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RULE 20: DISCIPLINARY APPEALS TO THE CAREER SERVICE HEARING OFFICE FILED BY DEPUTY SHERIFFS

This rule requires that appeals to the Career Service Hearing Office, other than of whistleblowing claims, must be filed within fifteen days [now 14] after the date of notice of the action being appealed. In re Webster, CSA 78-10 (Order 12/7/10). 

Hearing officer’s authority to award back pay derives from § 19-55 which requires a decision affirming, modifying, or reversing the agency action challenged by appeal. In re Maes, CSA 180-03, 5 (6/20/08).

Authority to modify or reverse agency termination decision necessarily includes authority to award reinstatement, restoration of lost pay at the rate applicable  to the new position, and payment of any lost benefits. In re Maes, CSA 180-03, 6 (6/20/08).

Hearing officer lacks jurisdiction to award damages for breach of contract, including consequential damages arising from any lost opportunities for secondary employment. In re Maes, CSA 180-03, 6 (6/20/08).

A transfer is not directly appealable to the hearings office under 19-10A.1.(a)-(e). In re Gallo, CSB 63-09, 2-3 (3/17/11).

Supervisor’s order to attend training was not disciplinary, thus not appealable as discipline. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former CSR 16-10, 16-20, 16-40 and 19-10 f).

Since an order for remedial training is not disciplinary, grievance of that order is not appealable. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former CSR 16-10, 16-20 and 16-40).

Notes in a logbook which may or may not be used for a future evaluation are neither disciplinary nor otherwise appealable. In re Johnson, CSA 135-05, 3 (Order 3/10/06).

Appeals to the Career Service Hearing Office, other than for whistleblower claims, must be filed within fifteen days after the date of notice of the action being appealed. In re Webster, CSA 78-10 (Order 12/7/10).

While an attorney’s neglect impacts post-judgment remedies, such as C.R.C.P. 60 (b), exceptions to jurisdictional filing deadlines are limited to exceptional circumstances, such as an agency misleading an appellant concerning his filing deadline. In re Webster, CSA 78-10 (Order 12/7/10).

In the absence of extraordinary circumstances, appellant attorney’s failure to file appeal timely requires its dismissal. In re Webster, CSA 78-10 (Order 12/7/10).

Sanctions against appellant’s attorney for failure to file client’s appeal timely are not within the jurisdiction of the Hearings Office. In re Webster, CSA 78-10 (Order 12/7/10).

When appellant filed his appeal after the fifteen-day filing deadline, the merits of the appeal may not be considered. In re Sundrup, CSA 112-09 (Order 1/13/10), citing In re Delgado, CSA 182-04 (Order 3/9/05); Widener v. District Court, 615 P.2d 33 (Colo. 1980). 

All discipline during past thirty six months involving three agency regulations cited in present case not relevant where appellant argued CSB reduced penalty in other cases where similar violations resulted in varying levels of discipline, but those decisions lacked deceptive conduct or intent to punish, and they were based on comparison of highly similar scenarios after full hearing on their merits. In re Roybal, CSA 44-16 (Order 8/3/16).

Appellant who raised discrimination claim was required to show how all relevant employment circumstances, including work history, made him similarly situated to comparable employees. In re Roybal, CSA 44-16 (Order 8/3/16).

Granting discovery for cases with non-similarly situated employees creates a danger of re-litigating discipline in past cases claimed to be similar to present case. In re Roybal, CSA 44-16 (Order 8/3/16).

Discipline of other employees is not relevant unless the circumstances are alike in all important respects. In re Roybal, CSA 44-16 (Order 8/3/16), citing In re Napoli, CSB 74-10, 3 (8/18/11); In re Simpleman, CSB 31-06, 2-3 (8/2/07).

Party who seeks leave to file a pleading late due to “unseen circumstances” without more, states insufficient cause. In re Romero CSA 03-08 (Order 2/6/08).

Before filing a motion for discovery with the hearing office, the parties should first engage in informal discovery. In re Romero, CSA 01-12 (Order 2/8/12).

A discovery request should request information which is narrowly tailored to elicit admissible evidence. In re Romero, CSA 01-12, 2 (Order 2/8/12).

Appellant’s request to have agency identify language in the CSRs is improper since they are available to the public for review on the City’s website. In re Martinez, CSA 85-10, 1 (Order 1/5/11).

Appellant’s discovery request was denied where it contained compound assumptions, rendering it unduly vague. In re Martinez, CSA 85-10, 2 (Order 1/5/11).    

Where Appellant claimed her agency should have notified her that she qualified for FMLA leave, her discovery request legitimately asked what training the agency provides supervisors regarding health conditions that qualify for FMLA leave. In re Martinez, CSA 85-10, 2 (Order 1/5/11).

Appellant’s discovery request for more than five interrogatories was denied, where the CSRs presumptively limit interrogatories to five, and she failed to provide good cause to enlarge that number. In re Martinez, CSA 85-10, 2-3 (Order 1/5/11). 

Where appellant challenged discipline for her use of sick leave when she was legitimately ill, her request for the production of documents validly asked for memoranda, notes, policies, and correspondence that provided notice that an employee who has exhausted sick time may not substitute vacation/compensatory time for sick time. In re Martinez, CSA 85-10, 3 (Order 1/5/11).   

An appellant is not foreclosed from requesting discovery of other discipline in the absence of a discrimination claim in the appeal. In re Koehler, CSA 113-09, 2 (Order 1/27/10).

Discipline of other employees charged with the same violations and details of comparable discipline are discoverable on the issue of whether the penalty was unfair under the CSRs. In re Koehler, CSA 113-09, 2 (Order 1/27/10), citing In re Stone, CSA 70-07 (Order 11/20/07); In re Diaz, CSB 72-06 (9/20/07).

An appellant may challenge the level of discipline based on its dissimilarity to penalties imposed on other employees for similar violations. In re Koehler, CSA 113-09, 2 (Order 1/27/10).

Discovery of disciplinary records of non-party co-workers is limited to discipline that is similar to the circumstances presented in this discipline: that the same supervisor, using the same standards of conduct, took substantially different action. In re Koehler, CSA 113-09, 2-3 (Order 1/27/10), citing St. Croix v. University of Colorado Health Sciences Center, 166 P.3d 230, 237 (Colo.App. 2007); In re Stone, CSA 70-07 (Order 11/20/07).

Discovery of disciplinary records of non-party co-workers must not be remote in time from the incident in question. In re Koehler, CSA 113-09, 3 (Order 1/27/10).

Requests for similar discipline during last two years was reasonable where the departmental regulation being enforced was enacted two years earlier. In re Koehler, CSA 113-09, 3 (Order 1/27/10).

A non-decision maker’s statement regarding the usual penalty for lying may not be obtained by discovery request. In re Koehler, CSA 113-09, 3 (Order 1/27/10), citing In re Weeks, CSA 26-09 (Order 5/13/09).

Sheriff’s department training materials and information about the handling of HIV-positive inmates are discoverable if they pertain to appellant-deputy’s theory of the case and the agency’s notice of its own policies. In re Koehler, CSA 113-09, 3 (Order 1/27/10), citing CRCP 26(b); Kerwin v. District Court, 649 P.2d 1086, 1088 (Colo. 1982). 

Appellant’s request for narrative statement of reasons for discipline and for all documents that played any part in the investigation is discoverable, if not already produced. In re Koehler, CSA 113-09, 3 (Order 1/27/10). 

The physician-patient privilege protects information acquired while attending to a patient which is necessary to enable a physician to treat the patient. In re Cullen, CSA 127-08, 2 (Order 1/7/09), citing CRS 13-90-107(d). 

The physician-patient privilege may be waived when a party raises an affirmative defense of his physical condition. In re Cullen, CSA 127-08, 2 (Order 1/7/09). 

The physician-patient privilege does not protect an employee’s medical records from discovery where he made his absence due to an alleged illness an affirmative defense to the agency’s charge that he was dishonest and violated his Stipulation and Agreement to refrain from alcohol. In re Cullen, CSA 127-08, 2 (Order 1/7/09). 

Records of programs attended by Appellant as a part of his Stipulation and Agreement to refrain from alcohol are relevant to the issue of whether Appellant violated its terms. In re Cullen, CSA 127-08, 2 (Order 1/7/09). 

Police records of appellant’s domestic incident, and his transport by the police to a detoxification facility that night, are discoverable regarding whether he was intoxicated, where compliance with his Stipulation and Agreement to refrain from alcohol is at issue. In re Cullen, CSA 127-08, 3 (Order 1/7/09). 

Credit card and bank records to prove appellant purchased alcohol on days not covered by this discipline are not sufficiently probative to justify subpoena duces tecum. In re Cullen, CSA 127-08, 3 (Order 1/7/09). 

Where appellant disputed agency claim that he was intoxicated, he waived physician-patient privilege as to his stay at a detoxification center the day he failed to report to work, . In re Cullen, CSA 127-08, 3 (Order 1/7/09). 

The CSRs disfavor extensive discovery. In re Rogers, CSA 25-08 (5/13/08).

Subpoenas for the production for documents which are relevant to an appeal may be issued to non-parties, including non-party City agencies, upon the motion of either party and supported by good cause. In re Gale, CSA 02-15 (Order 4/14/15), citing CSR 19-45(B).

Subpoenas to produce to non-parties Office of the Independent Monitor and Denver Police Department may be issued if the request is relevant and good cause is shown. In re Gale, CSA 02-15 (Order 4/14/15).

Good cause and relevance are not established to issue subpoena duces tecum to the OIM, where the only reference to the OIM in appellant’s request was that the DSD Chief informed the OIM of the arrest underlying this appeal. In re Gale, CSA 02-15 (Order 4/14/15).

Relevance and good cause established for subpoena duces tecum where DPD was assigned to investigate alleged preferential treatment in the DSD, and a DPD sergeant in the investigation unit is the spouse of a DSD witness. In re Gale, CSA 02-15 (Order 4/14/15).

Hearing officers do not cede their authority to weigh evidence to an expert witness, since this rule gives hearing officers the authority to conduct the hearing in a fair, efficient and speedy presentation of the appeal. In re Lovingier, CSB 48-13, 3 (11/7/14).

Settlement agreement reducing Appellant’s sixty-day suspension to forty-five days contemplated that Agency would reimburse Appellant the amount equivalent to fifteen days of pay, with each day calculated as an eight-hour shift, where she already served the sixty-day suspension using this calculation, not her customary 10.32-hour shift. In re James, CSA 33-10 (Order 1/25/11).

CSRs do not authorize a hearing officer to stay operation of a disciplinary suspension before a hearing an appeal. Such relief is inconsistent with the clear intent of the rules. In re James, CSA 33-10 (Order 5/18/10), citing CSR 21-21 (decided under former 19-66 B).

Strict compliance with the Colorado Rules of Evidence is not required in a career service hearing. In re Norman-Curry, CSB 28-07 and 50-08, 3 (9/3/09). 

Hearing officer’s citation to scientific or academic treatises not of record was harmless error in light of all the factual evidence presented on the relationship of the parties and the extensive factual and legal analysis by the hearing officer. In re Ray, CSB 57-06, 2 (5/20/08).

In disciplinary actions under CSR 20, hearing officer’s review is not de novoIn re Cole, CSA 04-18, 2 (4/6/18). 

As with CSR 19 violations, DSD employees retain the burden of persuasion to prove the degree of discipline elected by the DSD was clearly erroneous. In re Cole, 04-18, 4 (4/6/18). 

Four-day suspension not clearly excessive where deputy pressed knee to back of inmate’s ear to control him, but the technique is not taught, four officers controlled inmate’s limbs, and two others stood ready to assist in controlling inmate who was resisting take-down. In re Cole, CSA 04-18, 5 (4/6/18) [note: original decision incorrectly identified standard of review as “clearly excessive, corrected in subsequent errata order, 4/23/18].

In disciplinary actions under CSR 20, the appellant retains the burden of persuasion, throughout the hearing, to prove the DSD’s finding that he violated a CSR was clearly erroneous or that DSD’s application of its disciplinary matrix in assessing the level of discipline was clearly erroneous. In re Cole, CSA 04-18, 2 (4/6/18), citing CSR 20-56 A.

A decision that contains findings and conclusions on the appropriateness of the disciplinary penalty imposed is sufficient under the CSRs. In re Kemp, CSB 19-13, 7 (7/28/14).

CSRs do not authorize a hearing officer 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 CSR 21-21 (decided under former CSR 19-66 B).

Hearing officer’s authority to award back pay derives from § 19-55, which requires a decision affirming, modifying, or reversing the agency action challenged by an appeal. In re Maes, CSA 180-03, 5-6 (Order 6/20/08).

When an agency termination decision is modified to a demotion, all direct results of that agency action must likewise be modified. In re Maes, CSA 180-03, 6 (Order 6/20/08).

Reinstatement, restoration of lost pay at the rate applicable to the new position, and payment of benefits lost as a result of the termination, are all direct results of modification of a termination to a demotion. In re Maes, CSA 180-03, 6 (Order 6/20/08), citing Lanes v. State Auditor’s Office, 797 P.2d 764, 766-67 (Colo. App. 1990) (decided under Colorado State Personnel Rules).

Reversal of the agency action focuses only on the direct results of that action, and not on parties’ expectations of earnings from third parties. In re Maes, CSA 180-03, 6 (Order 6/20/08).

Hearing office lacks jurisdiction to award damages for breach of contract, including consequential damages arising from appellant’s expectations of opportunities for secondary employment based on his status as a deputy sheriff. In re Maes, CSA 180-03, 6 (Order 6/20/08).

Hearing officer is without jurisdiction to order agency to change policies, staffing or building conditions. In re Conway, CSA 127-05, 2 (2/13/06).