August 18, 2019

Archives for March 19, 2013

The Intersection of Lawful Off-Duty Activities and Employment Discrimination

A few years ago, the national and local news ran a story about a man who was employed by a company that distributes Budweiser beer and was fired for drinking a Coors (click here for the Denver Post story). The man said that the company president’s son-in-law saw him sipping the Coors, and he was terminated two days later.

We know there are two sides to every story, and the article focused on the man’s story, not the employer’s. However, if what the man said was true, the employer violated the Lawful Activities Statute, C.R.S. § 24-34-402.5. This statute provides “It shall be a discriminatory or unfair practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours. . . .” The statute applies only to employees, not job applications.

The statute enumerates three exceptions to this rule, if the conduct: (1) relates to a bona fide occupational requirement; (2) creates a conflict of interest; and (3) is rationally related to the employment activities.

In the beer case, the employer claimed that the employee’s activity fell under all three exceptions–the employer stated that the employee was terminated to avoid a conflict of interest, and that his conduct was rationally related to a bona fide occupational requirement.

The beer case never went to trial, but the issue is not uncommon in employment disputes. Very few cases have interpreted the statute, however; Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997) provides most of the guidance on the issue.

To learn more about the intersection of lawful off-duty activities and employment discrimination, don’t miss CBA-CLE’s Employment Law Conference April 4 and 5 at the Denver Marriott City Center. Click the links below to register online or call (303) 860-0608.

CLE Program: 2013 Employment Law Conference

This CLE presentation will take place on Thursday and Friday, April 4 and 5, 2013, at the Denver Marriott City Center. Click here to register for the live program.

Can’t make the live program? Click here to order the homestudy.

Colorado Court of Appeals: Board of Assessment Appeals Did Not Abuse Discretion in Accepting Assessor’s Property Valuation

The Colorado Court of Appeals issued its opinion in CTS Investments, LLC v. Garfield County Board of Equalization on Thursday, March 14, 2013.

Property Tax Valuation—Evidentiary Issues before the Board of Assessment Appeals.

In this property tax case, petitioner CTS Investments, LLC (CTS) appealed the order of the Board of Assessment Appeals (BAA) denying its petition challenging the valuation placed on its property by respondent Garfield County Board of Equalization (BOE) for the 2011 tax year. The order was affirmed.

CTS owns two parcels of vacant land in Garfield County. One comprises 10.766 acres, and the other comprises 61.26 acres. Both are located within the 640-acre Castle Valley Ranch Planned Unit Development in the town of New Castle.

For the 2011 tax year, the BOE valued the 10.766 acre property at $307,800 (or roughly $28,500 per acre), and the 61.26 acre property at $1,836,480 (or roughly $30,000 per acre). CTS asserted to the BAA that the property should be valued at approximately $2,200 per acre. Its argument was based in part on the sale of an adjoining property in April 2010. In that transaction, GMAC ResCap sold to CVR Investors, Inc. approximately 120 acres of vacant land and thirteen finished townhome lots for $700,000 (CVR sale). The property had been acquired by GMAC through foreclosure of a loan to Village Homes. Village Homes had purchased the property from CTS in 2007 and 2008 for approximately $8.9 million. The loan to Village Homes at the time of the foreclosure had an outstanding principal balance of more than $10 million.

CTS asserted that the CVR sale was the most comparable sale. The county assessor excluded the sale from her appraisal because it was not an “arm’s length transaction,” due to her opinion that GMAC was under duress when it sold the property. The assessor testified that she looked at four comparable sales and adjusted them as required by statute for time, size, and location. Her comparable sales were completed before the applicable one-and-a-half-year base period. She did this because she concluded there were no comparable sales during the base period. CTS presented its tax consultant, whose valuation included the CVR sale.

The BAA denied CTS’s petition. Its order stated that it found the assessor’s valuation more persuasive and that it agreed with the exclusion of the CVR sale because it did not meet the definition of an arm’s-length transaction. However, the order did not include the BAA’s reasoning for that ruling.

On appeal, the Court of Appeals considered CTS’s objection to the introduction of various articles attached to the assessor’s appraisal discussing the financial status of GMAC. The assessor’s decision not to consider the CVR sale an arm’s-length transaction was based partially on these articles, which came from general and financial news outlets. All but one of the articles included the author’s name, none referenced the CVR sale, and some of the articles made the same or similar assertions. Therefore, the Court inferred that the authors were not biased concerning the parties to the transaction. In addition, CTS had sufficient access to the statements before the BAA hearing, because it had been included in the assessors’ report, which had been issued at least eight months before the BAA hearing began. Furthermore, much of the information contained in the articles already had been admitted without objection through the assessor’s testimony.Given these facts, the Court concluded that the BAA did not abuse its discretion in admitting the articles.

CTS then argued that by not considering the CVR sale, the BAA refused to compile a representative body of comparable sales and therefore erred as a matter of law. The Court first stated that whether the CVR sale was not an arm’s length transaction and therefore appropriately excluded was a matter of fact, not law. Although the record presented conflicting evidence on this issue, there was enough support for the BAA’s finding that the Court would not reverse it on appeal.

CTS asserted that reversal was appropriate because the BAA order did not specify why it credited the assessor’s conclusion that the CVR sale was not an arm’s length transaction. The Court stated that although the better practice is for the BAA to make findings and provide its reasoning for its ruling, its findings may be express or implied and its decision need only be supported by the record.

Finally, CTS asserted there was no competent evidence in the record to support the BAA’s valuation of the property. A reviewing court may set aside a decision of the BAA only if there is no supporting competent evidence or the decision reflects a failure to abide by the statutory scheme for calculating property tax assessments. Here, there was ample competent evidence in the record to support the BAA’s decision.

Summary and full case available here.

Colorado Court of Appeals: Prosecutor’s References to Defendant’s Silence Were Meant to Rebut Defense Claims and Not as a Means of Implying Guilt

The Colorado Court of Appeals issued its opinion in People v. Apodaca-Zambori on Thursday, March 14, 2013.

Assault in the First Degree—Reckless Endangerment—Sentencing.

Defendant appealed the judgment of conviction entered on a jury verdict finding her guilty of assault in the first degree and reckless endangerment. She also appealed her sentence. The judgment was affirmed.

On May 26, 2008, the victim, her husband, and their children were driving through an alley that ran behind a store owned by defendant’s boyfriend. The victim was forced to stop her car because defendant’s car was blocking the alley. The husband got out of the car, and there was a verbal altercation between him and several men, including defendant’s boyfriend.

Defendant entered the store from the alley, returned with a dog, and as the victim opened her car door, told the dog to “get her.” The dog bit the victim’s leg, defendant tried to pull the dog off, and the victim hit the dog on the snout. The bite caused permanent nerve damage.

Defendant immediately drove the dog to her father’s house. When confronted by police, defendant denied knowing anything about an attack or the dog’s location. Eventually, she told police the dog’s location and helped them retrieve it.

Defendant was initially issued a summons for an animal control violation, but the police cancelled the summons and booked her on felony charges and advised her of her Miranda rights. She was convicted of assault in the first degree, a class 3 felony, and reckless endangerment, a class 3 misdemeanor. On January 15, 2010, the trial court sentenced her to ten years in the custody of the Department of Corrections and five years mandatory parole.

On appeal, defendant argued it was error for the trial court to admit testimony and not strike references in the prosecutions’ closing argument to defendant’s silence before and after receiving a Miranda advisement. The Court of Appeals disagreed. A defendant is constitutionally protected against self-incrimination and has the right to remain silent. A prosecutor is to avoid making comments regarding a defendant’s pre- or post-arrest silence. Such error is reversible only when the prosecutor uses the defendant’s silence as a means of implying guilt. Here, the statements at issue were not made for the “purpose of suggesting the jury infer guilt” from defendant’s silence, but to address defendant’s contention that she was attempting to pull the dog off the victim and help. As for the statements made during closing argument by the prosecutor, they were not objected to, and therefore were reviewed for plain error. The statements referred to defendant’s acts, not her silence, and were appropriate responses to defense counsel’s closing argument that defendant’s acts were proof of her innocence.

Defendant also argued that it was error for the trial court not to consider during sentencing Colorado’s young adult offender sentencing statute, CRS § 18-1.3-407.5, which took effect October 1, 2009. Specifically, defendant argued that it was error to conclude that the effective date of the statute referred to the date of the offense, rather than the date of sentencing. She argued it applied to her because she was sentenced after October 1, 2009, even though she committed the offenses before that date. The session law, though not the text of the statute, stated that the act “shall take effect October 1, 2009” and that “[t]he provisions of this act shall apply to offenses committed on or after the applicable effective date of this act.” The Court concluded that the plain language of the statute and the session law adopting it made clear that the effective date was October 1, 2009, and it applies to offenses committed on or after that date. The judgment and sentence were affirmed.

Summary and full case available here.

New District Court Judgeships Created in Fifth and Ninth Judicial Districts

Governor John Hickenlooper signed HB 13-1035 on March 8, 2013, which created one additional district court judgeship in the Fifth and Ninth Judicial Districts. The bill is effective July 1, 2013.

The Ninth Judicial District Nominating Commission will meet on May 17, 2013, to interview and select nominees for the vacancy. Nominees must be qualified electors of the Ninth Judicial District and must have been admitted to the practice of law in Colorado for five years.

The Fifth Judicial District Nominating Commission will meet on May 20, 2013, to interview and select nominees. To be eligible, nominees must be qualified electors of the Fifth Judicial District and must have been admitted to practice law in Colorado for five years.

Application forms for these judgeships are available on the Colorado State Judicial Branch website. Instructions for completing and submitting the application for the Fifth Judicial District judgeship are available here. For instructions for the Ninth Judicial District applications, click here.

Tenth Circuit: Unpublished Opinions, 3/18/13

On Monday, March 18, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

United States v. Moya-Breton

Wehrley v. American Family Mutual Ins.

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 3/15/13

On Friday, March 15, 2013, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Morkel v. Davis

United States v. Brooks

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 13-1163: Introducing Victim Emergency Payment Program for Medical Exams for Victims of Sexual Assault

On January 30, 2013, Rep. Dan Kagan and Sen. Irene Aguilar introduced HB 13-1163 – Concerning Payment for Medical Costs Associated with Obtaining a Medical Forensic Examination for Victims of Sexual OffensesThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The sexual assault victim emergency payment program (program) is created in the division of criminal justice (division) within the Department of Public Safety. The purpose of the program is to help victims of sexual assault who need additional time to determine if they want to participate with the criminal justice system to pay for medical costs and fees associated with obtaining a medical forensic examination, which ensures that evidence of the assault is preserved regardless of whether the criminal justice system is engaged at the time of the assault and examination. The program is the payor of last resort. The division shall determine an annual cap on payment amount per victim based on actual and reasonable costs and available funds. Priority for the program must be to pay for indirect medical costs and fees incurred as the result of obtaining medical forensic examinations following a sexual assault for medical-reporting victims. Such indirect medical costs and fees may include, but are not limited to, emergency department fees and costs, laboratory fees, prescription medication, and physician’s fees. The program may also pay for any uncovered direct costs of the medical forensic examination for a medical-reporting victim. On Feb. 14, the Judiciary Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

HB 13-1160: Amending Penalties and Definitions Regarding Criminal Theft

On January 29, 2013, Rep. Dan Pabon and Sen. Steve King introduced HB 13-1160 – Concerning Criminal TheftThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill amends the penalties for criminal theft and amends criminal theft to include the existing statutory offenses of theft of rental property and theft by receiving. The existing statutory offenses of theft of rental property, theft by receiving, fuel piracy, and newspaper theft are repealed. The bill makes conforming amendments. On Feb. 21, the Judiciary Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.