June 20, 2013

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Colorado Court of Appeals: Police Officer Injured at Work Only Entitled to One Year of Full Pay Disability Leave Under City Charter

May 30, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Miller v. City & County of Denver on Thursday, May 23, 2013.

Disability Compensation—Police Officers—Line-of-Duty Injury Leave.

In this dispute over disability compensation, plaintiffs Daryl Miller and the Denver Police Protective Association (DPPA) appealed the district court’s summary judgment in favor of defendant, the City and County of Denver (City). The Court of Appeals affirmed the judgment.

On July 15, 2005, Miller, a lieutenant in the Denver Police Department, was injured in an automobile accident in the course and scope of his employment. As a result of his injuries, surgeries, and medical treatment associated with the accident, he did not work for five months. Thereafter, for four years, he worked intermittently either at his position or in modified work functions.

Miller was entitled to disability benefits under the City Charter and the City’s Collective Bargaining Agreement (CBA) with the DPPA. On March 8, 2010, the City determined that he had reached maximum medical improvement (MMI) with respect to his injuries, and discontinued giving Miller line-of-duty injury leave at full salary after one year.

Miller and the DPPA contended that the district court erred in granting the City’s motion for summary judgment, because he was entitled to line-of-duty injury leave at full salary beyond one year. Here, both City Charter § 9.6.14 and Article 22.2 of the CBA relate to the same subject: disability benefits for a police officer who becomes “incapacitated from service” or “unable to perform [his or her] duties” because of “injuries received” in the “performance” or “discharge” of his or her “duties.” Charter provision § 9.6.14 awards the injured officer “full pay for such time as [he or she] is temporarily incapacitated,” and CBA Article 22.2 awards “any necessary leave of absence not to exceed one year at his [or her] full salary.”

Unlike § 9.6.14, Article 22.2 makes no distinction between benefits for temporary and permanent disabilities. Therefore, an injured officer is entitled to a maximum of one year of disability leave at full salary, without regard to the temporary or permanent nature of his or her disability. Because the record discloses that Miller received 178.25 hours above his allocated full-salary disability leave, the district court properly determined, as a matter of law, that the City was entitled to deduct his excess disability leave from his other accrued leave time.

Summary and full case available here.

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Colorado Court of Appeals: Town’s Fees Regarding Oil and Gas Wells Clearly Prohibited by Statute

May 15, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Town of Milliken v. Kerr-McGee Oil & Gas LP on Thursday, May 9, 2013.

Oil and Gas Well Safety and Security Inspection Fees—CRS § 34-60-106(15).

The Town of Milliken (Town) appealed the trial court’s summary judgment in favor of Kerr-McGee Oil & Gas Onshore LP (Kerr-McGee). The judgment was affirmed.

In 1983, the Town enacted a series of ordinances that imposed fees on oil and gas wells within its boundaries. In 1996, the General Assembly amended existing state oil and gas law by enacting House Bill 96-1045. As relevant here, the new legislation, codified in part at CRS § 34-60-106(15), states:

No local government may charge a tax or fee to conduct inspections or monitoring of oil and gas operations with regard to matters that are subject to rule, regulation, order, or permit condition administered by the [Oil and Gas Conservation] [C]ommission. Nothing in this subsection (15) shall affect the ability of a local government to charge a reasonable and nondiscriminatory fee for inspection and monitoring for road damage and compliance with local fire codes, land use permit conditions, and local building codes.

In 2003, the Town enacted another ordinance concerning oil and gas wells that authorized the Town to inspect wells, equipment, and structures to determine compliance with the land use code, the Town fire code, the Town building code, and all other Town health or safety standards. The Town imposed an annual $400 inspection fee for each well within its boundaries that had not been plugged or abandoned. It was undisputed that the Town has never conducted the inspections described. In 2008, the Town enacted an ordinance imposing an annual $400 security inspection fee on each active oil and gas well within its boundaries. The fee was intended to offset the costs incurred by the Town’s police department for additional security checks that the well sites require. It was undisputed that the Town’s police conducted such checks on a regular basis before 2003. In 2010, the Town repealed and replaced the portion of the land use code containing both of the above provisions and replaced it with a provision authorizing inspections of wells and an annual $400 security fee on active oil and gas wells within the Town’s boundaries.

In 2010, the Town sued Kerr-McGee and others seeking to collect the security fees from 2003 onward. Kerr-McGee moved for summary judgment, which was granted in its favor. The district court held that the Town lacked the statutory authority to impose the fees. The Town appealed.

The Court or Appeals found it patently clear that oil and gas well safety and security are matters subject to rule, regulation, order, or permit condition administered by the Oil and Gas Conservation Commission. Thus, the Town’s fees under all of the ordinances above are clearly prohibited. The summary judgment was affirmed.

Summary and full case available here.

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HB 13-1206: Modifying Cap on Incentive Payments or Credits as Business Incentive Agreements with Municipalities, Counties, and Special Districts

April 1, 2013 by Leave a Comment

On February 1, 2013, Rep. Brian DelGrosso and Sen. Mark Scheffel introduced HB 13-1206 - Concerning the Expansion of a Local Government’s Ability to Enter Into a Business Incentive Agreement with a Taxpayer. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A county, municipality, or special district (local government) is currently authorized to negotiate an incentive payment or credit with a taxpayer that establishes a new business facility or expands an existing business facility (business incentive agreement).

As amended in the House, the bill expands the authority for a local government to negotiate a business incentive agreement with a taxpayer that has an existing business facility in the local government if, based on verifiable documentation, the local government is satisfied that there is a substantial risk that the taxpayer will relocate the facility out of state. The verifiable documentation must include information that the taxpayer could reasonably and efficiently relocate the facility out of state and that at least one other state is being considered for the relocation.

A local government negotiating any type of business incentive agreement is not required to inform a school district of the negotiations because school districts are no longer authorized to enter into business incentive agreements. The bill was given final approval in the House on March 5.

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HB 13-1060: Raising Cap for Municipal Court Fines to $5,000

February 19, 2013 by Leave a Comment

On January 9, 2013, Rep. Mike McLachlan introduced HB 13-1060 - Concerning Raising the Maximum Fine that May Be Assessed by a Municipal Court. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the maximum amount that a municipal court may fine a person convicted of violating a municipal ordinance is $1,000. The bill raises this amount to $5,000. On January 17 the Judiciary Committee took testimony and took the bill off the table.

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Colorado Supreme Court: Petitions Concerning Administrative Matters Cannot Be Ballot Initiatives

February 12, 2013 by Leave a Comment

On Monday, February 11, 2013, the Colorado Court of Appeals issued its opinion in Vagneur v. City of Aspen.

Municipal Corporations—Matters Subject to Initiative.

The Supreme Court considered whether two citizen-initiated proposed ordinances regarding the design and construction of a state highway entrance to the City of Aspen were administrative in character and therefore outside the scope of the initiative power reserved to the people under article V, §§ 1(1) and 1(9), of the Colorado Constitution. The Court held that the proposed initiatives were administrative in character and therefore were not a proper exercise of the people’s initiative power. It therefore affirmed the judgment of the court of appeals.

Summary and full case available here.

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Colorado Supreme Court: Home Rule Municipality Cannot Promulgate Laws that Conflict with State Law on Matters of Statewide Concern

February 6, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in Webb v. City of Black Hawk on Monday, February 4, 2013.

Legality of Banning Bicycles on City Streets—Home-Rule Municipality—Local Government Law—Traffic Regulations—CRS § 42-4-109(11)—Matter of State and Local Concern—Preemption.

In this appeal from the Gilpin County District Court, petitioners Jamie Webb, Jeffrey Hermanson, and Michaleen Jeronimus challenged the legality of the City of Black Hawk’s ordinance banning bicycles on certain city streets. Petitioners, a group of bicyclists, were cited and fined for riding their bikes on Gregory Street in Black Hawk, the only street providing access through town from the state highway to Central City. The bicyclists argued that Black Hawk, as a home-rule municipality, lacked the authority to prohibit bicycles on local streets absent a suitable alternative bicycle route as provided by state statute. Both the trial and district courts ruled in favor of Black Hawk, finding that the city had the authority to ban bicycles through both its home-rule and police powers.

The Supreme Court reversed, holding that Black Hawk’s ordinance banning bicycles is a matter of mixed state and local concern, and conflicts with and is preempted by state law. As a home-rule municipality, Black Hawk may enact traffic regulations that cover the same subject matter as the model traffic code, but it may not promulgate regulations that conflict with state statute. Black Hawk’s ordinance banning bicycles on city streets is in conflict with CRS § 42-4-109(11), which requires any municipal bike prohibition to have an available alternate path within 450 feet. Because Black Hawk’s ordinance conflicts with a specific statutory provision in a matter of mixed state and local concern, it is preempted.

Summary and full case available here.

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HB 13-1036: Modifying Law Pertaining to Local Improvement Districts

February 6, 2013 by Leave a Comment

On January 9, 2013, Rep. Jonathan Singer introduced HB 13-1036 - Concerning the Authority of a Local Improvement District.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill modifies certain provisions of the law governing county and city and county local improvement districts (districts) to make the provisions consistent with the law governing improvement districts. The bill allows a district in which a sales tax is levied to include noncontiguous areas.

The bill allows a district to use sales tax revenues for the organization, promotion, marketing, and management of public events. It further specifies procedures for a property owner to petition for inclusion in or exclusion from a district. On Jan. 23, the Local Government Committee amended the bill and sent it to the Appropriations Committee to deal with the fiscal impact to the state.

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Colorado Court of Appeals: Plain Meaning of C.R.S. § 12-47.1-521 Gives Court of Appeals Exclusive Jurisdiction to Review Rule-Making Actions of Gaming Commission

October 16, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Board of County Commissioners of Gilpin County v. City of Blackhawk on Thursday, October 11, 2012.

Subject Matter Jurisdiction—Rule-Making Proceeding—CRS § 12-47.1-521.

Plaintiffs, the Board of County Commissioners of Gilpin County, Forrest Whitman, Bruce Schmalz, and Connie McLain (collectively, Gilpin County) and defendant, the City of Black Hawk (Black Hawk), appealed the district court’s order dismissing their claims against defendants, the Colorado Limited Gaming Control Commission (Commission), the Colorado Division of Gaming (Division of Gaming), Colorado State Treasurer Walker Stapleton, the Board of County Commissioners of Teller County (Teller County), the City of Cripple Creek (Cripple Creek), and the City of Central (Central), for lack of subject matter jurisdiction pursuant to CRCP 12(b)(1). The order was affirmed.

This case arose from a rule-making proceeding before the Commission. The proceeding addressed the interpretation of the phrase “gaming revenue” as used in the Colorado Constitution.

At a Commission hearing, the Division of Gaming proposed an amendment to the Commission’s Rule 24 that reflected its interpretation of “gaming revenue” and, in response, Gilpin County proposed its own amendment. The Commission adopted the Division of Gaming’s amendment.

Gilpin County then filed a complaint against defendants, seeking judicial review of the Commission’s rule-making proceeding. Defendants, excluding Black Hawk, filed a motion to dismiss for lack of subject matter jurisdiction under CRCP 12(b)(1), which was granted by the district court.

On appeal, Gilpin County argued that CRS § 12-47.1-521 does not give the Court of Appeals exclusive jurisdiction to review the rule-making actions of the Commission. The Court, relying on the plain meaning of the statute, held that it does. Therefore, the district court was correct that it lacked jurisdiction to review the Commission’s rule-making actions.

The Court also considered whether Gilpin County and Black Hawk had claims for declaratory relief under CRCP 57, because review under CRS §§ 12-47.1-521 and 24-4.106 do not provide adequate relief for their constitutional challenges to the Commission’s rule-making actions. The Court held they do not have claims for declaratory relief because the statutory sections provide adequate relief in these circumstances. Here, adequate relief was provided because Gilpin County and Black Hawk were parties to the rule-making proceeding. The order was affirmed.

Summary and full case available here.

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Colorado Court of Appeals: C.R.S. § 32-1-1001(1) Does Not Grant Special District the Right to Assign its Right to Receive Revenue

October 15, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in SDI, Inc. v. Pivotal Parker Commercial, LLC on Thursday, October 11. 2012.

Breach of Contract—Assignment—CRS § 32-1-1001(1).

In this dispute over the terms of several contracts, defendant Pivotal Parker Commercial, LLC (Pivotal) appealed the trial court’s entry of judgment following a bench trial in favor of plaintiff SDI, Inc. (SDI). The judgment was reversed and the case was remanded.

In 1984, the Town of Parker annexed a parcel of undeveloped land known as Stroh Ranch. Cherry Creek South Metropolitan District No. 1 (District) thereafter incurred an obligation to one of the original developers of the Stroh Ranch (later called Stroh Ranch Development, LLC, or SRD) for $11,130,000. SRD later assigned the right to receive development fee revenue to SDI by a purchase and sale agreement (Seventh Amendment). SDI entered into a real estate purchase and sale contract with Pivotal (SDI–Pivotal Contract) for “Filing Nos. 14 and 15.” SDI later sought a declaratory judgment and damages for unpaid development fees pursuant to the Seventh Amendment and the SDI–Pivotal Contract. Following a bench trial, the trial court entered judgment in favor of SDI.

On appeal, Pivotal contended that the trial court erred when it determined that the District validly assigned its right to receive development fee revenue to SDI, and that SDI was entitled to collect, and charge interest on, that amount. The trial court erred in concluding it must look to common law to fill in the statutory silence in CRS § 32-1-1001(1), which defines a special district’s common powers. The statute does not give the District the power to assign its right to receive revenue to a private party. The District’s assignment to SDI in paragraph 6 of the Seventh Amendment, therefore, went beyond the District’s statutory and constitutional powers. Consequently, paragraph 6 of the Seventh Amendment is void, and the trial court erred when it determined that the District validly assigned its right to receive development fee revenue to SDI, and that SDI was entitled to collect, and charge interest on, that amount. The trial court further erred when it declared that SDI has a perpetual lien on Filing Nos. 14 and 15.

Pivotal also argued that the trial court erred when it concluded that Pivotal breached its contract with SDI. Neither the SDI–Pivotal Contract, the E&T Contract, nor the E&T Contract Assignment provided that Pivotal must transfer a portion of the purchase price of the E&T Contract to SDI as development fees. Therefore, Pivotal did not breach the contract.

Summary and full case available here.

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Colorado Court of Appeals: Taxation Appropriate on Download of Computer Software Even Without Transfer of Ownership of Software

September 18, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Ball Aerospace & Technologies Corp. v. City of Boulder on September 13, 2012.

Use Tax—Downloaded Software—Online Data Services.

In this use tax assessment dispute, the City of Boulder (City) appealed the trial court’s summary judgment for plaintiff, Ball Aerospace & Technologies Corporation (Ball), reversing a hearing officer’s determination that Ball owed use tax on its acquisition of downloaded computer software and access to online data services. The judgment was reversed and the case was remanded.

The City conducted an audit of Ball and assessed use tax on both downloaded software and online data services. Ball paid the amount owing under the assessment, but protested the City’s application of its use tax to these items. The hearing officer upheld the assessment as to the downloaded software and online data services, and the trial court reversed that decision.

The City argued that the trial court misconstrued the City Code and erred in concluding that neither the downloaded software nor the online data services are subject to City’s use tax. Use tax is levied on the privilege of storing, using, or consuming tangible personal property purchased at retail. The City Code defines “use” as “the exercise, for any length of time, by any person within the City of any right, power, dominion, or control over . . . taxable services when leased or purchased at retail from any person inside or outside the City.” By its plain language the City Code levies the use tax on computer software (1) leased or purchased at retail; (2) contained on an enumerated form or other machine-readable or human-readable form; and (3) over which the buyer has any right, power, dominion, or control. Further, the City Code does not require the transfer of ownership before the use of software is taxable. By paying to access the online data services, Ball purchased the right to use, from a remote location, the computer software contained on the service providers’ servers; therefore, the trial court erred in holding that downloaded software and remote access to the online service providers’ software are not taxable use of computer software under the City Code.

Summary and full case available here.

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Colorado Court of Appeals: Disciplinary Matrix Mandatory Subject of Collective Bargaining; Balancing Test Applied

August 22, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in Denver Firefighters Local No. 858, IAFF, AFL-CIO v. City & County of Denver on August 16, 2012.

Preliminary Injunction—Collective Bargaining—Discipline as a Term and Condition of Employment.

Defendants, the City and County of Denver (City) and Alex J. Martinez, the Manager of Safety (Manager), appealed from the trial court’s order granting a preliminary injunction in favor of Denver Firefighters Local No. 858, IAFF, AFL-CIO (Firefighters). The judgment was affirmed.

Firefighters are City employees subject to the supervision and control of the Manager, who is appointed by the Mayor. In 1971, Denver voters passed an amendment to the City Charter granting Firefighters the right to collectively bargain with the City over certain working conditions. The parties have had a collective bargaining agreement every year since the amendment. The current agreement (Agreement) has been in effect since January 1, 2010 and expires on December 31, 2012.

The instant dispute arose from defendants’ proposed unilateral creation and implementation of a discipline matrix for Firefighters, which does not have such a matrix but does have a system for imposing discipline that has been in place for decades. The discipline matrix would change the current system. The issue presented was whether defendants may do so without first negotiating with Firefighters.

In October 2010, the Manager indicated a desire to form a Discipline Advisory Group (DAG) to create a discipline matrix. Firefighters responded that a discipline matrix is a mandatory subject of collective bargaining. The Manager did not reply.

In March 2011, the same sequence of events occurred. In May 2011, Firefighters learned that the DAG had been created and would start holding meetings. Firefighters attended the first meeting to assert that the matrix was a mandatory subject of collective bargaining. Defendants disagreed and continued with their process to create the matrix.

Firefighters then filed this action requesting the issuance of a preliminary injunction. The trial court granted the motion and issued an order enjoining defendants from implementing a disciplinary matrix without first negotiating with Firefighters. Defendants appealed.

The Court of Appeals agreed with the trial court’s conclusion that the proposed discipline matrix is a mandatory subject of collective bargaining. The parties had no previous negotiated provision on discipline, so the Court looked to the Charter. Under the Charter, discipline is a subject of management authority; however, the Charter also makes discipline, as a term and condition of employment, a subject of collective bargaining. Each side argued that the Charter provision upholding their position should control. The Court looked to numerous cases from other jurisdictions and chose to apply a balancing test that weighs the impact that mandated collective bargaining on the subject will have on each of the parties’ interests. If the balance falls in favor of the employees, the subject is a mandatory subject of collective bargaining; if the balance falls in favor of the employer, it is not.

Here, in weighing the impact on each party, the Court concluded that the balance falls in favor of the employee and that discipline thus is a mandatory subject of bargaining. Accordingly, the order for a preliminary injunction was affirmed.

Summary and full case available here.

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Colorado Court of Appeals: Disconnection from Home Rule Municipality Inappropriate When Statutory Requirements for Disconnection Not Met

May 15, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Radcliff Properties Limited Partnership, LLLP v. City of Sheridan on May 10, 2012.

Real Property—Municipality—Petition for Disconnection—Procedural Elements—Findings of Fact—Evidence.

Plaintiffs appealed the district court’s order denying their petition for disconnection from the City of Sheridan. Sheridan and its City Council (defendants) cross-appealed certain aspects of the order. The Court of Appeals affirmed the order.

Plaintiffs own eight parcels of property located within Sheridan, a Colorado home rule municipality. The properties were annexed into Sheridan in 1977, and Radcliff Street (Radcliff) provides the only access to the properties. On July 6, 2010, plaintiffs filed a petition seeking to disconnect certain of their properties from Sheridan pursuant to CRS § 31-12-119, which permits qualifying landowners to disconnect their property from a municipality when the municipality has failed to provide certain essential services. Plaintiffs’ petition ultimately was denied.

Plaintiffs argued that the trial court erred by requiring a petition to disconnect filed under § 31-12-119 to contain all of the statutory elements required in a similar petition filed under § 31-12-601. The trial court did not err by requiring that plaintiffs’ petition contain all of the statutory elements required in a petition filed under § 31-12-601, because those procedural elements are incorporated by reference in § 31-12-119.

Defendants argued that plaintiffs’ petition was precluded by § 31-12-603(1). A petition filed under § 31-12-119 only has to follow the procedures “set forth in parts 6 and 7,” not the substantive provisions of parts 6 and 7. Therefore, plaintiffs’ petition to disconnect was not precluded by § 31-12-603(1).

Plaintiffs also argued that the trial court erred by denying their petition to disconnect for failure to meet the statutory requirements of § 31-12-119. The record supports the court’s denial of plaintiffs’ petition because plaintiffs failed to show that Sheridan “does not, upon demand, provide the same municipal services on the same general terms and conditions as the rest of the municipality receives.”

Plaintiffs’ contention that the district court erred by making certain findings of fact that were not supported by any competent evidence was not successful. Plaintiffs’ contention that the trial court erred by failing to admit more than 100 photographs into evidence also was not successful, because they were not relevant.

Summary and full case available here.

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