December 11, 2017

Archives for April 15, 2016

Six Finalists Selected for Two Vacancies on 18th Judicial District Court

On Wednesday, April 13, 2016, the Colorado State Judicial Branch announced the selection of six nominees to fill two vacancies on the Eighteenth Judicial District Court. The vacancies will be occasioned by the retirements of Hon. Richard Caschette and Hon. Marilyn Antrim, effective July 1, 2016. The nominees are Andrew C. Baum of Highlands Ranch, Richard H. Ferro of Centennial, Ben L. Leutwyler, III, of Highlands Ranch, Robert Lung of Parker, Michael W. Melito of Littleton, and Eric B. White of Centennial.

Andrew C. Baum is a prosecutor at the Denver District Attorney’s Office. Richard H. Ferro is an attorney in the state Medicaid Fraud Control Unit. Ben L. Leutwyler, III, is a partner at Mike Hulen, P.C., where he practices personal injury, criminal defense, family law, and estate planning. Robert Lung is an Arapahoe County Magistrate. Michael W. Melito is a Senior Assistant Attorney General. Eric B. White is also an Arapahoe County Magistrate.

Under the Colorado Constitution, the governor has 15 days from April 13, 2016, in which to appoint two of the nominees to the Eighteenth Judicial District Court. Comments regarding any of the nominees may be sent to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

SB 16-077: Utilizing a Collaborative Multi-Agency Approach to Increase Employment Opportunities for Disabled Individuals

On January 19, 2016, Sen. John Kefalas and Reps. Joann Ginal & Dianne Primavera introduced SB 16-077Concerning a Collaborative Multi-Agency Approach to Increasing Competitive Integrated Employment Opportunities for Persons with Disabilities, and, in Connection Therewith, Developing and Implementing an Employment First Policy. The bill was introduced in the Senate Finance Committee, where it was amended and referred to Appropriations.

If enacted, this bill would require the heads of the Department of Health Care Policy and Financing (“HCPF”), the Department of Labor and Employment (“CDLE”), the Department of Education (“CDE”), and the Department of Higher Education (“CDHE”), (referred to in the bill as “Agency Partners”), to develop an employment first policy. This policy would increase competitive integrated employment, as defined in the bill, for people with disabilities.

The bill would require Agency Partners to consult with the Employment First Advisory Board (“Advisory Board”) as part of developing and implementing the employment first policy. At the very least, the employment first policy must do the following:

  • Ensure that Competitive Integrated Employment (“CPI”) is the primary objective for all working-age persons regardless of their disability;
  • Remove any barriers to CPI for persons with disabilities;
  • Rearrange existing resources, if possible, to increase provider capacity through funding incentives;
  • Include provisions relating to post-secondary education planning, career planning, transition planning, employment services, and closing gaps in service;
  • Include provisions for data collection and sharing by Agency Partners to employment and post-secondary education for persons with disabilities, consistent with state and federal data privacy laws;
  • Require professionals, who will provide employment services, to complete a nationally-certified program before being allowed to provide employment services;
  • Establish the employment first policy as part of the State’s plan to address federal case law relating to providing disability services in an integrated setting; and
  • Include a plan for a statewide outreach and training program.

Additionally, each agency is required to implement the program pursuant to its statutory authority if changes relate to Medicaid waivers. Furthermore, the bill will require the Agency Partner’s policy boards to adopt any rules necessary to implement the program. In addition to any other duties under the plan, the HCPF shall:

  • Develop a plan to expand CPI for persons with intellectual and developmental disabilities that includes a gradual shift in funding from noncompetitive employment to CPI;
  • Limit pre-vocational services for persons receiving home and community based services to a maximum of two (2) years, with the possibility of an extension for up to three (3) years;
  • Provide persons with intellectual and developmental disabilities who work in segregated employment (or employment paying below minimum wage) with services related to exploring CPI prior to allowing the individual to remain in segregated or low-wage employment;
  • Establish baseline data for CPI and set goals for annual increases in the number of persons in home or community based services who obtain CPI;
  • Develop a plan and implementation timeline to expand the Medicaid buy-in program and develop a plan to raise asset limits for Medicaid eligibility categories that do not have federal limits;
  • Dedicate a full-time staff member to oversee and coordinate employment support through Medicaid waiver programs;
  • Maintain Colorado’s membership in the National Employment Leadership Network for States;
  • Actively participate in the United States Department of Labor’s Employment First State Leadership Mentoring Program (“Federal Mentoring Program”); and
  • Prepare annual reports concerning the employment first policy and its implementation by Agency Partners and present the report to the general assembly for HCPF.

Lastly, in addition to any other duties under the plan, the proposed bill would require the CDLE to:

  • Establish Colorado’s membership in the Federal Mentoring Program;
  • Promote partnerships with employers to overcome hurdles to employment for persons with disabilities;
  • Create a reimbursement code discovery process for persons with significant disabilities;
  • Require workforce centers to promote nondiscrimination and equal opportunities in employment for persons with disabilities through the use of federal reference guides and checklists; and
  • Provide information to HCPF to prepare the annual report on the employment first policy and present the report to the general assembly’s committee of reference for the CDLE.

The bill creates the advisory board in the CDLE, which encompass the State’s advisory group created for purposes of the Federal Mentoring Plan, and will include that group’s membership and duties, along with additional advisory board members and duties. The bill includes the structure of the advisory board, including the advisory board’s membership and appointing authorities. In addition, the bill requires a sunset review of the advisory board by the department of regulatory affairs before the advisory board’s repeal date in 2026.

The bill also encourages the CDE, in conjunction with the Agency Partners, to facilitate, support, and develop programs for students with disabilities relating to school-to-work transitions, early transition planning, and postsecondary education options and career paths. Furthermore, the bill requires the CDE to actively participate in the Federal Mentoring Program to coordinate employment first practices that affect public schools. Finally, the bill requires the CDE to provide information to HCPF to prepare the annual report on the employment first policy and present the report to the general assembly’s committee of reference for the CDE.

In addition to any other duties under the plan, the bill requires the CDHE to collaborate with the CDE concerning policies and programs that support early transition planning, including postsecondary education, the use of assistive technology, and the retention and graduation of students with disabilities attending higher education institutions. The bill also requires the CDHE to actively participate in the Federal Mentoring Program and to coordinate employment first practices in the higher education setting. The CDHE shall provide information to HCPF to prepare the annual report on the employment first policy and present the report to the general assembly’s committee of reference for the CDHE.

The bill would take effect July 1, 2016.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Costs of Defending Lawsuit Not Campaign Expenditures

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog v. Coloradans for a Better Future on Thursday, April 7, 2016.

Reporting Contributions and Spending—Fair Campaign Practices Act.

In 2012, Arnold lost the Republican primary election for University of Colorado Regent to Davidson. During the run-up to the election, Coloradans for a Better Future (CBF) purchased a radio advertisement supporting Davidson and other radio advertisements unfavorable to Arnold. After the election, Arnold, and later Campaign Integrity Watchdog (CIW) with Arnold as its principal officer, filed a series of complaints with the Colorado Secretary of State (Secretary) alleging violations of Colorado’s Fair Campaign Practices Act (FCPA). This is the third such complaint.

Specifically, CIW challenged CBF’s failure to report funds donated to CBF to pay Arnold’s court costs from an earlier case, arguing those funds were a contribution and spending and were incorrectly reported in CBF’s initial January 2014 contributions and expenditures report. The administrative law judge (ALJ) dismissed the complaint. The ALJ found that on January 22, 2014, CBF filed a contribution and expenditures report with the Secretary. Its report wasn’t due until May 5, but it intended to terminate its activities as a political organization and thus filed early. On the same day, CBF’s legal counsel sent an email to the Secretary seeking to amend the report to show that Colorado Justice Alliance (CJA) contributed $200.20 to pay Arnold’s court costs. The Secretary’s electronic reporting system didn’t allow the change to be made by CBF, and the Secretary’s staff couldn’t change the report either. CIW filed its complaint on March 3, 2014 and CBF’s report was publicly amended on March 6, 2014. The ALJ concluded that CBF had already reported the CJA contribution to the Secretary when CIW filed its complaint and that the complaint was premature because the report was not due until May 2014. The ALJ further concluded that the payment of Arnold’s court costs did not meet the FCPA definition of spending and did not have to be reported as such.

On appeal, CIW contended that the $200.20 CJA donated to help CBF satisfy its obligation to pay Arnold’s court costs was a contribution that was incorrectly reported on the initial report. Specifically, CIW argued that the ALJ (1) invented findings of fact, (2) misrepresented facts regarding CBF’s request to amend its report, and (3) erred in concluding the complaint was premature. As to the first argument, CIW failed to cite specific findings or record support; as to the second argument, the allegation concerned a question of law rather than fact; and as to the third argument, the court concluded the report was corrected on January 22, when CBF notified the Secretary of its mistake. CIW also argued that CBF violated the FCPA because it listed the payee of the $200.20 as the Denver District Court rather than Arnold; the court found this too insignificant to amount to a violation of the reporting law. Thus, the Court concluded that the ALJ did not err when he concluded CBF correctly reported the $200.20.

CIW also argued that the $200.20 CBF paid to Arnold constituted spending and should have been reported. The court found the funds were not “expended influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any state or local public office in the state,” and thus concluded they were not reportable spending.

CIW’s request for costs and fees was denied. CBF’s request for attorney fees was denied, but its request for costs was granted.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Career Service Board’s Interpretation of Sheriff Department Rule Reasonable

The Colorado Court of Appeals issued its opinion in Khelik v. City & County of Denver on Thursday, April 7, 2016.

C.R.C.P. 106—Reasonable Interpretation of Rules—City and County of Denver Career Service Board.

Plaintiff Khelik appealed from the district court’s judgment affirming an order of the City and County of Denver’s Career Service Board (Board) relating to disciplinary proceedings against him by the Denver Sheriff Department (DSD). The sole issue on appeal was whether the Board abused its discretion by misinterpreting a DSD disciplinary rule and concluding that a charge of conduct unbecoming does not require the DSD to prove actual harm to the City or the DSD. Khelik was a sergeant in the DSD. He was given a disciplinary notice suspending him without pay for inappropriate interactions with a female officer under his command and retaliating against her for stating her intention to file a sexual harassment complaint. Khelik appealed his suspension to a hearing officer in the Career Service Authority. The hearing officer concluded that because the DSD had not made a showing of actual harm, Khelik had not violated DSD Rule 300.11.16 (the retaliation claim was also denied and that was not appealed). The DSD petitioned for review with the Board, and the Board vacated the hearing officer’s determination, concluding there was no requirement of a showing of actual harm to the City or the DSD to find a violation of the rule concerning conduct unbecoming. The district court affirmed. Khelik appealed under C.R.C.P. 106.

The Colorado Court of Appeals concluded that the Board did not abuse its discretion. In interpreting DSD Rule 300.11.16, the Board’s reasoning was consistent with principles of statutory interpretation and reflects the plain language of the rule, the drafters’ intent, and the policy considerations behind the rule.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 4/14/2016

On Thursday, April 14, 2016, the Colorado Court of Appeals issued no published opinion and 24 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 4/14/2016

On Thursday, April 14, 2016, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Garrett v. Branson Commerce Park Community Improvement District

Williams v. Wilkinson

Banks v. Geary County District Court

United States v. Parker

Farley v. Stacy

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.