Oliveira v. Ohlinger

24CA1193 Oliveira v Ohlinger 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1193
Weld County District Court No. 23CV31002
Honorable Todd Taylor, Judge

Michael Oliveira,

Plaintiff-Appellant

v.

Sergeant Dan Ohlinger, Lieutenant Stephanie Southard, and Chief Tracey
McCoy,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE SCHUTZ
Welling and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

Robert M. Liechty PC, Robert M. Liechty, Denver, Colorado, for Plaintiff-
Appellant

SGR, LLC, Courtney B. Kramer, Jonathan N. Eddy, Denver, Colorado, for
Defendants-Appellees
¶1 Michael Oliveira appeals the district court’s dismissal of his

complaint Sergeant Dan Ohlinger, Lieutenant Stephanie Southard,

and Chief Tracey McCoy (collectively, the Defendants) for their roles

in an internal investigation that lead to Oliveira’s termination as a

police officer at the City of Lochbuie Police Department (the

Department). We affirm.

I. Background and Procedural History

¶2 The allegations in Oliveira’s amended complaint and the

exhibits attached to the Defendants’ motion to dismiss establish the

following facts that gave rise to this dispute.

¶3 On June 12, 2023, while on duty near a convenience store,

Oliveira contacted a nineteen-year-old woman, G.C., who had

stopped at a number of the store’s gas pumps. During the

interaction, Oliveira gave G.C. the number to his Department-

issued cell phone. Between June 12 and 18, Oliveira and G.C.

exchanged approximately forty text messages of a personal and

flirtatious nature on that phone, one of which included a picture of

G.C. in a bathing suit. They also met for lunch.

1
¶4 On June 14, G.C. stopped responding to Oliveira’s text

messages. On June 18, Oliveira sent G.C. a final message stating,

“Wow . . . you forgot about me already.”

¶5 Oliveira alleged that he later realized the “photo might be out

of line,” and therefore he reported some aspects of his interactions

with G.C. to his immediate supervisor, Sergeant Ohlinger. Oliveira

also showed him the picture of G.C. in her bathing suit. Oliveira

then deleted the photo and several of the text messages.

¶6 Days later, Sergeant Ohlinger took the phone from Oliveira

and informed Lieutenant Southard about the situation. Lieutenant

Southard copied the cell phone’s contents, returned it to Oliveira,

and opened an internal investigation into the matter.

¶7 Lieutenant Southard interviewed Oliveira — in the presence of

his counsel — about the phone’s contents after advising him that

he was under investigation for violating the Department’s cell phone

and performance policies. During the interview, Oliveira told

Lieutenant Southard that he thought G.C.’s bathing suit photo was

inappropriate so he “ghosted her.”

¶8 Through its internal investigation, the Department learned

that (1) Oliveira had called G.C. on the cell phone on one occasion

2
while using a feature to block the number; (2) at no point during

the text conversations did Oliveira and G.C. discuss police

business; and (3) the deleted messages revealed, contrary to

Oliveira’s assertion, that he did not stop texting G.C. after she sent

him the suggestive photo. Indeed, after receiving the photo, Oliveira

responded by signifying that he “loved” it and continued exchanging

messages with G.C. until she stopped responding later that evening.

He then sent the final message four days later.

¶9 After the Department had completed its internal affairs

investigation, Chief McCoy terminated Oliveira because he used the

Department’s cell phone for purely personal communications and

was dishonest about the nature and extent of his contacts with

G.C. Specifically, the Department found that Oliveira was

dishonest about who made the initial contact, how he provided his

phone number to G.C., the general nature of their communications,

and how and when the contact between them ended. Oliveira

alleges that he asked the Department to hold a hearing so that he

could address these inconsistencies, but the Department declined

his request.

3
¶ 10 As required by Colorado statute, the Department subsequently

reported Oliveira’s conduct and termination to the Peace Officers

Standards and Training (POST) board, a governmental entity that

oversees the management and conduct of law enforcement officers

throughout Colorado. See §§ 24-31-301 to -310, C.R.S. 2024.

¶ 11 Shortly after his termination, Oliveira applied for positions

with multiple law enforcement agencies in Colorado. As a part of

the application process, he submitted to these prospective

employers signed liability waivers. In those waivers, Oliveira

authorized the release of “data or records to [the prospective

employer] pertaining to [his] employment [including] . . . internal

affairs or disciplinary records.” Oliveira’s efforts to obtain new

employment with a law enforcement agency were unsuccessful.

¶ 12 Oliveira filed claims alleging that the Defendants violated his

due process rights under article II, section 25 of the Colorado

Constitution and section 13-21-131, C.R.S. 2024, which was

adopted as part of the Enhance Law Enforcement Integrity Act

(ELEIA). Ch 110, sec. 3. § 13-21-131, 2020 Colo. Sess. Laws 452.

Oliveira also asserted common law claims for defamation and

intentional interference with a contract.

4
¶ 13 The Defendants moved to dismiss under C.R.C.P. 12(b)(5),

asserting that Oliveira failed to state a viable claim for deprivation

of his right to due process under the Colorado Constitution. They

also argued that Oliveira’s common law claims failed to allege

sufficient facts to support the conclusion that the Defendants acted

willfully and wantonly, and therefore it failed to establish that they

had waived their right to sovereign immunity.

¶ 14 In resolving the motion to dismiss, the district court first

rejected the Defendants’ argument that the waivers Oliveira signed

for the benefit of his prospective employers waived any claims

against the Defendants for providing his employment information.

Nonetheless, as relevant here, the court granted the motion to

dismiss for the following reasons:

• Even assuming Oliveira had adequately asserted a valid

procedural due process claim for a deprivation of his liberty

interest, such claim failed because the Defendants’

communications were intra-governmental in nature and

therefore not published.

• Oliveira’s common law claims for defamation, intentional

interference with a contract, and intentional interference with

5
a prospective contract were barred under the Colorado

Governmental Immunity Act (CGIA), §§ 24-10-101 to -119,

C.R.S. 2024, because the amended complaint failed to allege

that the Defendants had acted “willfully and wantonly.”1

II. Issues on Appeal and Controlling Law

¶ 15 On appeal, Oliveira argues that the district court erred by

finding that the Defendants’ dissemination of his employment

information to the POST board was not a publication and that the

allegations of the amended complaint failed to support a conclusion

that the Defendants acted willfully and wantonly. We disagree with

both contentions.

A. Standards of Review Governing Interpretation of
Constitutional Provisions and Statutes

¶ 16 The interpretation of a constitutional provision is a question of

law that we review de novo. Gessler v. Colo. Common Cause, 2014

CO 44, ¶ 7. Likewise, we interpret the terms of a statute de novo.

1 The district court noted in its order that Oliveira conceded he did

not have a property interest in his continued employment with the
Department. Oliveira does not dispute this portion of the order, so
we do not address it further. The district court also rejected the
Defendants’ waiver argument, which we do not need to address
given our disposition of other issues.

6
Edwards v. New Century Hospice, Inc., 2023 CO 49, ¶ 14. In doing

so, our primary task is to “give effect to the intent of the General

Assembly.” Id. at ¶ 15 (quoting People v. Dist. Ct., 713 P.2d 918,

921 (Colo. 1986)).

¶ 17 If a statute is unambiguous, we give its words their ordinary

meaning. Id. “We read and consider statutes as a whole,

construing each provision in harmony with the overall statutory

scheme, structure, and purpose.” Black Diamond Fund, LLLP v.

Joseph, 211 P.3d 727, 736 (Colo. App. 2009). If a statute is

ambiguous or potentially conflicts with another statute, we “may

consider the statute’s legislative history, the object sought to be

attained, the consequences of a particular construction of the

statute, and the legislative declaration or purpose.” People v.

Garcia, 2016 COA 124, ¶ 10 (first citing § 2-4-203(1), C.R.S. 2024;

and then citing Martin v. People, 27 P.3d 846, 851 (Colo. 2001)).

B. Governmental Immunity

¶ 18 In adopting the CGIA, the General Assembly attempted to

balance competing policy considerations:

It is recognized by the [G]eneral [A]ssembly
that the doctrine of sovereign immunity,
whereunder the state and its political

7
subdivisions are often immune from suit for
injury suffered by private persons, is, in some
instances, an inequitable doctrine. . . . The
[G]eneral [A]ssembly also recognizes that the
state and its political subdivisions provide
essential public services and functions and
that unlimited liability could disrupt or make
prohibitively expensive the provision of such
essential public services and functions. The
[G]eneral [A]ssembly further recognizes that
the taxpayers would ultimately bear the fiscal
burdens of unlimited liability and that
limitations on the liability of public entities
and public employees are necessary in order to
protect the taxpayers against excessive fiscal
burdens. It is also recognized that public
employees, whether elected or appointed,
should be provided with protection from
unlimited liability so that such public
employees are not discouraged from providing
the services or functions required by the
citizens or from exercising the powers
authorized or required by law.

§ 24-10-102, C.R.S. 2024.

¶ 19 The General Assembly effectuated this balance by granting

public entities and employees broad immunity while also waiving

liability for injuries arising out of certain designated actions. § 24-

10-106(1), C.R.S. 2024 (“A public entity is immune from liability in

all claims for injury that lie in tort or could lie in tort” unless such

immunity has been expressly waived.); § 24-10-106(1)(a)-(k)

8
(waiving sovereign immunity for the injuries arising from specifically

delineated governmental actions).

¶ 20 The CGIA also immunizes public employees against tort claims

provided the claim is based on acts or omissions “occurring during

the performance of [their] duties and within the scope of [their]

employment unless the act or omission causing such injury was

willful and wanton.” § 24-10-118(2)(a), C.R.S. 2024. Thus, a

plaintiff may bring a tort action, regardless of whether there has

been a waiver, upon a showing that the governmental employee’s

“act or omission . . . was willful and wanton.” Id.; § 24-10-105(1),

C.R.S. 2024.

¶ 21 The CGIA does not define “willful and wanton” conduct. The

supreme court, however, has provided guidance on the breadth of

the phrase as used in the CGIA: “[W]illful and wanton conduct is

not merely negligent; instead, it must exhibit a conscious disregard

for the danger.” Martinez v. Est. of Bleck, 2016 CO 58, ¶ 32 (citing

Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994)).

¶ 22 It is undisputed that the Department is a public entity, and

that the individual defendants were public employees acting within

the scope and during the performance of their employment. See

9
§ 24-10-103(4)(a), C.R.S. 2024 (defining public employee); § 24-10-

103(5) (defining public entity). Oliveira does not contend that the

complained-of acts fall within the purview of actions for which

sovereign immunity has been waived under section 24-10-106(1)(a)-

(k). Nonetheless, Oliveira argues that his common law claims are

viable notwithstanding the CGIA because the Defendants’ actions or

omissions were willful and wanton.

C. Due Process Claim and ELEIA

¶ 23 The Colorado Constitution prohibits the deprivation “of life,

liberty or property” without the due process of law. Colo. Const.

art. II, § 25. Oliveira argues that he alleged sufficient facts to

support a claim that the Defendants violated his liberty interest by

disseminating false information regarding the facts surrounding his

termination, stigmatizing him and impeding his future

employability. Oliveira acknowledges that no reported Colorado

case has recognized this claim under the Colorado due process

clause, but points to the fact that the Tenth Circuit and other

federal courts have concluded that such a claim is viable under the

United States Constitution’s Due Process Clause. See, e.g., Renaud

v. Wyo. Dep’t of Fam. Servs., 203 F.3d 723, 726-27 (10th Cir. 2000);

10
Stiesberg v. California, 80 F.3d 353, 357 (9th Cir. 1996); Merritt v.

Brantley, 936 F. Supp. 988, 992 (S.D. Ga. 1996). He urges us to

follow their lead.

¶ 24 Under federal law, a public employee has a liberty interest in

protecting their professional reputation, and thus their future

employability, from being stigmatized. McDonald v. Wise, 769 F.3d

1202, 1212 (10th Cir. 2014). The government infringes upon that

interest when (1) it makes a statement that “impugn[s] the good

name, reputation, honor, or integrity of the employee”; (2) the

statement is false; (3) the statement is made during the course of

termination and “foreclose[s] other employment opportunities”; and

(4) the statement is published, in other words disclosed publicly.

Id. (quoting Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994)).

¶ 25 Intra-governmental communications between governmental

entities are deemed, as a matter of law, not to satisfy the

“publication” element of the federally recognized liberty interest

claim. See Asbill v. Hous. Auth. of Choctaw Nation of Oklahoma, 726

F.2d 1499, 1503 (10th Cir. 1984) (“We hold that [plaintiff’s] claim

falls short . . . [because] it does not appear from the record that

[the] statements were published outside the state government; such

11
intra-governmental dissemination, by itself, falls short of the

Supreme Court’s notion of publication: ‘to be made public.’”

(quoting Bishop v. Wood, 426 U.S. 341, 348 (1976))); Alcorn v. La

Barge, 784 F. App’x 614, 619-20 (10th Cir. 2019) (same).

¶ 26 Oliveira argues that we should recognize such a claim under

article II, section 25. But because Colorado has enacted ELEIA,

Oliveira argues, we should not adopt the intra-governmental

component of the publication element.

¶ 27 The General Assembly enacted ELEIA in 2020 and amended in

2021. It provides that

[a] peace officer . . . who, under color of law,
subjects or causes to be subjected, including
failing to intervene, any other person to the
deprivation of any individual rights that create
binding obligations on government actors
secured by the bill of rights, article II of the
state constitution, is liable to the injured party
for legal or equitable relief or any other
appropriate relief.

§ 13-21-131(1). To enable such claims, the statute specifies that

“[s]tatutory immunities and statutory limitations on liability,

damages, or attorney fees do not apply to claims brought pursuant

to this section. The [CGIA] does not apply to claims brought

pursuant to this section[, and] [q]ualified immunity is not a defense

12
to liability pursuant to this section.” § 13-21-131(2)(a)-(b). Oliveira

argues that we should treat ELEIA’s prohibition against the

assertion of certain immunity defenses as a rejection of the intra-

governmental exception to publication.

D. Peace Officer Standards and Training (POST)

¶ 28 POST is a governmental agency tasked with overseeing the

conduct and standards of peace officers. See § 24-31-303, C.R.S.

2024. Law enforcement agencies are required to report an officer’s

untruthfulness to POST, and they may be fined for failing to do so.

§ 24-31-303(1)(r)(II). Untruthfulness means a “peace officer

knowingly made an untruthful statement concerning a material fact

or knowingly omitted a material fact on an official criminal justice

record . . . during an internal affairs investigation or administrative

investigation and disciplinary process.” § 24-31-303(1)(r)(III).

E. Standards Governing Motions to Dismiss

1. Failure to State a Claim

¶ 29 We review a district court’s ruling on a motion to dismiss for

failure to state a claim de novo, “applying the same standards as

the [district] court.” Sch. Dist. No. 1 v. Masters, 2018 CO 18, ¶ 13

(citation omitted).

13
¶ 30 Under C.R.C.P. 12(b)(5), a claim may be dismissed if it fails to

allege plausible facts upon which relief may be granted. Warne v.

Hall, 2016 CO 50. In ruling on a C.R.C.P. 12(b)(5) motion, the court

must accept all supporting factual allegations as true and view

them in the light most favorable to the nonmoving party. Norton v.

Rocky Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7. But the

court is not required to accept as true legal conclusions that are

couched as factual allegations, or conclusory allegations

unsupported by the alleged facts. Warne, ¶ 27. When deciding a

motion to dismiss for failure to state a claim, a court may consider

the facts alleged in the pleadings and documents attached as

exhibits or incorporated therein by reference. Denver Post Corp. v.

Ritter, 255 P.3d 1083, 1087 (Colo. 2011).

2. Lack of Jurisdiction

¶ 31 C.R.C.P. 12(b)(1) requires the dismissal of a claim if the court

lacks jurisdiction over the subject matter. Whether the CGIA

applies to protect the government from suit is a question of subject

matter jurisdiction governed by the standards for dismissal under

C.R.C.P. 12(b)(1). Maphis v. City of Boulder, 2022 CO 10, ¶ 13. The

14
plaintiff carries the burden of proving that the government waived

its immunity with respect to the claim. Id.

¶ 32 If a plaintiff fails to establish facts supporting the conclusion

that a public employee’s actions or omissions were willful and

wanton, dismissal pursuant to C.R.C.P. 12(b)(1) is appropriate. See

Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916,

925 (Colo. 1993); § 24-10-118(2)(a). In contrast to the evaluation of

a C.R.C.P. 12(b)(5) motion, a court reviewing a C.R.C.P. 12(b)(1)

motion “need not treat the facts alleged by [the plaintiff] as true.”

Medina v. State, 35 P.3d 443, 452 (Colo. 2001) (quoting City of

Lakewood v. Brace, 919 P.2d 231, 244 (Colo. 1996)). Instead, if the

operative facts are disputed, the court may consider affidavits and

documents and, if necessary, conduct a limited hearing to resolve

disputed jurisdictional facts. See id.; Trinity, 848 P.2d at 924-25.

III. Analysis

¶ 33 Having set forth the applicable standards of review and

controlling law, we now turn to the merits of Oliveira’s appellate

claims.

15
A. The Due Process and ELEIA Claim

¶ 34 Oliveira argues that article II, section 25 of the Colorado

Constitution protects a public employee’s liberty interest in

preventing false statements made during the course of termination

that stigmatize the employee, thereby impeding future

employability. The Defendants do not dispute that article II, section

25 could be interpreted to protect such interest, but their brief does

not meaningfully develop the legal parameters or policy

considerations informing whether we should recognize such a claim

under Colorado’s due process clause.

¶ 35 We conclude that even if Colorado formally recognized this

type of liberty interest claim under article II, section 25, the claim

would be subject to the intra-governmental publication exception.

See, e.g., People v. Dunaway, 88 P.3d 619, 630 (Colo. 2004)

(interpreting Colorado’s due process clause in view of the Federal

Due Process Clause, and noting that “[w]here the analogous federal

and state constitutional provisions are textually identical, we have

always viewed cases interpreting the federal constitutional provision

as persuasive authority”); Workman, 32 F.3d at 481 (describing the

elements of the federal liberty interest claim in future employment);

16
Asbill, 726 F.2d at 1503 (describing and applying the intra-

governmental exception). Applying the exception, we conclude that

the assumed claim fails as a matter of law.

1. ELEIA’s Impact on a Liberty Interest Claim

a. Alleged Inconsistency

¶ 36 Oliveira argues that Colorado should not recognize the intra-

governmental exception to publication because the exception

insulates a public employer from liability for some types of false

communications that, if made by a private employer, would not be

subject to such an exception. Oliveira’s argument is premised on

the erroneous assumption that private employers would be subject

to a claim for violating a former employer’s due process rights by

providing false information. But such a claim is only actionable

against governmental employers and employees. See Jaffe v. City &

Cnty. of Denver, 15 P.3d 806, 812 (Colo. App. 2000) (The guarantee

of due process “has been applied only to ‘deliberate decisions of

government officials to deprive a person of life, liberty, or property.’”

(quoting Daniels v. Williams, 474 U.S. 327, 331 (1986))). Thus, we

do not perceive how recognizing the intra-governmental exception to

17
publication would create a disparity between public and private

employers.

¶ 37 Oliveira also argues that the intra-governmental exception

swallows any liberty interest claim because only governmental

employees can benefit from the liberty interest claim and yet

terminated governmental employees generally apply for future jobs

with governmental entities. Thus, the argument continues, if the

intra-governmental exception is applied it renders the employee’s

liberty interest claim meaningless.

¶ 38 But Oliveira points to nothing in the record that supports his

assumption that former governmental employees typically limit

their future employment searches to governmental entities. We

decline to base our analysis on this unsupported contention.

Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA

34, 41 n.12 (“We don’t consider underdeveloped and unsupported

arguments.”), aff’d, 2021 CO 56. Moreover, the liberty interest

claim has existed at the federal level for years, subject to the intra-

governmental exception. Oliveira points to no authority suggesting

that the intra-governmental exception has swallowed the liberty

interest claim in the federal context.

18
¶ 39 Oliveira’s disparity argument also assumes that governmental

employers and private employers are identically situated when it

comes to the obligation to report certain employment information.

But, as illustrated by the POST reporting requirements discussed in

Part III.A.1.b below, governmental employers and their employees

are often tasked with making reports for the public’s benefit that

may impact a former employee’s future employability. The

recognition and importance of these reporting obligations provides

the foundation of the intra-governmental exception to the

publication element of a liberty interest claim. See Alcorn, 784 F.

App’x at 619 (“[T]he ability to communicate the reasons for

terminating law enforcement officers to the agency tasked with

setting standards for and certifying those officers is essential to the

maintenance and integrity of local police departments.”). And they

justify application of the exception to governmental employers and

employees but not private employers. Id.

b. Policy Considerations

¶ 40 Oliveira next argues that recognizing the intra-governmental

exception contradicts ELEIA’s purpose and would be “poor public

19
policy because it encourages a government agency not to follow the

law.” We are not persuaded.

¶ 41 Section 13-21-131(1) unequivocally precludes a peace officer

from asserting sovereign immunity and the CGIA as defenses to a

claim that they deprived a person of “individual rights that create

binding obligations on government actors secured by the bill of

rights, article II of the [Colorado Constitution].” However, Oliveira

points to nothing in ELEIA suggesting that it modifies the elements

of individual tort claims asserted to protect those rights.

¶ 42 Absent a clear expression of the General Assembly’s intent, we

do not interpret legislation as abrogating common law rules:

Although the General Assembly possesses the
authority to abrogate common law remedies,
statutes may not be interpreted to abrogate the
common law absent a clear expression of
intent. A statute is not presumed to alter the
common law except to the extent that such
statute expressly provides.

....

. . . Absent a clearer and more specific
statutory indication that the General Assembly
actually intended to abrogate the fundamental
common law rule . . . , we must presume that
the General Assembly did not intend to change
the common law rule.

20
Beach v. Beach, 74 P.3d 1, 4 (Colo. 2003) (citations omitted). In the

absence of the General Assembly’s express intent, we decline to

assume that it intended to abrogate the intra-governmental

exception to the publication element of a liberty interest claim.2

¶ 43 Nor are we persuaded by Oliveira’s argument that applying the

intra-governmental exception to POST disseminations “encourages

a government agency not to follow the law.” As previously noted,

POST mandates that law enforcement agencies report an officer’s

untruthful statements concerning a material fact made during an

internal affairs or administrative investigation and disciplinary

proceedings. § 24-31-303(1)(r)(II)-(III). If the intra-governmental

exception to publication were not recognized it would increase the

civil exposure for governmental employees accused of reporting

untruthful statements under POST.

¶ 44 POST and ELEIA serve a common purpose: to facilitate the

employment of quality law enforcement officers across Colorado

2 Indeed, no published Colorado case has recognized a Colorado

due process liberty interest in the circumstances presented here. It
is particularly speculative to assume that the General Assembly
intentionally modified a common law claim not yet recognized by a
reported Colorado appellate case.

21
who are truthful and respect the constitutional rights of the public.

Indeed, ELEIA expressly recognizes the POST reporting

requirements and their benefit in facilitating ELEIA’s purpose.

If a person believes that an employer has
violated the provisions of subsection (4)(b)(I) of
this section, the person shall submit a
complaint to the [POST] board, created in
section 24-31-302, [C.R.S. 2024,] which shall
refer the complaint to an administrative law
judge to determine whether a violation
occurred. The administrative law judge shall
notify the [POST] board chair of a finding that
a violation of subsection (4)(b)(I) of this section
occurred. If a violation is found, the [POST]
board shall not provide [POST] cash fund
money to the employer for one full year from
the date of the finding.

§ 13-21-131(4)(b)(II).

¶ 45 This type of reporting requirement, which the General

Assembly endorsed when passing ELEIA, is central to the purposes

of both ELEIA and the intra-governmental exception to the

publication element of a liberty interest claim. Thus, the failure to

recognize the intra-governmental exception for POST

communications would incentivize law enforcement agencies and

their employees not to robustly comply with POST reporting

22
requirements. This was not the General Assembly’s intent when

enacting ELEIA.

¶ 46 Noting the absence of an express legislative intent to modify

the common law elements of a liberty interest claim, and given our

obligation to read statutes as a whole in order to accord consistent,

harmonious, and sensible effect to all their parts, see Black

Diamond, 211 P.3d at 736, we decline Oliveira’s request that we

jettison the intra-governmental exception to the publication element

of a liberty interest claim.

2. Publication Analysis

¶ 47 Applying the intra-governmental exception to an assumed

liberty interest claim, the district court concluded that the

Defendants did not publish the allegedly stigmatizing information

related to Oliveira’s termination. In addition to his previously

addressed argument that we should not recognize the intra-

governmental exception, Oliveira argues that the court erred by

applying the intra-governmental exception to governmental

employees, rather than limiting its application to law enforcement

agencies. We disagree.

23
¶ 48 Oliveira cites no legal authority that has held that the intra-

governmental exception applies only to agencies. And though he

asserts that Alcorn supports that conclusion, he is mistaken.

¶ 49 In Alcorn, a former police officer was terminated following an

investigation for allegedly falsifying her timesheets. 784 F. App’x at

616. Following her termination, the department notified POST. Id.

When she applied for another position in the same county, her

application was denied, in part, because the police department’s

investigation showed up in the background check. Id. at 617.

Alcorn alleged that the department and the police chief who

terminated her deprived her of her liberty interest in continued

employment by defaming her good name and reputation. Id. The

Tenth Circuit applied the intra-governmental exception and held

that Alcorn had failed to establish that the defendants deprived her

of a protected liberty interest. Id. In doing so, the court made no

distinction when applying the exception to the agency and its

individual officers. See id.; see also Workman, 32 F.3d at 480-81

(applying the intra-governmental exception when addressing claims

against the agency and its officer).

24
¶ 50 In addition to the absence of authority, we see no rationale for

the distinction between officers and agencies that Oliveira urges.

After all, an agency’s POST reporting is necessarily based on the

actions of its employees, including law enforcement personnel.

Given this reality, it makes no sense to apply the exception to

agencies but not their employees.

¶ 51 Finally, we reject Oliveira’s belated appellate contention that

the district court erred by failing to consider whether his allegations

would be actionable publications based on the possible disclosure

of the POST-related materials to private employers. We reject this

argument because Oliveira’s amended complaint failed to allege that

he applied for any position with a private employer or even that the

POST reports were available to private employers. Given his failure

to allege these facts before the district court, we decline to address

them on appeal. See Cedar Lane Invs. v. Am. Roofing Supply of

Colo. Springs, Inc., 919 P.2d 879, 882 (Colo. App. 1996) (declining to

address claim not raised before the trial court); Alcorn, 784 F. App’x

at 620 (refusing to address argument that POST publications were

eventually made public because the contention was not raised

before the district court).

25
B. Common Law Tort Claims

¶ 52 Oliveira next argues that the district court erroneously

concluded that he failed to allege facts supporting his claim that the

Defendants acted willfully and wantonly. We disagree.

1. Applicable Law

¶ 53 Recall that claims in which the government raises sovereign

immunity as a defense are reviewed under Rule 12(b)(1), rather

than Rule 12(b)(5). A plaintiff carries the burden of proving that

governmental employees acted willfully and wantonly. Duke v.

Gunnison Cnty. Sheriff’s Off., 2019 COA 170, ¶¶ 31-32. It is not

sufficient for a plaintiff to establish that governmental employees

acted negligently; rather, the plaintiff must prove a “conscious

disregard of [a known] danger.” Martinez, ¶ 32.

2. Application

¶ 54 Oliveira reasons that the district court erred because someone

at the Department — he does not specify who — deprived him of the

right to a hearing to contest his termination. He seems to suggest

that if he had been granted a hearing, he would have clarified that

the text he sent to G.C. on June 18 was intended for someone else.

But Oliveira does not dispute that the Defendants were unaware of

26
these unasserted facts when they investigated the claim and

subsequently terminated him. Thus, the actions that they took

were based on the facts they had when they acted.

¶ 55 Moreover, Oliveira’s termination was not based solely on his

false statement that his communications with G.C. ended on

June 14. The termination was also based on the fact that Oliveira

used the Department-issued phone for purely personal

communications in violation of Department policies, was dishonest

about his initial contact with G.C. and how he provided his

telephone number to her, and misrepresented the general nature

and extent of their communications. Based on these facts, which

Oliveira does not meaningfully dispute, we perceive no error in the

district court’s finding that Oliveira failed to establish that any of

the Defendants’ actions were willful and wanton.

¶ 56 Finally, we reject Oliveira’s suggestion that we should adopt a

negligence-based standard for defining willful and wanton conduct

in the employment context. Specifically, he proposes the following

standard: “[A] supervisor acts willfully and wantonly if the

information he provides to prospective employers (public or private)

was false and the employer should have known it was false.” But

27
Oliveira cites no authority adopting the standard he proposes.

More importantly, the supreme court expressly rejected a

negligence-based standard for the definition of willful and wanton

as used in the CGIA: “[W]illful and wanton conduct is not merely

negligent; instead, it must exhibit a conscious disregard for the

danger.” Martinez, ¶ 32.

¶ 57 Because Oliveira failed to establish that any of the Defendants’

conduct was willful and wanton, we discern no error in the district

court’s finding that his common law claims are barred by the CGIA.

IV. Attorney Fees and Costs

¶ 58 Oliveira seeks attorney fees under ELEIA, which requires

courts to award a prevailing plaintiff reasonable attorney fees and

costs. § 13-21-131(3). Because the district court did not err by

granting the motion to dismiss, Oliveira’s claim for attorney fees

and costs necessarily fails.

V. Disposition

¶ 59 The district court’s judgment is affirmed.

JUDGE WELLING and JUDGE KUHN concur.

28