2012 COA 73
Colo. Ct. App.2012Background
- WRRC appeals Board's award of back pay to complainants after terminating them for alleged abuse and policy violations.
- Complainants cross-appeal the Board's affirmance of their terminations and denial of attorney fees.
- ALJ held complainants received adequate pre-disciplinary notice and that termination decisions were properly made by the appointing authority's decision-maker.
- Board reversed on pre-disciplinary notice, finding lack of notice of complainants' rights; otherwise Board's findings largely upheld.
- Court holds Rule 6-10 does not require advance notice of all rights; pre-disciplinary meeting is information exchange, not a hearing; due process satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 6-10 requires advance notice of all rights | Berumen/Adams argued yes | WRRC argued no; Board's interpretation unclear | Board’s advance-right notice requirement rejected; rule unambiguous; no complete-notice demand |
| Whether pre-disciplinary notice satisfied due process | Complainants claimed notice was deficient | WRRC contends notice complied with due process | Due process satisfied; notices met Rule 6-10 and rights to respond; pre-disciplinary meeting not a hearing |
| Whether complainants had opportunity to be heard prior to discharge | Discharge decision pre-determined by supervisor/investigator | ALJ found appointing authority made the discharge decision | Record supports ALJ; fair opportunity to be heard prior to discharge |
| Whether admission of hearsay evidence was proper | Hearsay should be excluded | Hearing allows probative value; hearsay admissible | No abuse of discretion; hearsay properly admitted given factors |
| Whether attorney-fee award was proper | Failure to provide notice/adequate opportunity shows bad faith | Since notice/opp to be heard was adequate, fees denied | Attorney fees denied; based on ruling on notice and opportunity |
Key Cases Cited
- Department of Institutions v. Kinchen, 886 P.2d 700 (Colo. 1994) (pre-disciplinary meeting context and due process principles in Colorado)
- Colorado Dep't of Human Services v. Maggard, 248 P.3d 708 (Colo. 2011) (deference to Board; standard of review in administrative appeals)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (U.S. 1985) (pre-termination due process; Loudermill framework)
- Staples v. City of Milwaukee, 142 F.3d 383 (7th Cir. 1998) (contemporary notice may satisfy due process)
- Panozzo v. Rhoads, 905 F.2d 135 (7th Cir. 1990) (no right to counsel at pre-termination hearing)
- Partridge v. State, 895 P.2d 1183 (Colo. App. 1995) (administrative hearing admissibility standard for evidence)
- Indus. Claims Appeals Office v. Flower Stop Mktg. Corp., 782 P.2d 13 (Colo. 1989) (probative value of hearsay in administrative proceedings)
- Shelter Mut. Ins. Co. v. Mid-Century Ins. Co., 246 P.3d 651 (Colo. 2011) (read regulatory provisions in context; no implied requirements)