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APPELLATE REVIEW GENERALLY 

In an appeal of an administrative agency action, the reviewing court may not weigh the evidence or substitute its judgment for that of the agency. In re Rocha, DDC 19-16, 2 (7/5/18).

The limited matters which a reviewing district court may properly consider on appellate review under C.R.C.P. 106 are whether the agency or governmental body: (1) exceeded its jurisdiction and/or (2) abused its discretion based on the evidence in the record which was presented to that agency. In re Rocha, DDC 19-16, 2 (7/5/18), citing C.R.C.P. 106(a)(4)(I); see also Bd. Of County Comm’rs of Routt County v. O’Dell, 920 P.2d 48, 50 (Colo. 1996).  

“[A]bsent a clear abuse of discretion” by a governmental agency, “courts should not interfere with the[ir] decision[.]” In re Rocha, DDC 19-16, 3 (7/5/18), citing Bd. Of County Comm’rs of Routt County v. O’Dell, 920 P.2d 48, 50 (Colo. 1996).

An administrative agency or governmental entity exceeds its jurisdiction or abuses its discretion only if it misapplies the law or if there is no competent evidence in the record to support its decision. In re Rocha, DDC 19-16, 2 (7/5/18), citing Bd. of County Comm’rs v. Conder, 927 P.2d 1339, 1343 (Colo. 1996).

An agency’s misinterpretation of the governing law may constitute a basis for finding an abuse of discretion under Rule 106(a)(4). In re Rocha, DDC 19-16, 2 (7/5/18), citing Whitelaw v. Denver City Council, 405 P.3d 433, 438 (Colo.App. 2017).

“No competent evidence” means that the agency’s decision is “so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority.” In re Rocha, DDC 19-16, 3 (7/5/18), citing Whitelaw v. Denver City Council, 405 P.3d 433, 437 (Colo.App. 2017).

In a C.R.C.P. 106 review, the reviewing court cannot consider if the agency’s “findings are right or wrong, substitute [its] judgment for that of the [agency], or interfere in any manner with the [agency’s] findings if there is any competent evidence to support the same.” In re Rocha, DDC 19-16, 3 (7/5/18), citing State Civil Serv. Comm’n v. Hazlett, 201 P.2d 616, 619 (Colo. 1948).

“The administrative agency, not the reviewing courts, has the task of weighing the evidence and resolving any conflicts.” In re Rocha, DDC 19-16, 3 (7/5/18), citing Bd. of Assessment Appeals of State of Colo. v. Colorado Arlberg Club, 762 P.2d 146, 151 (Colo. 1088).

“Where…the evidence is conflicting, the [agency’s factual] finding is binding on appeal, and a reviewing court may not substitute its judgment for that of the [agency].” In re Rocha, DDC 19-16, 3 (7/5/18), citing Marek v. State, Dept. of Revenue, Motor Vehicle Div., 709 P.2d 978, 979 (Colo.App. 1985).

“[A]n agency’s reasonable interpretation of its own regulations” is entitled to deference unless the interpretation “is inconsistent with the plain language of the regulation…” In re Rocha, DDC 19-16, 3 (7/5/18), citing Rags Over the Arkansas River, Inc. v. Colorado Parks & Wildlife Bd., 360 P.3d 186, 192 (Colo.App. 2015).

The CSB performed its role to weigh the evidence and concluded that Appellant who handcuffed an inmate who did not threaten anyone, violated DSD DO 5013.1E(4), which forbids the use of restraints as punishment, and the Court will not re-evaluate the evidence. In re Rocha, DDC 19-16, 6-7 (7/5/18).

The CSB properly construed DSD DO 5013.1E(4)(C)’s prohibition against restraints on inmates who pose no threat [to others], to mean the others in an inmate’s immediate vicinity, consistent with the plain language of the DO In re Rocha, DDC 19-16, 7 (7/5/18).

§ 2.6.4 of the Charter and C.R.S. § 16-70 grant the Manager of Safety [now Executive Director] the authority to appoint others to discipline deputy sheriffs and the CSB did not abuse its discretion in concluding that the Manager properly so appointed the Civilian Review Administrator in this case. In re Rocha, DDC 19-16, 8 (7/5/18).

Two-year delay between the incident and punishment for a minor event justified mitigated penalty where Agency claimed deputy failed to take responsibility but hearing officer and CSB found part of the reason was the delay. In re Leyba, DDC 59-14, 9 (8/21/17).

CSB did not abuse its discretion in determining a mitigated penalty was warranted where its findings were adequately supported by the record, including: Leyba’s performance evaluations, recommendations, and commendations; she had one prior written reprimand 4 years earlier; the current incident was minor; and the Agency originally believed only a written reprimand was warranted. In re Leyba, DDC 59-14, 9 (8/21/17).

Hearing officer and CSB did not abuse discretion in applying CSR 16-41 [then CSR 16-20] where hearing officer found Agency failed to weigh and document mitigation adequately, necessitating a reduction in penalty; and hearing officer and CSB considered totality of circumstances, including the severity of the offense and Leyba’s past record, with the goal of imposing a disciplinary penalty that would correct the situation. In re Leyba, DDC 59-14, 9 (8/21/17).

Hearing Officer and CSB did not abuse discretion in mitigating penalty where 2-year delay between the minor incident and Agency’s assessment of discipline was partly the cause of deputy’s failure to take responsibility. In re Leyba, DDC 59-14, 9 (8/21/17).

A governmental body abuses its discretion when its decision is not supported by any competent evidence in the record or if the agency misconstrued or misapplied applicable law.In re Leyba, DDC 25-16, 3 (4/4/18) citing Giuliani v. Jefferson County Bd. Of County Com’rs, 303 P.3d 131 (Colo.App. 2012).

Agency decisions are given substantial deference because such decisions are left to the discretion of the agency rendering the decision. In re Leyba, DDC 25-16, 3 (4/4/18), citing Nixon v. City and County of Denver, 343 P.3d 1051, 1056 (Colo.App. 2014).

Administrative decisions cannot be found as arbitrary or an abuse of discretion when the reasonableness of the agency’s action is open to fair difference of opinion, or when there is room for more than one opinion. In re Leyba, DDC 25-16, 3 (4/4/18), citing Bennett v. Price, 446 P.2d 419, 420-1 (Colo. 1968).

CSB affirmance of agency discipline of appellant and decision to not apportion discipline between appellant and others, for appellant who left an inmate stranded in the elevator when she ended her shift, was supported by the record and was neither arbitrary or capricious. In re Leyba, DDC 25-16, 4-5 (4/4/18).

CSB determination, that appellant’s misconduct constituted a Conduct Category D violation was reasonable and based on adequate evidence violation under the Discipline Handbook Matrix where appellant left an inmate stranded in an elevator which resulted in a search to locate the inmate. In re Leyba, DDC 25-16, 6-7

CSB did not abuse its discretion or misapply applicable in affirming 10-day suspension where evidence supported the discipline, selection of conduct category was not arbitrary and capricious, and agency’s determination of aggravating circumstances had no effect on penalty. In re Leyba, DDC 25-16, 5-7 (4/4/18).

In a C.R.C.P. 106(a)(4) review, the court is limited to determining whether a governmental agency exercising its quasi-judicial function has exceeded its jurisdiction or abused its discretion. In re Jochem, DDC 25-15, 4 (7/4/18), citing City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

The reviewing court may defer to the agency’s construction of a code, ordinance, statutory provision, or matters within the agency’s expertise. In re Jochem, DDC 25-15, 4 (7/4/18), citing City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

“[I]n the law enforcement context, ‘police department regulations are entitled to considerable deference because of the State’s substantial interest in creating and maintaining an efficient police organization.’” In re Jochem, DDC 25-15, 4 (7/4/18), citing Khelik v. City and County of Denver, 411 P.3d 1020, 1023 (Colo.App 2016).

 A reviewing court is not bound by the agency’s interpretation of applicable law because the law is reviewed de novo. In re Jochem, DDC 25-15, 4 (7/4/18), citing City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

A reviewing court may reverse an agency decision only when there is no competent evidence to support the decision or when the agency has exceeded its jurisdiction. In re Jochem, DDC 25-15, 4 (7/4/18), citing City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

An agency abuses its discretion if its decision is not reasonably supported by any competent evidence in the record, or if the agency has misconstrued or misapplied applicable law. In re Jochem, DDC 25-15, 4 (7/4/18), citing Freedom Colorado Info., Inc., v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892, 899-900 (Colo. 2008).

A motion to dismiss for lack of subject matter jurisdiction is governed by C.R.C.P. 12(b)(1). In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19).

Under the Colorado constitution, district courts have general subject matter jurisdiction in civil cases with the power to consider questions of law and of equity. In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19), citing SR Condos., LLC v. K. C. Constr., Inc., 176 P.3d. 866, 869 (Colo.App. 2007).

Subject matter jurisdiction concerns the court’s authority to deal with the class of cases in which it renders judgment, not its authority to enter a particular judgment in that class. In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19), citing SR Condos., LLC v. K. C. Constr., Inc., 176 P.3d. 866, 869 (Colo.App. 2007).

In determining whether subject matter jurisdiction exists, a court must consider the facts alleged and the relief requested. In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19), citing SR Condos., LLC v. K. C. Constr., Inc., 176 P.3d. 866, 869 (Colo.App. 2007).

In considering a Rule 12(b)(1) motion, a trial court is authorized to make appropriate factual findings relating to its subject matter jurisdiction and need not treat the facts alleged in the complaint as true. In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19), citing Medina v. State, 35 P.3d. 443, 452 (Colo. 2001).

Where the parties have presented all relevant evidence to the court and the underlying facts relating to jurisdiction are undisputed, the trial court may decide the issue as a matter of law. In re Hernandez and Garegnani, DDC 25 & 26-17, 2-3 (6/5/19), citing Medina v. State, 35 P.3d. 443, 452 (Colo. 2001).

If jurisdictional facts are in dispute, the trial court may hold an evidentiary hearing to resolve any dispute upon which the existence of subject matter jurisdiction depends. In re Hernandez and Garegnani, DDC 25 & 26-17, 3 (6/5/19), citing Trinity Broad. of Denver v. City of Westminster, 848 P.2d. 916, 925 (Colo. 1993).

Colorado courts will not interfere with administrative proceedings until the agency reaches a decision constituting a point of administrative finality. In re Hernandez and Garegnani, DDC 25 & 26-17, 4 (6/5/19), citing Colo. Health Facilities Review Council v. District Court in and for the City & County of Denver, 689 P.2d. 617, 621 (Colo. 1984).

Without a final administrative decision, the court lacks subject matter jurisdiction. For a decision to be final, there must be nothing further for the agency to decide. In re Hernandez and Garegnani, DDC 25 & 26-17, 4 (6/5/19), citing Cadnetix Corp. v. City of Boulder, 807 P.2d. 1253, 1254 (Colo.App. 1991).

An appeal has not reached a point of administrative finality where the CSB has remanded the case to the Hearing Officer for determination of a penalty. In re Hernandez and Garegnani, DDC 25 & 26-17, 4 (6/5/19), citing Cadnetix Corp. v. City of Boulder, 807 P.2d. 1253, 1254 (Colo.App. 1991).

A party may seek judicial review under C.R.C.P. 106(a)(4) if there is no plain, speedy, and adequate remedy otherwise available but only after a final administrative decision is made. In re Hernandez and Garegnani, DDC 25 & 26-17, 5 (6/5/19), citing Buck v. Park, 839 P.2d 498, 409 (Colo.App. 1992).

Abuse of discretion is the legal standard applied once a case is already ripe for judicial review, providing a court with the requisite subject matter jurisdiction. In re Hernandez and Garegnani, DDC 25 & 26-17, 5 (6/5/19), citing Aurora v. Hood, 570 P.2d 246, 247 (Colo. 1977).

APPELLATE REVIEW OF CAREER SERVICE RULES AND DEPARTMENTAL ORDERS

An agency abuses its discretion if its decision is not reasonably supported by any competent evidence in the record, or if the agency has misconstrued or misapplied applicable law. In re Leyba, DDC 59-14, 4 (8/21/17), citing Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t., 196 P.3d 892, 899-900 (Colo. 2008).

Agency proceedings are to be given “a presumption of validity and all reasonable doubts as to correctness of administrative rulings must be resolved in favor of the agency.” In re Leyba, DDC 59-14, 4 (8/21/17), citing Van Sickle v. Boyes, 797 P.2d 1267, 1272 (Colo. 1990).

If there is a reasonable basis for the agency’s application of the law, the decision may not be set aside on review. In re Leyba, DDC 59-14, 4 (8/21/17), citing Platte River Envtl. Org. v. Nat’l Hog Farms, Inc., 804 P.2d 290, 292 (Colo.App. 1990).

A reviewing court will give “deference to the interpretation provided by the officer or agency charged with the administration of the code or statute unless that interpretation is inconsistent with the legislative intent manifested in the text of the statute or code.” In re Leyba, DDC 59-14, 4 (8/21/17), citing Waste Mgmt. of Colo. Inc. v. City of Commerce City, 250 P.3d 722, 725 (Colo.App. 2010).

“[T]he agency’s interpretation of the rule should be given great weight unless plainly erroneous or inconsistent with the rule.” In re Leyba, DDC 59-14, 4 (8/21/17), citing Bryant v. Career Serv. Auth., 765 P.2d 1037, 1038 (Colo.App. 1988).

“In the law enforcement context, ‘police department regulations are entitled to considerable deference because of the State’s substantial interest in creating and maintaining an efficient police organization.’” In re Leyba, DDC 59-14, 4 (8/21/17), citing Puzick v. City of Colorado Springs, 680 P.2d 1283, 1286 (Colo.App. 1983).

[A] reviewing court is not bound by an agency’s construction because review of the law is de novo. In re Leyba, DDC 59-14, 4 (8/21/17), citing City of Commerce City v. Enclave W., Inc., 185 P.3d 174, 178 (Colo. 2008).

CSB correctly construed DSD Rule 200.15.3 as requiring that Appellant violate both portions of the Rule, which are joined by the conjunction “and,” to commit insubordination. In re Leyba, DDC 59-14, 5 (8/21/17).

In reviewing the CSB construction of the DSD Rule, the basic rules of statutory interpretation apply, and the language must be given its ordinary and common sense meaning, In re Leyba, DDC 59-14, 5-6 (8/21/17), citing Khelik v. City & Cnty. of Denver, 411 P.3d 1020, 1023 (Colo.App. 2016).

“When construing an ordinance in the C.R.C.P. 106(a)(4) context, ‘we give effect to every word and, if possible, harmonize potentially conflicting provisions.’” In re Leyba, DDC 59-14, 6 (8/21/17), citing Khelik v. City & Cnty. of Denver, 411 P.3d 1020, 1023 (Colo.App. 2016) (quoting Enclave W., Inc., 185 P.3d at 178).

Interpretations should be avoided which would render language superfluous or redundant, or which would lead to an absurd result. In re Leyba, DDC 59-14, 6 (8/21/17), citing Leaffer v. Zarlengo, 44 P.3d 1072, 1078-9 (Colo. 2002).

Court’s ability to review the CSB determination of mitigation for abuse of discretion does not include reweighing the mitigating factors by reconsidering the evidence and considering evidence outside the record. In re Leyba, DDC 59-14, 7 (8/21/17).

CSB and the Hearing Officer properly considered the agency’s two-year delay in disciplining appellant, for her brief and minor misconduct, and its impact on appellant’s recollection of the incident, about which she lacked credibility. In re Leyba, DDC 59-14, 9 (8/21/17).

An agency’s decision is not arbitrary or an abuse of discretion when the reasonableness of the agency’s action is open to a difference of opinion. In re Jochem, DDC 25-15, 4 (7/4/18), citing Khelik v. City and County of Denver, 411 P.3d 1020, 1023 (Colo.App. 2016).

CSB properly construed RR 400.12, which prohibits the provision of unauthorized items to inmates without the express permission from a supervisor, to require deliberate and explicit permission for such provision. In re Jochem, DDC 25-15, 5 (7/4/18).

CSB properly construed DO 7710.00 § 6, which requires employees to keep tobacco products and paraphernalia away from inmates, to prohibit a deputy from giving, as well as instructing a subordinate to give, an inmate a cigarette. In re Jochem, DDC 25-15, 6 (7/4/18).

CSB reinstated Appellant’s penalty but failed to make the factual findings therefor, as required by CSR 19-70 [now CSR 19-58], thus C.R.C.P. 106(a)(4)(IX) required a remand of the case for additional findings regarding Appellant’s penalty determination. In re Jochem, DDC 25-15, 8 (7/4/18).

CSB properly found that deputy who gave inmate a cigarette without express permission violated RR 400.12, which prohibits the provision of unauthorized items to inmates without the express permission from a supervisor. In re Jochem, DDC 25-15, 5 (7/4/18).

CSB properly construed RR 400.12, which prohibits the provision of unauthorized items to inmates without the express permission from a supervisor, to require deliberate and explicit permission for such provision. In re Jochem, DDC 25-15, 5 (7/4/18).

CSB properly found that deputy who responded to subordinates questioning his conduct with “rank has its privileges,” and who instructed a subordinate to give an inmate a cigarette in violation of DSD rules, violated RR 1100.8, Failure to Supervise. In re Jochem, DDC 25-15, 7 (7/4/18).

CSB properly construed DO 7710.00 § 6, which requires employees to keep tobacco products and paraphernalia away from inmates, to prohibit a deputy from giving, as well as instructing a subordinate to give, an inmate a cigarette. In re Jochem, DDC 25-15, 6 (7/4/18).

CSB properly found that deputy who gave, and instructed a subordinate to give, an inmate a cigarette violated DO 7710.00 § 6, which requires employees to keep tobacco products and paraphernalia away from inmates. In re Jochem, DDC 25-15, 6 (7/4/18)..

§ 2.6.4 of the Charter and C.R.S. § 16-70 grant the Manager of Safety [now Executive Director] the authority to appoint others to discipline deputy sheriffs and the CSB did not abuse its discretion in concluding that the Manager properly so appointed the Civilian Review Administrator in this case. In re Rocha, DDC 19-16, 8 (7/5/18).

§ 2.6.4 of the Charter and CSR 16-70 grant the Manager of Safety [now Executive Director] the authority to appoint others to discipline deputy sheriffs and the CSB did not abuse its discretion in concluding that the Manager properly so appointed the Civilian Review Administrator in this case. In re Rocha, DDC 19-16, 8 (7/5/18).

The CSB performed its role to weigh the evidence and concluded that Appellant who handcuffed an inmate who did not threaten anyone, violated DSD DO 5013.1E(4), which forbids the use of restraints as punishment, and the Court will not re-evaluate the evidence. In re Rocha, DDC 19-16, 6-7 (7/5/18).

The CSB properly construed DSD DO 5013.1E(4)(C)’s prohibition against restraints on inmates who pose no threat [to others], to mean the others in an inmate’s immediate vicinity, consistent with the plain language of the DO In re Rocha, DDC 19-16, 7 (7/5/18).