A procedural rule can be applied retroactively to cases pending at the time of the adoption of the rule. In re Keller, CSB 47-14A, 3 (6/20/19), citing People in the Interest of R.F.A., 744 P.2d 1202, 1204 (Colo.App. 1987); Brownson-Rausin v. Industrial Claims Appeals Office, 131 P.3d 1172, 1178 (Colo.App. 2006).
The Hearing Officer’s retroactive application of CSR 20 in this case is not error, although the Hearing Officer applied it prospectively in other cases where the parties did not raise its retroactive application. In re Keller, CSB 47-14A, 4 (6/20/19).
That the CSB has not previously addressed the retroactive application of CSR 20 does not indicate its intent for CSR to be applied prospectively. In re Keller, CSB 47-14A, 4 (6/20/19).
The agency did not waive its right to the retroactive application of CSR 20 in this case when it did not insist on its retroactive application in other cases. In re Keller, CSB 47-14A, 4 (6/20/19).
The agency and the appellant cannot waive the retroactive application of CSR 20, since it is not a known right or privilege possessed by the agency or appellant, and waiver is the intentional relinquishment of a known right or privilege. In re Keller, CSB 47-14A, 4 (6/20/19), citing Dept. of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1994).
Parties to a hearing can only request a Hearing Officer to apply or not apply a CSR, or apply or interpret a CSR in a particular way, since the CSRs are not a right or privilege possessed by the parties. In re Keller, CSB 47-14A, 4 (6/20/19).
The determination of whether or how a CSR should be applied at a hearing is, in the first instance, a decision solely within the province of the Hearing Officer. In re Keller, CSB 47-14A, 5 (6/20/19).
The agency moved timely for the retroactive application of CSR 20 since it filed its motion within the time limitations for filing of motions set by the Hearing Officer. In re Keller, CSB 47-14A, 5 (6/20/19).
The agency and the appellant cannot forfeit the retroactive application of CSR 20 since it is not a right they possess, and forfeiture is the failure to make the timely assertion of a right. In re Keller, CSB 47-14A, 5 (6/20/19), citing Johnson v. Zerbst, 304 U.S. 458 (1938).
Hearing Officers are not authorized to sit as a court of equity, and therefore cannot grant relief based on the doctrine of laches. In re Keller, CSB 47-14A, 5 (6/20/19).
The agency’s timely motion for the retroactive application of CSR 20, within the deadline set by the Hearing Officer for the filing of motions, was not an unconscionable delay by it. In re Keller, CSB 47-14A, 5 (6/20/19).
Appellant must show the agency violated his due process rights by impairing his defense against his alleged misconduct, through its delay in prosecuting its discipline of him, in order to obtain relief. In re Keller, CSA 47-14, 14 (6/14/18), citing In re Espinoza, CSB 14-16A, 2 (3/8/17).
Alleged violation first raised by agency at hearing will be dismissed since pre-hearing notice of each violation, and the basis for it, is required in order to provide the accused employee an opportunity to prepare a defense to it. In re Rocha, CSA 19-16, 3 (9/14/16), citing In re Mounjim, CSB 87-07A, 8 (1/8/09).
A claimed neglect of a duty under a separate rule violation may not serve to double each such separate violation. In re Rocha, CSA 19-16, 3 (9/14/16), citing In re Wright, CSA 40-14, 7 (11/17/14).
The City did not violate Appellant’s due process rights by requiring him to bear the burden of proof at the post-termination hearing. In re DeMello, CSB 12-18A, 4 (4/17/19) citing Benavidez v. City of Albuquerque, 101 F.3d 620, 627-8 (10th Cir. 1996).
Appellant waived his spoliation argument because he did not raise it before the hearing officer. In re DeMello, CSB 12-18A, 5 (4/17/19).
Appellant waived his claim that the agency’s Civilian Review Administrator lacked authority to discipline him as he did not address it before the hearing officer. In re DeMello and Fazio, CSA 12-18 & 14-18, 6 (6/7/18).
Due Process is not denied in denying jurisdiction over the amount of accrued vacation and compensatory time due to former employee, as Hearing Office is not a court of general jurisdiction, hearing only such actions as defined by the rules under which it operates. In re Lovin, CSA 27-06 (Order 5/18/06).
No prejudice to appellant when the Executive Director of Safety, who is the aunt of an arrestee at the core of the case, did not send the case to an outside investigator. There was no indication the decision maker was aware of appellant’s complaint and decision maker credibly denied EDOS played any role in the discipline. In re Wilson, CSA 38-17, 13 (12/8/17).
Agency’s failure to follow its internal guidelines in investigating its employee did not implicate constitutional due process concerns. In re Wilson, CSA 38-17, 13 (12/8/17), citing In re Gale, CSB 02-15, 6 (7/21/16).
CSB finding that sixteen months between incident and assessment of discipline did not justify mitigation, was not abuse of discretion, where appellant failed to provide credible basis to depart from general rule that timeliness of investigation should not be considered as mitigation or aggravation. Sixteen months between incident and assessment of discipline did not result in demonstrable prejudice to appellant where she was reassigned but failed to demonstrate basis for prejudice. In re Leyba, DDC 31-16 8-9 (11/15/17).
Using appellant’s statements at pre-disciplinary meeting against her in assessing discipline did not violate her right to contest the charges brought against her. In re Leyba, CSB 25-16, 2 (8/3/17).
An appellant’s rights in the appeal process include an appeal to a hearing officer; discovery; the right to testify; the right to have witnesses testify; introduction of documentary evidence; cross-examination; and the right to appeal to the Career Service Board. In re Leyba, CSB 25-16, 2 (8/3/17).
Due process requires dismissal of charge where agency alleged at hearing that deputy failed to treat an inmate with dignity and respect, but failed to provide notice of that allegation in any charging document. In re Rocha, CSB 19-16, 5 (7/6/17).
Charging documents must explain the charges and the evidence supporting them. In re Rocha, CSB 19-16, 5 (7/6/17).
Appellant’s due process rights violated, requiring dismissal of charge, where there was no way for her to know before hearing that she needed to prepare a defense to an allegation made only during hearing. In re Rocha, CSB 19-16, 5 (7/6/17).
Dismissal of charge required for violation of deputy’s due process rights, when agency failed to provide notice, before hearing, that she needed to prepare to defend against allegation that she violated the dignity and respect of an inmate. In re Rocha, CSB 19-16, 5 (7/6/17).
Dismissal of charge of neglect of duty or careless performance of duty required, even though agency’s guiding principles require inmates to be treated with dignity and respect, and deputies are charged with knowledge thereof, where charging documents fail to state, with any specificity, how the agency believed the employee did not do her job or performed it carelessly. In re Rocha, CSB 19-16, 6 (7/6/17).
Agency may not require employee to engage in guesswork as to the basis for charges against her. In re Rocha, CSB 19-16, 6 (7/6/17).
The failure to provide even a modicum of specifics is fatal to the viability of a charge. In re Rocha, CSB 19-16, 6 (7/6/17).
Due process issues arose when agency removed allegation of lack of candor after employee’s pre-disciplinary meeting, yet claimed at hearing her lack of candor was basis to aggravated the penalty. Such action punishes employee for misconduct that fails to provide meaningful opportunity to defend against the allegation. In re Rocha, CSB 19-16, 7 (7/6/17).
Even if appointing authority did not strictly adhere to its own internal rules or guidelines, discipline will be upheld as long as the lack of strict adherence does not deprive employee of right to a falr hearing or one in compliance with applicable law. In re Leyba, CSB 31-16, 4 (3/2/17).
Since hearing officer is free to accept or reject opinion testimony, even if decision-maker’s analysis was false and unproven, that would not constitute violation of due process requiring overturning hearing officer’s decision. In re Lovingier, CSB 48-13, 4 (11/7/14).
Agency's failure to include in the pre-disciplinary letter the decision-maker's testimony about specific training did not deny deputy's due process rights. In re Kemp, CSB 19-13, 4 (7/28/14).
Agency gave sufficient explanation of the facts and circumstances supporting its use of force discipline, and manager of safety's testimony regarding one aspect of agency's training not included in disciplinary letter did not deny deputy's due process rights. In re Kemp, CSB 19-13, 4 (7/28/14).
Appellant’s failure to attend her pre-disciplinary meeting is not job abandonment under CSR 14-50 C. In re Robinson, CSA 03-13, 10-11 (6/18/13).
A party has been afforded constitutionally adequate pre-deprivation due process when the pre-disciplinary meeting includes oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to present his side of the story. In re Redacted CSB 67-11 (4/4/13), citing Cleveland BOE v. Loudermill, 470 U.S. 532 (1985); Riggins v. Goodman, 572 F.3d 1101 (10th Cir. 2009).
Decision-maker's consideration of matters not contained in the disciplinary letters did not result in a substantial violation of appellant's rights where hearing officer did not consider that evidence at the post-deprivation hearing. In re Redacted, CSB 67-11 (4/4/13).
Admission of evidence of matters not contained in disciplinary letters did not violate due process where hearing officer considered that evidence as background and not on the substantive issues on appeal. In re Redacted, CSB 67-11 (4/4/13).
Board is authorized to reverse an agency's discipline based on rule violations resulting in a substantial violation of an employee's rights. In re Redacted, CSB 67-11 (4/4/13).
Mere evidentiary rulings made by the hearing officer do not necessarily provide grounds for overturning the decision. In re Redacted, CSB 67-11 (4/4/13).
Admission of evidence of matters not contained in disciplinary letters did not violate due process where hearing officer did not consider that evidence in determining the issues on appeal. In re Redacted, CSB 67-11 (4/4/13).
Due process rights were not violated by decision-maker's reliance on matters not included in disciplinary letters where appellant was granted a de novo hearing and the hearing officer made an independent judgment on the discipline based only on evidence of allegations contained in the disciplinary letters. In re Redacted, CSB 67-11 (4/4/13).
Sheriff department captain had notice of his duties to conduct himself professionally, to lead by example, and to correct sexual banter among his subordinates where he acknowledged: his conduct with a co-worker was unbecoming of his duties; he failed to prevent crude banter from occurring on his watch; and his supervisor told him repeatedly to cease his crude banter and to act more in conformity with his supervisory position. In re Gutierrez, CSA 65-11, 5 (8/28/12).
No due process violation found even though a panel member at appellant’s pre-disciplinary meeting was having an affair with appellant’s principal accuser. Appellant had an opportunity to respond to the allegations against him, panel member had no voice in the discipline decision, and appellant had an independent post-deprivation hearing. In re Gutierrez, CSA 65-11, 15-16 (8/28/12).
Appellant’s claim he was deprived of due process because Deputy Manager of Safety merely rubber-stamped subordinate’s recommendation not proven where the Deputy Manager credibly denied the claim, and the Director recommended a more severe penalty than was actually assessed. In re Gutierrez, CSA 65-11, 16 (8/28/12).
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.
Reversal of appellant’s suspension not required even though agency failed to comply strictly with Career Service Rule requiring disciplinary action or request for extension within fifteen days after pre-disciplinary meeting since Appellant did not show her rights were substantially violated. In re Berlin, CSA 81-10, 1 (Order 1/19/11).
The fundamental requisites of due process are notice and the opportunity to be heard. In re Burke, CSA 60-10, 2 (Order 12/8/10), citing Jefferson v. Colorado Dept. of Social Services, 874 P.2d 408, 409 (Colo.App. 1993).
Where an administrative adjudication turns on questions of fact, due process requires the parties to be apprised of all the evidence to be considered, to be afforded a reasonable opportunity to confront and cross examine adverse witnesses, and to present evidence and argument in furtherance of their position. In re Burke, CSA 60-10, 2 (Order 12/8/10), citing Goldberg v. Kelly, 397 U.S. 254, 269 (1970); Jefferson, v. Colorado Dept. of Social Services, 874 P.2d 408, 409. (Colo. App. 1993).
An agency may not penalize an employee without first providing an opportunity for rebuttal, including cross-examination. In re Burke, 60-10, 2 (Order 12/8/10).
Where government action seriously injures an individual and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. In re Burke, CSA 60-10, 2 (Order 12/8/10), quoting Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1136 (10th Cir. 1995); citing Hannah v. Larche, 363 U.S. 420, 440 n. 16 (1960).
When appellant has notice of the documents to be produced at hearing, he had an opportunity to inspect them, the proponent of the statements in the documents is known and subject to subpoena, and appellant could have requested a continuance to procure attendance of the witness, but the appellant failed to utilize these options, the appellant cannot complain he did not have the opportunity to cross-examine the witness. In re Burke, CSA 60-10, 1-2 (Order 12/8/10), citing Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1136 (10th Cir. 1995); Jefferson v. Colorado Dept. of Social Services, 874 P.2d 408, 409 (Colo. App. 1993).
Appellants were not denied adequate notice of the multiple agency rule violations where appellants were represented by counsel, failed to raise the claim at the pre-disciplinary hearing, and agency claims were not unduly complex, voluminous or otherwise unclear. In re Sawyer & Sproul, CSA 33-08 & 34-08, 16 (1/27/09).
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, CSB 87-07, 7 (1/8/09).
Because of the right to a post-termination hearing, an employee’s pre-termination rights are limited: due process requires only notice of the charges, a recitation of the employer’s evidence, and an opportunity to be heard. In re Mounjim, CSB 87-07, 8 (1/8/09), citing Cleveland Board Education v. Loudermill, 470 U.S. 532, 546 (1985).
A voluminous recitation of facts which support each particular rule violation is not required in an agency’s pre-disciplinary letter. In re Mounjim, CSB 87-07, 7 (1/8/09).
Property interests may be created by ordinance or implied contract. In re Romero, CSA 03-08 (Order 2/6/08), citing Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976).
A public employee must have a legitimate claim of entitlement to continued public employment for a property interest to arise. Only once a property right is established will the question arise what process is due under the federal Constitution. In re Romero, CSA 03-08 (Order 2/6/08), citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-45, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).
A unilateral expectation of continued public employment is not sufficient to create a property interest in continued employment. In re Romero, CSA 03-08 (Order 2/6/08), citing Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123, 1129 (10th Cir. 2001); Board. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
Whether the CSA or the agency established rules or mutually explicit understandings which allow appellant to state a claim for deprivation of property without due process of law depends on whether the circumstances of his employment gave him a legitimate claim of entitlement. In re Romero, CSA 03-08 (Order 2/6/08), citing Adams County School Dist. No. 50 v. Dickey, 791 P.2d 688, 694 (Colo. 1990).
The sufficiency of an employee's claim of entitlement is determined by reference to state law. The hallmark of property is an individual entitlement grounded in state law, which cannot be removed except for cause. In re Romero, CSA 03-08 (Order 2/6/08), citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982).
Even if appellant was not afforded a pre-disciplinary meeting while other probationary employees were, he has no property interest in his continued employment that would entitle him to such pre-termination protection. In re Romero, CSA 03-08 (Order 2/6/08).
The only process due a probationary employee is notice sent to the employee that he is expected to fail probation and an opportunity to meet to discuss the termination of probation. In re Allen, CSA 16-06, 3 (6/6/06).
Where hearing office clearly has no jurisdiction under the Career Service Rules, argument that appellant would be denied due process if hearing office does not exercise jurisdiction over his appeal is rejected. In re Lovin, CSA 27-06, 2 (Order 5/18/06).
Hearing office is not a court of general jurisdiction, but rather an administrative forum which hears only actions defined by the rules under which it operates. In re Lovin, CSA 27-06, 2 (Order 5/18/06).
Dismissal of appeal challenging amount of accrued vacation pay was not denial of due process, as limited jurisdiction of hearing office covers only defined acts of appointing authorities. In re Lovin, CSA 27-06, 1-2 (Order 5/18/06).
Threshold issue in every due process challenge is whether appellant has been deprived of a protected interest in property or liberty. Only after determining the deprivation of a protected interest may the hearing officer assess whether agency’s procedures comported with due process. In re Vigil, CSA 110-05, 5 (3/3/06), citing In re Douglas, CSB 317-01, 3 (3/22/02); American Mfg. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).
In appeal alleging deprivation of a protected property interest by agency’s assessment of 2.5 hours leave without pay, the deprivation was de minimus and therefore not entitled to due process protections. In re Vigil, CSA 110-05, 5-6 (3/3/06), citing Gabel v. Jefferson County School District R-1, 824 P.2d 26, 28 (Colo. App. 1991).
Supervisor’s decision to discipline appellant for taking earned sick leave, even if he had believed her leave was legitimate, rendered appellant’s pre-disciplinary hearing meaningless, in violation of her right to be heard. In re Espinoza, CSA 30-05, 7 (1/11/06), affirmed on other grounds, In re Espinoza, CSB 30-05 (8/23/06).
To trigger the due process protections of U.S. Const. amend. XIV, a plaintiff must show that she possesses either a property or liberty interest in the benefits of which she claims to have been deprived. In re Martinez, CSA 69-05, 7 (1/4/06), citing Pfenninger v. Exempla, Inc., 116 F. Supp.2d 1184 (D. Colo. 2000).
Neither the Career Service Rules nor due process requires personal notice of public hearings to any person who may be affected thereby. In re Jackson, CSA 103-04, 4 (6/13/05), citing United States v. Florida East Coast R. Co., 410 U.S. 224 (1973).
Agency’s failure to deliver disciplinary letters to appellant’s last known address did not deprive appellant of an opportunity to be heard since the postal forwarding order had expired, rendering any such delivery ineffective. In re Kinfe, CSA 161-04, 4 (3/16/05), citing Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985).