*1 clear, findings both.parties a full fair because the are not and the Finally, had opportunity litigate physician’s assumption the issue of causation initial claim- —that first impairment before the ALJ. ant’s was not work-related —is erroneous, given our conclusion that the ear- in disre- the second ALJ erred finding binding, lier of causation was we fur- garding the first ALJ’s determination clarify ther conclude that the ALJ should Accordingly, we must remand causation. finding High, re this on remand. See In perma- reconsideration of the issue of (Colo.App.1981)(expert opinion but- light disability nent benefits in of the first at variance tressed assumed facts injury that claimant’s ALJ’s determination efficacy, no actual facts has evidential was work-related. opinion only findings where that basis for II. ALJ, conclusion based thereon cannot stand). also contends that the second Claimant finding erred in a break in the chain of

ALJ remand, the ALJ determine On should by the causation established first ALJ. She permanent injury, of the whether the effects argues existing finding causa- as to any, significant if are a causative factor pres- employer tion be overcome inability any wages. claimant’s to earn See condition resolved or ents evidence her Commission, supra. v. Industrial Seifried relationship that the causal was severed disposition, In view of this we need not intervening agree an efficient cause. We contentions, remaining in- address claimant’s this issue should be reconsidered and cluding “adopting” erred in whether ALJ clarified on order remand. opinion physi- of the first IME the medical First, contrary to claimant’s asser cian. tion, she, employer, not the has the burden of The order is set aside and the cause is proving PTD entitlement benefits. See proceedings remanded for further consistent 8-40-201(16.5)(a), C.R.S.1999. To sustain expressed opinion. with the views this burden, prove her claimant must permanent injury effects of the industrial TAUBMAN, Judge Judge METZGER significant were a causative factor in her concur. inability any wages. to earn See Seifried Commission, And, supra. in de Industrial

termining whether claimant has sustained burden, necessarily

this must deter ALJ

mine the nature and extent of claimant’s inju impairment

residual the industrial from JANSSEN, Troy Plaintiff-Appellant, D. ry- Nevertheless, that, here, argues claimant physicians persuasive by found SERVICE BOARD DENVER CAREER ALJ, opined second none that her condition Aviation, Department of and Denver found it

resolved after time the first ALJ Defendants-Appellees. deteriorated. she had contends No. 98CA0100. finding the second ALJ’s that her condition resolved, opinion based on the of one of Appeals, Colorado Court of physicians, unsupported by evi- these Div. I. dence. 1, April 1999. A this review of the evidence reveals that physician had not ever believed there was a Rehearing May 1999.* Denied but, impairment; ratable work-related when was, testimony might he there assumed supporting

be construed as the conclusion

that her condition had resolved.

*Taubman, J., part. would GRANTin

H (Order). receiving No. 94 After Order indicating plaintiffs test results urine positive presence had tested mari- juana, terminated his em- *3 ployment. appealed

Plaintiff decision to hear- hearing, officer. After a that officer Depart- found no abuse of discretion plaintiffs appeal. ment and denied Plaintiff request reopen did not the Board to or to reconsider officer’s decision. Rather, sought he review the district court, filing complaint under C.R.C.P. 106(a)(4).

Contending had failed to ex- remedies, haust his administrative defen- Although filed a motion to dants dismiss. it motion, initially ultimately denied the agreed court trial with defendant’s conten- Nevertheless, tion. it also considered the plaintiffs complaint merits and affirmed officer’s decision. This followed.

I. Denver, Roseman, Colorado, Barry D. for Plaintiff contends court erred Plaintiff-Appellant. concluding that had failed exhaust he his Muse, City Attorney, Ashley Daniel E. R. disagree. administrative remedies. We Denver, Kilroy, Attorney, City Assistant Col- orado, Defendants-Appellees. The doctrine of of admin exhaustion istrative remedies serves a threshold

Opinion by Judge CASEBOLT. judicial requires parties review. in a civil pursue available administrative action Plaintiff, Janssen, Troy appeals D. the dis- seeking judicial If remedies before review. judgment affirming trict court the decision of parties satisfy fail the exhaustion re officer for Career Ser- quirement, a court is without matter (Board) upheld vice Board who had the ter- jurisdiction to hear the action. State v. Gold plaintiffs employment mination (Colo.1998). Co., en’s Concrete County City Department and of Denver (Department). Aviation Because we con- principal objective A of the exhaustion doc- his clude that has failed to exhaust prevent piecemeal application of trine is to remedies, administrative we affirm. judicial judicial relief and to conserve re- agen- Department employed plaintiff The as a sources. The doctrine also enables the specialty cy reports clerk. It received to make initial determinations on matters marijuana expertise compile a record odor of had been detected on within its and to city adequate It af- vehicle that he had duty, opportunity driven while on and that his face was fords an to correct its flushed, dilated, errors, judi- eyes minimizing risk of were and his behav- own thus pro- ior was re- cial intervention in the administrative unusual. then agency’s autonomy. quired pursuant preserving him to submit a urine test cess Co., City supra. County of Denver Executive See State v. Golden’s Concrete that, argues because Denver challenged action is Plaintiff Agency C5.25(4) §. expressly states that a court provides desirable also be a final hearing officer’s decision “shall agency’s considered with the benefit order,”.he was not re- .appli- or ordinances of statutes Cason, opening or from the Board 791 P.2d reconsideration Kendal v. cable to it. See disagree. seeking judicial review. before We (Colo.App.1990). When remedies administrative initially that the doctrine of noteWe ordinance, the statuto provided by statute or finality doc conceptually distinct from the ry must followed the matter procedure reme trine of exhaustion of administrative jurisdiction of the complained of is within the Cisneros, Darby v. 509 U.S. dies. See authority. Depart Hoirell *4 (finali (1993) 2539,125 L.Ed.2d 113 113 S.Ct. (Colo. Administration, 861 ment of ty requirement is concerned with whether 1993). at a initial decision-maker has arrived the position that inflicts an definitive on the issue § City estab- The Denver Charter C5.25 injury; proce actual exhaustion refers to and sets forth Board’s lished the Board the injured may by party seek dures which states, pertinent in provision duties. review). A in this context “final decision” , part, ,. that: _ that marks the consummation of means one Board shall: The Career Service decision-making process; it agency’s the is must not be one that tentative interlocu hearings Appoint 4. one or more officers tory Spear, in nature. See Bennett v. by employees appeals to hear decide 1154, 154, 117 L.Ed.2d 281 S.Ct. U.S. offi- . -.. administrative actions of from the (1,997). employees relating personnel cers and finality plays a to the extent that matters, personnel in accordance with C5.25(4) here, § also makes a role Charter adopted by adopted or to be the rules expressly subject to officer’s decision Board, and, at such hear- Career Service stay by and reconsideration the Board when evidence, ings, the facts receive determine City forth in Denver the circumstances set novo, which shall de and issue a decision C5.25(5) Indeed, present. § are the Charter order, subject the be a decision final context, provision, read in states entire when by being stayed or reconsidered the Career reopen “shall ... and recon that the Board Board. Service ... when ...” one of the three circum sider reconsider, in Reopen and accordance 5. present. The use of the word stances is "personnel adopted rules or to be mandatory presumed to connote a “shall” is Board, adopted by a the Career Service meaning. Burns v. Board Assessment hearings officer when the decision (Colo.App.1991). Appeals, 820 P.2d party requesting reopening and reconsid- argument written or evi- eration submits “finality” argument is also de- Plaintiffs (a) dence which establishes that new by Denver Rule I9- feated Career Service that was not material evidence available 60, “If which states that: the Career Service by when the available reopened .heard a of the Hear- Board has decision (b) officer,.or hearings the the decision reconsideration, 'appellate ings Officer hearings involves an erroneous by shall consti- decision rendered the Board officer rules purposes of re- tute the final decision (c) Board, the decision of Career Service Hence, judicial those questing review.” precedential hearings is of a of the three which one or more situations in involving policy nature considerations grounds noted in the Charter are for review haye.effect may beyond the case at hand. decision, that of applicable, the Board’s not Board, Service, shall have The Career- .the officer, subject order will authority stay hearings the decision of follows, therefore, judicial review. officer. reopening by Boaird means that added) or- hearing officer’s decision is not a “final” (emphasis expertise trigger prema- also judicial but would that is review until der piecemeal ture review in a renders its decision. exercise Board fully has fashion before an issue been ex- issue, Concerning we inter- the exhaustion plored agency’s within the own decision-mak- require Board review pret Charter ing framework. grounds one or more the three con- when C5.25(5) asserted tained persuaded Nor are we Denver Career party seeking review. See Brooke v. contrary Service Rule 19-31 dictates (Colo. Inc., Services, Restaurant states, pertinent clusion. That 1995) (claimant required to exhaust adminis- part: remedies for claims asserted when trative According paragraph C5.25 of the Den- act; are covered anti-discrimination Charter, ver number for common law exhaustion Service Board re- the Career covered); v. Horrell claims open and reconsider a decision (when Administration, administra- supra Hearings following on the Officer statute, provided remedies tive grounds ... statutory procedure be followed if must complained jurisdic- within of is matter points seemingly permissive Plaintiff authority). of the administrative tion *5 language “may request” reopen- that a supported by interpretation Our the na- is ing. argues indicates that He this the Board in ture the circumstances described Char- interprets the to make fur- Charter C5.25(5). particular represents Each ter However, optional. agency ther review this agency instance which further review is phrase qualified by “only the words on the submitting highly desirable the mat- before context, following grounds.” When read in judicial scrutiny. example, to For ter when this clause the review It limits available. material that new and evidence were only agency enables further review in the hearing officer considered the become circumstances; three if described the deter- available, agency be the cannot said to have mination does not one of those involve three fully, the nor can it considered issue be said situations, agency no further review even complete certainty with that a record will accessible, and immediate resort fully presents judi- which the exist issue for review mandated. is therefore cial Accordingly, that re- we hold the Charter hearing When a officer’s quires the exhaustion when matter asserted erroneous, personnel alleged rule is be falls within one three of the circumstances applies upon expertise Board its the review C5.25(5). stated in Charter interpret organic its own ordinances and And, prece- rules. when decision has a 106(a)(4) Here, complaint in his C.R.C.P. impact involving policy nature dential review, seeking judicial plaintiff asserted that may beyond effect siderations that have the hearing the abused her discretion officer had hand, requiring at case the Board (1) by: concluding suspicion reasonable that potential allow will it to consider ramifica- subject plaintiff was existed that the ef- agency pur- within its structure or tions own drug testing illegal drug such that fects of an reviewing about court view which a have (2) warranted; concluding was that the test little, any, if knowledge. testing results an outside labo- received from fact, ratory were, sample pro- To based on a construe “exhaustion” these three negate plaintiff, would vided when there was insufficient situations (3) ability custody; interpret, of the evidence of chain of affirm- Board to first instance, rules, orders, ing Department’s applicable its own decision to terminate enabling provisions. employment. his these contentions regulations, and Because essentially concerning prevent also seek review the suffi- the Board from correct- would evidence, not, ciency they would at errors of its own officer. A blush, trigger only prevent appear first the exhaustion construction different would requirement. employing applying Board from its the text of All of filed a motion Board and the Order. when defendants dismiss, plaintiff arguments interpreta- contending plaintiffs that involve the exhaust, remedies, 16-22(10), ie., constitutes failed to tion of Rule what dismissal; fully developed He just his contentions. whether cause for immediate by citing first the text of the responded employee can fire a certified drugs concerning illegal prohibition merely agency’s supervisors Order’s be- because Rule Service sample and the text Denver Career a test result from a lieve that came 16-22(10)) 16-22(10) (Rule describing urine; what pro- the Rule employee’s whether just dismiss- for immediate constitutes cause only illegal “presence” the actual hibits argued hearing officer’s He then al. drug; prohibits and whether Rule because was an abuse of decision discretion being “subject the effects” employee from 16-22(10) Rule allows neither the Order nor only illegal drugs influence “such use or employment of a agency to terminate adversely safety affects the of co-workers city employee merely because certified .the job public, employee’s members of the supervisors particular agency’s believe that opera- performance, or the safe and efficient generated sample of from a test result City facility.” tion of the employee’s He asserted that urine. Therefore, contended 16-22(10) prohibit Rule the actual Order erroneously inter officer had drug, “presence” illegal of an not the exis- Board, preted rules of supervisor’s pres- belief in that tence to re officer’s decision was ence. Board. opening and reconsideration argued prohibits He also the Order C5.25; Denver Ca See presence illegal drug of an within the reopening Rule reer Service 19-30. Such any body time for classified service provides and reconsideration *6 deputy Depart- employees and sheriffs of speedy, complete, plain, adequate reme Safety. city every For other em- ment authority dy the Board has full because himself, including plaintiff argued, ployee stay and reverse officer’s deci 16-22(10) of the and Rule that section Order Hence, judicial yet was not sion. employee prohibit being from plaintiff had not exhausted available s illegal use or drugs only the effects of hi administrative remedies. See C.R.C.P. adversely safety co- influence affects the 106(a)(4) (relief only if no available there is public, the em- workers or members of the remedy plain, speedy, and other adequate job ployee’s performance, or the safe and by law); provided State Golden’s wise City facility. operation of efficient Co., supra. Concrete Finally, hearing- that the asserted finding that his had failed make a H. consumption alleged marijuana affected -Alternatively, plaintiff Contends that safety of of the co-workers members exempt require from the exhaustion he job performance, safe and public, his or the disagree. Again, we ment. , facility. operation Plaintiff efficient of the exceptions There to the exhaus finding required argued that such be- requirement. pertinent of remedies tion As cause, interpretation of Rule 16- under here, has when: application the doctrine no 22(10) above, employee as noted is not (1) agency have the administrative does not by illegal

prohibited being from affected raised; authority pass every question on adversely drugs such use influence unless (2) grave there the adminis doubt that safety of or members affects the co-workers agency authority pass on trative has job public, employee’s perfor- Crowley, Gramiger v. question raised. mance, operation of or the safe efficient an.d (Colo.1983). P.2d 1279 City facility. view, party seeking review of the expanded In our assertions these constitutionality enabling leg agency’s of an that the officer had erroneous- claim rem- ly interpreted the rules of the need not islation exhaust administrative Appliance previous edies. Fred Schmid & Television similar motion to dismiss. Howev- Denver, er, City County v.Co. & 811 P.2d 31 that denial pleadings occurred at (Colo.1991). Likewise, party challenging stage fully developed before constitutionality agency’s of an decision is established concerning his assertions not to exhaust reme- officer’s of the Career Commission, Collopy dies. Service Rules. ruling the first was no Wildlife (Colo.1981). longer changed sound because of conditions. Moreover, the law of the case doctrine does Here, plaintiff asserts on that de- when, here, apply ruling an earlier rights by fendants violated his constitutional would result People error. See ex rel. requiring drug him to submit to a test under Court, Gallagher v. District having the Order without suspi- reasonable (Colo.1983). on-duty assertion, cion of use. Such an how- ever, challenge does constitutionality judgment of dismissal is affirmed. Rather, challenges agen- of the Order. cy’s interpretation way of the Order and the METZGER, Judge concurs. applied plaintiff. Order was Such TAUBMAN, Judge specially concurs. challenge agency’s authority was within the hear. See Horrell v. Ad- Judge specially concurring. TAUBMAN ministration, (a supra, 861 P.2d at n. 4 I concur with the judg- board evaluate whether an otherwise ment of the district court should be affirmed. constitutional statute has been unconstitu- However, I would reach that result on an tionally applied respect particular to a entirely view, my different In basis. personnel action); Cason, Kendal v. supra did exhaust his administrative remedies. (agency appropriate review is to allow Thus, I necessary find it to address the interpret applicable statute to it in the cla&ns, so, upon doing merits of his but instance). first perceive no error in the plain- termination of Accordingly, reject we this contention. Aso, employment. tiffs I concur with the majority’s analysis part III.

III. I. Exhaustion of Administrative Remedies Plaintiff asserts that the doctrine of *7 precluded law of the case the trial court from argues hearing Plaintiff that the officer’s changing ruling its initial in which it denied denial of his of defendant’s motion to dismiss for failure to Aviation’s decision to him terminate was a exhaust Again, administrative remedies. we purposes final decision for disagree. that, He reopening contends because a or hearing reconsideration of the officer’s deci- The doctrine of the law of case the is optional, sion was he had exhausted his ad- discretionary practice a directing rule of that remedies, thus, filing ministrative and a com- prior rulings relevant made in the same case 106(a)(4) plaint under C.R.C.P. for review in generally are to be followed. Gavend appropriate. the district court was Malman, 946 P.2d 558 (Colo.App.1997). It court, applies discretion, However, that, majority unless the in its the holds under issue, ruling determines that its the longer language former is no circumstances at conditions, (Charter) sound changed City because of tained in the Denver Charter previous needs to in ruling correct its and the Denver Career Service Rules (Rules) error, legal of a intervening or factual to seek recon- occurred, change in hearing my the law has sideration of or manifest officer’s decision injustice original ruling. interpretation would result from its of the Charter and the Rules Rouse, (Colo.App. contrary. Verzuh v. 660 P.2d leads me to conclude 1982). Charter, notes, majority The as the estab- argues

Plaintiff the trial court was lished Denver Career Service Board and by bound the initial denial City § of defendants’ Denver Charter C5.25 delineates the However, construing states, language in of a provision per- in Board’s duties. That ambiguous, regulation which is statute or part: tinent may appellate consider the conse courts Board shall: The Career Service quences particular See construction. Colorado Board Medical Examiners State Appoint heañngs or more 4. one offi- (Colo.1992). Saddons, appeals by cers to hear and decide em- Furthermore, “may” where the is term ployees by applicants employ- and “must,” as opposed used the term refers in ment Service from the the Career authority permissive which is and not manda- of officers and administrative actions Hilliard, tory. See Coal Co. v. Moffat matters, employees relating personnel (1948). 556,190 P.2d 907 Colo. personnel rules accordance with adopted adopted or to be the Career § and language The Charter C5.25 Board, and, hearings, at such Service the Rule is clear that decision issued 19-31 evidence, receive determine facts de final officer is unless such deci- novo, and issue a decision which shall reopened sion is and reconsidered. order, subject he a to the decision final language in interprets the The being stayed or reconsidered the Ca- C5.25(5) Rule Charter and reer Board. Service require that a recon- 19-31 reconsider, Reopen 5. accor- sideration of a officer’s decision when adopted dance rules or to specified at one of three circumstances least Board, adopted by be the Career Service present. explains permissive is lan- hearings a decision officer when the merely limiting guage Rule 19-31 as party requesting .reopening, and recon- which under reconsideration circumstances argument sideration written dr submits available, creating and not (a) evidence which new establishes remedy. evidence is material available interpret language the appeal available when was C5.25(5) to mean Board officer, (b) hearings heard reopening must allow and reconsideration hearings decision of the officer involves hearing, by a a decision issued officer when per- an erroneous party requests such a The reconsideration. sonnel rules of the Career Service language clear that a Board, (c) hearings the decision of may reopened officer’s decision precedential officer is of a nature involv- party requesting reopening “when the ing policy considerations have argu- submits written reconsideration beyond case, effect hand. ment or which establishes that....” evidence Career Service Board shall have the au- requirement express- that a there is no thority stay hearings *8 the decision party seek reconsideration a offi- officer, added) (emphasis Therefore, cer’s decision. as Additionally, Career Rules Service tends, § language' in stat- Charter C5.25 reads, part:- in pertinent 19-31 hearing.officer’s that a decision shall be According final, paragraph coupled language C5.25 the Den- 19- with the in Rule 4, City Charter, party may a party may request reopening, ver number a 31 a request remedy. optional Career Service Board to re- creates administrative open a decision reconsider alternative, In'the I would hold that Hearings following on the Officer language and Rule contained Charter ... grounds is, best, ambiguous. majority’s The inter- at regulation pretation language requires that a language If the of a statute or unambiguous, any plain, meaning party request and its it must reconsideration when one interpreted present. three specified as written. Natu- circumstances is Williams hand, Operating interpretation, Part- on the other ral Gas Co. Mesa Limited Plaintiffs (Colo.App.1989). required only nership, reopening 778 is that when requests it and one of the three cir- claims that the officer had errone- is, therefore, argu- present. ously interpreted Thus, cumstances is rules. remedy according majority, claims, able whether the administrative plaintiffs mandatory optional. response reconsideration is as discussed in his to the motion to dismiss, § within fell C5.25 and re- agree majority with the that exhaustion quired plaintiff to seek reconsideration of the necessary of administrative remedies is hearing officer’s decision. require parties pursue" statutory adminis- (cid:127) judicial (cid:127) seeking trative majority remedies before re- would measure the required statutory view and that remedies need to exhaust administrative remedies not provided for must be followed to avoid the alleged what .in his C.R.C.P. 106 piecemeal application judicial complaint, relief and to presumably which he would have judicial reconsideration, conserve resources. asserted a motion for but plaintiff argued what in response to de However, when a level of Therefore, fendant’s motion to dismiss. be clearly or, best, optional review is not .consequence cause the majority’s in clearly judicial mandatory, requir- decision terpretation is inconsistent with notions ing exhaustion of such level of administrative judicial efficiency, its should judicial review neither conserves resources be avoided. See Colorado State Board of efficacy nor instills confidence of ad- Medical supra. Examiners v. Saddoris ministrative remedies. In circum- such stances, Moreover, requiring exhaustion in circum- provisions such .of both the state Ad- unwary (APA) trap litigant stances creates a for the ministrative Procedure and the Act unnecessarily protracted litiga- APA, (1996), § results seq. federal et U.S.C. relating reconsideration, tion. to motions for strongly suggest that exhaustion of relies, The majority cases on which the stages of administrative review is' not re- Co., State v. Golden’s Concrete 962 P.2d 919 quired. (Colo.1998) and Horrell v. Administration, (Colo.1993), APA, The relevant of the state 24-4-106(2), parties required C.R.S.1998, do not address whether provides: pursue optional administrative remedies agency any Final action under this or oth- prior seeking judicial Moreover, judicial er law shall be review as general requirement of exhaustion should provided section, in this whether or not an where, here, apply it is hot clear based application reconsideration has been for upon reading of the Charter and the Rule filed, filing application unless party prior seeking what is required by reconsideration is the statuto- judicial review. ry provisions governing specific agen- added) cy. (emphasis potential trap litigant faced with administrative scheme is illustrated The federal APA also addresses the sub- happened what here. ject agency of final action where a optional. for reconsideration is requested Even a reconsid- (1996), entitled, U.S.C. “Actions re- eration, the Board would have heard his viewable,” provides: notes, plaintiffs case. As the com- plaint seeking Except expressly required by review rested on chal- as otherwise statute, lenges sufficiency of the evidence on action otherwise final is *9 hearing which the purposes decision of the officer was the this section final for of based, triggered and would not have presented the whether or not there has been requirement majority’s exhaustion application under the determined an a declarato- for order, reconsideration, own ry any of the administrative for form of or, scheme. the agency requires asserts that unless the otherwise plaintiffs response provides defendant’s motion to rule and mean- action developed fully, inoperative; appeal supe- dismiss his more contentions while is for an added) thereby transmogrifying allegations agency authority, (emphasis his into rior 18 sought

Thus, Conversely, if recon request a for reconsideration where erroneously provide agency- sideration and had determined optional, is APAs both required, he optional step to an that such would have action resort reconsid- without and, directly therefore, had his dismissed for final procedure eration is sub- not. appealing hearing officer’s ject judicial the decision. See review. Cheney v. Colorado Mined Land State of Cisneros, Darby in v. 509 Significantly, Board, (Colo.App. Reclamation 2539, 137, U.S. 113 S.Ct. L.Ed.2d 1991) (filing motion to reconsider Board’s of (1993), Court, Supreme a unanimous inter- ruling did time in which not extend to seek § preting held that a court 5 U.S.C. review). judicial party optional to exhaust require cannot majority’s opinion requires an agency where has administrative remedies correctly party identify be those able final action. taken an otherwise one of situations which fall under the three nearly Darby The identical to facts in C5.25(5) § circumstances in Charter or lose There, developer those a real estate here. judicial opportunity or her for his review. sought judicial of a review determination find this to be unfair and result inconsistent Housing and Urban De- plain Charter, meaning with the (HUD) velopment debarring him enter- from Rules, and the and federal APAs. state ing with all into transactions executive Supreme Darby As the Court noted provided agencies. branch rules that a HUD Cisneros, litigants should supra, not be hearing would final officer’s decision become placed trap requiring created ex- thirty days unless HUD decided to review of optional haustion administrative remedies. provided any The rule also decision. Further, Pierce, R. as in K. Davis & noted party request hearing a review of could (3d ed.1994): Jr., Law 15.3 Administrative determination, party but officer’s neither agencies Most have the discretion to sought further administrative review of the variety make of proce- available a wide hearing initial decision. officer’s intra-agency dures for review actions Court, 704, held, citing 5 U.S.C. that are or become final in absence of plain meaning with the of the stat consistent procedures Those be can ute, hearing that the HUD officer’s decision optional mandatory. either Dar- Before agency was final action and court could not by, agencies attempted some to have it require developer optional to exhaust ie., ways, intra-agency both to describe an remedy. Noting administrative that Con procedure optional review but then to gress making was concerned the ex petition judicial seek dismissal aof for requirement unambiguous, haustion agency a party review action require that to Court reasoned exhaustion putatively declined avail itself of remedy optional administrative would cre appeal. After unwary trap litigants.” Darby ate “a Darby, option is not available to an Cisneros, 147, 113 supra, 509 U.S. S.Ct. at agency proceeding governed by in a 2545, 125 L.Ed.2d at 123. agency intra-agency APA. An can make an Here, caught procedure mandatory type prerequisite has been review trap sought judicial Darby availability to avoid. Rule 19-33 review requires reopening describing that a it as such in its rules and providing the decision reconsideration of that the action that days procedure intra-agency received within ten review calendar “mean- mailing If inoperative.” simply date of the while available, ten-day period procedure That makes officer’s decision. has such a howev- er, long expired. since has lost can obtain of an review opportunity to have first pursu- the decision of the otherwise final action without intra-agency pro- officer reviewed on reconsideration available *10 world, perceive step post-Darby because he did not cedure ... In the mandatory. to agency proceeding was an should be

IQ employee and cion of illicit use or the is under distinguish between able to intra-agency n revieiv alcohol, proce- impaired by the influence of or or mandatory the influence to simply by reading applicable under of or dures illegal rules. provisions drug. and of statutes effects added) (emphasis testing Referrals for shall be made when- Here, there no such distinction safety supervisor eyer or has rea- identifying, specificity, Charter or Rules suspicion employee may that the sonable procedures mandatory are which which and drugs. the influence of alcohol or be under par- optional. plaintiff, like are other guess ties will be forced to whether suspicion requirement Reasonable is not (or they raising might in a issues are raise certainty of absolute but is common sense dismiss) response within to a motion- to fit upon conclusion about human behavior which one of the three bases- for reconsideration practical people rely. to People entitled C5.25(5), contained in Charter and whether (Colo. P.E.A., 754 P.2d 382 Interest of or reconsideration from the Board seek 1988). unwary litigant seek review. The Relying County on & Denver v. guesses incorrectly who will suffer the conse- Casados, (Colo.1993), plaintiff quence having his or her dismissed. case provisions testing for asserts Order’s though Even the case us does not before suspicion apply on reasonable do not based agency, federal and does involve state or position security him not was or require application therefore Casados, safety upon In consider- sensitive. APA, state or federal the outcome here challenge a facial to Executive Order No. Darby. To re- should be consistent with upheld constitutionality the court does, quire, as the exhaustion so, interpreted In doing order. expressly is not mandating screening drug as not required by significant rule creates a incon- mandatory drug screening contemplating for sistency in this area of administrative law. public safety- employees who “do not or hold analysis Its to the anomalous leads situation security-sensitive positions, based' on applies rules which one set of to state suspicion off-duty drug or reasonable alco- agencies, applies another to the federal impairment.” City County hol & use State, Board. See Foos 888 P.2d Denver, supra, 862 P.2d at 914. (motorist (Colo.App.1994) required to ex- However, my record review of the does not by requesting haust administrative remedies support plaintiffs assertion. reopening of license revocation be- specialty airport, plain- As a clerk for the legal seeking judicial fore no where responsible processing applica- for tiff was reopening). basis existed for such contractors, badges access ven- tions for light my In conclusion that dors, city employees. he did not While remedies, I turn exhausted his administrative deny an have discretion to allow or individual now to the merits of his contentions. he airport, area of the did have access modify the access an responsibility II. Fourth Amendment given was authorization for individual Plaintiff contends the violated granted improperly. been access had rights by his Fourth Amendment requiring Furthermore, plaintiff responsible for drug having him to test submit to a without administering seeking a test to individuals suspicion on-duty drug use reasonable airport precondition as- a access disagree. influence. I receipt badge. Finally, their of an-access provides, perti- Executive Order No. 94 responsible typing the infor plaintiff was part: nent application for access into a mation from the Therefore, plaintiffs computer po Employees may database. submit safety-related blood, drug re or other sition did involve certain or urine alcohol or -which, properly, done -suspi- sponsibilities if not screening there is reasonable where *11 co-workers, safety security public, airport. affect of members of would provisions job employees’ performance, or the safe application of the Order’s facility. hearing appropriate. operation city was of him the officer and efficient My also supports review of the record assume, plaintiff alleges, Even that if I as suspicion finding of reasonable warrant finding to support there was no evidence drug plaintiff. test drugs being that his under the influence of airport, adversely safety affected work, plaintiffs at While co-worker support there the conclusion was evidence marijuana plaintiffs an on smelled odor of marijuana that he at Both had used work. reported Another co-worker person. person airport and the vehicle he drove plaintiffs pupils were dilated and that his a.m., marijuana at smelled of around 10 Finally, a was co-worker with face flushed. he had at work since least 7:30 that been at drug training in the use detection detected morning. supports same This evidence marijuana airport the odor of an vehicle marijuana inference that he had used while by plaintiff. employee That no- driven same though at even work. plaintiffs than ticed behavior different specifically plaintiff did not find appeared expe- usual and work, marijuana had used there is suffi- riencing “rapid swings.” mood Based on the support cient evidence in the record to record, suspicion I find that reasonable exist- officer’s conclusion that and, subject drug to a ed test violated Executive Order No. 94. therefore, officer was correct concluding did not violate affirm would therefore the district court’s rights. his Fourth Amendment judgment upheld termination plaintiffs employment.

III. Substantial Evidence Next, plaintiff there was asserts not sub- support evidence to

stantial Board’s that he Executive No.

clusion violated Order 16-22(10). Rule

94 or Career Service

Again, persuaded. I am not reviewing

In agency, the conclusions appellate court must determine whether Colorado, of the State PEOPLE exists in the substantial evidence record Plaintiff-Appellee, support such conclusions. In Investors Life (Colo. Smith, surance Co. 833 P.2d 864 App.1992). OUTLAW, Marvin A. Defendant- Substantial evidence is such evidence as a Appellant. might accept adequate reasonable mind No. 98CA0160. support Municipal a conclusion. Colorado League Telephone v. Mountain States & Appeals, Court of Colorado Co., (Colo.1988). Telegraph Div. IV. Broad deference is accorded the trier of May 1999. credibility evaluating fact witnesses. Foottit, Marriage In re Rehearing As on Denial of Modified (Colo.App.1995). 22,1999. July prohibit Both the and the Rule Order April 24, Certiorari Granted 2000. use, sale, possession purchase, or transfer illegal drug city facility while in a or while performing city The Order and business. prohibit being

Rule also under influence illegal drug of an the effects adversely

such use influence affects the