Karl v. Dept of Safety

23CA2203 Karl v Dept of Safety 10-10-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2203
City and County of Denver District Court No. 23CV30672
Honorable Martin F. Egelhoff, Judge

Charles Karl,

Plaintiff-Appellant,

v.

Department of Safety,

Defendant-Appellee.

ORDERS AFFIRMED

Division VII
Opinion by JUDGE SCHUTZ
Tow and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 10, 2024

Empower P.C., Christopher M.A. Lujan, Aurora, Colorado, for Plaintiff-
Appellant

Kerry C. Tipper, City Attorney, Charles T. Mitchell, Assistant City Attorney,
Margaret C. Tharp, Assistant City Attorney, Denver, Colorado, for Defendant-
Appellee
¶1 Plaintiff, Charles Karl, appeals the district court’s orders

denying his motion to certify the record and affirming the decision

and final order entered by defendant, the Civil Service Commission

of the City and County of Denver (Commission). We affirm.

I. Background

¶2 Karl was a captain with the Denver Fire Department. In

September 2021, the Department of Safety demoted him from the

rank of captain to the rank of firefighter based on two personnel

incidents that occurred in the spring of 2021. Karl appealed the

demotion. An administrate law judge held an evidentiary hearing in

December 2021. The hearing officer issued a decision upholding

the demotion in January 2022. Karl appealed the hearing officer’s

decision to the Commission on January 18, 2022.

¶3 After more than 200 days passed without a decision, Karl filed

a petition in Denver District Court Case No. 23CV30675, seeking an

order compelling the Commission to issue a decision. Eleven days

later, which was 238 days after the briefing period had ended, the

Commission issued its final decision and order affirming the

hearing officer’s decision.

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¶4 Karl then filed the present case in the district court under

C.R.C.P. 106(a)(4) seeking judicial review and reversal of the

Commission’s decision. He argued that the Commission abused its

discretion in two ways: (1) by misapplying the applicable provisions

of the Denver Fire Department Discipline Handbook; and (2) by

failing to issue a decision by the deadline specified in Denver Civil

Service Commission Rule 12, section 11(K)(3), which states the

Commission has eighty-four days to issue a decision.

¶5 Rule 106(a)(4)(III) provides that “[i]f the complaint is

accompanied by a motion and proposed order requiring certification

of a record, the court shall order the defendant body or officer to file

with the clerk on a specified date, the record or such portion or

transcript thereof as is identified in the order.” Karl did not file

such a motion with the complaint, or his subsequently filed

amended complaint. Rule 106(a)(4)(VII) continues: “If no record is

requested by the plaintiff, the plaintiff shall file an opening brief

within 42 days after the defendant has served its answer upon the

plaintiff.” Thus, Karl’s opening brief was due within forty-two days

after the Commission served its answer to the amended complaint.

See C.R.C.P. 106(a)(4)(VII).

2
¶6 Nearly a month after Karl’s deadline for filing his opening brief,

the district court’s judicial assistant emailed Karl’s counsel to

inquire about the status of the case. Karl’s counsel responded that

“this matter is ready for a briefing schedule to be issued,” and

“[t]here is no motion for certification of the record pending in this

case.” The same day, the district court entered an order setting a

briefing schedule for the Rule 106 claims.

¶7 A month later, and approximately a week before the opening

brief was due, Karl filed a motion to certify the record. In his reply

to the Commission’s response to his motion to certify the record,

Karl’s attorney stated that he did not file the motion earlier because

he was trying to save his client the expense of certifying the record

and that he had an expectation the Commission’s counsel would file

the certification.1 The district court denied his motion, concluding

that it was untimely and that Karl had made no showing of

excusable neglect to justify the late filing.

1 On appeal, the Commission’s counsel denies that Karl’s attorney

ever asked or confirmed whether the Commission would file the
certified record.

3
¶8 After the briefing process, the district court entered an order

concluding that the Commission did not lose its jurisdiction, exceed

its authority, or abuse its discretion by issuing its final decision and

order more than eighty-four days after the briefing before the

Commission was completed. Karl appeals this order and the

district court’s order denying his motion to certify the record.

II. Timeliness of the Commission’s Order

A. Standard of Review

¶9 Under Rule 106(a)(4), we review an agency’s quasi-judicial

decisions to determine if it has “exceeded its jurisdiction or abused

its discretion.” The agency decision that Karl challenges is the

issuance of the Commission’s final decision and order long after the

expiration of the deadline established by Rule 12, section 11(K)(3).

The Commission’s interpretation and application of that Rule

presents an issue of law that we review de novo. See Colo. Dep’t of

Lab. & Emp. v. Esser, 30 P.3d 189, 194 (Colo. 2001) (“[C]onclusions

of law, including interpretations of the constitutions and statutes,

are always subject to de novo review.”); Safeway, Inc. v. Indus.

Claim Appeals Off., 186 P.3d 103, 105 (Colo. App. 2008) (“In

construing an administrative rule or regulation, we apply the same

4
rules of construction as we would in interpreting a statute.”

(quoting Lucero v. Dep’t of Insts., 942 P.2d 1246, 1249 (Colo. App.

1996))). An agency abuses its discretion when it misapplies the

law. Gallegos v. Garcia, 155 P.3d 405, 406 (Colo. App. 2006).

B. The Parties’ Arguments

¶ 10 As best we understand his argument on appeal, Karl asserts

that under Rule 12, section 11(K)(3), the Commission either

exceeded its authority or abused its discretion by issuing its final

decision and order more than eighty-four days after the briefing was

complete. In its answer brief, the Commission frames Karl’s

argument as a contention that the Commission lost its jurisdiction

to act.

¶ 11 Both in the district court and on appeal, the Commission cites

Shaball v. State Compensation Insurance Authority, 799 P.2d 399

(Colo. App. 1990), as the analytical framework for its jurisdictional

analysis. In rejecting Karl’s challenge to the timeliness of the

Commission’s decision, the district court also viewed the Rule 12,

section 11(K)(3), timing issue as a question of jurisdiction and

analyzed it through the Shaball framework.

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¶ 12 In his reply brief on appeal, however, Karl expressly denies

that he is making a jurisdictional argument. Rather, he reiterates

that he is arguing that the Commission exceeded its authority and

abused its discretion by deciding the appeal after the eighty-four-

day deadline.

¶ 13 As a remedy for the asserted violation of the deadline, Karl

requested that the district court reverse the Commission’s decision.

While less than clear, it seems he was also asking the court to

reverse or vacate the hearing officer’s decision and reinstate him to

his former rank of captain. This argument is premised on the

contention that the factual record and disciplinary matrix did not

support his demotion.

1. The Commission’s Jurisdiction and Authority to Act

¶ 14 Rule 12 addresses disqualification and disciplinary appeals,

hearings, and procedures. Section 11(K)(1) and (K)(3) of Rule 12

provides as follows:

1. The Commissioners shall issue a written
Decision and Final Order, that shall be binding
upon all parties, affirming, reversing, or
modifying the Hearing Officer’s Decision and
Order with respect to any charged violation
and any imposed penalty that is a subject of

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the appeal. The Commissioners’ decision shall
be final and is subject to judicial review . . . .

....

3. The Commissioners shall issue their
decision no later than eighty-four (84) days
after the close of Oral Argument or, if no Oral
Argument is held, after the close of the briefing
period.

¶ 15 Despite the terms of Rule 12, section 11(K)(3), the Commission

did not issue its decision and final order within eighty-four days

after the close of the briefing period.

¶ 16 Although we acknowledge Karl’s disclaimer, we elect to

address the jurisdictional question for three reasons. First, an

agency decision is void if it is entered without jurisdiction. Emmons

v. Colo. Dep’t of Revenue, 2020 COA 17, ¶ 32 (“If we find that the

Department acted without jurisdiction, we must reverse the district

court judgment . . . .”). Second, an appellate court must be

satisfied that the reviewing agency had jurisdiction to resolve the

disputed issue. Id. And third, the district court expressly resolved

the jurisdictional question after applying Shaball, which we agree

provides the most relevant authority for determining if an agency

loses the ability to act because a decision was not timely issued.

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¶ 17 Shaball, like the present case, involved the appeal of a

disciplinary action. See 799 P.2d at 402. There, the plaintiff

argued that the administrative agency “lost jurisdiction when the

hearing officer failed to issue a decision” within the timeframe

specified by the applicable statute. Id. In rejecting the plaintiff’s

jurisdictional argument, the division held that “[s]tatutory

provisions governing the time for actions to be taken by public

officials and agencies are not jurisdictional unless a contrary intent

is clearly expressed.” Id. The division explained,

The crucial difference between statutes
considered to be directory and those deemed
mandatory arises from the consequence of
noncompliance. Failure to follow the former
does not terminate the authority of the
administrative or judicial body to decide the
issue, whereas the failure to follow the latter
may terminate its power or jurisdiction.

¶ 18 Id.

¶ 19 Shaball sets forth three factors for assessing whether a time

limit governing the issuance of an agency decision is directory

rather than mandatory. Id. The first is whether the rule indicates

that “time is of the essence” to issue a decision. Id. Aside from

articulating the timeframe, Rule 12, section 11(K)(3), contains no

8
indication that time is of the essence in meeting the eighty-four-day

deadline.

¶ 20 The second Shaball factor is whether the governing statute

“contains negative language denying the exercise of authority

beyond the time period prescribed for action.” 799 P.2d at 402.

Section 11(K)(3) of Rule 12 contains no language indicating that an

agency loses jurisdiction or its authority to act if its decision is not

issued within eighty-four days.

¶ 21 The third Shaball factor requires us to consider whether

“disregarding the relevant provision would injuriously affect public

interests or private rights.” 799 P.2d at 402. Certainly, Karl had a

personal interest in receiving a timely decision from the

Commission. And we appreciate his frustration with the

Commission’s significant delay in issuing the decision in this case.

The Commission’s decisions materially impact important aspects of

employees’ daily lives: Karl’s employment status, salary, and

retirement benefits remained in limbo while the Commission

considered its decision. However, we find no indication that Karl

suffered a specific injury from the Commission’s delay that could

not have been remedied if the Commission had found in his favor.

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His title and retirement benefits could have been reinstated, and he

could have received backpay.

¶ 22 On a less tangible level, the uncertainty created by the delayed

decision likely impacted Karl’s work environment and his mental

state. But these tensions are inherent in the litigation of all

employment actions, and Karl has identified no concrete personal

loss that he suffered because of the delay.

¶ 23 Finding none of the three Shaball factors satisfied in this case,

we conclude that the Commission’s delay in issuing its decision did

not result in the loss of its jurisdiction or authority to act.

2. Abuse of Discretion

¶ 24 Perhaps in view of Shaball, Karl’s focus in the district court

and on appeal is his argument that the Commission abused its

discretion by issuing its decision long after the eighty-four-day

deadline. An agency abuses its discretion when it misconstrues or

misapplies the law or when it makes a decision that is unsupported

by competent evidence in the record such that the decision can only

be explained as an arbitrary or capricious exercise of authority.

Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t., 196 P.3d

10
892, 899-900 (Colo. App. 2008) (citing Ross v. Fire & Police Pension

Ass’n, 713 P.2d 1304, 1308-09 (Colo. 1986)).

¶ 25 In rejecting this argument, the district court relied on a

decision from a division of this court in Mayerle v. Civil Service

Commission, 738 P.2d 1198 (Colo. App. 1987). In Mayerle, the

division rejected the plaintiff’s contention that the Commission’s

five-month delay in issuing its opinion was arbitrary and

capricious. Id. at 1200 (“Petitioner’s argument that the Commission

acted arbitrarily and capriciously in rendering its decision five

months after the hearing is without merit.” (citing Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532 (1985))); Loudermill, 470 U.S. at

547 (concluding that a nine-month delay in issuing a decision was

neither unreasonable nor unconstitutionally lengthy per se). In

Karl’s case, the seven-month delay falls squarely between the five-

month delay in Mayerle and the nine-month delay in the case

Mayerle cites, Loudermill.

¶ 26 Karl relies heavily on Rags Over the Arkansas River, Inc. v.

Colorado Parks & Wildlife Board, 2015 COA 11M, to support his

argument that the Commission exceeded its authority by not

adhering to the eighty-four-day deadline. In Rags, the Colorado

11
Parks and Outdoor Recreation Board delayed issuing a permit that

would have allowed the plaintiff to create an outdoor artistic feature

over the Arkansas River. Id. at ¶ 5. Thus, Rags involved an

agency’s failure to follows its own rules governing the issuance of a

special activities permit. Id. at ¶ 66. The division concluded that

the agency’s failure to follow its own regulations in the permitting

process was error, but that any error was harmless. Id. at ¶ 64.

¶ 27 Karl’s contention is that the Commission’s failure to issue a

timely decision was an abuse of discretion. This is so, he argues,

because the language of Rule 12, section 11(K)(3), is mandatory

rather than directive. But Rags does not provide an analytic

framework for deciding when a deadline to issue a decision is

mandatory rather than directive. That framework is provided by

Shaball. 799 P.2d at 402. And for the reasons previously

articulated, the application of Shaball’s three factors leads to the

conclusion that Rule 12’s eighty-four-day deadline is directive

rather than mandatory.

¶ 28 Karl relies on various nonbinding decisions from other

jurisdictions to argue that the word “shall” in Rule 12, section

11(K)(3), imposes a mandatory deadline. See, e.g., Mohasco Corp. v.

12
Silver, 447 U.S. 807, 825-26 (1980) (concluding that deadline for

filing unfair employment practices claim is mandatory); In re Comp.

of Pena, 432 P.3d 382, 386 (Or. Ct. App. 2018) (concluding that the

Worker’s Compensation Division misapplied its own rules and

reversing decision that failed to follow the rule).

¶ 29 But these decisions are based on statutes or rules not at issue

here. Moreover, Karl cites no analytic framework that displaces the

Shaball factors in assessing whether an agency rule that

establishes a deadline for the issuance of a decision is mandatory or

directive. Similarly, he provides no framework by which we are to

determine when a delay in the issuance of a decision rises to the

level of arbitrary or capricious conduct.

¶ 30 In the absence of such authority, we conclude that the

Commission did not act arbitrarily or capriciously by issuing its

decision after the eighty-four-day deadline.

¶ 31 But even if we assume there was error, such error would not

justify either remedy that Karl requests. Karl effectively proposes

two remedies. First, he suggests that we should vacate the

Commission’s decision because of its untimeliness and vacate the

hearing officer’s decision, reinstating his original position as

13
captain. Alternatively, he argues that we should reverse the district

court’s order denying his motion to certify the record and remand

this matter with instructions that the district court review the

record and reconsider the merits of the Commission’s decision. The

first remedy is well outside our authority. The second would only

be possible if we found the district court had erred in denying Karl’s

motion to certify the record. But as explained below, we conclude

that the district court did not err by denying the motion to certify

the record.

III. Denial of the Motion to Certify Record

¶ 32 Karl argues that the district court abused its discretion by

denying his motion to certify the record. He asks that the case be

remanded to the district court with instructions to allow him to

submit a certified record, so the district court can evaluate the

merits of the Commission’s decision.

A. Standard of Review

¶ 33 We review the district court’s decision whether to grant a tardy

motion for an abuse of discretion. See Brown v. Walker Com., Inc.,

2022 CO 57, ¶ 19-20 (concluding that trial courts have broad

latitude to allow untimely filings under the provisions of Rule

14
6(b)(2)). “A trial court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, unfair, or based on a

misapplication of the law.” Adams Cnty. Hous. Auth. v. Panzlau,

2022 COA 148, ¶ 17 (quoting Black v. Black, 2020 CO 64M, ¶ 118).

B. Analysis

¶ 34 The district court’s order denying Karl’s motion adopted by

reference the arguments made in the Commission’s response to

Karl’s motion to certify the record. In its response, the Commission

argued Karl failed to demonstrate “good cause or excusable neglect”

for the delay in filing the motion. The Commission also noted that

in response to the district court’s inquiry, Karl represented that

there was no request to certify the record and that the case was ripe

for setting the briefing schedule.

¶ 35 In his reply to the Commission’s response, Karl argued that he

didn’t timely file a motion to certify because in a previous case

involving the same attorneys, defense counsel provided a certified

copy of the record even though Karl’s counsel had not filed a motion

to certify. Aside from this one alleged incident — the circumstances

of which are not documented or further explained — there is

nothing in the record to indicate an established relationship or

15
practice between counsel that would justify Karl assuming that

there was no need file a motion to certify in this case.

¶ 36 On appeal, Karl offers the same justification for his belated

filing: in one prior Rule 106 case with defense counsel, the city

attorney had filed a record even though Karl’s attorney had not filed

a motion to certify, and he assumed the same practice would be

followed in this case.

¶ 37 As an initial matter, we note that Karl’s counsel first raised

this argument in his reply brief filed in the district court. Generally,

we do not consider arguments raised for the first time in a reply

brief. See Flagstaff Enters. Constr., Inc. v. Snow, 908 P.2d 1183,

1185 (Colo. App. 1995) (it is not error for a trial court not to

consider arguments raised for the first time in a reply brief). But

even if we assume the argument was adequately preserved, we

conclude it fails on the merits.

¶ 38 Neither before the district court nor on appeal does Karl point

to an established practice between counsel, or an express

representation from opposing counsel, that would justify his

assumption that he could ignore the requirements of Rule

106(a)(4)(III) and (IV). Moreover, a party is not free to disregard a

16
deadline absent permission of the tribunal, and there is nothing in

the record suggesting that the district court agreed to such practice.

¶ 39 In addition to these omissions, Karl affirmatively represented

to the district court that there was no motion to certify the record

outstanding and that the parties were ready for a briefing schedule.

Noting that “a certified record has not been requested,” the district

court entered its order setting forth the deadlines for the parties’

briefs on appeal. Even then, Karl did not file his motion to certify

until more than a month later, seven days before his opening brief

was due. And in his reply brief concerning the motion to certify,

Karl stated that the filing of his opening brief “probably rendered

moot” the issue of record certification because he “was able to file

his brief without a certification of record.”

¶ 40 Karl lastly contends that his motion to certify should not be

treated as untimely because C.R.C.P. 106(a)(4) does not set forth an

express deadline for filing a motion to certify. Similarly, he

contends that any delay was inconsequential because he filed the

motion before the deadline for filing his opening brief. We disagree.

¶ 41 Rule 106(a)(4)(III) contemplates the filing of a motion to certify

contemporaneously with the complaint. If no record is requested,

17
an opening brief is due within forty-two days of the answer.

C.R.C.P. 106(a)(4)(VII). Karl’s opening brief was already

significantly past due before the court’s clerk contacted him to

inquire about its status. And when he stated that no record was

requested, the court set a deadline for filing the opening brief. After

another thirty-five days had expired, Karl filed the motion to certify

seven days before the deadline for his opening brief. If the motion

had been granted, it would have delayed the briefing until the

record could be prepared and filed. This would have required a new

briefing schedule and caused additional delay in resolving the case.

¶ 42 Given these facts, we cannot conclude that the district court

abused its discretion by denying Karl’s untimely motion to certify

the record.

IV. Disposition

¶ 43 The district court’s orders denying the motion to certify the

record and affirming the Commission’s final decision and order are

affirmed.

JUDGE TOW and JUDGE PAWAR concur.

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