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In general

Alleging misconduct at hearing, in the absence of an underlying rule violation, is an impermissible use of the disciplinary process.  The agency fails to provide notice of what conduct it considered in assessing discipline, and the employee is therefore deprived of the opportunity to defend against the allegation.  In re Leslie, CSA 10-11, 20 (12/5/11).   

Motions to set aside final orders will be considered only upon a showing of extraordinary circumstances.  In re Maestas, CSA 33-11, 1 (Order 8/9/11).   

Appellant was not denied due process when his supervisor did not re-schedule cancelled meeting to discuss incident underlying disciplinary proceeding.  The pre-disciplinary meeting provided the opportunity to correct any errors and to be heard in explanation or mitigation.  In re Weiss, CSA 68-10, 7 (2/14/11); citing CSR § 16-40 B. 

Appellant’s argument that the Agency disciplined him for invoking his right not to serve as a witness against himself, when he was ordered to apologize to a co-worker, is inapplicable in civil cases.  The  privilege against self-incrimination applies exclusively to criminal defendants. In re Weiss, CSA 68-10, 7 (2/14/11).  

Where Appellant is not given notice of an allegation, and it was not included in the pre-disciplinary letter, the allegation cannot be considered to establish violation of a Career Service Rule.  In re Roberts, 40-10, 48-10, 12 (11/15/2010).   

Although Agency established a prima facie case that Appellant violated agency rules and policies, where the policies irreconcilably conflicted with the Career Service Rules, the Agency rules and policies are unenforceable.  In re Rock, CSA 09-10, 6 (10/5/10).      

A lack of precision and a lack of definition within a rule do not render it invalid if it is susceptible to a fair interpretation that is consistent with the other career service rules.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 5 (5/20/09). 

The career service rules provide the sole jurisdictional basis for appeals heard by the hearing officers.  In re Morgan, CSA 63-08, 16 (4/6/09).  

Hearing officers lack jurisdiction to rule on the constitutionality of career service rules.   In re Sawyer and Sproul, CSA 33-08, 17 (1/27/09); § 19-55.  

The career service rules mirror the provisions of the Denver city charter in which career service employees may be terminated only for cause and may appeal a termination decision to the board and its hearing officers.  In re Mounjim, CSA 87-07, 7 (CSB 1/8/09).  

The policies and rules of the city should be interpreted to be consistent with one another if such a reading would not do violence to the plain meaning of either.  In re Williams, CSA 56-04, 4 (5/06/05). 

Since CSR § 16-40 D and Executive Order 94 can be read to be consistent, the former does not invalidate Executive Order 94’s language mandating dismissal for second violation of city drug policy  in the employee’s career, and agency did not violate career service rule by relying on a first offense that occurred more than five years before second offense.  In re Williams, CSA 56-04, 4 (5/06/05).  

Constitutional rights

Jury trial

In a civil administrative proceeding such as a career service appeal, there is no constitutional right to a trial by jury. In re Luna, CSB 42-07, 4 (1/30/09).  


Construction of rules 

Where agency’s notice of discipline referred to appellant conducting non-agency business while on duty, but  was vague as to whether it found the conduct violated any particular Career Service Rule, the hearing office will not make such a connection on behalf of the agency.  In re Gutierrez, CSA 65-11, 6 (8/28/12).  

When each side presents equally credible testimony, the violation remains unproven. In re Leslie, CSA 10-11, 14 (12/5/11). 

Under CRS 408, an agency is precluded from introducing documents appellant produced during  settlement negotiations in his disqualification appeal.  In re Murphy, CSA 09-11, 1-2 (Order 10/7/11). 

Hearing Office may interpret a settlement agreement as part of its authority “to implement and maintain a fair and efficient process for appeals.”  In re Compton, CSA 71-10, 2 (3/31/11),citing CSR 19-30A.   

The abolishment of Appellant’s position and creation of a new position did not contradict Denver City Charter’s merit-based personnel system, which guarantees the right of career service employees not to be displaced by the abolishment of their position and the creation of a new position with substantially the same duties and responsibilities, where lack of supervisory and administrative duties and addition of new responsibilities notably differentiated the new position from Appellant’s abolished position.  In re Sanders, 62-09, 1 (CSB 2/17/11). 

In reviewing whether a newly created position is substantially similar to an abolished one, classification and pay grade may be relevant information, however, the focus should be on the duties and responsibilities performed by incumbents of both positions.  In re Sanders, 62-09, 2 (CSB 2/17/11).   

While an employee may grieve any work review (PEPR) rating, only a “failing” rating may be directly appealed to the Hearing Office. In re Muhammad, CSA 06-11 (Order 2/8/11), citing  CSR 19-10(b)(3); CSR 18-40(E)(1).  

If the grievance of a PEPR rating is denied, appellant must establish the rating negatively affected pay, benefits or status in order for an appeal to stand.  In re Muhammad, CSA 06-11 (Order 2/8/11). 

No aspect of the PEPR program, other than a performance rating, may be grieved or appealed.  In re Muhammad, CSA 06-11 (Order 2/8/11) citing CSR 13-50 C. 

Hearing Office lacks jurisdiction to consider appeal from denial of grievance of “successful” PEPR rating where appellant did not allege his pay, benefits or status were affected. In re Muhammad, CSA 06-11 (Order 2/8/11). 

Settlement agreement reducing Appellant’s 60-day suspension to 45 days contemplated that Agency would reimburse Appellant the amount equivalent to 15 days of pay, where she already served the 60-day suspension, and each “day” was calculated based on an 8-hour shift, not her actual 10.32-hour shifts that she customarily works.  In re James, CSA 33-10 (Order 1/25/11). 

Where an agency chooses to use proficiency standards instead of seniority to determine which employees will be subject to a layoff, as permitted in the Career Service Rules, those proficiency standards must be reasonable and fair.  In re Owens-Manis and Pettway, 73-09 A. and 75-09 a., 4-5 (10/21/2010).   

Re-opening an appeal after it was dismissed, may be justified only by new and extraordinary circumstances.  In re Noel, CSA 88-10, 1 (Order 12/29/2010). 

The Career Service Board repeatedly has found a violation under CSR 16-60 Z. requires the agency to prove the employee’s conduct resulted in actual harm to the agency’s mission or actual harm to the City’s reputation or integrity. In re Jones, CSB 88-09A (9/29/10), affirming  In re Jones, CSA 88-09 (5/11/10), and citing In re Simpleman, CSA 31-06, 10 (10/20/06), In re Hill, CSA 14-07, 7 (6/8/07), In re Strasser, CSA 44-07, 5 (10/16/07), In re Catalina, CSA 35-08, 8 (8/22/08), In re Compos, CSA 44-07, 5 (10/16/07), and In re Norman-Curry, CSA 28-07 and 50-08, 28 (2/27/09). 

Proposal to expand scope of CSR 16-60 Z., from “actual harm” to “reasonable expectation of harm,” would substitute speculative harm for objective, tangible, measurable standard. In re Jones, CSB 88-09A (9/29/10), affirming  In re Jones, CSA 88-09 (5/11/10). 

Violations of CSR 16-60 Z. must be decided on a case-by-case basis. In re Jones, CSB 88-09A (9/29/10), affirming  In re Jones, CSA 88-09 (5/11/10). 

Proposal to expand scope of CSR 16-60 Z., from “actual harm” to “reasonable expectation of harm”  would create a form of comparative discipline at odds with career service philosophy of imposing discipline based upon the employee’s own conduct. In re Jones, CSB 88-09A (9/29/10), affirming In re Jones, CSA 88-09 (5/11/10). 

Agency proposal to expand scope of CSR 16-60 Z. based upon seriousness of the violation, rather than upon showing actual harm, would impermissibly result in  all serious misconduct becoming the measure of the violation and of the degree of discipline. In re Jones, CSB 88-09A (9/29/10), affirming  In re Jones, CSA 88-09 (5/11/10). 

When a governmental agency promulgates rules governing the discharge of its employees, it must strictly comply with those rules.  In re Hamilton, CSA 100-09, 23 (9/17/10), citing Brennan v. Dept. of Local Affairs, 786 P.2d 426, 427 (Colo.App. 1989); Mercer v. Bd. of County Com’rs, 671 P.2d 435 (Colo.App.1983). 

Agency’s use of procedures not in conformity with the personnel rules is relevant to the determination of whether the action was arbitrary and capricious, where its stated reasons for using nonconforming procedures were not supported by the evidence. n re Hamilton, CSA 100-09, 23 - 24 (9/17/10).   

Reversal of Appellant's layoff requires reinstatement to the new position where her duties where transferred, and not to her former position which was stripped of duties and where she could well be laid off again.  In re Hamilton, 100-09, 107-09, 1-2  (CSB Order 11/10/2010).   

Reinstatement is implicit in a hearing officer’s reversal of a layoff, even if not explicitly stated. In re Hamilton, 100-09, 107-09, 1-2  (CSB Order 11/10/2010).   

Joinder of laid-off employee’s former agency was not necessary to appeal, as the agency was represented by the City for purposes of her appeal . In re Hamilton, 100-09, 107-09, 2  (CSB Order 11/10/2010).    

If an agency regulation addresses the same subject matter as CSR 16-61, the agency must comply with the procedural safeguards of 16-61.  In re Chavez, CSA 129-08, 4 (2/2/2010). 

The Confrontation Clause of the Sixth Amendment, which entitles the criminally accused to require the presence of witnesses against him, does not apply to civil administrative matters.  In re Burke, 60-10, 1 (Order 12/8/2010) citing Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1136 (10th Cir. 1995).

Where Appellant was dismissed from his position, in substantial part, upon a report which included his wife’s allegations of domestic violence, he is entitled to an opportunity to confront his wife, however, he must avail himself of the opportunities to cross-examine her, or he will be precluded from asserting error after the hearing.  In re Burke, 60-10, 2 (Order 12/8/2010).   

When a governmental agency promulgates rules governing the discharge of its employees, it must strictly comply with those rules.  In re Hamilton, CSA 100-09, 23 (9/17/10), citing Brennan v. Dept. of Local Affairs, 786 P.2d 426, 427 (Colo.App. 1989); Mercer v. Bd. of County Com’rs, 671 P.2d 435 (Colo.App.1983). 

Agency’s use of procedures not in conformity with the personnel rules is relevant to the determination of whether the action was arbitrary and capricious, where its stated reasons for using nonconforming procedures were not supported by the evidence.  In re Hamilton, CSA 100-09, 23 - 24 (9/17/10).  

Only an overall rating of “failing” on a PEPR, which is the rating listed on the first page of the PEPR form, is appealable.  In re Zacker, 44-10, 1 (Order 7/15/10). 

Whistleblower ordinance was not rendered retrospective merely because the facts upon which it operates occur before the date it was adopted.  In re Harrison, CSA 55-07, 59 (6/17/10), citing Wood v. Beatrice Foods Co., 813 P.2d 821 (Colo.App. 1991); Neodata Services v. Industrial Claim Appeals Office, 805 P.2d 1180 (Colo.App. 1991); Continental Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982).   

Career Service Rules do not provide a hearing officer with the power to stay operation of a disciplinary suspension before a hearing on an appeal, and such relief is inconsistent with the clear intent of the rules.  In re James, CSA 33-10 (Order 5/18/10), citing §§ 19-66 B, 19-42 C. 

If Career Service Board intended to authorize the hearing office to grant temporary relief similar to an injunction or temporary restraining order in state civil courts, it would have specifically included a rule setting forth the procedures and grounds for ruling on the issue.  In re James, CSA 33-10 (Order 5/18/10), citing §§ 19-66 B, 19-42 C; CRCP Rule 65

An agency is prohibited from disciplining an employee twice based on the same conduct by virtue of the city charter’s requirement that discipline may only be imposed for good cause.  In re D’Ambrosio, CSA 98-09, 7 (5/7/10); citing In re Roberts, CSA 179-04, 7 (6/29/05).  

Where there is already a rule prohibiting careless performance of work, a separate rule against failure to do assigned work will not be read to bar the same conduct.  In re D’Ambrosio, CSA 98-09, 7 (5/7/10).      

Since each provision of the Career Service Rules is presumed to have a purpose and use, the board's reenactment of two separate rules is presumed to target separate performance issues.  In re D’Ambrosio, CSA 98-09, 7 (5/7/10). 

Words grouped in a list should be given related meaning to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words. In re D’Ambrosio, CSA 98-09, 7 (5/7/10), citing S.D. Warren Co. v. Maine Bd. of Envir. Prot., 547 US 370, 378 (2006); Gustafson v. Alloyd Co., Inc., 513 US 561, 575 (1995).        

If an agency regulation addresses the same subject matter as CSR § 16-61, both must comply with the procedural safeguards of § 16-61.  In re Chavez, CSA 129-08, 4 (2/2/2010). 

Prohibition of appeals of any "other" aspect of the PEP, at § 13-50 C, must be read in conjunction with the immediately preceding rule prohibiting grievance appeals of all ratings save "needs improvement."   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 2(5/20/09). 

Appellant's interpretation of her PEPR end date as December 31 instead of January 1 of each year was not persuasive, where only one such end date appeared in her five PEPR years; and, since no other rule change or other explanation satisfactorily explained the discrepancy, the most logical conclusion was the exception was clerical error.  In re Vasquez and Lewis, CSA ## 08-09, 09-09, 3-4 (5/20/09). 

Agency supervisor interpretation of CSR, while appropriate for internal purposes, is not binding on the CSB, which delegated its de novo review authority to hearing officers.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 4 (5/20/09). 

Career service director's interpretation of CSR, while appropriate for internal purposes, is not binding on the CSB, which delegated its de novo review authority to hearing officers.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 4 (5/20/09). 

A lack of precision and a lack of definition within a rule do not render it invalid if it is susceptible to a fair interpretation consistent with the other career service rules.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 5(5/20/09). 

Agency interpretation of City Council Bill 44 (2009) to include appellants' 2008 PEPRs limitation to one-step increase was persuasive where such interpretation was not arbitrary, capricious or contrary to rule or law.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 5(5/20/09).

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