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Arbitrary and Capricious

See also 19-10 A.2.c

An administrative action is presumed to be valid absent proof that it is arbitrary and capricious. In re Bohner, CSA 13-17, 6 (6/5/17), citing In re Vasquez & Lewis, CSA 08-09 & 09-09, 4 (5/20/09); Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003); Garner v. Colo. State Dept. of Personnel, 835 P.2d 527 (Colo.App. 1992); Renteria v. Colo. State Dept. of Personnel, 811 P.2d 797 (Colo. 1991).

An action is arbitrary and capricious if the agency (1) fails to use reasonable diligence to determine facts necessary to its decision, (2) fails to give proper consideration to facts relevant to the decision, or (3) bases its action on conclusions reasonable people would not reach on the same facts. In re Bohner, CSA 13-17, 6 (6/5/17), citing In re Foley, CSA 19-06, 8 (11/10/06); Lawley v. Dept. of Higher Education, 6 P.3d 1239, 1252 (Colo. 2001). 

Appellant failed to prove his layoff was arbitrary, capricious, or that it violated the CSR or law where his closed position and the newly-created position were not substantially similar. In re Tenorio & Delgado, CSB 34-16 & 36-16, 2 (12/21/17).

In an appeal of a layoff, the employee bears the burden to prove the agency action was arbitrary, capricious, or contrary to rule or law. In re Sanders, CSA 62-09, 4 (9/24/10), citing Dept of Institutions v. Kinchen, 886 P.2d 700, 712 (Colo. 1994). 

A body reviewing agency action under the arbitrary or capricious standard 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). 

An agency 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).

A performance review may only be reversed if appellant proves it was arbitrary, capricious, and without rational basis or foundation. In re Harrison, CSA 55-07, 89-07 & 90-07, 43 (6/17/10) [NOTE: rule applying to this case was amended to allow an appeal of only an “Unacceptable” rating]; see CSR 19-20 B. 1. b. (former CSR 19-10 A.2.c).   

A layoff decision must be upheld unless it is determined to be arbitrary, capricious or contrary to rule or law. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 11 (3/11/10), citing Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003). 

An employee challenging a layoff must overcome the presumption of regularity afforded an agency in fulfilling its legal mandate with a showing that it was arbitrary, capricious, or contrary to rule or law. In re Owens-Manis & Owens-Manis & Pettway, CSA 73-09 & 75-09, 11 (3/11/10), citing Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 44 (1983); In re Vasquez & Lewis, CSA 08-09 & 09-09, 4 (5/20/09); In re Foley, 19-06, 8 (11/10/06); Brennan v. Dept. of Local Affairs, 786 P.2d 426 (Colo.App. 1989).

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 it found and its decision. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 11 (3/11/10), quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994); Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983). 

The body reviewing an agency decision must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 11 (3/11/10), citing Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

Where there are no competent evidentiary facts to support the agency’s findings of ultimate fact, its decision must be reversed as arbitrary, capricious or contrary to rule or law. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 11 (3/11/10), citing Womack v. Industrial Commission, 451 P.2d 761, 764 (Colo. 1969); Ricci v. Davis, 627 P.2d 1111, 1118 (Colo. 1981).   

An agency decision would be arbitrary and capricious if it relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 11-12 (3/11/10), quoting Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983). 

While a reviewing body may not supply a reasoned basis for an agency action that the agency has itself not provided, it will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 12 (3/11/10), citing S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947); Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 286 (1974). 

Appellants failed to prove the agency's interpretation of Denver City Council Bill 44 and calculation of merit increases pursuant to Rule 13 were arbitrary, capricious or contrary to rule or law where imprecise and confusing language of 13-34A was susceptible to a fair interpretation consistent with other CSRs through reference to earlier versions of the rule. In re Vasquez & Lewis, CSA 08-09 & 09-09, 3-5 (5/20/09) (former CSR 13-10 F).   

Appellants challenging agency's merit increase calculation must overcome presumption of validity in administrative actions with a showing that the calculation was arbitrary, capricious, or contrary to rule or law. In re Vasquez & Lewis, CSA 08-09 & 09-09, 4 (5/20/09); see Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003); Garner v. Colorado State Dept. of Personnel, 835 P.2d 527 (Colo.App. 1992); Renteria v. Colorado State Dept. of Personnel, 811 P.2d 797 (Colo. 1991).

Appellants failed to prove agency action was arbitrary or capricious by a preponderance of the evidence where agency presented compelling business efficiency reason for its action and evidence that it promoted consistency and fairness. In re Vasquez & Lewis, CSA 08-09 & 09-09, 3-5 (5/20/09).

Appellants failed to prove action was arbitrary or capricious where agency demonstrated that limiting merit increase processing to two days per month simplified pay periods and promoted a consistent and fair merit system. In re Vasquez & Lewis, CSA 08-09 & 09-09, 3-5 (5/20/09).

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 P.2d 654, 658 (Colo.App. 1999).

An agency action is arbitrary and capricious if an agency 1) fails to use reasonable diligence to determine facts necessary to its decision, 2) fails to give proper consideration to facts relevant to the decision, or 3) bases its action on conclusions that reasonable persons considering the facts would not reach. In re Foley, CSA 19-06, 8 (11/10/06), citing Lawley v. Dept. of Higher Education, 6 P.3d 1239, 1252 (Colo. 2001).

The core of the concept of arbitrary and capricious action is rationality. In re Foley, CSA 19-06, 8 (11/10/06), citing Columbia Broadcasting System v. F.C.C., 454 F.2d 1018, 1028 (D.C. Cir. 1971).

An act is arbitrary and capricious if a reasonable person, considering all the evidence, would fairly and honestly be compelled to reach a different conclusion. In re Padilla, CSA 25-06, 11 (9/13/06), citing In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 5 (1/27/05); Wildwood v. Colo. Dept. of Public Health Care, 985 P.2d 654 (Colo.App. 1999).

Express finding that PEPR rating was arbitrary, capricious and without rational basis or foundation is sole basis for its reversal,  which an error in rating calculations does not warrant. In re Padilla, CSA 25-06, 11 (9/13/06), affirmed  In re Padilla, CSB 25-06A (2/15/07).  

PEPR rating was arbitrary, capricious, and without rational basis or foundation where deficiencies noted in PEPR were not clearly related to performance standards set in the PEP, PEPR was fraught with mathematical errors and procedural problems, and convincing evidence showed that supervisor actively disliked appellant. In re Padilla, CSA 25-06, 10-12 (9/13/06).

Agency may not discipline an employee both for engaging in and, at the same time, failing to engage in the same conduct. In re Martinez, CSA 69-05, 3 (1/4/06) (decided under former CSR 16-50 A.1).

Agency neglected to use reasonable diligence to determine whether laid-off employee possessed the qualifications to perform the essential duties of the demotional appointment, gave undue weight to its own interpretation of the nature of the position, and disregarded more objective evidence, and thus exercised its discretion in an arbitrary and capricious manner. In re Romberger, CSA 89-04, 11-12 (3/2/05), citing Lawley v. Dept. of Higher Education, 6 P.3d 1239, 1252 (Colo. 2001).

 
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