You are on page 1of 5

Case 1:11-cv-02394-WJM-CBS Document 64-8 Filed 07/16/12 USDC Colorado Page 1 of 5


Case 1:11-cv-02394-WJM-CBS Document 64-8 Filed 07/16/12 USDC Colorado Page 2 of 5

CIVIL SERVICE COMMISSION, CITY AND COUNTY OF DENVER, COLORADO Consolidated Case Nos. 11 CSC 05; 11 CSC 06 RESPONDENT-APPELLANTS RESPONSE IN OPPOSITION TO PETITIONERS-APPELLEES MOTION TO ENFORCE HEARING OFFICER PANELS DECISION AND ORDER IN THE MATTER OF: Kevin Devine (06009) Officer in the Classified Service of the Denver Police Department, Ricky Nixon (04098) Officer in the Classified Service of the Denver Police Department, Petitioners.

Respondent-Appellant, Manager of Safety and City and County of Denver (collectively, the City or Respondent), by and through their attorney, hereby responds in opposition to Petitioners-Appellees Kevin Devine and Ricky Nixon (the Petitioners or officers) Motion to Enforce Hearing Officer Panels Decision and Order as follows: Petitioners request the Civil Service Commission (the Commission) enforce the 1. Hearing Officer Panels decision by ordering the City to immediately reinstate them to their positions with full back pay and benefits. Placing form over substance, the sole legal basis for this request is that the City failed to timely request a stay. 2. Respondent filed its timely notice of appeal from the Hearing Officer Panels decision, and further placed the officers on notice of its intent to request a stay in that notice. The Notice of Appeal is fully incorporated herein by reference. 3. Respondent filed a Motion for Leave to File Request of Stay Out of Time and a Request for Stay, three days late, on February 2, 2012. The Motion and Request are fully incorporated herein by reference. Respondents counsel inadvertently failed to realize that such request was required to be filed within the time period for filing the appeal.1 Importantly, the deadline for requesting a stay is not jurisdictional, and Petitioners 4. were in no manner prejudiced by this mistake and three-day delay as they were clearly placed on notice of the Citys intentions. As such, Respondent implores the Commission to decide the

While not an excuse for counsels failure to closely review the Commissions rules, Respondent notes that neither the Denver District Court on a R. 106(a)(4) appeal nor the Commissions counter-part, the Career Service Board, place a time limit on the filing of a request for stay. See C.R.C.P. 106(A)(4)(V), 65(g); CSR 19-66.B.

CBOT 000930

Case 1:11-cv-02394-WJM-CBS Document 64-8 Filed 07/16/12 USDC Colorado Page 3 of 5

request for stay on the merits, rather than allow a technical mistake to dictate the outcome of an issue that is of paramount importance to the community. 5. In that regard, the City notes that CSC Rule 12, 10.A. recognizes that consideration of a request for stay requires a balancing of the interests of the Officers with the safety, health, liability, and welfare of the Department and the citizens of the City and County of Denver. So important is this balancing of interests that Rule 12, 10.B allows any interested party given notice of the stay to submit a sworn and notarized document in support of or opposition to the request for stay. Nowhere else in the rules is a non-party given the opportunity to weigh in on a decision by the Commission or its hearing officers. To strictly enforce the nonjurisdictional deadline for filing a request for stay could unfairly deprive other interested parties of the opportunity to support (or oppose) the Citys request for stay, even though the interested party is not represented by undersigned counsel and bound by that counsels mistakes. 5. The Commission clearly has the authority to allow the filing of the belated request. CSC Rule 12 allows deadlines to be extended or procedural requirements to be loosely enforced for good cause or existing circumstances, particularly where, as here, no prejudice will result. See, e.g., 2.B.2 (failure of the Chief or Manager of Safety to strictly follow disciplinary standards does not constitute a bases for reversing the action unless such failure violated the members due process rights); 3.B.5 (any technical deficiency in a timely filed appeal may be corrected by the filing of a corrected appeal); 6.A.1 (when an expedited hearing is not requested, the 15 day deadline for setting a date(s) for hearing can be extended by agreement of the parties or a showing of good cause); 6.B. (7 day deadline for setting expedited hearing dates may be extended by agreement of the parties or a showing of good cause); 6.G.2 (10 day time period for responding to motions may be modified by the Commission or the Hearing Officer when the circumstances are appropriate); 8.D.3 (a partys failure to appear at the hearing shall result in dismissal of the appeal unless good cause is shown); 11.E.1(the party ordering the transcript shall file an original of the transcript within 45 days, except by leave of the Commission). 6. The Denver City Charter 9.3.4 vests the Commission with the exclusive authority to both make and enforce its own rules, consistent with its rule-making process and Charter-mandated duties, powers and responsibilities. Charter 9.4.15(A) mandates only two deadlines: a ten (10) day deadline to appeal from a departmental order of disciplinary action and a thirty (30) day deadline for an expedited hearing to be held, if requested. All other procedural rules, specifically including those relating to appeals to the Commission from a hearing officers decision, are the sole responsibility of the Commission. Charter 9.4.15(E) Thus, the Commission is vested with full discretion in the enforcement of its rules and nothing in the Charter prohibits the Commission from extending the deadline for requesting a stay or accepting a request for stay filed outside of the deadline period. 7. Respondent vigorously contends that the Hearing Officer Panels decision was erroneous and in direct contradiction of compelling evidence, including HALO video of the incident. The shocking video clearly shows Petitioners repeatedly inflicting inappropriate force against four females, oftentimes while the females were restrained and in defenseless positions. Two of the four females were innocent bystanders who simply got caught up in the fray. Moreover, the undisputable images in the video simply cannot be reconciled against the officers use of force report and statements they gave both before learning that the incident was caught on

CBOT 000931

Case 1:11-cv-02394-WJM-CBS Document 64-8 Filed 07/16/12 USDC Colorado Page 4 of 5

video and after as they tried to explain their previous omissions and lies. 8. Respondent respectfully submits that requiring the City to reinstate these two officers and to fully restore their back pay and benefits before the appeal process is fully completed would cause irreparable harm to the City. As the Commission is almost certainly aware, the video of this incident has been repeatedly played on televisions and computer screens throughout the City and surrounding areas, and both the video and the Hearing Officer Panels decision has resulted in significant public outcry. The publics confidence in Denvers police officers, and in the Commission, will be greatly diminished if these two officers are ordered back to work before this appeal process is complete. 9. Of paramount concern to the Respondent is the risk to public safety that these officers pose if they are returned to duty. The safety of Denvers citizens rests squarely in the hands of Denvers police officers. Every officer in the Denver Police Department has been entrusted with the tremendous power and authority to make arrests and to physical or even deadly force to enforce the law and protect citizens from those who would do them harm. The responsibility that comes with wearing a police uniform and carrying a badge and gun cannot be underestimated, nor should it be taken lightly. Public safety is intrinsically tied to honest and responsible law enforcement. The video of this incident alone shows that Petitioners are bullies and liars who will not hesitate to punch a restrained female in the face (a violation affirmed by the Hearing Officer Panel); shove innocent female bystanders to the ground; indiscriminately push through a group of bystanders with a baton, mouth too occupied with a large cigar to give verbal orders; directly apply pepper spray to the face of a restrained female; pepper spray a group of retreating bystanders, unjustifiably place an injured and innocent bystander under arrest, and forcibly shove handcuffed females to the ground, yet report only a fraction of those actions. To force the City to put a badge and gun back in those officers hands before this appeal process is complete would significantly compromise public safety and undermine the publics faith in the Denver Police Department and its many excellent police officers. 10. In addition, requiring the City to restore full back pay and benefits to the officers creates a significant risk that the City will be unable to recover that back pay if the City prevails in this action, whereas Petitioners face no such risk and will be promptly paid if they prevail. 11. Further, there is a strong likelihood that Respondent and Petitioners are not going to agree on the amount of back pay owed, which may necessitate an evidentiary hearing and additional discovery. Respondents counsel has recently been advised by Petitioners counsel that only one of these officers has worked since being dismissed more than ten (10) months ago, and that officers earnings total less than $100. As a result, Respondent is likely to argue that Petitioners failed to mitigate their damages and are therefore not entitled to full back pay. See, e.g., Ballow v. PHICO Ins. Co., 878 P.2d 672 (Colo. 1994) (award of back pay is subject to reduction if employee failed to take reasonable steps to mitigate damages by securing other employment). Wherefore, Respondent requests that the Civil Service Commission deny PetitionerAppellees motion to enforce hearing officer panels decision and order, consider Respondents request for stay on the merits, and grant the stay.

CBOT 000932

Case 1:11-cv-02394-WJM-CBS Document 64-8 Filed 07/16/12 USDC Colorado Page 5 of 5

Dated this 13th day of February, 2012. Respectfully submitted, ANDREA J. KERSHNER #29925 Assistant City Attorney BY: /s Andrea J. Kershner Andrea J. Kershner Attorney for Agency Office of the Denver City Attorney 201 West Colfax Avenue, Dept. 1108 Denver, CO 80202-5332 Telephone: (720) 913-3100

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing RESPONDENT-APPELLANTS RESPONSE TO PETITIONERS-APPELLEES MOTION TO ENFORCE HEARING OFFICER PANELS DECISION AND ORDER was sent via United States Mail, postage prepaid, or via e-mail this 13th day of February, 2012, to the following: Brian Reynolds (via e-mail) David J. Bruno (via e-mail) Alex Martinez, Manager of Safety (via e-mail) Robert C. White, Chief of Police (via e-mail) s/Kelly ODea OFFICE OF THE CITY ATTORNEY

CBOT 000933