Discipline Not Negotiable For Denver Firefighters

Until 2013, there was no statewide law in Colorado calling for collective bargaining for firefighters. However, many years ago the City and County of Denver adopted a charter provision calling for bargaining with employees, and Local 858 of the International Association of Fire Fighters and Denver have had a long bargaining relationship.

In 2010, the City unilaterally attempted to change the Charter’s existing disciplinary system governing firefighter conduct. Specifically, the City sought to create and implement a discipline matrix, which lists prohibited conduct along with corresponding disciplinary sanctions that are progressively harsher based on the severity and frequency of the misconduct. When the City refused to bargain over the implementation of the matrix, Local 858 sued, contending the charter mandated negotiations over disciplinary issues.

The Colorado Supreme Court rejected the lawsuit. The Court held that “we start by determining whether the City possesses authority to unilaterally draft disciplinary rules. In order to decipher the extent of the City’s authority over discipline, we focus on section 9.4.13 – the only Charter provision that affirmatively addresses the Fire Department’s rules of conduct. Section 9.4.13 provides that:

“‘The rules governing the conduct of members of the Classified Service in the Fire and Police Departments shall be set forth as written rules and regulations by the Chief of each of the respective departments with the approval of the Manager of Safety, provided, however, that such rules and regulations shall not contain any political or religious qualifications or disqualifications. Any member of the Classified Service shall be subject to reprimand, discharge, reduction in grade, fine and/or suspension for a violation of such rules and regulations.’”

In the eyes of the Court, “the unambiguous language of the first sentence makes clear, the Fire Chief has authority to set forth written rules and regulations relating to discipline. Importantly, the Fire Chief’s authority is subject to two explicit constraints: (1) The Manager of Safety’s approval, and (2) a prohibition against rules that contain political or religious qualifications or disqualifications. We conclude that this language gives the Fire Chief authority to both draft new disciplinary rules and implement existing disciplinary rules.

“Having determined that the City possesses authority to draft and implement disciplinary rules pursuant to section 9.4.13, we next determine whether the Firefighters’ right to bargain restricts the City’s authority. Section 9.7.3 – the specific Charter provision that establishes the Firefighters’ right to collectively bargain and specifies the topics that are subject to collective bargaining – provides that firefighters shall have the right to bargain collectively with the City and County of Denver ‘and to be represented by an employee organization in such collective bargaining as to wages, rates of pay, hours, grievance procedure, working conditions, and all other terms and conditions of employment, except the table of organization of the Fire Department and except pensions.’

“The topic of discipline is conspicuously absent from section 9.7.3, as is any reference to section 9.4.13. Without any express language bringing discipline into the ambit of collective bargaining, we will not infer that the discipline matrix is subject to bargaining merely because the phrase ‘terms and conditions of employment’ is undefined and could conceivably encompass disciplinary rules.

“Inferring that discipline is a term and condition of employment under section 9.7.3 would require this Court to unnecessarily adulterate the express language of section 9.4.13 vesting the City with authority to draft disciplinary rules. Absent clear Charter guidance regarding the meaning and scope of the phrase terms and conditions of employment, we refuse to read words into section 9.4.13 that would vitiate other express provisions of the Charter. Embracing our mandate to strictly construe the Charter and to favor constructions that yield harmonious results, we hold that the Firefighters’ right to bargain does not limit the City’s authority to create disciplinary rules.”

City and County of Denver v. Denver Firefighters Local No. 858, 2014 WL 812942 (Colo. 2014).