Denver Police Protective Association v. City and County of Denver, Colorado

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
February 22, 2018
2018COA26
17CA0178, Denver Police Protective Association v. City &
County of Denver — Labor and Industry — Labor Relations —
Collective Bargaining
In this collective bargaining case, the division holds that body-
worn cameras are not “personal safety and health equipment”
under the Charter of the City and County of Denver. The division
therefore concludes that body-worn cameras are not a mandatory
subject of collective bargaining. Accordingly, the division reverses
the contrary judgment of the district court.
COLORADO COURT OF APPEALS 2018COA26
Court of Appeals No. 17CA0178
City and County of Denver District Court No. 15CV33862
Honorable Ross B.H. Buchanan, Judge
Denver Police Protective Association,
Plaintiff-Appellee,
v.
City and County of Denver, Colorado,
Defendant-Appellant.
JUDGMENT REVERSED
Division VII
Opinion by JUDGE BERGER
Bernard and Freyre, JJ., concur
Announced February 22, 2018
Olson Law Firm, LLC, Sean T. Olson, Denver, Colorado, for Plaintiff-Appellee
Kristin M. Bronson, City Attorney, Robert D. Nespor, Assistant City Attorney,
Kristin George, Assistant City Attorney, Denver, Colorado, for Defendant-
Appellant
¶1 In this collective bargaining dispute, the district court held
that defendant, the City and County of Denver (Denver), was
obligated to engage in collective bargaining with plaintiff, the
Denver Police Protective Association (DPPA), over a Denver Police
Department (DPD) policy requiring certain of its officers to wear and
use body-worn cameras (BWCs). The district court concluded that
BWCs constituted “personal safety and health equipment,” and
thus are a mandatory subject of collective bargaining.
¶2 As it did in the district court, Denver contends that BWCs are
not “personal safety and health equipment” and therefore it had no
obligation to engage in collective bargaining over the DPD’s policies
regarding BWCs. We agree with Denver, hold that BWCs are not
“personal safety and health equipment,” and reverse the district
court’s judgment.
I. Relevant Facts and Procedural History
¶3 Denver and DPPA are parties to a collective bargaining
agreement. That agreement implements the Charter of the City and
1
County of Denver (Charter),1 which sets forth Denver’s obligations
regarding collective bargaining with certain of its employees.
¶4 The Charter provides that “Police Officers shall have the right
to bargain collectively with [Denver] and to be represented by an
employee organization in such negotiations.” Charter § 9.8.3(A).
However, this right is not unlimited.
¶5 The Charter describes three categories of subjects of collective
bargaining. First, there are mandatory subjects of bargaining.
These include compensation, the number of hours in the workweek,
and “[p]ersonal safety and health equipment.” Charter § 9.8.3(B)(i),
(iii), (v). The second category describes permissive subjects of
bargaining. Denver may, but is not required to, bargain over these
subjects. This category includes “[o]fficer safety and health matters
except as provided in 9.8.3(B)(v) [personal safety and health
equipment].” Charter § 9.8.3(D)(vii).2
¶6 In 2015, the DPD promulgated, without bargaining or
consultation with DPPA, a policy regarding the use of BWCs. The
1 The Charter is located in title I, subtitle B of the Revised Municipal
Code of the City and County of Denver.
2 The third category addresses matters upon which bargaining is
prohibited. Neither party contends that BWCs fall within this third
category.
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policy requires “patrol officers and corporals assigned to all six
police Districts, the Gang Unit and Traffic Operations” to wear and
use BWCs. Immediately after the policy was announced, DPPA
contended that the wearing and use of BWCs was a mandatory
subject of bargaining, and it demanded that Denver bargain.
Denver refused.
¶7 DPPA filed suit, alleging that Denver violated the collective
bargaining agreement by implementing the BWC policy without first
bargaining in good faith with DPPA. The parties filed cross-motions
for summary judgment. DPPA argued the BWC policy fell under
either “compensation,” “the number of hours in the workweek,” or
“personal safety and health equipment,” and thus was a mandatory
subject of bargaining. Denver contended that while the wearing
and use of BWCs might bear upon “officer safety and health
matters,” BWCs were not “personal safety and health equipment,”
and Denver had no obligation to bargain over the wearing and use
of BWCs.
¶8 The district court granted summary judgment in favor of
DPPA. It first concluded that BWCs did not fall under
“compensation” or “the number of hours in the workweek,”
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conclusions that are not challenged on appeal. The court then
concluded that “BWCs are a unique piece of equipment with a
significant safety dimension integral to their purpose, despite
arguably being secondary to their evidence-gathering purposes, and
therefore qualify as ‘personal safety and health equipment’ within
the meaning of the Charter.” Consistent with this conclusion, the
district court ordered Denver to bargain over the implementation of
the BWC policy.
II. Body-Worn Cameras Are Not “Personal Safety and Health
Equipment”
A. Standard of Review
¶9 We review the grant or denial of summary judgment de novo.
Miller v. City & Cty. of Denver, 2013 COA 78, ¶ 12. “When, as here,
the parties do not raise factual disputes, issues of statutory
interpretation are particularly appropriate for resolution on
summary judgment.” Bontrager v. La Plata Elec. Ass’n, 68 P.3d
555, 558 (Colo. App. 2003).
¶ 10 Because a municipal charter is the equivalent of a statute or
other legislation, “[i]nterpretation of a municipal ordinance involves
a question of law subject to de novo review.” MDC Holdings, Inc. v.
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Town of Parker, 223 P.3d 710, 717 (Colo. 2010). “We employ the
rules of statutory construction to guide our interpretation of the
Charter.” City & Cty. of Denver v. Denver Firefighters Local No. 858,
2014 CO 15, ¶ 10.
¶ 11 We construe a charter according to its plain and ordinary
meaning. Cook v. City & Cty. of Denver, 68 P.3d 586, 588 (Colo.
App. 2003). “Where charter language appears reasonably certain,
plain, and unambiguous, resort to other rules of statutory
construction is unnecessary.” Miller, ¶ 17.
¶ 12 “Just as we favor interpretations that give harmonious and
sensible effect to all parts of a charter, we avoid interpretations that
yield absurd or unreasonable results.” Denver Firefighters Local No.
858, ¶ 10.
B. Analysis
¶ 13 We must determine whether BWCs are “personal safety and
health equipment,” as DPPA claims and the district court held, or
instead, equipment that relates to “officer safety and health
matters,” as Denver contends. If they are the former, Denver is
required to bargain over their use, but if they are the latter, Denver
is legally within its rights to refuse to bargain.
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¶ 14 Both categories use some of the same key words — “safety”
and “health.” Thus, it is hardly a surprise that a dispute has arisen
over the proper categorization of BWCs. Our job is to define
“personal safety and health equipment” as precisely as possible
because the categorization is outcome determinative.
¶ 15 We begin with the recognition that we are considering a police
department policy. The essential functions of any police
department include both public and officer safety. To that extent,
every piece of equipment utilized by police officers relates to safety
in some manner.
¶ 16 But the Charter distinguishes between two closely related
concepts, and we must give substance to each of these concepts.
Denver Firefighters Local No. 858, ¶ 10. If “personal safety and
health equipment” includes all equipment that has any tendency to
affect the personal safety and health of an officer, that category
would include officer-worn radios, badges, and virtually every other
piece of equipment that police officers use to carry out their
important duties. (Depending on the definition of “personal” it
might also include police cars and computers used by the officers.)
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¶ 17 We cannot apply such a definition because it ignores the two
separate categories established by the Charter and the significant
differences between them in terms of collective bargaining
obligations. “If possible, we read ordinances as a whole, giving
consistent, harmonious, and sensible effect to all parts.” MDC
Holdings, 223 P.3d at 717. So, “personal safety and health
equipment” must have some more limited meaning.
¶ 18 We therefore are left to ascribe meaning to “personal safety
and health equipment” that makes logical sense, that preserves the
distinction between “personal safety and health equipment” and
equipment that relates to “officer safety and health matters,” and
that can be meaningfully applied, not only in this case but in later
cases as well.
¶ 19 The district court recognized the same problem that confronts
us when it observed that “BWCs are a unique piece of equipment
with significant safety dimension[s] integral to their purpose.” The
district court’s solution was to construe “personal safety and health
equipment” to include only equipment for which the police
department explicitly recognizes a safety purpose.
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¶ 20 While this was a yeoman’s effort to resolve the problem, in the
end, this solution is unworkable. If the inclusion or exclusion of an
explicit safety reference were dispositive, the DPD could entirely
avoid a “personal safety and health equipment” categorization by
the simple, expedient deletion of any reference to safety, even when
it is apparent that safety is a significant or primary motivation for
the use of the equipment. That is not a reasonable interpretation of
the Charter. See Bd. of Cty. Comm’rs v. Park Cty. Sportsmen’s
Ranch, LLP, 45 P.3d 693, 711 (Colo. 2002). Moreover, every piece of
equipment is “unique” to some extent, and we are unable to see
how the application of the district court’s definition would be
predictable or workable in practice.
¶ 21 Given the lack of other reasonable alternatives, we conclude
that the only other option is to restrict the definition of “personal
safety and health equipment” to equipment whose principal purpose
is the safety of officers. To read the Charter otherwise would make
the distinction between “personal safety and health equipment” and
“officer safety and health matters” nearly impossible to discern in
any particular case, as illustrated by the facts presented here. See
People v. Dist. Court, 713 P.2d 918, 921 (Colo. 1986) (noting that
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when interpreting statutes, or charters, “the construction which
results in harmony rather than inconsistency should be adopted”).
¶ 22 This case therefore turns on whether the principal purpose of
BWCs is officer safety. The promulgated BWC policy recognizes
under the subheading “Purpose” five uses of BWCs:
a. To capture crimes in–progress, whether
perpetrated against the officer or the
community and to maintain this evidence for
presentation in court.
b. To document initial police response, the
discovery of evidentiary items and the action of
the police pursuant to an investigation
including calls for service of self initiated police
contacts.
c. To mitigate potentially confrontational
interactions with members of the public
through the presence of the BWC.
d. To prevent and resolve complaints made
against officers during the course of their
police duties.
e. To serve in training and performance
feedback, ensuring the professionalism of all
Denver Police officers.
¶ 23 DPPA relies on subsection (c) to argue that the safety of police
officers is an integral purpose of the BWC policy. Denver, on the
other hand, contends that the main purpose of BWCs is evidentiary
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in nature, and that even if BWCs impact officer safety, the safety
effect is secondary to the evidentiary purpose.
¶ 24 Only a strained reading of the BWC policy supports the
conclusion that the principal purpose of BWCs is officer safety. This
conclusion is solidified when we contrast BWCs to equipment that
everyone agrees is “personal safety and health equipment.”
¶ 25 Firearms and bullet-proof vests are clearly “personal safety
and health equipment,” and thus a mandatory subject of
bargaining. The obvious principal purpose of firearms and vests is
to protect officers in the line of duty. That is not to say that the
equipment does not have other uses unrelated to officer safety, but
the primary reason for this equipment is to enhance officer safety.
¶ 26 On the other hand, many types of equipment may impact
officer safety and have a safety purpose, yet are not reasonably
considered “personal safety and health equipment.” For example,
neither party contends that an officer’s radio is “personal safety and
health equipment,” yet an officer’s ability to quickly call for
assistance is integral to that officer’s safety. Nor, as best as we can
tell, has DPPA ever contended that this type of equipment
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constitutes “personal safety and health equipment” as used in the
Charter.
¶ 27 BWCs may incidentally impact officer safety, but their
principal purpose is something other than safety. A BWC could
deflect a knife, bullet, or other object and potentially save an
officer’s life. Even more theoretical is the possibility that a BWC
could decrease the likelihood that an officer will be assaulted by a
citizen if the citizen is aware that he is being filmed.3 But, unlike
bullet-proof vests, whose principal purpose is to protect officers
from bullets, the principal purpose of BWCs is not to increase the
safety of the officer.
¶ 28 We therefore conclude that BWCs are not “personal safety and
health equipment” under the Charter, and are not a mandatory
subject of bargaining.4 The district court erred in concluding
otherwise.
3 As the record in this case demonstrates, the safety impact in that
regard, if any, is unclear. The two studies relied on by DPPA
contradicted one another in their respective conclusions about the
safety effect of BWCs.
4 Because of our disposition, we do not address Denver’s contention
that the district court erred when it refused to defer to Denver’s
interpretation of the Charter.
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III. Other Issues on Appeal
¶ 29 Given our disposition, it is unnecessary for us to address the
other alleged errors.
IV. Conclusion
¶ 30 The judgment is reversed.
JUDGE BERNARD and JUDGE FREYRE concur.
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