August 21, 2014

Colorado Court of Appeals: State Personnel Board Erred in Concluding that Complainants’ Due Process Rights Were Violated; Award of Back Pay and Benefits Reversed

The Colorado Court of Appeals issued its opinion in Berumen v. Dep’t of Human Services, Wheat Ridge Regional Center on April 26, 2012.

Termination—Notice—Pre-Disciplinary Meeting—Hearsay—Persons Making Decision to Discharge.

The Department of Human Services, Wheat Ridge Regional Center (WRRC) appealed the State Personnel Board’s (Board) award of back pay and benefits to complainants Maria Berumen and Dawn Adams, employees whom WRRC discharged. Complainants cross-appealed the Board’s determinations upholding their terminations and denying their request for attorney fees. The order was affirmed in part and reversed in part.

WRRC operated a house for developmentally disabled residents, including Client 1 and Client 2. Berumen was a certified Health Care Technician I, and Adams was a certified Client Care Aide II for those residents. After a hearing, the administrative law judge (ALJ) issued an order denying all of complainants’ requests for relief. Complainants then appealed the ALJ’s ruling to the Board. The Board ultimately adopted all of the ALJ’s findings of fact and conclusions of law, except for her conclusion that WRRC gave complainants adequate notice of the pre-disciplinary meeting. The Board thus awarded complainants back pay and benefits from their respective dates of termination up to the first day of the hearing. The Board denied their remaining requests for relief.

On appeal, WRRC contended that the Board abused its discretion in holding that complainants did not receive adequate notice of their pre-disciplinary meetings and in awarding back pay and benefits to them for this alleged violation. The Board’s determination that a public employer must provide a certified public employee advance notice of all of the rights that he or she has at a pre-disciplinary meeting was contrary to the plain language of the applicable Board rule and was not required by due process. Board Rule 6-10 requires that the appointing authority provide notice at the meeting of “the reason for potential discipline” and “the source of that information,” unless disclosure of the source of the information is prohibited by law. The record here reveals that the notices that were given to complainants pursuant to Rule 6-10 comported with the requirements of due process. Because the Board erred in concluding that the complainants’ due process rights were violated, the award of back pay and benefits to complainants was reversed.

Complainants contended that they were denied an opportunity to be heard at their pre-disciplinary meetings because the decision to discharge them was made not by the appointing authority after the pre-disciplinary meetings, but by his supervisor and by WRRC’s investigator before the meetings took place. The ALJ’s finding that the appointing authority made the decision to terminate complainants was supported by the record.

Complainants also contended that the ALJ erred when, over their objection, she allowed WRRC to admit hearsay evidence of statements made by Client 1 and Client 2. Administrative hearings need not comply with the strict rules of evidence. Here, the ALJ found that the clients were not known to have made false statements in the past, would probably refuse to testify, and would likely become physically aggressive toward themselves and others if pushed to answer questions. Therefore, the ALJ did not abuse its discretion in admitting the hearsay statements of Client 1 and Client 2.

Summary and full case available here.

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