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).
The Career Service disciplinary system is not a comparative discipline system. In re Hammernik & Trujillo, CSB 41-17A & 42-17A, 5 (2/7/19).
A single rule may not be interpreted in isolation from its context. In re Bohner, CSA 13-17, 6 (6/5/17), citing Util. Air Regulatory Grp. v. E.P.A., 134 S.Ct. 2427, 2441 (2014).
The career service rules do not require an agency to develop numerical performance standards, but only to provide clear expectations governed by due process, personal accountability, reasonableness and sound business practices. In re Lopez, CSA 61-16, 4 (12/1/16), citing CSR 16, Purpose Statement.
Career Service employees must be familiar with published rules and regulations governing the workplace. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).
The fact that a large number of rules and regulations were provided to appellant when he began does not relieve his obligation to know all of them and act in accordance with them years later. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).
It is a reasonable communication of workplace rules simply to hand them to an employee at the outset of his employment. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).
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 (11/15/10).
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 & 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 & Sproul, CSA 33-08 & 34-08, 17 (1/27/09); CSR 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, CSB 87-07, 7 (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 (5/6/05).
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 (5/6/05).
CONSTRUCTION OF RULES
CSR 9-56 requires a specific, fixed location, “the work site,” to which the agency can require its employees to report back. In re Osborne et al, CSA 35-18…38-18, 5 (9/5/18).
Reviewing court interprets agency personnel rules in accordance with basic tenets of statutory construction. In re Gutierrez, Colo.App. 65-11, 9 (5/19/16), citing Abromeit v. Denver Career Serv. Bd., 140 P.2d 44, 49 (Colo.App. 2005).
Reviewing court will not construe a rule to contradict its purpose. In re Gutierrez, Colo.App. 65-11, 9 (5/19/16), citing State v. Nieto, 993 P.2d 493, 501 (Colo. 2000).
A reviewing court must follow the statutory construction that best effectuates the intent of the general Assembly and the purposes of the legislative scheme. In re Gutierrez, Colo.App. 65-11, 8-9 (5/19/16), citing State v. Nieto, 993 P.2d 493, 501 (Colo. 2000).
A court may apply rules of statutory construction to determine the construction that accords with the objective of the legislation. In re Gutierrez, Colo.App. 65-11, 9 (5/19/16), citing People v. Frazier, 77 P.3d 838, 839 (Colo.App. 2003), affirmed 90 P.3d 807 (Colo. 2004).
Reviewing court interprets personnel rules to avoid absurd or illogical results. In re Gutierrez, Colo.App. 65-11, 10 (5/19/16), citing Frazier v. People, 90 P.3d 807, 811-12(Colo. 2004).
Reviewing court interprets personnel rules to produce results contradicting clear legislative intent. In re Gutierrez, Colo.App. 65-11, 10 (5/19/16), citing Frazier v. People, 90 P.3d 807, 811-12(Colo. 2004).
Rules may not be construed to sanction inappropriate conduct merely because it is widespread. In re Gutierrez, Colo.App. 65-11, 13 (5/19/16).
In interpreting rules, the plain and ordinary meaning of words should apply. In re Kemp, CSB 19-13, 5 (7/28/14).
The City Charter empowers a manager to administer an agency by issuing orders necessary and prudent to accomplish the agency’s mission. In re Macieyovski, CSA 55-13, 4 (4/1/14).
The responsibilities imposed by Charter to administer an agency necessarily bestow the powers required to execute those duties. In re Macieyovski, CSA 55-13, 5 (4/1/14).
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 (Order 3/11/11), citing CSR 19-30 A.
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, CSB 62-09, 1 (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, CSB 62-09, 2 (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 CSRs 19-10(b)(3) and 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 sixty-day suspension to forty-five days contemplated that Agency would reimburse Appellant the amount equivalent to fifteen days of pay, where she already served the sixty-day suspension, and each “day” was calculated based on an eight-hour shift, not her actual 10.32-hour shifts that she customarily works. In re James, CSA 33-10 (Order 1/25/11).
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 12/29/10).
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 12/8/10) 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 12/8/10).
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, CSB 100-09 & 107-09, 1-2 (Order 11/9/10).
Reinstatement is implicit in a hearing officer’s reversal of a layoff, even if not explicitly stated. In re Hamilton, CSB 100-09 & 107-09, 1-2 (Order 11/9/10).
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, CSB 100-09 & 107-09, 2 (Order 11/9/10).
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 & Pettway, CSB 73-09 & 75-09, 4-5 (10/21/10).
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 88-09 (9/29/10), affirming In re Jones, CSA 88-09 (5/11/10); 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 Norman-Curry, CSA 28-07 & 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 88-09 (9/29/10), affirmed In re Jones, CSA 88-09 (5/11/10).
Violations of CSR 16-60Z must be decided on a case-by-case basis. In re Jones, CSB 88-09 (9/29/10), affirmed 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 & 107-09, 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 personnel rules is relevant to the determination of whether the action was arbitrary and capricious, where it stated reasons for using nonconforming procedures were not supported by the evidence. In re Hamilton, CSA 100-09 & 107-09, 24 (9/17/10).
Proposal to expand scope of CSR 16-60Z, 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 88-09 (9/29/10), affirmed In re Jones, CSA 88-09 (5/11/10).
Agency proposal to expand scope of CSR 16-60Z 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 88-09 (9/29/10), affirmed In re Jones, CSA 88-09 (5/11/10).
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, 89-07 & 90-07, 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 CSRs 19-66 B and 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 CSRs 19-66 B and 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 (2/2/10).
Prohibition of appeals of any "other" aspect of the PEP, at CSR 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 & 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 & 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 & 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 & 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 & Lewis, CSA 08-09 & 09-09, 5 (5/20/09).
Agency interpretation of Denver 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 & Lewis, CSA 08-09 & 09-09, 5 (5/20/09).
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).