Cummings v. Arapahoe County Sheriff's Department

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 6, 2018
2018COA136
No. 18CA0499 Arapahoe Cty Sheriff v Cummings —
Government — County Officers — Sheriff — Deputies
The division holds that a 2006 amendment to section 30-10-
506, C.R.S. 2017, preserves, to a large extent, the doctrine of at-will
employment for deputy sheriffs, but also grants certain due process
rights to those deputies.
The division further holds that the statute authorizes sheriffs
to grant other rights to sheriffs’ deputies, but they are not required
to do so.
Finally, the division holds that clear and conspicuous
disclaimers preclude, as a matter of law, those portions of plaintiff’s
implied contract claim that are not based on the due process rights
granted by section 30-10-506.
COLORADO COURT OF APPEALS 2018COA136
Court of Appeals No. 18CA0499
Arapahoe County District Court No. 16CV32444
Honorable Kenneth M. Plotz, Judge
Michael Cummings,
Plaintiff-Appellee,
v.
Arapahoe County Sheriff’s Department and David C. Walcher, individually and
in his capacity as Arapahoe County Sheriff,
Defendants-Appellants.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division A
Opinion by JUDGE BERGER
Freyre, J., concurs
Bernard, J., specially concurs
Announced September 6, 2018
Mark S. Bove P.C., Mark S. Bove, Denver, Colorado, for Plaintiff-Appellee
Ronald A. Carl, Arapahoe County Attorney, Daniel C. Perkins, Senior Assistant
County Attorney, Erin L. Powers, Senior Assistant County Attorney, Littleton,
Colorado, for Defendants-Appellants
Hall & Evans, L.L.C., Mark S. Ratner, Denver, Colorado, for Amicus Curiae
Colorado Counties, Inc.
I. Introduction and Summary
¶1 This lawsuit pits the Arapahoe County Sheriff (the Sheriff)
against one of his former deputies, Michael Cummings, whose
employment was terminated by the Sheriff. Cummings contends
that the written employment policies promulgated by the Sheriff
contained in the Sheriff’s employee manual (the Manual) constitute
an implied contract of employment that the Sheriff breached when
he fired Cummings. In denying the Sheriff’s summary judgment
motion, the district court agreed with Cummings. The Sheriff
brings this interlocutory appeal under C.A.R. 4.2, challenging the
district court’s denial of summary judgment.
¶2 Resolution of this appeal requires us to construe section 30-10-
506, C.R.S. 2017, which governs the employment relationship
between Colorado’s elected sheriffs and the deputies they appoint.
It provides in relevant part as follows:
Each sheriff may appoint as many deputies as
the sheriff may think proper and may revoke
such appointments at will; except that a sheriff
shall adopt personnel policies, including
policies for the review of revocation of
appointments. Before revoking an
appointment of a deputy, the sheriff shall
notify the deputy of the reason for the
1
proposed revocation and shall give the deputy
an opportunity to be heard by the sheriff.
§ 30-10-506.
¶3 In Seeley v. Board of County Commissioners, the Colorado
Supreme Court authoritatively construed a prior version of this
statute, holding that sheriffs’ deputies were employees at will and
that a sheriff “did not possess the statutory authority to limit his
power to discharge [his deputies] ‘at his pleasure.’” 791 P.2d 696,
700 (Colo. 1990).
¶4 As was its right, the General Assembly legislatively overruled the
supreme court’s decision by amending the statute in 2006.
Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen.
Assemb., 1st Sess. (Feb. 7, 2006); cf. Gallegos v. Phipps, 779 P.2d
856, 861 (Colo. 1989) (noting General Assembly’s enactment of
another statute “for the explicit purpose of” overruling the
particular case).
¶5 We conclude that the General Assembly legislatively partly
overruled Seeley because, contrary to Seeley, the General Assembly
decided to grant certain employment rights to the deputies that are,
at least in part, inconsistent with the concept of at-will employment
2
as it is known in Colorado law.1 Hearings on H.B. 1181 before the
H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006).
But we also know from the plain language of the amended statute
that in other respects, the General Assembly intended to preserve
the doctrine of at-will employment.
¶6 Considering the plain language of the 2006 amendments, the
legislative history, and commonly recognized rules of statutory
construction, we conclude that section 30-10-506 does the
following:
 It grants two unwaivable rights to the deputies: the right of
notification “of the reason for the proposed revocation” of
their employment, and “an opportunity to be heard by the
sheriff” before their employment is terminated.
 It requires each sheriff to “adopt personnel policies,
including policies for the review of revocation of
appointments,” but except for the two statutory rights noted
1 Under Colorado law, an “at will employee” is one whose
“employment may be terminated by either party without cause and
without notice, and whose termination does not give rise to a cause
of action.” Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo.
1987).
3
above, these policies need not be binding and sheriffs may
reserve their right to depart from such policies in any
particular case or matter. To that extent, the doctrine of at-
will employment is preserved.
 It permits a sheriff to promulgate binding employment
policies, and if the sheriff elects to do so, those policies are
enforceable in accordance with their terms.
¶7 Applying this construction of section 30-10-506 to the facts
presented in the Sheriff’s summary judgment motion, but also
considering the dispositive legal effect of clear and conspicuous
disclaimers of any contractual relationship, we affirm the district
court’s denial of summary judgment with respect to the specific
rights granted by section 30-10-506, but otherwise reverse the
court’s denial of summary judgment on Cummings’ implied contract
claim.
II. Relevant Facts and Procedural History
¶8 Cummings was a deputy sheriff in Arapahoe County. The Sheriff
terminated Cummings’ employment, asserting that he violated
4
several of the Manual’s policies and was dishonest in the course of
the investigation of the original charges against him.
¶9 After exhausting his remedies within the Sheriff’s department,
Cummings sued, asserting two claims for relief: wrongful discharge
in violation of public policy and breach of an implied contract of
employment based on the employment policies contained in the
Manual.
¶ 10 Cummings contends that while the Sheriff informed him of the
reasons for the initial investigation into his conduct, the Sheriff did
not provide him with notice of the charges that eventually led to his
termination. He also contends that the Sheriff denied him an
adequate opportunity to defend himself by not following the
procedural policies of the Manual during the disciplinary process.
¶ 11 The Sheriff moved to dismiss the wrongful termination claim
under C.R.C.P. 12(b)(1) based on governmental immunity. The
district court held a Trinity hearing on the wrongful discharge in
violation of public policy claim and dismissed that claim with
5
prejudice.2 See Trinity Broad. of Denver v. City of Westminster, 848
P.2d 916 (Colo. 1993).
¶ 12 After the district court denied the Sheriff’s motion to dismiss the
implied contract claim for failure to state a claim, the Sheriff moved
for summary judgment. He contended that the at-will language in
section 30-10-506 prevented him from promulgating binding
personnel policies; that the disclaimers contained both in the
Manual itself and in separate, yearly disclaimers signed by
Cummings precluded as a matter of law any implied contract claim;
and that, in any event, he had not violated any of the Manual’s
policies.
¶ 13 The district court denied the Sheriff’s motion, holding that there
was an implied contract of employment. The district court reasoned
that it was illogical to conclude that the General Assembly would at
once require sheriffs to promulgate employment policies, but then
authorize sheriffs to wholly ignore them. Thus, the court held that
all provisions in an employment manual promulgated by a sheriff
pursuant to section 30-10-506 were binding and formed an implied
2 That claim is not before us on this interlocutory appeal.
6
employment contract. As to the disclaimers, the court ruled that
they were ineffective because they could not countermand the
statutory requirement that the policies be binding. And, as to the
Sheriff’s argument that he did not violate any of the policies, the
court concluded that disputed issues of material fact precluded
summary judgment.
¶ 14 Although ordinarily an order denying summary judgment is not a
final appealable order, the Sheriff petitioned for an interlocutory
review of the order. Recognizing the internal conflicts within the
statute, the district court certified its summary judgment order for
interlocutory appeal under C.A.R. 4.2. Agreeing with the district
court that the Sheriff met the requirements for an interlocutory
appeal, and that this is a matter of substantial public concern, we
granted the petition.
III. The District Court Correctly Denied The Sheriff’s Motion for
Summary Judgment With Respect To The Specific Rights
Granted by Section 30-10-506
¶ 15 For the same three reasons that he sought summary judgment in
the district court, the Sheriff contends that the court erred in
denying his motion for summary judgment.
7
A. Standard of Review
¶ 16 We review a grant (or, when authorized by law, a denial) of
summary judgment de novo. Geiger v. Am. Standard Ins. Co. of
Wisc., 192 P.3d 480, 482 (Colo. App. 2008) (holding that we review
a denial of summary judgment de novo). “Under C.R.C.P. 56(c),
summary judgment may be granted if there is no genuine contested
issue of material fact and the moving party is entitled to judgment
as a matter of law.” Georg v. Metro Fixtures Contractors, Inc., 178
P.3d 1209, 1212 (Colo. 2008). We grant the nonmoving party the
benefit of all favorable inferences that may reasonably be drawn
from the undisputed facts and resolve all doubts against the moving
party. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 83
(Colo. 1999).
B. Rules of Statutory Interpretation
¶ 17 Resolution of this appeal requires us to determine the meaning of
section 30-10-506, which is a question of law that we review de
novo. Wolf Ranch, LLC v. City of Colorado Springs, 220 P.3d 559,
563 (Colo. 2009).
¶ 18 In interpreting a statute, we first give the words and phrases of
the statute their plain and ordinary meanings according to the rules
8
of grammar and common usage. § 2-4-101, C.R.S. 2017; Jefferson
Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.
2010). We consider the words and phrases of the statute both in
the context of the statute itself and in the context of any
comprehensive statutory scheme of which the statute is a part.
Jefferson Cty. Bd. of Equalization, 241 P.3d at 935. By applying
these principles, we attempt to determine the General Assembly’s
intended meaning of the words and phrases, and harmonize that
meaning with the comprehensive statutory scheme. Id.
¶ 19 If the statutory language is susceptible to only one reasonable
meaning, we enforce it as written and do not resort to other rules of
statutory construction. Vaughan v. McMinn, 945 P.2d 404, 408
(Colo. 1997). However, if a statute is susceptible to more than one
reasonable meaning, we employ other tools of statutory
interpretation, including legislative history, to ascertain the General
Assembly’s intent. People v. Luther, 58 P.3d 1013,1015 (Colo.
2002).
C. The Implied Contract Exception to At-Will Employment
¶ 20 In Colorado, an employee who is hired for an indefinite period is
presumed to be an at-will employee, but this presumption may be
9
rebutted. Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711-12
(Colo. 1987).
¶ 21 Policies contained in an employee manual addressing discipline
or the termination of employment may, under some circumstances,
serve as the basis for claims of either a breach of implied contract
or promissory estoppel. Id. These claims may be asserted by both
private and public employees. Adams Cty. Sch. Dist. No. 50 v.
Dickey, 791 P.2d 688, 694 (Colo. 1990).
¶ 22 Employees claiming a breach of an implied contract of
employment based on an employee manual bear the burden of
rebutting the presumption of at-will employment. Keenan, 731
P.2d at 711. To do so, they must demonstrate:
first, that in promulgating the termination
procedures the employer was making an offer
to the employee — that is, the employer
manifested his willingness to enter into a
bargain in such a way as to justify the
employee in understanding that his assent to
the bargain was invited by the employer and
that the employee’s assent would conclude the
bargain, Restatement (Second) of Contracts
§ 24 (1981) — and second, that his initial or
continued employment constituted acceptance
of and consideration for those procedures.
Id.
10
D. Analysis
1. Binding Personnel Policies May Be Promulgated by the Sheriff
Under Section 30-10-506
¶ 23 Relying on Seeley, the Sheriff contends (and the special
concurrence apparently agrees) that the retention of the at-will
employment concept in the statute requires us to hold that all
policies promulgated by a sheriff relating to the termination of
deputy sheriffs’ employment are only precatory. To conclude
otherwise, according to the Sheriff, would write out of the statute
the Sheriff’s statutory power to terminate at will the employment of
a deputy.
¶ 24 For two reasons, we reject the Sheriff’s interpretation of section
30-10-506. First, it is inconsistent with the statute’s conferral on
the deputies of at least two due process rights. Second, based on
the amended statutory language, we have no doubt that the
General Assembly legislatively partly overruled Seeley. See
Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen.
Assemb., 1st Sess. (Feb. 7, 2006).
¶ 25 When it amended section 30-10-506, the General Assembly
combined two contradictory concepts — at-will employment for
11
deputies, on the one hand, and the requirement that sheriffs
provide at least some binding employment rights to their deputies,
on the other. These inherent contradictions render the statute
susceptible to at least two reasonable understandings; thus, it is
ambiguous. People v. Jones, 2015 CO 20, ¶ 10.
¶ 26 Our job is to rationally construe the statute to give effect to all,
not just some, of the words of the statute and to recognize the
legislative intent to overrule Seeley in part. Luther, 58 P.3d at
1015.
¶ 27 The statute unambiguously confers two due process rights on the
deputies: “Before revoking an appointment of a deputy, the sheriff
shall notify the deputy of the reason for the proposed revocation
and shall give the deputy an opportunity to be heard by the sheriff.”
§ 30-10-506.
¶ 28 But the statute does more. It also requires sheriffs to “adopt
personnel policies, including policies for the review of revocation of
appointments.” Id. The statute says nothing about whether any
employment policies promulgated by sheriffs, beyond notice and a
right to be heard, must be binding on the sheriff. We agree with the
Sheriff that a construction of the statute that all such policies are
12
binding ignores and essentially writes out the at-will employment
language. This is what the district court’s construction of the
statute did, but neither the district court nor this court has that
authority. Jefferson Cty. Bd. of Equalization, 241 P.3d at 935.
¶ 29 But, if all of the policies, save the two due process rights
identified above, were precatory, then the at-will employment
relationship, though modified somewhat, would be preserved.
¶ 30 In Seeley, the supreme court held that the prior version of the
statute simply did not authorize a sheriff to limit his right to fire his
deputies at will. 791 P.2d at 700. But the amendments to the
statute overruled that holding, at least in part. Hearings on H.B.
1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess.
(Feb. 7, 2006). While the statute does confer on the deputies two
binding due process rights, nothing in the statute expressly
requires that all policies adopted by the sheriff are binding.
¶ 31 We reject the district court’s reasoning that it is illogical for the
General Assembly to require the promulgation of employment
policies and then permit the sheriff to ignore at least some of those
policies. As a division of this court observed in Jaynes v. Centura
Health Corp., precatory employment policies are not useless; they
13
may serve as “guidelines” for the employer, managers, and his
employees. 148 P.3d 241, 249 (Colo. App. 2006). We thus reject
the district court’s conclusion that only binding employment
policies are meaningful and that all employment policies
promulgated by the Sheriff must be binding.
¶ 32 But that does not mean that the Sheriff is prohibited by section
30-10-506 from promulgating binding employment policies.
¶ 33 To summarize, the amended statute requires a sheriff to
promulgate written employment policies. The sheriff must give his
deputies the rights of notice and opportunity to be heard. Other
employment policies promulgated by the sheriff may be, but are not
required to be, binding. And if the sheriff elects to confer binding
employment rights on his deputies, those rights are enforceable in
accordance with their terms.
¶ 34 In this way, “we give effect to every word and render none
superfluous because we ‘do not presume that the legislature used
language idly and with no intent that meaning should be given to
its language.’” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d
565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v.
14
Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597
(Colo. 2005)).
¶ 35 Our construction of section 30-10-506 finds support in the
United States District Court for the District of Colorado’s decision in
Tonjes v. Park County Sheriff’s Office, the only published case that
has addressed the 2006 version of section 30-10-506. 300 F. Supp.
3d 1308 (D. Colo. 2018).
¶ 36 In Tonjes, as here, a sheriff’s deputy contended that the sheriff
was bound by the employee manual’s policies, while the sheriff
argued that section 30-10-506 and the manual’s disclaimer
precluded the formation of an implied contract of employment. Id.
at 1319-20. Consistent with our holding, the federal court held
that because of the 2006 amendments to section 30-10-506,
sheriffs have “the ability to adopt policies that limit [their] power to
terminate (demote, discipline, etc.) employees at will.” Id. at 1319.
2. The Written Disclaimers Preclude an Implied Contract Claim
as a Matter of Law, Except as to the Due Process Rights
Conferred by Statute and by Those Terms in the Manual
¶ 37 The Sheriff next argues that, even if section 30-10-506 permits
sheriffs to promulgate binding personnel policies, the disclaimers in
both the Manual and the separate yearly disclaimers signed by
15
Cummings preclude, as a matter of law, the formation of an implied
contract of employment.
¶ 38 The Manual included the following disclaimer:
These guidelines do not alter the at-will status
of employees of the Sheriff. The Sheriff may
terminate members or revoke deputy
appointments at will, with or without cause.
No portion of these guidelines or policies shall
constitute a contract of employment, either
express or implied, between the Sheriff and the
member, or the County and the member, nor
is it a guarantee of employment for a specific
term or duration.
Additionally, once a year, Cummings signed a form that reiterated
the terms of this disclaimer and stated:
THE SHERIFF’S OFFICE DETENTION
DIVISION MANUAL IS NOT INTENDED TO
BE, NOR DOES IT CONSTITUTE A
CONTRACT BETWEEN THE ARAPAHOE
COUNTY SHERIFF AND ANY OF HIS
EMPLOYEES. ALL ARAPAHOE SHERIFF
EMPLOYEES ARE AT-WILL EMPLOYEES. All
Arapahoe County Sheriff employees have the
right to end their work relationship with
organization with or without advance notice or
cause. The Arapahoe County Sheriff has the
same right to end the relationship.
¶ 39 Whether a contract disclaimer is clear and conspicuous is a
question of law for the court. Jaynes, 148 P.3d at 248. The
disclaimers in most of the yearly forms signed by Cummings were
16
written in capitalized letters, bolded, and underlined. We need not
determine whether the disclaimer in the Manual is clear and
conspicuous, because the disclaimers in the yearly forms
undoubtedly are clear and conspicuous under Colorado law. Id.
¶ 40 We next must determine whether these clear and conspicuous
disclaimers preclude, as a matter of law, Cummings’ implied
contract claims. Except with respect to the rights expressly granted
to the deputy sheriffs by statute, we hold that they do.
a. The Manual’s Notice of Charges and Opportunity to be Heard
Employment Policies
¶ 41 In his response to the Sheriff’s summary judgment motion,
Cummings specifically contended that the Sheriff violated the
Manual’s policy (and the statutory mandate) requiring that deputies
receive timely notice of the reason for their proposed termination.
While Cummings appears to concede that he received timely notice
of the initial charges against him, he contends that he did not
receive proper, timely notice of the additional charges that actually
led to his termination.
¶ 42 As we held above, a deputy’s right to notice and an opportunity
to be heard are explicitly protected by section 30-10-506. To the
17
extent the Manual enforces these statutory rights, the Manual may
form the basis of an implied contract claim.
¶ 43 Parties may not contract to abrogate statutory requirements and
thereby contravene the public policy of this state. Peterman v. State
Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo. 1998). “A
contract provision that violates public policy by diluting,
conditioning or unduly limiting statutory coverage may be declared
void and unenforceable.” Id. Thus, to the extent the disclaimers
purport to waive, as a condition of public employment, the deputies’
rights to notice and the opportunity to be heard, they contravene
the express terms of section 30-10-506 and are void as against
public policy. See id.
¶ 44 Cummings claims that he did not receive the required notice of
the charges that led to his dismissal, and the Sheriff disputes that
interpretation of the record. Because the material facts on this
question are disputed, a trier of fact (in this case a jury) must
determine whether the Sheriff violated the Manual’s policies
regarding notice of the charges against Cummings.
18
b. Other Policies in the Manual and the Disclaimers
¶ 45 Many of the policies contained in the Manual are worded in
mandatory terms. We now address the purported conflict between
the disclaimers and the mandatory language used in some of the
policies, other than those that effectuate the due process rights
conferred by section 30-10-506.
¶ 46 Several reported Colorado Court of Appeals cases have addressed
this conflict, but the Colorado Supreme Court has not.
¶ 47 In Allabashi v. Lincoln National Sales Corp. of Colorado-Wyoming,
824 P.2d 1, 3 (Colo. App. 1991), although the employee handbook
contained a disclaimer of any contractual rights, other documents
provided to Allabashi contained termination procedures and policies
requiring just cause for termination. Allabashi testified that she
relied on those policies and procedures. Id. Relying on Cronk v.
Intermountain Rural Electric Ass’n, 765 P.2d 619 (Colo. App. 1988),
and distinguishing Ferrera v. Nielsen, 799 P.2d 458 (Colo. App.
1990), the division held that the trial court did not err in submitting
the implied contract claim to the jury. Allabashi, 824 P.2d at 3.
¶ 48 In Cronk, the manual set “forth certain express events which
might cause the employee to be terminated. In addition, the
19
manual state[d] that other reasons, not so expressed, could be
grounds for termination, ‘as long as such legitimate reasons
constitute just cause.’” 765 P.2d at 623. Noting that “[t]he
disclaimer upon which the trial court relied was added after the
plaintiffs commenced their employment with IREA,” and that in
their summary judgment affidavits, the “plaintiffs asserted that they
had relied on the employee manual provisions concerning
termination,” the division held that the trial court erred in granting
summary judgment to the employer. Id.
¶ 49 In Ferrera, 799 P.2d at 461, the division appears to have reached
a conclusion contrary to that reached in Allabashi. Ferrera brought
an action alleging wrongful discharge and both implied contract and
promissory estoppel claims based on the employee handbook. Id. at
459. The district court granted summary judgment to the employer
on the implied contract claim, based on a disclaimer contained in
the handbook.
¶ 50 The division affirmed on two bases. Id. at 459-61. First, the
division concluded that the handbook did not either expressly
require just cause for dismissal or prescribe a progressive discipline
process. Id. at 461. Rather, the handbook expressly reserved the
20
right to discharge an employee whose conduct “in the opinion of the
Company” warrants it. Id.
¶ 51 Second, the division held that “[s]ummary judgment denying
claims based on a handbook is appropriate if the employer has
clearly and conspicuously disclaimed intent to enter a contract
limiting the right to discharge employees.” Id. Concluding that the
disclaimer was both “sufficiently clear” and “sufficiently
conspicuous,” the division affirmed the summary judgment. Id.
¶ 52 More recently, a division addressed this question in Evenson v.
Colorado Farm Bureau Mutual Insurance Co., 879 P.2d 402 (Colo.
App. 1993). Citing Ferrera, the division stated “[s]uch a
manifestation of willingness to be bound can be inferred if there is
no disclaimer in the manual stating that it does not constitute a
contract or if such disclaimer, though present, is not clear and
conspicuous.” Id. at 409. But then, the division proceeded to say
that “[f]urthermore, even if there is a disclaimer in the manual, an
employer may nevertheless be found to have manifested an intent to
be bound by its terms if the manual contains mandatory
21
termination procedures or requires ‘just cause’ for termination.”3
Id.
¶ 53 If employees could not reasonably construe anything in the
manual as a promise of either procedural or substantive
employment rights, an implied contract claim fails irrespective of
whether there was a clear and conspicuous disclaimer. Jaynes,
148 P.3d at 248; George v. Ute Water Conservancy Dist., 950 P.2d
1195, 1198 (Colo. App. 1997).4 This is so because a fundamental
requirement of all contracts is that the terms of a contract “must be
sufficiently definite to enable the court to determine whether the
contract has been performed or not.” Stice v. Peterson, 144 Colo.
3 Later in the opinion, the division suggests another basis for its
decision: “[W]hile the disclaimer provisions[] are clear, they were not
emphasized. Indeed, they contain nothing to make them
conspicuous.” Evenson v. Colo. Farm Bureau Mut. Ins. Co., 879 P.2d
402, 409 (Colo. App. 1993).
4 In both Jaynes v. Centura Health Corp., 148 P.3d 241, 248 (Colo.
App. 2006), and George v. Ute Water Conservancy Dist., 950 P.2d
1195, 1198 (Colo. App. 1997), divisions of this court were able to
avoid either reconciling or disagreeing with the cases cited above.
In both of those cases, the divisions concluded that the plaintiffs
failed to cite policies in the employers’ manuals that could be
construed as a promise of either procedural or substantive rights
and thus failed to show that the manuals created an implied
contract or were binding on promissory estoppel principles.
Jaynes, 148 P.3d at 248; George, 950 P.2d at 1198.
22
219, 224, 355 P.2d 948, 952 (1960) (quoting Newton Oil Co. v.
Bockhold, 115 Colo. 510, 518, 176 P.2d 904, 908 (1946)); see also
Sheridan Redevelopment Agency v. Knightsbridge Land Co., 166
P.3d 259, 262 (Colo. App. 2007). If the disclaimer is not clear and
conspicuous, it is wholly ineffective to displace promises contained
in the handbook that are relied on by the employees. See Ferrera,
799 P.2d at 461.
¶ 54 To the extent that some divisions of this court have held that
even when the disclaimer is clear and conspicuous, the case
nevertheless goes to the jury, we cannot subscribe to that result
because it gives insufficient weight to a clear and conspicuous
disclaimer.5 See People v. Smoots, 2013 COA 152, ¶ 20 (holding
5 We do not eliminate the possibility that evidence other than the
employee manual and the disclaimer could result in a factual
question of whether an implied contract has been formed. Indeed,
these facts seem to be in play in Evenson, 879 P.2d at 409, where
the division referred to testimony by the company’s managers to the
effect that they regarded the disciplinary procedures as mandatory
and treated them as mandatory. Whether viewed as an amendment
to or an implied revocation of the disclaimer, facts such as those
may well preclude summary judgment and require the fact finder to
ultimately determine whether an implied contract was created. See
I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 887
(Colo. 1986) (“[I]t is for the jury to determine whether the parties
have entered into a contract.”). But Cummings neither pleaded
23
that we are not bound by the decisions of other divisions of this
court). That result also is not faithful to supreme court cases that
have repeatedly reaffirmed the doctrine of at-will employment in
Colorado (subject to several enumerated exceptions). See, e.g.,
Keenan, 731 P.2d 708.
¶ 55 The purpose of a disclaimer is to inform the employee that the
employer is not making contractual promises and that the employee
remains an employee at will. It is difficult to understand how a
reasonable employee could believe that the employer has made
contractual promises in the face of a clear and conspicuous
disclaimer that says exactly the opposite.
¶ 56 Thus, we hold that when a clear and conspicuous disclaimer
informs an employee that he or she cannot reasonably rely on
termination procedures or substantive restrictions on termination
contained in an employee manual, a claim based on an implied
contract claim ordinarily fails as a matter of law.6
such circumstances nor supported his summary judgment
opposition with such evidence.
6 Because no promissory estoppel claim was pleaded in this case,
we do not address the legal effects of clear and conspicuous
disclaimers on such claims.
24
¶ 57 We acknowledge that courts in other states have reached widely
varying results on this question. See Stephen F. Befort, Employee
Handbooks and the Legal Effect of Disclaimers, 13 Indus. Rel. L.J.
326 (1991-92) (collecting cases).
¶ 58 We perceive that the rule we apply here is the majority rule. See
Fed. Exp. Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993) (“A
disclaimer in an employee handbook, such as the one included by
Federal Express, negates any implication that a personnel
procedures manual places a restriction on the employment at will
relationship.”); see also Davis v. Liberty Mut. Ins. Co., 218 F. Supp.
2d 256 (D. Conn. 2002); Anderson v. Douglas & Lomason Co., 540
N.W.2d 277 (Iowa 1995); Byrd v. Imperial Palace of Miss., 807 So.
2d 433 (Miss. 2001); Woolley v. Hoffmann-La Roche, Inc., 491 A.2d
1257 (N.J. 1985), modified, 499 A.2d 515 (N.J. 1985); Ruzicki v.
Catholic Cemeteries Ass’n of Diocese of Pittsburgh, 610 A.2d 495 (Pa.
Super. Ct. 1992); Bine v. Owens, 542 S.E.2d 842 (W. Va. 2000);
Bear v. Volunteers of Am., Wyo., Inc., 964 P.2d 1245 (Wyo. 1998).
¶ 59 Other states hold that the existence of a disclaimer, even one
that is clear and conspicuous, is but one factor in determining
whether an employee manual forms an implied contract. See, e.g.,
25
Brace v. Int’l Bus. Machs. Corp., 953 F. Supp. 561, 567 (D. Vt.
1997); Gonsalves v. Nissan Motor Corp. in Haw., Ltd., 58 P.3d 1196
(Haw. 2002); Lee v. Canuteson, 573 N.E.2d 318 (Ill. App. Ct. 1991);
Hunt v. Banner Health Sys., 720 N.W.2d 49 (N.D. 2006); Hodgson v.
Bunzl Utah, Inc., 844 P.2d 331 (Utah 1992).
¶ 60 In view of the indisputable presence of clear and conspicuous
disclaimers, we need not determine whether the Manual, in fact,
creates sufficiently definite promises or rights capable of
enforcement under contract law. As a matter of law, these
disclaimers preclude a successful implied contract claim based on
any rights other than those that effectuate the specific due process
rights granted by section 30-10-506.
IV. Conclusion
¶ 61 That part of the district court’s summary judgment order
permitting Cummings to pursue an implied contract claim based on
rights conferred in the Manual that effectuate the due process
rights granted by section 30-10-506 is affirmed. In all other
respects, the district court’s summary judgment order is reversed,
and on remand the court is directed to grant the Sheriff’s motion for
summary judgment to that extent.
26
JUDGE FREYRE concurs.
JUDGE BERNARD specially concurs.
27
JUDGE BERNARD, specially concurring.
¶ 62 I agree with the result that the majority reaches: although the
district court properly denied the sheriff’s motion for summary
judgment concerning two statutory rights created by section 30-10-
506, C.R.S. 2017, it erred when it denied the rest of the sheriff’s
motion. But, as I explain below, I employ a different rationale to
reach the same result.
I. Introduction
¶ 63 When interpreting a statute, a court focuses on its plain
language, “construing words and phrases according to the rules of
grammar and common use.” Roberts v. Bruce, 2018 CO 58, ¶ 8.
The court’s “central task is to give effect to the General Assembly’s
intent.” Id. “To this end, [the court will] read the statute as a whole
and seek to give consistent, harmonious, and sensible effect to all
its parts.” Id. “The plain language of the statute is the best
indication of legislative intent, and clear and unambiguous
language eliminates the need to resort to other principles of
statutory construction such as legislative history . . . .” People v.
J.J.H., 17 P.3d 159, 162 (Colo. 2001).
28
¶ 64 “If a statute is clear and unambiguous on its face, then [the
court] need not look beyond the plain language and must apply the
statute as written.” McIntire v. Trammell Crow, Inc., 172 P.3d 977,
979 (Colo. App. 2007). To put it another way, if a court can give
effect to the ordinary meaning of the words adopted by a legislative
body, the statute should be construed as written “since it may be
presumed that the General Assembly meant what it clearly said.”
Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo. 1989). If a
statute is unambiguous, a court does not “resort to legislative
history or further rules of statutory construction.” Smith v. Exec.
Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo. 2010).
¶ 65 My analysis in this case would begin and end with the language
of section 30-10-506, which I will refer to as “section 506.” As I
explain below, I think that this language clearly and unambiguously
describes a legislatively mandated rule that has been in effect in
Colorado since 1877: sheriffs have the authority to fire their
deputies at will.
¶ 66 Although the legislature amended section 506 in 2006, I do not
believe that the amendments altered this rule. I recognize that the
legislature may have intended to eliminate the rule and to
29
completely overrule Seeley v. Board of County Commissioners, 791
P.2d 696, 699 (Colo. 1990). But it is my respectful view that the
plain language that the legislature employed in section 506
achieved those purposes only to the extent that section 506 created
two specific statutory rights, while it otherwise preserved the
authority of sheriffs to fire deputies at will. For the purposes of this
case, this means that the rules in the sheriff’s personnel manual
did not, and could not, override the sheriff’s explicit statutory
authority to fire the former deputy.
II. Comparison of the 1877 Statute and Section 506
¶ 67 As is pertinent to my analysis, the 1877 statute stated: “Each
sheriff may appoint such and so many deputies as he may think
proper . . . and may revoke such appointments at his pleasure.”
G.L. 1877, § 493.
¶ 68 The language that the legislature adopted in 1877, with a few
minor changes, remained in effect for 129 years. See Ch. 43, sec. 1,
§ 30-10-506, 2006 Colo. Sess. Laws 133 (showing that, before the
2006 amendment, the statute read, “Each sheriff may appoint as
many deputies as he may think proper . . . and may revoke such
appointments at his pleasure.”).
30
¶ 69 As a result of the legislature’s 2006 amendments, section 506
now says:
Each sheriff may appoint as many deputies as
the sheriff may think proper and may revoke
such appointments at will; except that a sheriff
shall adopt personnel policies, including
policies for the review of revocation of
appointments. Before revoking an
appointment of a deputy, the sheriff shall
notify the deputy of the reason for the
proposed revocation and shall give the deputy
an opportunity to be heard by the sheriff.
¶ 70 Comparing judicial descriptions of employees who serve at the
pleasure of an employer and of at-will employees, I conclude that
there is no significant difference between them. “An employee who
serves ‘at the pleasure’ of his employer generally may be discharged
at any time without cause or formal procedure.” Johnson v.
Jefferson Cty. Bd. of Health, 662 P.2d 463, 471 (Colo. 1983). An at-
will employee “may be terminated by either [the employee or the
employer] without cause and without notice.” Crawford Rehab.
Servs., Inc. v. Weissman, 938 P.2d 540, 546 (Colo. 1997)(quoting
Cont’l Airlines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987)).
¶ 71 Our supreme court has carefully analyzed the language of the
1877 statute in a series of cases. I explain those opinions next.
31
III. Cases Analyzing the 1877 Statute
¶ 72 Because counties are political subdivisions of the State of
Colorado, they only have “such powers as are expressly conferred
. . . by the constitution and statutes, and such incidental implied
powers as are reasonably necessary to carry out such express
powers.” Bd. of Cty. Comm’rs v. Love, 172 Colo. 121, 125, 470 P.2d
861, 862 (1970), superseded by statute on other grounds, Ch. 213,
1979 Colo. Sess. Laws 843. In other words, a county department,
“as a political subdivision of the state, may not by rule or regulation
abdicate the authority and responsibility delegated to it by the
legislature.” Johnson, 662 P.2d at 471.
¶ 73 As a result, “a local government may not forbid that which the
state has explicitly authorized.” Id. This means that, if the
legislature has given a county official the authority to terminate
employees at will, then a county’s personnel rules “do not override
the explicit statutory authority of the [official] to discharge [an
employee].” Id.
¶ 74 Seeley, 791 P.2d at 699, applied these principles when
considering the language of the 1877 statute. The supreme court
concluded that this plain language meant that a sheriff could not,
32
via the sheriff’s personnel policies collected in a personnel manual,
“limit his power to terminate deputy sheriffs.” Id. at 700. Those
policies, the supreme court thought, contravened the 1877 statute,
and, by doing so, the policies sought to “forbid that which the state
has explicitly authorized.” Id. (quoting Adams Cty. Sch. Dist. No. 50
v. Dickey, 791 P.2d 688, 690 (Colo. 1990)). To put it another way,
the 1877 statute “did not authorize [the sheriff] to limit his
statutory power to discharge deputy sheriffs at his pleasure.” Id.
¶ 75 Seeley held that a local government entity, such as a sheriff’s
office, “may limit its power to terminate employees if it possesses
the requisite statutory authority to do so.” Id. at 699. Only the
legislature can provide the “requisite statutory authority.”
¶ 76 So what does such “statutory authority” look like? Dickey
provides one example. In that case, a statute “authorize[d] school
boards to adopt written policies, rules and regulations.” Dickey,
791 P.2d at 692. The subjects of the rules and regulations were
“inherently related to practices affecting the employment,
promotion, and dismissal of personnel.” Id. The statute did not
require school boards “to adopt employment termination
procedures,” but “if they cho[]se to do so the promulgation of such
33
procedures constitute[d] an authorized exercise of the powers
granted to school boards” by the statute. Id.
¶ 77 The supreme court was careful to point out that the statutory
language in Dickey “differ[ed] significantly from statutory provisions
which have been held to override employment termination
procedures established by local governments.” Id. The court listed
three cases to support this distinction.
¶ 78 In Johnson, the statute stated that a county public health officer
“shall be appointed by the board [of health] to serve at the pleasure
of the board.” 662 P.2d at 471 (quoting § 25-1-505(1), C.R.S.
1973). The supreme court thought that this language “expressed
the legislature’s judgment that county boards of health should have
the authority to discharge county public health officers ‘at any time
without cause or formal procedure.’” Dickey, 791 P.2d at 692
(quoting Johnson, 662 P.2d at 471).
¶ 79 In Kennedy v. Board of County Commissioners, 776 P.2d 1159,
1160 (Colo. App. 1989), a statute read that “[a]ny persons
appointed to such offices shall serve at the pleasure of the board of
county commissioners.” A division of the court of appeals noted
34
that this language “define[d] the employee as terminable at will and
[it] supersede[d] any county declaration to the contrary.” Id.
¶ 80 And, in Seeley, the supreme court considered the language in the
predecessor statute to section 506 that we have quoted above:
“Each sheriff may appoint as many deputies as he may think proper
. . . and may revoke such appointments at his pleasure.” 791 P.2d
at 699 (quoting § 30-10-506, C.R.S. 1986). The court in Dickey
decided that this language made “deputy sheriffs employees at will,”
and, as a result, sheriffs had “no power to alter the employment
status of deputy sheriffs through the promulgation of employee
manuals.” 791 P.2d 692.
IV. Interpretation of Section 506
¶ 81 Applying the principles of statutory construction that I described
in the Introduction, I conclude that the language in section 506 is
plain and clear. I think that it continues the legislatively mandated
rule that appeared in the 1877 statute: a sheriff may terminate a
deputy’s appointment “at will.” This means that a sheriff may fire a
deputy “without cause and without notice,” Crawford Rehab. Servs.,
Inc., 938 P.2d at 546, and that such a decision “does not give rise to
a cause of action,” Dickey, 791 P.2d at 691.
35
¶ 82 Next, the legislature also has the authority to “create[] exceptions
to the employer’s general right to terminate an employee at-will.”
Crawford Rehab. Servs., Inc, 938 P.2d at 546. I find two of those
exceptions in section 506: a sheriff must give a deputy (1) notice of
the reason why he or she is firing the deputy; and (2) an
opportunity “to be heard by the sheriff.” In other words, section
506 limits a sheriff’s at-will authority to fire a deputy in these two
ways. See Crawford Rehab. Servs., Inc., 938 P.2d at 546.
¶ 83 But what is the effect of the language in section 506 that requires
sheriffs to adopt policies “for the review of revocation of
appointments”? Does it set out additional exceptions to “the
employer’s general right to terminate an employee at-will”?
Crawford Rehab. Servs., Inc., 938 P.2d at 546. I would answer the
second question “no.”
¶ 84 The requirement that a sheriff must adopt policies for reviewing
the decision to fire a deputy is not accompanied by language stating
that a sheriff is bound by those policies, or that the sheriff must
“follow” or “comply with” them, or that they “control,” “modify,” or
“limit” the sheriff’s discretion to fire deputies at will. And I cannot
add such language to section 506 in the course of interpreting it.
36
Will. v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 85 (“[W]hen
interpreting a statute, ‘we must accept the General Assembly’s
choice of language and not add or imply words that simply are not
there.’” (quoting People v. Benavidez, 222 P.3d 391, 393-94 (Colo.
App. 2009))); Carruthers v. Carrier Access Corp., 251 P.3d 1199,
1204 (Colo. App. 2010)(“[W]e will not interpret a statute to mean
that which it does not express.”).
¶ 85 So what purpose does the requirement in section 506 that
sheriffs adopt policies “for the review of revocation of appointments”
serve? I conclude that the policies are “discretionary rather than
mandatory termination procedures,” Jaynes v. Centura Health
Corp., 148 P.3d 241, 249 (Colo. App. 2006), because the
requirement is not accompanied by statutory language requiring
sheriffs to follow the policies. Cf. Kreimeyer v. Hercules, Inc., 892 F.
Supp. 1374, 1378 (D.C. Utah 1994) (discretionary personnel
policies were guidelines or a management tool and did not create an
implied employment contract).
¶ 86 Because I conclude that the legislatively mandated at-will
employment rule survived the 2006 amendments, I think the
supreme court cases that interpreted the 1877 statute still apply to
37
this case. I would therefore additionally conclude that, although
the legislature amended the 1877 statute in 2006, the continued
presence of the legislatively mandated at-will employment rule in
section 506 means that the resolution of this case is controlled by
Seeley instead of Dickey. As the supreme court pointed out in
Seeley, the 1877 statute “explicitly authorize[d] . . . sheriffs to
discharge deput[ies] . . . at their pleasure.” 791 P.2d at 699.
Section 506 does the same thing. So section 506 “did not authorize
[the sheriff] to limit his statutory power to discharge deput[ies] . . .
at his pleasure.” Seeley, 791 P.2d at 699-700; see Johnson, 662
P.2d at 471 (“We conclude . . . that the . . . personnel rules, even
though adopted by the board of health, do not override the explicit
statutory authority of the board to discharge a public health officer
appointed by the board.”).
¶ 87 Turning to the statute in Dickey, it did not make an explicit
reference to school boards having the power to terminate
employment at will, and it did not state that employees served at
the pleasure of the school boards. Rather, it gave the school boards
discretionary powers “[t]o discharge or otherwise terminate the
employment of any personnel.” Dickey, 791 P.2d at 691. Section
38
506 is different: it expressly gives sheriffs the authority to terminate
deputies’ employment at will by clearly stating that sheriffs “may
revoke” the appointments of deputies “at will.”
¶ 88 The supreme court observed in Kennedy, 776 P.2d at 1160, that
statutory provisions such as section 506 “have been construed to
bar claims for breach of contract based on assurances in an
employee handbook under the rationale that such a statute defines
the employee as terminable at will and the statute supersedes any
county declaration to the contrary.” Accord Johnson, 662 P.2d at
471 (A county’s personnel rules “do not override the explicit
statutory authority of the [official] to discharge [an employee].”).
Relying on Seeley, Kennedy, and Johnson, I would therefore
conclude that section 506 bars the deputy’s claim in this case that
the sheriff’s employment policies, as embodied in the policy manual,
created an implied employment contract that the Sheriff breached
when he fired the deputy.
¶ 89 To summarize, reading the three components of section 506
together leads me to conclude that (1) the legislature preserved the
rule that it first adopted in 1877 that sheriffs have the authority to
terminate deputies’ appointments at will; (2) this authority is now
39
subject to two exceptions and to two exceptions only; and,
therefore, (3) the legislature made clear that sheriffs have “no
[additional] power to alter the employment status of deputy sheriffs
through the promulgation of employee manuals.” Dickey, 791 P.2d
at 692.
¶ 90 I would therefore, like the majority, (1) affirm the district court’s
order denying the sheriff’s motion for summary judgment with
respect to two specific statutory rights created by section 506; but
(2) otherwise reverse the court’s order denying the motion.
40