colo.App. 1998).
RES JUDICATA (Claim preclusion)
Res judicata prevents a party from relitigating a legal claim that was or could have been the subject of a previously issued final judgment. In re Cho, CSA 01-09, 2 (Order 1/21/09), citing Satsky v Paramount Communications, Inc., 7 F.3d 1464, 1467 (10th Cir. 1993).
Res judicata, also known as claim preclusion, requires proof of three elements: 1) a final judgment on the merits in an earlier action, 2) identity of parties, and 3) identity of the causes of action in both suits. In re Cho, CSA 01-09, 2 (Order 1/21/09), citing Wilkes v Wyo. Dept. of Employment Div. of Labor Standards, 314 F.3d 501, 504 (10th Cir. 2003).
Res judicata bars later actions based on the same cause of action. In re Cho, CSA 01-09 (Order 1/21/09).
Board adopts a common sense definition of "willful." In re Redacted, CSB 56-11, 3 (12/20/12).
Circumstances demonstrating willfulness are those demonstrating that the action was taken intentionally, knowingly, or voluntarily, without justifiable excuse. In re Redacted, CSB 56-11, 3 (12/20/12), citing Black's Law Dictionary, Fifth Edition, p. 1434.
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