Rules (Construction Of)

Career Service Rules

In general

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 and 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 and Sproul, CSA 33-08, 17 (1/27/09); § 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, CSA 87-07, 7 (CSB 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 (5/06/05).

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 (5/06/05).

Constitutional rights

Jury trial

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).

Construction of rules

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, 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 the personnel rules is relevant to the determination of whether the action was arbitrary and capricious, where its stated reasons for using nonconforming procedures were not supported by the evidence. In re Hamilton, CSA 100-09, 23 - 24 (9/17/10).

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, 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 §§ 19-66 B, 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 §§ 19-66 B, 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 (2/2/2010).

Prohibition of appeals of any "other" aspect of the PEP, at § 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 and 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 and 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 and 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 and 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 and Lewis, CSA ## 08-09, 09-09, 5(5/20/09).

Agency interpretation of 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 and Lewis, CSA ## 08-09, 09-09, 5(5/20/09).