v. Arapahoe Cnty. Sheriff's Office

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 9, 2021

2021COA122

No. 20CA0621, Cummings v. Arapahoe Cnty. Sheriff’s Office —
Government — County Officers — Sheriff — Deputies

A division of the court of appeals applies the holding from

Cummings v. Arapahoe County Sheriff’s Department, 2018 COA 136,

to a sheriff’s personnel policy granting notice of an investigation and

provides guidance as to the scope of Cummings and section 30-10-

506, C.R.S. 2020. Because the subject policy did not effectuate the

specific right section 30-10-506 grants a deputy — the right to

notice “of the reason for the proposed revocation” of his employment

— the division concludes the policy was not contractually binding.

Accordingly, the district court erred by instructing the jury to

consider the sheriff’s compliance with the policy in determining

whether he breached an implied employment contract.
COLORADO COURT OF APPEALS 2021COA122

Court of Appeals No. 20CA0621
Arapahoe County District Court No. 16CV32444
Honorable Kenneth M. Plotz, Judge

Michael Cummings,

Plaintiff-Appellee,

v.

Arapahoe County Sheriff’s Office and Tyler S. Brown, in his capacity as Sheriff
of Arapahoe County,

Defendants-Appellants.

JUDGMENT REVERSED

Division VII
Opinion by JUDGE FOX
Dunn and Pawar, JJ., concur

Prior Opinion Announced August 5, 2021, WITHDRAWN

OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO
C.A.R. 35(e)” ON August 5, 2021, IS NOW DESIGNATED FOR PUBLICATION

Announced September 9, 2021

Mark S. Bove, P.C., Mark S. Bove, Greenwood Village, Colorado, for Plaintiff-
Appellee

Ronald A. Carl, County Attorney, Erin L. Powers, Senior Assistant County
Attorney, Daniel C. Perkins, Senior Assistant County Attorney, Rebecca M.
Taylor, Assistant County Attorney, Littleton, Colorado, for Defendants-
Appellants
¶1 Defendants, the Arapahoe County Sheriff’s Office and Tyler S.

Brown (collectively, the Sheriff), appeal the judgment entered on a

jury verdict finding them liable for breaching an implied

employment contract with former deputy Michael Cummings.

Specifically, the Sheriff argues that the district court erred by (1)

instructing the jury to consider whether he violated section 306(I)(4)

of the Sheriff’s Policy and Procedure Manual (the Manual); and (2)

denying his post-trial motion to enter judgment for the Sheriff

notwithstanding the verdict. The Sheriff also invites us to

reconsider the holding in Cummings v. Arapahoe County Sheriff’s

Department, 2018 COA 136 (Cummings I), which decided the

Sheriff’s pretrial interlocutory appeal. While we decline to revisit

Cummings I, we agree with the Sheriff that the district court erred

by instructing the jury to consider whether he violated section

306(I)(4) and therefore reverse the judgment.

I. Background

¶2 Cummings developed and taught a specialized driver training

course entitled Vehicle Counter Ambush Techniques (VCAT). After

Cummings taught the VCAT course in June 2015, a lieutenant filed

a complaint alleging Cummings violated numerous policies,

1
including a policy entitled “ADM 310.A.2 Truthfulness,” while

instructing. Cummings then received a notice of complaint from

the Internal Affairs Section of the Arapahoe County Sheriff’s Office

(IAS) that read, in relevant part, as follows:

From June 14, 2015 to June 17, 2015,
Sergeant Michael Cummings was the lead
instructor for a [VCAT] class taught at the
Arapahoe County Sheriff’s office driving track.
It is alleged [that] Sergeant Cummings used
his personal vehicle as part of training
scenarios on the track without authorization,
did not report damage to county vehicles, and
did not ensure all county vehicles used for
training were inspected by the County Shops
afterwards. It is also alleged that Sergeant
Cummings allowed the use of “NOVA” rounds
without notifying [Sheriff’s office] personnel in
the area who were not part of his class . . . .

Possible policy violations include:

310.A.1-Obedience of Laws, Directives and
Orders
310A.2-Accountability and Responsibility
310A.6-Conduct Unbecoming of a Member or
Auxiliary
510-General Vehicle Operations
402-Driving Training/Driving Facility

¶3 IAS investigated these allegations, provided the investigatory

file to Cummings, met with Cummings in person to discuss the

allegations, and later issued a memo concluding that, while

Cummings did not violate policy “310A.2-Accountability and

2
Responsibility,” he violated three other policies. The memo

proposed to demote Cummings in rank to “Deputy C.”

¶4 Cummings appealed the IAS decision to a disciplinary hearing

panel, which held a hearing in November 2015 to consider all the

information in Cummings’ investigatory file, including whether

Cummings had been untruthful. After considering the testimony,

including Cummings’ statements and additional evidence after the

hearing, the panel concluded that Cummings should be terminated

because he was untruthful during the investigatory process. After

additional review, the Sheriff upheld the panel’s recommendation

and fired Cummings shortly thereafter.

¶5 Cummings sued the Sheriff, asserting, among other things,

that the written employment policies in the Manual constituted an

implied employment contract that the Sheriff breached when he

fired Cummings. Specifically, Cummings alleged that, while the

Sheriff supplied the reasons for the initial IAS investigation, the

Sheriff did not afford him notice of the charges that eventually led

to his termination and thus denied him an adequate opportunity to

defend himself. After the district court denied the Sheriff’s motion

to dismiss the implied contract claim, the Sheriff moved for

3
summary judgment, contending that (1) the at-will language in

section 30-10-506, C.R.S. 2020, prevented him from promulgating

binding personnel policies; (2) the Manual’s disclaimers, coupled

with separate disclaimers that Cummings signed annually,

precluded any implied contract claim; and (3) he had not violated

the Manual’s policies.

¶6 The district court held that the Manual created an implied

contract of employment and denied the Sheriff’s motion for

summary judgment. The Sheriff immediately appealed, and a

division of this court held that, while section 30-10-506 grants

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,” the statute does

not make other personnel policies binding unless the sheriff elects

to make them so. Cummings I, ¶ 6 (quoting § 30-10-506).

Accordingly, the division affirmed the district court’s “denial of

summary judgment with respect to the specific rights granted by

section 30-10-506, but otherwise reverse[d] the court’s denial of

summary judgment on Cummings’ implied contract claim.” Id. at

¶ 7.

4
¶7 After Cummings rested his case-in-chief at trial, the Sheriff

moved for a directed verdict. The Sheriff argued that Cummings

had “failed to set forth evidence that he was deprived of either

notice of the proposed reasons for his termination or the

opportunity to be heard[,] or that . . . the [S]heriff failed to follow

specific provisions in the policy manual that deprived him of either

of those.” The district court held that Cummings had made a prima

facie case that the Sheriff did not give him adequate notice of the

charges that eventually led to his termination but dismissed

Cummings’ claims “regard[ing] . . . the issue of [a] fair hearing.”

¶8 After the close of evidence, Cummings asked the district court

to instruct the jury to consider whether the Sheriff complied with

section 306(I)(4) of the Manual — requiring the Sheriff to provide a

notice of complaint to employees under IAS investigation outlining,

among other things, the allegations against them and “[a] list of

possible Code of Conduct violations.” The Sheriff responded that

the court should not reference section 306(I)(4) in the jury

instructions because that section does not effectuate the language

of section 30-10-506. The Sheriff argued that, while section 30-10-

506 requires sheriffs to notify deputies “of the reason for the

5
proposed revocation,” section 306(I)(4) merely concerns notifying

deputies who are under investigation. The district court rejected

the Sheriff’s argument and included section 306(I)(4) in the jury

instructions.

¶9 The jury found that the Sheriff complied with the Manual’s

section 306(M)(4) (notice of proposed revocation) but failed to

comply with section 306(I)(4) (notice of investigation) and awarded

Cummings $153,578 in damages. The Sheriff moved for judgment

notwithstanding the verdict, arguing that (1) the jury’s verdict that

the Sheriff did not violate section 306(M)(4) mandated judgment in

his favor as a matter of law; (2) the district court improperly

included section 306(I)(4) in the jury instructions; and (3) the

district court should reduce Cummings’ damages to $1.00 because

his alleged breach of section 306(I)(4) could not have caused those

damages. The district court denied the motion, holding that

Cummings provided adequate evidence “from which a finder of fact

could reasonably find that the notice of reasons for termination

were insufficient and thus find that [the Sheriff] violated

[Cummings’] due process rights under the law.” This appeal

followed.

6
II. We Decline to Revisit Cummings I

¶ 10 The Sheriff invites us to revisit Cummings I. We decline to

reconsider that decision.

¶ 11 The doctrine of the law of the case is a discretionary rule of

practice directing that prior relevant rulings made in the same case

generally are followed. DeForrest v. City of Cherry Hills Village, 990

P.2d 1139, 1142 (Colo. App. 1999). “[C]onclusions of an appellate

court on issues presented to it as well as rulings logically necessary

to sustain such conclusions become the law of the case.” Hardesty

v. Pino, 222 P.3d 336, 340 (Colo. App. 2009) (quoting Super Valu

Stores, Inc. v. Dist. Ct., 906 P.2d 72, 78–79 (Colo. 1995)).

¶ 12 But, in a later appeal,

when the decision in question issued from the
same appellate court, a different division of
that court may exercise its discretion and
decline to apply the law of the case doctrine,
. . . only “if it determines that the previous
decision is no longer sound because of
changed conditions or law, or legal or factual
error, or if the prior decision would result in
manifest injustice.”

Saint John’s Church in Wilderness v. Scott, 2012 COA 72, ¶ 9

(quoting Vashone-Caruso v. Suthers, 29 P.3d 339, 342 (Colo. App.

2001)).

7
¶ 13 The Sheriff argues that, in Cummings I, the division’s

interpretation of section 30-10-506 erroneously “mandate[d] the

creation of an implied contract . . . despite the lack of statutory

language suggesting or warranting a contractual remedy and

despite the parties expressly disclaiming any intent to be bound.”

The Sheriff is correct that section 30-10-506 does not expressly

prescribe a contractual remedy if a sheriff violates the due process

rights of a deputy. However, the division in Cummings I determined

that the General Assembly legislatively overruled, at least in part,

the supreme court’s decision in Seeley v. Board of County

Commissioners, 791 P.2d 696, 698-700 (Colo. 1990), which declined

to recognize an implied breach of employment contract claim where

a deputy alleged “violation of an employee manual promulgated by

[the sheriff] which contained disciplinary and termination

procedures.”1

¶ 14 Cummings I reasonably concluded that, because the General

Assembly’s intent in amending section 30-10-506 was to overturn

1 Despite the Sheriff’s request, the Colorado Supreme Court
declined to review Cummings I. Arapahoe Cnty. Sheriffs Dep’t v.
Cummings, No. 18SC730, 2019 WL 2178081 (Colo. May 20, 2019)
(unpublished order).

8
Seeley, sheriffs’ departments must adopt some personnel policies,

and to the extent those policies effectuate the specific due process

provisions of the statute, violation of those policies may form the

basis of an implied employment contract claim. See Cummings I,

¶¶ 20-33, 42-43. That the Sheriff sought to disclaim the due

process requirements is immaterial because “[p]arties may not

contract to abrogate statutory requirements and thereby contravene

the public policy of this state.” Id. at ¶ 43 (citing Peterman v. State

Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo. 1998)).

¶ 15 Accordingly, we decline the Sheriff’s invitation to reconsider

Cummings I. See DeForrest, 990 P.2d at 1142.

III. Section 306(I)(4) of the Manual Does Not Effectuate Section
30-10-506’s Specific Due Process Provisions

¶ 16 The Sheriff argues that the district court erred by instructing

the jury to consider whether he complied with section 306(I)(4) of

the Manual. Specifically, the Sheriff argues that section 306(I)(4)

does not effectuate the specific due process requirements of section

30-10-506 because section 306(I)(4) addresses notice of an

investigation, not notice of the “reason for the proposed revocation.”

9
§ 30-10-506; see also Cummings I, ¶ 6. We agree with the Sheriff

and therefore reverse that portion of the judgment.

A. Preservation and Standard of Review

¶ 17 Cummings argues that the Sheriff failed to preserve the

argument that the district court should not have submitted section

306(I)(4) to the jury, but the record belies that assertion. As noted

above, the Sheriff argued, unsuccessfully, that the district court

should not include section 306(I)(4) in the jury instructions.

Accordingly, the Sheriff preserved this issue. See In re Estate of

Owens, 2017 COA 53, ¶ 21 (“Where an issue was brought to the

district court’s attention and the court ruled on it, it is preserved for

appellate review; no talismanic language is required to preserve an

issue.”).

¶ 18 We review de novo whether a given jury instruction correctly

states the law. Chapman v. Harner, 2014 CO 78, ¶ 4. Similarly, we

review de novo (1) whether a district court properly applied the law

of the case, Hardesty, 222 P.3d at 339, and (2) questions of

statutory interpretation, Wolf Ranch, LLC v. City of Colorado

Springs, 220 P.3d 559, 563 (Colo. 2009).

10
¶ 19 In interpreting a statute, we give the words and phrases of the

statute their plain and ordinary meanings according to the rules of

grammar and common usage. Jefferson Cnty. Bd. of Equalization v.

Gerganoff, 241 P.3d 932, 935 (Colo. 2010). We must read the

language at issue in the context of the statute as a whole and the

context of the entire statutory scheme, giving consistent,

harmonious, and sensible effect to all parts of a statute. Id.

B. Analysis

¶ 20 Section 30-10-506 reads 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
proposed revocation and shall give the deputy
an opportunity to be heard by the sheriff.

In Cummings I, the division concluded that this statute “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.” Cummings I, ¶ 6. The division also concluded that

11
sheriffs must adopt personnel policies, all of which may be

nonbinding “except for the two statutory rights noted” in section 30-

10-506. Id. Accordingly, the division affirmed the district court’s

decision to allow 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.” Id. at ¶¶ 60-61.

¶ 21 The district court instructed the jury on two Manual

provisions, section 306(I)(4) and section 306(M)(4). Section 306(I)(4)

of the Manual specifies that

[a] Notice of Complaint shall be prepared and
provided to the accused member in any
Internal Affairs Investigation (to include Fast
Track investigations), immediately and in
person by the supervisor or deputy inspector.
A copy of the Notice of Complaint shall be
provided to each member of the accused
member’s Chain of Command to include the
Undersheriff and Sheriff. The notice shall
include . . .
a. The allegations, and;
b. A list of possible Code of Conduct
violations, and;
c. Any special procedures, and;
d. The member’s rights and
responsibilities relative to the
investigation.
e. A signed and witnessed
acknowledgment of receipt.

12
Section 306(M)(4) states, among other things, that “[t]he Sheriff

shall notify a member of the reason for the proposed termination

and give the member an opportunity to be heard.” In ruling that

section 306(I)(4) effectuated the specific due process rights granted

by section 30-10-506 and thus should be submitted to the jury, the

district court said,

I do believe . . . the [jury] should be instructed
with regard to [sections (I)(4) and (M)(4)]. And I
understand the argument now of the [Sheriff]
that [(I)(4)] just says notice of an investigation,
but I also think that’s part of the notice, part
of the entire notice.

¶ 22 While section 306(I)(4) is clearly a notice provision, it does not

address notice “of the reason for the proposed revocation,” § 30-10-

506, of a deputy’s employment. Section 306(I)(4) addresses the

notice sheriffs provide deputies of an investigation into alleged

misconduct, which may or may not result in disciplinary action, let

alone termination. And as the Sheriff points out, it would not be

possible to notify a deputy of the reasons for his proposed

termination before investigators have determined if the deputy

should be terminated in the first place. That is especially true here,

where some of the alleged untruthfulness that resulted in

13
Cummings’ termination occurred during the investigatory process.

Indeed, after the initial investigation, Cummings’ proposed

discipline was a demotion, not termination.

¶ 23 Thus, under a plain reading of the statute and Manual, we

conclude that section 306(I)(4) does not effectuate the specific right

granted by section 30-10-506. Section 306(I)(4) grants deputies

additional notice beyond what section 30-10-506 requires and,

under Cummings I, the Sheriff could (and did) disclaim that this

notice created any contractual right. This reading “give[s] effect to

every word and render[s] 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. Upper Gunnison River Water

Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005)). Our conclusion

is also bolstered by the fact that section 306(M)(4) closely mirrors

the language of section 30-10-506 and thus clearly effectuates the

notice and hearing rights provided therein.

¶ 24 Cummings argues that section 306(M)(4) is not “uniquely

important” and that, considering the Manual in its entirety, section

14
306(I)(4) is an integral part of procedural protections that effectuate

the specific due process rights section 30-10-506 grants. But the

statute does not require sheriffs to provide robust notice at all

phases of a sheriff’s internal disciplinary process; it merely requires

that sheriffs — when they intend to revoke a deputy’s appointment

— notify the deputy of the reasons for that “proposed revocation”

and provide the deputy an opportunity to be heard.

¶ 25 Cummings also argues that Cummings I’s use of the term

“effectuate” suggests that multiple Manual provisions addressing

due process broadly could form the basis of an implied contract

claim beyond “only the right to notice and an opportunity to be

heard.” While the Sheriff certainly could have promulgated

additional policies that effectuate the specific due process rights

granted by section 30-10-506, including (but not limited to) policies

addressing the form or timing of the notice of the proposed

revocation or procedural rules concerning the termination hearing,

section 306(I)(4), which deals exclusively with notice of an

investigation, does not effectuate the specific notice right granted by

the statute: “the sheriff shall notify the deputy of the reason for the

proposed revocation.” § 30-10-506 (emphasis added).

15
¶ 26 Accordingly, we conclude that, under Cummings I, the district

court erred in instructing the jury to consider whether the Sheriff

complied with section 306(I)(4) when determining whether he

breached an implied contract with Cummings. We therefore reverse

the district court’s judgment.

¶ 27 In light of our disposition, we need not address the Sheriff’s

remaining contentions.

IV. Conclusion

¶ 28 The judgment is reversed.

JUDGE DUNN and JUDGE PAWAR concur.

16