August 18, 2019

Archives for June 6, 2013

Colorado Legislative Primer — A Refresher on How a Bill Becomes Law

AnActBy Michael Valdez, CBA Director of Legislative Relations, and Jill Lafrenz, CBA Sections and Committees Program Coordinator

From time to time I am asked about the legislative process, so I teamed up with Jill and we created a handy one-pager (life at the capitol is driven by the proverbial one-pager) to walk you through how a bill becomes a law.

A Bill’s Beginning:

  • Bills are introduced by legislators – By rule, each legislator is permitted to introduce five bills in each legislative session. Exceptions are made (and made often) to the five bill limit.
  • Bills can start in the House of Representatives (House) (65 members) or the Senate (35 members)

Let’s start our bill in the House (the process is mirrored when a bill starts in the Senate):

  • Bills are introduced – First Reading by the House clerk. Other than reading the title to the bill nothing really happens at this juncture. This just gets the ball rolling.
  • The bill is assigned to a committee of reference (committee) by the Speaker of the House.
  • The committee meets to consider the bill after a notice is published.
  • The committee hears testimony from the general public and from experts. The bill can be amended by the committee.
  • If the committee approves the bill it goes back to the full House for consideration.

Money, money, money — if the bill has fiscal (money) considerations:

  • Non-partisan legislative staff prepares a “fiscal note” that details the cost to the State of Colorado.
  • The bill has an additional committee to review the bill for the fiscal impact to the state – this committee is the Appropriations Committee in each house.
  • If the Appropriations Committee agrees to the cost of the bill, that committee amends the bill with an appropriations clause and the bill moves to the floor for Second Reading.

On Second & Third Reading the House:

  • The report of the committee is considered; including any amendments.
  • The bill is debated by the “committee of the whole” additional amendments can be offered and considered.
  • If bill passes on Second Reading it is listed on the next day’s calendar for Third and final reading in the House.
  • If the bill passes on Third Reading it is sent to the Senate where the process starts anew – First Reading, assigned to committee, committee review, sent to floor for consideration on Second and Third Reading.

Bill passes the Senate:

  • If the bill passes the Senate without any changes the bill goes to the Governor.
  • If the Senate makes changes to the bill the House has the option of agreeing to the changes (concur) or rejecting the changes and asking for a conference committee to iron out the differences.

Conference Committee:

  • Comprised of three members from each house. The conference committee meets to reach an agreement (conference committee report) on the final form of a bill.
  • A majority (four or more) is required to move a bill from a conference committee back to the House and Senate.
  • After a conference committee report is submitted, the Senate and the House each have a final “yay” or “nay” vote on the bill.

The Governor:

  • Once the bill passes both houses, the bill becomes law when the Governor signs it.
  • During the session, from the day the Governor receives the bill she/he has 10-days to sign, veto, or let the become law without her or his signature.
  • Within the last 10-days of the session the governor has up to 30 days after the legislature adjourns to sign, veto, or let the bill become law without a signature.

If the Governor vetoes a bill:

  • The Governor must send a veto message to the legislature.
  • The legislature can override a veto with a two-thirds majority vote in BOTH houses.
  • If the Governor vetoes a bill after the legislature adjourns for the year there is not an opportunity to override that veto.

For a fun view of the life of how a bill becomes a law, please click here to check out the flow-chart developed by the wonderful nonpartisan staff of the Colorado General Assembly.

Colorado Court of Appeals: Announcement Sheet, 6/6/13

On Thursday, June 6, 2013, the Colorado Court of Appeals issued nine published opinions and 16 unpublished opinions.

People v. Valles

People v. Foster

People v. Moore

Jordan v. Panorama Orthopedics & Spine Center, PC

Medical Lien Management, Inc. v. Allstate Insurance Co.

Moye White LLP v. Beren

Marisco Capital Management, LLC v. Denver Board of County Commissioners

Ruiz v. Hope for Children, Inc.

Coors Brewing Company v. City of Golden

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

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

Tenth Circuit: Law Enforcement Entitled to Qualified Immunity on Viewpoint Discrimination Claim

The Tenth Circuit Court of Appeals published its opinion in Pahls v. Thomas on Tuesday, June 4, 2013.

President George W. Bush visited Los Ranchos, New Mexico, for a fundraiser in August 2007. The Secret Service was in charge of overall security, and Special Agent Sheehan, as the “site agent,” was tasked with designing and implementing the site security plan. Lt. Thomas of the Bernalillo County Sheriff’s Department (“BCSD”) was in charge of local law enforcement personnel for the event. Among other tasks, he was responsible for making decisions regarding the treatment of demonstrators, including where they would be permitted to stand. Sgt. Mims’s primary responsibility was security of the outer perimeter, which included the area where plaintiffs eventually stood.

For events of this type, BCSD had in place a general policy of directing demonstrators to a designated protest zone. Pursuant to their responsibilities, Lt. Thomas and Sgt. Mims decided that all demonstrators who attended the event should be directed to gather at what was named the “southern checkpoint,” which was approximately 150 yards from where the President would arrive.

As the morning progressed on the day the President was to arrive, many people, including plaintiffs, began arriving at the site to protest. Law enforcement personnel had no reason to believe the protesters posed any threat to the President or the public. Various plaintiffs were subjected to the requirement to gather at the southern perimeter.

At some point prior to President Bush’s arrival, an individual approached Special Agent Sheehan and identified himself as the owner of the property directly opposite the driveway where the President was to arrive. The landowner asked Special Agent Sheehan if he would be allowed to stand on the portion of his property that would allow him to watch the President’s motorcade as it passed. After satisfying himself that the landowner was not a security risk, Special Agent Sheehan told him that security officials would not interfere with his property rights so long as he did not interfere with the motorcade. Soon after, a small group of supporters gathered in this area, which was approximately 15 feet from where the President’s motorcade would pass.

When the President arrived, the motorcade never passed by the protesters at the southern checkpoint, and the President’s view of these protesters was obstructed by distance and a police barricade. The supporters, by contrast, were up close and easily visible to the President.

Plaintiffs filed a complaint in January 2008, asserting claims pursuant to § 1983 and alleging viewpoint discrimination by various government entities and five unnamed officials. Plaintiffs claimed that they received disparate treatment vis-à-vis the Bush supporters in violation of their First and Fourteenth Amendment rights. After extensive discovery, they moved to amend their complaint to include, among others, Special Agent Sheehan, Lt. Thomas, and Sgt. Mims as defendants in their individual capacities. The district court granted the motion. In September 2010, Special Agent Sheehan moved for summary judgment, invoking qualified immunity. Lt. Thomas and Sgt. Mims did the same in November 2010. The district court denied summary judgment to all three officials. Each official appealed.

The Tenth Circuit began its analysis by setting forth the relevant legal standards that govern its decision.

§ 1983 and Bivens Liability

42 U.S.C. § 1983 provides a cause of action against state officials who violate constitutional or other federally protected rights. A second avenue is a Bivens action—the federal analog to a § 1983 suit—which provides a “private action for damages against federal officers” who violate certain constitutional rights. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).  Common to all § 1983 and Bivens claims is the requirement that liability be predicated on a violation traceable to a defendant-official’s own individual actions.

Qualified Immunity

The Supreme Court has recognized that public officials enjoy qualified immunity in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties. A plaintiff seeking to overcome that presumption must make a two-part showing: first, that a public official violated the plaintiff’s constitutional (or, in the case of a § 1983 action, more generally, federally protected) rights; and second, that these rights were clearly established at the time of the alleged violation.

First Amendment Viewpoint-Discrimination Claim

At the core of the First Amendment is the idea that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). In traditional public forums, such as sidewalks and streets, a content-based regulation of speech must meet strict scrutiny. A content-neutral regulation, by contrast, must meet intermediate scrutiny. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Viewpoint discrimination is a subset—and a particularly “egregious form”—of content discrimination. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In § 1983 and Bivens actions, a claim of viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose.

In light of these principles, the Tenth Circuit held the district court improperly denied qualified immunity to Special Agent Sheehan, Lt. Thomas, and Sgt. Mims on plaintiffs’ viewpoint-discrimination claim.

The Tenth Circuit held that the district court’s mode of analysis ran afoul of the standards that must be met if plaintiffs were to make out viable § 1983 and Bivens claims and overcome defendants’ assertions of qualified immunity. Liability under  § 1983 and Bivens requires personal involvement. Plaintiffs had to have established that each defendant caused plaintiffs to be subjected to viewpoint discrimination and acted with a viewpoint-discriminatory purpose.

The first decisionmaker was Special Agent Sheehan. On the day of the President’s visit, Special Agent Sheehan’s primary responsibility was the security of the inner perimeter. The second set of decisionmakers consisted of Lt. Thomas and Sgt. Mims of BCSD. Their primary responsibility on the day in question was outer-perimeter security, including operation of the southern checkpoint.

The Court noted that neither the Secret Service’s policy nor BCSD’s policy was itself a content- or viewpoint-based restriction on speech. The rub of this case was that these two viewpoint-neutral policies came together and were implemented in such a way as to produce a viewpoint-discriminatory effect.

However, disparate impact alone is not enough to render a speech restriction content- or viewpoint-based. For a discrimination claim rooted in the First Amendment, a plaintiff must show that a government official acted with discriminatory purpose. Where, as here, the government policies are themselves viewpoint-neutral but in tandem create a disparate impact, plaintiffs must show that the policies were brought together for the purpose of discriminating against or in favor of a particular viewpoint. See Hoye v. City of Oakland, 653 F.3d 835, 854 (9th Cir. 2011).

Even taking all of the district court’s factual determinations as true and granting plaintiffs all reasonable inferences in their favor, they do not demonstrate a constitutional violation—i.e., that any defendant acted, or implemented his agency’s policy, for the purpose of discriminating against plaintiffs’ anti-Bush message or in favor of the supporters’ pro-Bush message.

The most that the evidence showed with respect to Special Agent Sheehan was that he knew his actions, though consistent with Secret Service policy, would, in conjunction with the independent actions of BCSD officials, result in disparate treatment of supporters and protesters. This was legally insufficient to establish viewpoint discrimination.

Turning to Lt. Thomas, there was no evidence that he had any hand in Special Agent Sheehan’s decision to allow Bush supporters to remain on private property. The only activity that connected Lt. Thomas to that decision was his knowledge of and acquiescence in it. That, however, was plainly insufficient to allow a reasonable jury to infer a discriminatory purpose.

The facts with respect to Sgt. Mims were identical in all material respects to the facts with respect to Lt. Thomas. The district court predicated Sgt. Mims’s personal liability for viewpoint discrimination on the fact that he possessed responsibility for Sheehan’s policy and that he knew of and did not interfere with the pro-Bush supporters’ demonstration. But Sgt. Mims did not personally participate in Special Agent Sheehan’s decision and was not responsible for it in a supervisory capacity. His mere knowledge of and acquiescence in that decision were insufficient as a matter of law to amount to a viewpoint discriminatory purpose.

The Court therefore reversed the district court’s denial of qualified immunity to Special Agent Sheehan, Lt. Thomas and Sgt. Mims.


Tenth Circuit: Lockheed Employee Prevails in Whistleblower Case

The Tenth Circuit Court of Appeals published its opinion in Lockheed Martin v. Department of Labor  on Tuesday, June 4, 2013.

Andrea Brown worked for Lockheed Martin Corp. (“Lockheed”) from 2000 to 2008. She reported to Wendy Owen. In May 2006, Brown began having difficulty getting responses from Owen on work-related matters. She discussed the problem with Tina Colditz, a coworker and personal friend. Colditz was a longtime Lockheed employee who also reported to Owen.

Colditz also ran a pen pals program for the company, through which Lockheed employees could correspond with members of the U.S. military deployed in Iraq. Colditz told Brown that Owen had developed sexual relationships with several of the soldiers in the program, had purchased a laptop computer for one soldier, sent inappropriate emails and sex toys to soldiers stationed in Iraq, and traveled to welcome-home ceremonies for soldiers on the pretext of business while actually taking soldiers to expensive hotels in limousines for intimate relations.

Colditz told Brown she was concerned Owen was using company funds for these activities, and Brown understood that most employee expenses incurred were passed on to Lockheed’s customers, in this case the government. Brown became concerned Owen’s actions were fraudulent and illegal and that there could be media exposure that could lead to government audits and affect the company’s future contracts and stock price.

Brown brought her concerns to Jan Moncallo, Lockheed’s Vice President of Human Resources. Moncallo told Brown she would submit an anonymous ethics complaint on Brown’s behalf so that she would be protected from retaliation. On May 25, 2006, Moncallo sent an email to Jean Pleasant, the office Ethics Director, for an investigation, detailing Brown’s allegations. The email identified Brown as an individual who should have some knowledge about the allegations.

Lockheed investigated Owen from May 2006 to August 2006. Within a few days of Brown’s complaint, the pen pal program was discontinued. Brown eventually revealed it was she who filed the complaint. In the months that followed, Brown faced so many instances of adverse circumstances that it resulted in Brown’s emotional breakdown and she took medical leave.

Brown brought a complaint with the Occupational Safety and Health Administration (OSHA) on January 25, 2008, alleging violations of Section 806 of the Sarbanes Oxley Act of 2002. See See 18 U.S.C. § 1514A(a). On February 4, 2008, she provided Lockheed with a notice of forced termination. On February 6, 2008, Brown amended her OSHA complaint to allege constructive discharge. OSHA denied Brown’s complaint.

Brown subsequently requested a hearing before the Office of Administrative Law Judges. After a hearing, the Administrative Law Judge (“ALJ”) found that Brown had engaged in protected activity; that she suffered materially adverse employment actions, including constructive discharge; and her engagement in protected activity was a contributing factor in the constructive discharge. The ALJ awarded reinstatement, back pay, medical expenses, and non-economic compensatory damages in the amount of $75,000. Lockheed timely appealed the ALJ’s decision to the Administrative Review Board of the Department of Labor, which affirmed. Lockheed appealed.

Section 806, the anti-retaliation provision of Sarbanes-Oxley, provides, in relevant part:

Whistleblower protection for employees of publicly traded companies.–No [publicly traded] company . . . , or any officer [or] employee . . . of such company . . . may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—

(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of . . . [18 U.S.C. §§] 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any
provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by—

. . . .

(C) a person with supervisory authority over the employee . . . .

18 U.S.C. § 1514A. The regulations implementing Section 806, as well as the decisions of numerous circuit courts, establish the elements of a prima facie claim for violation of § 1514A. A claimant must show: (1) she engaged in protected activity or conduct; (2) the employer knew of her protected activity; (3) she suffered an unfavorable personnel action; and (4) her protected activity was a contributing factor in the unfavorable personnel action. See 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. § 42121(b); 29 C.F.R. § 1980.104(b)(1) (2007); Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009).

On appeal, Lockheed argued the Board’s findings of fact and conclusions of law were erroneous as to the first, third, and fourth elements of Brown’s prima facie case.

A. Protected Activity

The ALJ concluded Brown established by a preponderance of the evidence that she (1) reasonably believed Owen had committed mail or wire fraud, see 18 U.S.C. §§ 1341, 1343; and (2) communicated that belief “definitely and specifically” to Lockheed.

Lockheed argued the ALJ’s finding that Brown’s complaint did not relate to shareholder fraud was fatal to her retaliation claim because Section 806’s protection of employees who report conduct reasonably believed to constitute mail or wire fraud applies only if such conduct “relat[es] to fraud against shareholders.” 18 U.S.C. § 1514A(a)(1). The Tenth Circuit found Lockheed’s interpretation of the statute incorrect, and held an employee complaint need not specifically relate to shareholder fraud to be actionable under the Act.

Second, the Tenth Circuit found there was substantial evidence supporting the ALJ and Board’s findings that Brown reasonably believed Owen had committed fraud and that she definitely and specifically communicated that belief to her superiors.

B. Constructive Discharge

In Strickland v. United Parcel Service, Inc., this court set forth the requirements for establishing constructive discharge:

Constructive discharge occurs when an employer unlawfully creates working conditions so intolerable that a reasonable person in the employee’s position would feel forced to resign. The plaintiff’s burden is substantial. The standard is objective: the employer’s subjective intent and the employee’s subjective views on the situation are irrelevant. Whether a constructive discharge occurred is
a question of fact.

555 F.3d 1224, 1228 (10th Cir. 2009) (quotation and citations omitted).

In considering whether a constructive discharge occurred, the court considers the totality of the circumstances. Narotzky v. Natrona Cnty. Mem’l Hosp., 610 F.3d 558, 565 (10th Cir. 2010).

Lockheed’s challenge to the Board’s conclusion that Brown suffered an adverse personnel action because she was constructively discharged was twofold. First, Lockheed argued the ALJ applied the wrong legal standard to Brown’s constructive discharge claim and that the Board incorporated the ALJ’s mistake in its Final Decision and Order. Second, Lockheed argued there was insufficient record evidence to support the conclusion that Brown was constructively discharged.

The Tenth Circuit found both arguments unpersuasive.

First, the ALJ recited the correct legal standard for a claim of constructive discharge and concluded, after reciting the litany of adverse circumstances Brown faced following her ethics complaint, “a reasonable person such as Complainant would see resignation as her only option under these circumstances.” As to Lockheed’s second argument, the Court made reference to numerous facts cited by the ALJ and Board that are indicative of constructive discharge. A reasonable person would deem this evidence adequate to support the Board’s ultimate conclusion that Brown’s working conditions were so intolerable she would have viewed quitting as her only option.

C. Contributing Factor

To establish a prima facie case under Section 806, a complainant must show her protected activity was a contributing factor in the unfavorable personnel action. 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. §  2121(b)(2)(B)(I); 29 C.F.R. § 1980.109(a). This element is broad and forgiving: the Board has defined a “contributing factor” as “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Klopfenstein v. PCC Flow Techs. Holdings, Inc., No. 04-149, 2006 WL 3246904, at *13 (Admin. Rev. Bd. May 31, 2006). Temporal proximity between the protected activity and adverse employment action may alone be sufficient to satisfy the contributing factor test. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1003 (9th Cir. 2009).

The Tenth Circuit held that the conclusion that Brown’s protected activity was a contributing factor in her eventual constructive discharge was supported by the Board’s finding that the adverse employment actions Brown experienced began shortly after the conclusion of the investigation against Owen. This finding was supported by substantial evidence

D. Remedy

Finally, Lockheed argued the Board’s award of $75,000 to Brown as noneconomic compensatory damages for her emotional pain and suffering, mental anguish, embarrassment, and humiliation was not authorized by 18 U.S.C. § 1514A(c)(2) and that the Board’s damage award was otherwise unsupported by substantial evidence. However, § 1514A(c)(1), provides that a prevailing employee “shall be entitled to all relief necessary to make the employee whole.” It may now be necessary for the Board to quantify its award of back pay, medical expenses, and attorney’s fees, and to reexamine its award of reinstatement to the extent an appropriate position for Brown at Lockheed no longer exists.

The decision of the Board is AFFIRMED and the matter REMANDED to the agency for further proceedings not inconsistent with this opinion.

Tenth Circuit: Unpublished Opinions, 6/5/13

On Wednesday, June 5, 2013, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

United States v. Jordan

United States v. Batton

Bailey v. Kerns

Skinner v. Addison

Desai v. Panguitch Main Street

Thi of New Mexico at Valle Norte v. Harvey

United States v. Shines

United States v. Perez-Olivarez

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