In Denver, Burden Of Proof In Discipline Cases Is On Officer

Labor issues in Colorado are handled under a patchwork quilt of laws. Firefighters are covered by a statewide bargaining law; police and sheriffs are not, and where law enforcement bargaining occurs, it is pursuant to local charter provisions and ordinances. Some local charters have broad definitions of what is negotiable, while others contain narrow lists of bargainable topics.

Denver falls in the latter category, and a topic that has historically been considered off-limits for bargaining for Denver police has been the method of disciplinary appeals. Instead, Denver’s Charter establishes a Civil Service Commission with authority over disciplinary appeals. As a recent case shows, the Charter can lead to some unusual results.

The case involved the Police Department’s decision to impose a ten-day suspension without pay on Officer Brian Marshall because he had used excessive force in arresting a suspected drunk driver. Marshall appealed. A hearing officer for the Commission found that Marshall had proven the Department’s action was “clearly erroneous.” The Commission disagreed and reversed the hearing officer’s decision, and the matter wound its way through the courts.

In the Colorado Court of Appeals, the key question was who had the burden of proof in disciplinary appeals – the Department or the officer. Normally, such a question would scarcely raise an eyebrow, as it is a basic tenet of the principle of “just cause for discipline” that the employer bears the burden of proving the charges against the employee.

Not so in Denver, held the Court. The Court found that Denver’s Charter did not expressly address the burden of proof in disciplinary cases. In the absence of controlling language, the Court reasoned, the Commission had the authority to enact rules to place upon the employee the burden of proving that the Department’s disciplinary decision was incorrect.

Marshall argued that as the Charter mandates that the Department “shall offer evidence” in support of its disciplinary decision necessarily implied that the Department bore the burden of proof. The Court found that the Charter provision “requires only that the Director present an unspecified quantum of evidence. Marshall’s suggested interpretation would expand ‘shall offer evidence’ into a mandate that the Department bear the ultimate burden of proof before the Commission.

“The Charter delegates unlimited rulemaking authority to the Commission regarding hearing procedures. The burden of proof in a hearing is a matter of procedure. Yet, Marshall’s interpretation would exclude assigning the burden of proof from this unlimited rulemaking authority.

“We also reject Marshall’s contention that general principles of the Charter prevent the Commission from assigning the burden of proof to the employee challenging the discipline imposed. Marshall argues that the Charter was not intended to give the City ‘a blank check of disciplinary authority’; instead, it was intended to protect civil service employees from ‘arbitrary and capricious political action,’ by giving every employee the right to demand that the Director present its case against him.

“Still, and even accepting Marshall’s characterizations, they do not preclude shifting the burden of proof in the hearing before the Commission or a hearing officer.”

Marshall v. Civil Service Commission, 2016 WL 6122814 (Colo. App. 2016).