BEFORE THE HEARING OFFICER CIVIL SERVICE COMMISSION

CITY AND COUNTY OF DENVER, COLORADO

CASE No. 15 CSC 03
In the matter of:
JAMES MEDINA (P99072),
Officer in the Classified Service of the Denver Police Department,
Petitioner.
______________________________________________________________
FINDINGS, CONCLUSIONS, and ORDER
______________________________________________________________
This matter came on for hearing on June 22-24, 2015. The Hearing Officer was Terry
Tomsick. The City and County of Denver was represented by John Paul Sauer and Kristin
Merrick. The City's advisory witness was Lt. Dikran Kushdilian. Attorneys Scott D.
McLeod and Donald Sisson represented Petitioner.
The following witnesses were sworn and testified: (1) Phillip Coleman (Detective); (2)
Sgt. Michael Cody; (3) Richard Stensgaard, Field Training Officer; (4) Jess Vigil, Deputy
Director of Safety; (5) Sean Olsen, Esq; and (6) Petitioner James Medina.
The Agency's Motion to Strike Petitioner's Notice of Appeal and Request for New Hearing
Officer was denied by Order dated March 27, 2015. A discovery dispute was resolved by
the Hearing Officer by Order dated May 26, 2015. A Motion to Quash Subpoenas to four
individuals was granted on June 19, 2015. A Motion in Limine to exclude testimony from
District Attorney Doug Jackson, Office of Independent Monitor Nick Mitchell, Chief of
Police Robert White, and Commander Battista was granted on that same date to the extent
that the internal disciplinary recommendations engendered a deliberative privilege. Of
course, this did not preclude consideration of the disciplinary recommendations which were
served on the Petitioner.
The parties submitted a Joint Pre-Hearing Order on June 8, 2015. The following Exhibits
were stipulated: Agency's Exhibits 1-9; Exhibit E, first two cases only, Case No. P2011 05
089 and Case No. P2013-0006; Exhibit 14, 16, 17, 18, 19, 20, 21, 22, 23.
The following Exhibits were withdrawn: Exhibits A, B, C, and D.
The following Exhibits were admitted over objection: Exhibits 11-13; the balance of
Exhibit E; Exhibit 15, Exhibit 24.

FINDINGS and CONCLUSIONS

1. On July 10, 2014, Officer James Medina and Officer Cheryl Smith independently
responded to assist DPD Officer Ramone Young with a sick and intoxicated male who had
fallen over a chair at the Burger King at 3200 No. Downing St., in Denver, Colorado.
Officer Young called for assistance because he was having difficulty with two other
individuals who were interfering with his and the emergency responders' efforts to aid the
sick man.
2. Outside of the Burger King, back-up officers Smith and Medina encountered Seryina
Trujillo and her boyfriend, Mr. Adams, both of whom were agitated, argumentative and
unduly interested in and inquisitive about what was happening on scene although they
claimed not to know the injured and drunk man.
3. Given the interference by Mr. Adams who was visibly intoxicated and obnoxiously
racially insulting and interfering, Officer Young decided to transport him to detox. Ms.
Trujillo, upset with the imminent removal of her boyfriend, continued to interfere with all
of the officers and the emergency staff. Among other things, she grabbed at her boyfriend's
arm to pull him away from officers and she spit in Officer Cheryl Smith's face hitting her
right below the eye with spittle. As she was being placed in Officer Medina's patrol car for
assault upon Officer Smith and interference, Ms. Trujillo kicked Officer Medina in the face;
he responded by punching her in the face.
4. There is no argument that Officer Medina appropriately prepared a Use of Force report
for the punching incident in the police vehicle with Ms. Trujillo. The Use of Force issue
which is the subject of this appeal happened as Ms. Trujillo was being booked for assault
upon two police officers and resistance.
5. Upon transport to District 2 in Officer Medina's police vehicle for booking, Ms. Trujillo
continued to be highly agitated and belligerent. Officer Medina decided to file felony
charges on Ms. Trujillo for second degree assault on a police officer x 2, Class 3 felonies,
and resistance, a Class 2 misdemeanor.
6. In order to book a defendant, the defendant must be placed in a holding cell. It is
departmental policy to require those who are being placed into a holding cell to remove
their belt(s) and shoes, if any, in the event a detainee attempts to use those items for selfharm or harm to officers.
7. A video provided to the hearing officer of the holding cell incident is the best evidence
of what happened in Holding Cell #8:
(a) Ms. Trujillo verbally refused to remove her shoes or her belt;
(b) She was wearing high-topped laced or velcroed shoes, not sandals;
(c) Officer Medina initiated physical contact with Ms. Trujillo when she continued
to bait him with "or what are you going to do if I refuse to give you my belt and shoes?"
His response was that he was "going to get them one way or another."
(d) There was a several minute scuffle with Ms. Trujillo as Officer Medina

attempted to restrain her to remove her belt and shoes.

(d) During the scuffle, Ms. Trujillo knocked Officer Medina's glasses off and
scratched him, drawing blood;
(e) Officer Medina placed his knee on Ms. Trujillo's chest to restrain her;
(f) The belt and shoes were visibly and forcibly removed;
(g) She slumped to the floor after saying, "okay, okay."
(h) She may or may not have lost consciousness but she clearly went limp; she also
quickly regained her seat after falling to the floor;
(i) Officer Medina left the holding cell but returned shortly and engaged Ms. Trujillo
again with a raised voice asking her a series of questions and statements. "Why did you try
to bite me? An additional charge is going to be added. I know what you did and I know
what I did. Don't cry now. Tell it to God."
(j) There was no evidence that Ms. Trujillo bit Officer Medina and she made no
complaints about being injured, nor did she complain that she'd been rendered unconscious.
8. Probably none of this would have come to light except that Officer Cheryl Smith
informed Detective Phil Coleman that "something might have happened" in the holding cell
between Ms. Trujillo and Officer Medina. It was then discovered that no Use of Force
report had been filed for the holding cell incident and that no medical attention had been
called to attend to Ms. Trujillo after she obviously slumped to the ground after force had
been used to remove her belt and shoes.
9. This case arose from an internal complaint initiated by Sgt. Mike Cody who, upon
following up on Detective Coleman's investigation, became aware Officer Medina had not
prepared any supplement to his original Use of Force report on Ms. Trujillo (the police car
punching incident) to add the information about the holding cell scuffle.
10. Officer Medina filed a follow-up report on July 15, 2014, five days after the holding
cell incident. This follow-up report did describe the holding cell incident in general but
omitted the amount of subduing that was employed by Officer Medina to obtain the belt and
shoes and further omitted Ms. Trujillo's slumping off the bench. Officer Medina's defense
to this omission was and continues to be that Ms. Trujillo did not lose consciousness at any
time and that his 'use of force' to remove the belt and shoes was not within the purview of
the use of force policy and did not need further explication by way of an additional or
supplemental Use of Force disclosure.
11. The Conduct Review Office analyzed whether the holding cell incident was indicative
of a possible violation of RR-306, Inappropriate Force, found that it was, and further
deemed Officer Medina's [hereinafter Petitioner or Officer Medina] conduct to have been
punitive in nature. In pertinent part, the report stated:
The circumstances surrounding Officer Medina's use of force are not disputed and are
clearly depicted in a video recording. Ms. Trujillo was in a holding cell....Video footage
shows Officer Medina struggling with Ms. Trujillo on the bench in the holding cell as he
attempted to remove her belt and shoes. During the course of the struggle, Officer Medina's
leg below his knee can clearly be seen causing pressure to Ms. Trujillo's neck. This aspect
of the use of force was not proportionate to the circumstances....Given the totality of the
3

circumstances, Ms. Trujillo did not pose an immediate threat to Officer Medina's safety nor
was she a flight risk. Nothing contained in the Arrest and Control Techniques Manual
indicates using a leg or knee on the neck of an individual is an appropriate use of force.
Moreover, Office Medina had other available options, such as getting another officer to
assist him. Further, Officer Medina's use of his leg on Ms. Trujillo's neck could have
caused serious bodily injury...Moreover, the effect of the force - apparent loss of
consciousness - is disproportionate to the legitimate objective of attempting to remove her
belt and shoes...Immediately following the struggle, Officer Medina's [comment] that
"you're getting another charge, tell that to God" show that the disproportionate force was
punishment.
12. The Conduct Review Office [hereafter, the CRO] analyzed the conduct under the
Matrix and found that it was a category F, level 8 with a presumptive penalty range of
termination. "The recommended penalty of termination...will be held in abeyance for a
period of two years (2) contingent upon Officer Medina committing no further Conduct
Category D, or higher, violations."
13. The CRO also found violations of OMS 105.02, Duty to Report Use of Force and
Duty to Request Medical Attention as both are subsumed by the broad category of RR102.1, Duty to Obey Departmental Rules. Among other things, the CRO found that
"whether Ms. Trujillo did or did not lose consciousness is uncertain. Nonetheless, the
appearance of a loss of consciousness constitutes an "obvious injury" triggering a duty on
the part of Officer Medina to have called for medical attention and to have notified a
supervisor.
14. The CRO found that Officer Medina's use of his leg on Ms. Trujillo was "analogous" to
the carotid compression technique and presents the same danger. The Matrix Analysis
determined that this was a Category E, Discipline Level 6 with a 30 day suspension
recommended.
15. The CRO also analyzed the fact pattern with respect to OMS 113.02 Prisoners in
Police Facilities as also encompassed RR-102.1, Duty to Obey Departmental Rules and
exonerated him.
16. RR-105 Conduct Prejudicial for conduct unbecoming an officer was sustained by the
CRO for the "tell it to God" and "don't cry now," comments as well as the escalation of the
encounter occasioned by Officer Medina's re-entry to the holding cell after he had already
obtained Ms. Trujillo's belt and shoes. This was deemed to be a Category E violation,
discipline level 6 with a 30 day suspension as the presumptive penalty.
17. The CRO report was signed by Commander Michael H. Battista on behalf of Robert C.
White, Chief of Police on January 22, 2015. On Exhibit 1-133, Officer Medina signed an
acknowledgement that he wanted to take 24 hours to think about the discipline
recommended by the CRO which would have been termination held in abeyance for two
years and two 30 day suspensions for a total of 60 days. This "request to think about it"
was signed by Officer Medina on February 9, 2015. The CRO "request to think about it"
notice gave Petitioner an option to accept the recommended penalty of 30 + 30 plus two

years probation with the condition of Medina's not getting a Category D violation of higher
within those two years.
18. A Contemplation of Discipline letter was prepared, restating the findings and
recommendations of the CRO report. Again, the recommended penalty was probation with
termination held in abeyance for two years and two 30 day suspensions, served
consecutively. On February 10, 2015, Officer Medina rejected this penalty again and
demanded the completion of the Investigative Review Process [IRP] and to have a Chief's
Hearing. Specifically, Officer Medina was advised that he had an option at the PreDisciplinary hearing to tell the command "why the proposed action should not be taken."
[Emphasis added]. The proposed action was 30 day suspension consecutive to another 30
day suspension for a total of 60 days served suspension, plus termination held in abeyance
for two years pending no new Category D or higher violations.
19. The Chief of Police's Written Command of February 23, 2015, also signed by
Commander Michael Battista for Chief Robert White, recommends the identical penalty to
that recommended by the CRO and the Contemplation of Discipline letter, viz., 60 days
(two 30 day suspensions) and probation for two years.
20. A memo setting the hearing conference dates advised Officer Medina of the dates of
the hearing and again informed him that he would have an opportunity to tell the command
"why the proposed action should not be taken." [Emphasis added].
21. The Pre-Disciplinary hearing was held on Wednesday, February 25, 2015. See OPS
Manual 503.01 (8). The Pre-disciplinary conference "Findings," prepared after the hearing,
were signed by Commander Battista on behalf of Chief Robert White, recommended the
same penalties as other in the chain of command, to wit, 30 days plus another 30 days, and
probation with termination held in abeyance for two years. Exhibit 1-157.
22. The 35 minute Pre-Disciplinary hearing consistently almost exclusively of legal
argument by Petitioner's counsel Don Sisson. Officer Medina said nothing. Counsel Don
Sisson's remarks contained no admissions or concessions to the Deputy Director of Safety
and were definitely not conciliatory or apologetic. Officer Medina was told at the beginning
and at the end of the Pre-Disciplinary hearing that his penalty would be as previously
recommended, that is, no immediate termination. (Exhibit 1-157 and Exhibit 1-158).
Exhibit 8, which is the recorded Pre-Disciplinary hearing, never mentions that full-out,
outright, forthwith termination is even on the agenda.
23. The Departmental Order of Discipline issued March 4, 2015 signed not by the
Executive Director of Safety, but by the Deputy Manager of Safety, terminated Petitioner
for a violation of RR - 306 and two thirty day suspensions for violations of RR- 102.1 and
RR-105 because Officer Medina "failed to take any responsibility for his actions."
24. There was sufficient evidence, and Executive Director so found through her designee
the Deputy Director Jess Vigil, to show that Petitioner violated of RR-306 Inappropriate
Force, RR-102.1, Duty to Obey Departmental Rules, specifically, OMS 105.02, Duty to
Report Use of Force and Duty to Request Medical Attention, and RR-105 Conduct

Prejudicial for conduct unbecoming an officer.

25. Ample testimony established that there were numerous options open to Petitioner other
than going "hands on" with Ms. Trujillo given her reluctance to give up her shoes and belt
and her "verbal noncompliance." See, Use of Force Policy, Ops Man 105.01(4)(b)(2).
There was also ample testimony that Petitioner's going "hands on" with her in the cell
resulted in the escalation of the situation which then put Petitioner in a position in a
situation where he also had the option of leaving the cell, calling for assistance, observing
her to see that she did not commit suicide with her belt, etc. Her slipping from the bench to
the floor was enough of an "obvious injury" that Petitioner should have called for medical
assistance. It is immaterial whether she lost consciousness because her slumpage was
sufficient to alert Petitioner that a medical issue loomed. Again, the findings on this point
by everyone in the chain of command, including the Deputy Director acting as the Chief's
designee, are not clearly erroneous.
26. Although the facts were essentially undisputed, Petitioner's counsel spent a great deal
of time attempting to show that Officer Medina had not violated the Use of Force Policy.
But, the real issue was Petitioner's deployment of force in the first place. Two witnesses,
Mark Scherschel and Glenn Mahr found that the Use of Force was not improper, but neither
had the benefit of any information other than the raw video. The City's witness Richard
Stensgaard ended up more or less confirming Petitioner's contention that he did not use
excessive force. He too gave this testimony based upon the video, only. The raw video
gives only a snippet of what happened between Petitioner and Ms. Vigil. The chain of
command correctly considered the "totality of the circumstances" which indicated
Inappropriate Force was employed as that term is contemplated by OMS 105.01 and RR306. As noted above, this is not clearly erroneous and comports with the requirements of
Ceccacci v. Civil Service Commission, Order dated June 1, 2015, by Denver District Judge
Sheila Rapport (13 CV32789) as well as Graham v. Connor, 490 U.S. 386 (1989). Among
other things, Ms. Trujillo was in custody. The fact that she was in custody drastically
changed the need for any use of force and that was confirmed by everyone on the command
staff, including Deputy Director Jess Vigil.
27. The only remaining issue in this case is the increase in the penalty from suspension and
probation to termination. What happened between the time of the Chief's Hearing on
February 23, 2015 and the Order of Disciplinary Action issued on March 4, 2015?
28. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) authored by
Colorado's own prodigy Justice Byron White articulates the contours of the due process that
is required to terminate a public employee. The Loudermill Court's opinion was devoted to
was "what pretermination process must be accorded a public employee who can only be
discharged for cause." Id., at 535.
29. Petitioner can only be discharged for cause as part of a merit system modelled after the
Pendleton Act of 1883 and the US Civil Service Commission now known as the US Office
of Personnel Management. See Executive Summary of Civil Service Commission Mission
Statement. Petitioner's job as a police officer with the Denver Police Department imbues
him with a constitutionally protected property interest.

30. The Loudermill court's pronouncements on this subject are still the law of the land and
every employment law case for public employees since then is viewed to check its
conformity with its requirements. The facts are strikingly similar to those here.
Loudermill was a classified civil servant, terminable only for cause. He was hired
as a security guard for the Cleveland Board of Education and stated on his application that
he had never been convicted of a felony. When the Board discovered that he had been
convicted of grand larceny, it fired him without affording him an opportunity to respond to
the charge of dishonesty. Loudermill filed an appeal with the Cleveland Civil Service
Commission who appointed a neutral referee who, after hearing that Loudermill thought his
conviction was a misdemeanor, recommended reinstatement, but the full Commission
announced that it would uphold the dismissal. Although his dismissal was challengeable in
state courts under proceedings similar to Rule 106, Loudermill filed a federal lawsuit in
United States District Court claiming that the Ohio Revised statutes pertaining to his rights
to appeal were unconstitutional on their face because they did not provide an opportunity
for him to respond to the charges prior to removal, and unconstitutional as applied because
he was not given a prompt post-removal hearing.
The District Court dismissed Loudermill's challenge holding that because the very
statute that created the property interest in Loudermill also specified the procedures for
discharge, he had received all of the process to which he was due. The District Court
concluded that the delay in processing the appeal survived a constitutional challenge on the
"as applied" theory as well. The case ended up in the 6th Circuit Court of Appeals with
differing results contrary to the District Court and the Board petitioned for certiorari to the
U.S Supreme Court which accepted the case.
At the Supreme Court level, the Board argued that the property right for the
employee was defined by and conditioned on the legislature's choice of procedures for its
deprivation. The Board emphasized that, in addition to specifying grounds for termination,
the statute set out the procedures by which termination could take place. Further, the Board
argued that the procedures were adhered to, and the requirement of additional procedures
would impermissibly expand the scope of the property right.
The Loudermill court rejected this argument, relying on its prior opinion in Vitek v.
Jones, 445 U.S. 480 at 491 (1980), where it held that, although a State may have adopted its
own procedures before it takes any adverse action against a person with protected property
or liberty interests, the "determination of whether such behavior has occurred to deprive
him of those protected interests is critical" and "that determination must meet the minimum
requirements of procedural due process," citing Wolff v McDonnell, 418 U.S. 539, at 558
(1974. Although the State's procedures may have been utilized, the Vitek Court said:
"minimum [procedural] requirements [are] a matter of federal law, [and] they are not
diminished by the fact that the State may have specified its own procedures that it may
deem adequate for determining the preconditions to adverse official action." Vitek, supra at
491.

The Loudermill Court stated: "If a clearer holding is needed, we provide it today.
The point is straightforward: The Due Process Clause provides that certain substantive
rights - life liberty and property - cannot be deprived except pursuant to constitutionally
adequate procedure....The right to due process is conferred, not by legislative grace, but by
constitutional guarantee." Id., at 541.
It then gave the parameters of what process is due prior to deprivation of that right.
"An essential principle of due process is that a deprivation of life, liberty or property be
preceded by notice and opportunity for hearing appropriate to the nature of the case. The
Court concluded with saying: "We have frequently recognized the severity of depriving a
person of the means of livelihood. "While a fired worker may find employment elsewhere,
doing so will take some time and is likely to be burdened by the questionable circumstances
under which he left his previous job. Id., at 542.
The Court continued, "even where the facts are clear, the appropriateness or
necessity of the discharge may not be; in such cases, the only meaningful opportunity to
invoke the discretion of the decisionmaker is likely to be before the termination takes
effect...The governmental interest in immediate termination does not outweigh these
interests...The pretermination hearing need not definitely resolve the propriety of the
discharge. It should be an initial check against mistaken decisions, essentially a
determination of whether there are reasonable grounds to believe that the charges "support
the proposed action." [Emphasis added] Id., at 543.
Part Two of Loudermill addresses the nature and quality of constitutionally adequate
post-termination procedures.
In considering Loudermill's argument that his posttermination remedies had taken too long, the Loudermill court disagreed because the Ohio
legislature had provided for "full post-termination procedures" including the neutral referee,
to which he had availed himself. Id., at 546-8. The United States Supreme Court essentially
upheld the neutral referee who had found fault with the inadequate procedure afforded to
Loudermill before he was terminated.
31. The critical importance of post-termination procedures and remedies has received more
attention after Loudermill. In West v. Grand County, 967 F.2d 362 (10th Cir. 1992), the
10th Circuit court stated, "because the post-termination hearing is where the definitive factfinding occurs, there is an obvious need for more formal due process protections at that
point, citing Powell v Mikulecky, 891 F.2d 1454 (10th Circuit 1989). Further, what process
is due is dependent upon the length and finality of the deprivation. Gilbert v. Homar, 520
U.S. 924, 932 (1997), citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982).
32. In view of the foregoing U.S. Supreme Court cases, two important due process
questions arise in this case.
(a) Did Petitioner's pre-termination (Pre-Disciplinary or Chief's Hearing) comport
with the requirements of Loudermill and its progeny?
(b) Did Petitioner's post-termination proceedings comport with the due process
requirements as articulated in Loudermill and later cases?

33. The answer to these questions requires an independent analysis of the competing
interests involved, i.e., the government's interest in "the expeditious removal of
unsatisfactory employees," the employee's protected property interest in retaining his job,
and the risk of an erroneous termination of an employee. Loudermill, 470 U.S. 540, 542543, cited in Powell v. Mikulecky, 891 F. 2d 1454 (10th Cir. 1989). The Mikulecky court
held that a pre-termination can be quite cursory "to clarify the most basic
misunderstandings or to convince the employer that termination is unwarranted. The
pretermination hearing is intended to supplement, not duplicate the more elaborate posttermination hearing." Id., at 1454.
(a) With respect to the first question above (32(a)), while a full evidentiary hearing
is not required prior to an adverse employment action, due process requires that an
employee be given notice, specifically, notice of any proposed termination. [Emphasis
added]. Riggins v. Goodman, 572 F.3d 1101 (10th Cir. 2009). That did not happen here; in
fact, Petitioner was advised three times that the proposed action was probation for two
years and two thirty day suspensions, served back to back. He was never advised before he
was terminated that termination was a possibility.
(b) With respect to the second question above (32(b)), Rule 12 is presumed to be
constitutional on its face. Martinez v. Marshall, 13 CSC 04A, Whittenburg v. Civil Service
Commission 14 CSC 30591. Rule 12, of course, defines the procedure that Denver Police
Officer will have post-discipline. The question becomes whether Rule 12, as applied here,
afforded Petitioner with an "elaborate post-termination hearing" that remedied any of the
constitutional problems with the lack of a pre-termination hearing.
As there are inconsistences between the Charter, Rule 12 and the OMS, it is the
province of the Hearing Officer and/or the Civil Service Commission to sort out which one
prevails in the event of a conflict. Presumably, the Charter trumps Rule 12 which trumps
the OMS. Rule 12 is at odds with OMS 503.01 which provides for de novo hearings. OMS
503.01(10(b). It is well-established that a Denver Police Officer's right to a de novo post
termination hearing is gone under Rule 12. Hearing Officers are no longer "neutral
referees" in any sense of the word. Hearing Officers are merely administrative reviewers to
determine whether an Executive Director's decision to impose discipline is "clearly
erroneous." Vigil v. Southard, 14 CSC 03A. Can a Rule 12 post-termination constitute an
"elaborate post-termination hearing" in compliance with Loudermill? Most of the time, the
answer would be in the affirmative had there not been a seriously defective pre-termination
hearing with no notice. Thus, constitutionality of Rule 12, as applied here, requires a more
thoughtful approach.
Important to that analysis here is the interplay and an interpretation of the outright
inconsistencies between Rule 12, the Charter of the City and County of Denver and the
OMS. The Charter clearly trumps the OMS.
Here is the conflict between the Charter and the OMS: The Charter provides at
9.4.14 (B) Disciplinary Procedures:

The Manager of Safety (now known as the Executive Director of Safety)

shall, within (15) calendar days of the date of the Chief's order, approve,
modify or disapprove the written order of disciplinary action. The
Manager (Executive Director) shall take such action by a written
departmental order which shall take effect immediately. In the absence of
the Manager of Safety, such departmental order may be issued by a
Deputy Manager (now known as the Deputy Director of Safety).
Despite this Charter provision, the OMS revision of 503.01(8)(e) misstates the
actual language of the Charter. It states at 503.01 (8)(e) that:
In accordance with Denver Charter section 9.4.14(b), the Executive
Director of Safety shall approve, modify, or disapprove the written order
of discipline and shall issue a written departmental order. As to each
specification, the Executive Director of Safety shall have the option of
accepting the penalty recommendation of the Chief of Police or of
increasing or decreasing the recommended penalty.
The bolded language is not in the Charter. To the extent that this provision is in
conflict with the actual language of the Charter, the Charter prevails. Although it is true that
Denver has truncated its post-termination proceedings by implementing Rule 12, this
language must be viewed in its most favorable light to the Agency as a matter of deference.
Drastically increasing a penalty post-Chief's hearing with no new evidence or past
appeal deadlines must be extremely limited as those circumstances implicate the very
notion of fundamental fairness. "A fair trial in a fair tribunal is a basic requirement of due
process. Fairness of course requires an absence of actual bias in the trial of cases. But our
system of law has always endeavored to prevent even the probability of unfairness." In re
Murchison, 349 U.S. 133, 136 (1955). Cf., Kilroy v. Sparks and Murr, 11 CSC 03A-04A.
Here, Petitioner was advised at the beginning of the Chief's hearing that he was
facing a two year held in abeyance termination for RR-306 plus two 30 days suspension.
No new facts arose between February 23 and March 4. The cited basis for increasing the
recommendation to termination was for Petitioner's "failure to take responsibility." The
only regulation authorizing this drastic increase in discipline is OMS 503.01(8) which is
contrary to the Charter. Rule 12 itself provides that any discipline shall conform to all of
the procedural requirements of Charter 9.4.14 which does not provide for willy/nilly
increase of discipline. (Section 2(B)(1) of Rule 12). Rule 12 itself acknowledges that an
application of Rule 12 or any OMS that is in violation of procedural due process rights as
established by Charter or other binding legal authority is unacceptable. (Section 2(B)(2) of
Rule 12).
Failure to take any responsibility for one's actions cannot by itself be the basis for
increasing discipline to termination without notice, without an adequate pretermination
hearing which advised Petitioner that termination was on the table, and with no new facts or
evidence. The only failure to take responsibility seems to have been Petitioner's insistence
upon going the full route guaranteed to him by OMS 503.01 and his counsel's vigorous

10

"take no prisoners" defense at the Chief's hearing. Going back to the question of what
happened to increase the proposed action of probation plus sixty days suspension to
termination, there is no palpable answer to this question.
The "as applied" constitutional analysis of Rule 12 is muddied by having the Deputy
Director inadvertently become the judge, jury and executioner by cross-appointments and
delegations of authority in the actual application of the provisions of Operations Manual
503.01 (8)(b)(c) and (d). These cross-appointments also implicate the fundamental fairness
doctrine. Specifically, these provisions call for several sets of eyeballs to review
recommendations of penalty which could constitute adequate post-termination review;
instead, this collapsed into one set of eyeballs and no level of independent review. Below
are the requirements of 503.01 8(b)(c) and (d) and in italics is what happened in this case.
1. Prior to the Police Chief making a recommendation as to
whether any rule violations should be sustained and as to the
level of discipline, if any, to be imposed upon the officer, the
Police Chief shall confer with the Monitor regarding such
recommendation. (Police Chief did not make any recommendation.
His designee Commander Battisa recommended 30 + 30 plus 2
year abeyance of termination in his recommendation of discipline.
Whether he conferred with the Monitor is unknown).
2. After holding a Chiefs Pre Disciplinary hearing the Chief or his
designee may initiate disciplinary action with a written order
specifying disciplinary action. (Police Chief delegated to
Commander Battista who delegated to Deputy Director Vigil the
"initiation" of the Disciplinary Order of March 4, 2015).
3. The written order shall be submitted, pursuant to Denver City
Charter section 9.4.14.(a), to the Executive Director of Safety for
approval. (Deputy Director Vigil submitted this to himself for
approval as he is the Executive Director's designee).
4. Within five (5) business days of the Police Chiefs
recommendation
of
discipline
(Deputy
Director
Vigil's
recommendation) , the Monitor shall advise the Executive Director
of Safety (Or, in this case, Deputy Director Jess Vigil as her
designee) whether he or she agrees with the Police Chiefs
(Deputy Director Jess Vigil's) recommendation, as to whether any
rule violation should be sustained, and the level of discipline, if any.
Because of the de facto cross-deputization which occurred with having Deputy
Director Jess Vigil the decisionmaker at every stage, and because Rule 12, as applied here,
effectively eliminated any meaningful post-termination review by an impartial
decisionmaker, Loudermill is violated. Petitioner was not given the due process to which he
was entitled as a member of the Classified Service either pre-termination or posttermination.

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ORDER
Because of the due process violations which cannot be remedied at this stage, the
Departmental Order of Discipline is Modified to impose discipline precisely as Petitioner
was advised in the Notice of the Pre-Disciplinary Hearing (Exhibit 1-156) as well as the
Pre-Disciplinary Conference Findings (Exhibit 1-157) which were a thirty day suspension
for a violation of RR-105 and a thirty day suspension for a violation of RR-102.1 and
termination held in abeyance for two years pending no further commission of a Conduct D
category, or higher, misconduct. The suspensions are consecutive and have been served as
of June 3, 2015. Petitioner is entitled to restoration of back pay and other benefits
retroactive to June 3, 2015. Petitioner is still subject to a two year held in abeyance
termination for a violation of RR - 306, said abeyance to cease forthwith upon a
Departmental Order finding a violation of a Category D or higher violation for two years
from the date of this Order.

Dated: July 29, 2015, nunc pro tunc to July 24, 2015.
e-signed Terry Tomsick
____________________________
Terry Tomsick
Hearing Officer

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CERTIFICATE OF MAILING
I hereby certify that on this 30th day of July, 2015, I have served the foregoing
FINDINGS, CONCLUSIONS AND ORDER by in Case No. 15 CSC 03, In the matter of
James Medina (P99072), by arranging that a true and correct copy be electronically filed by
email to:

John-Paul C Sauer
Assistant City Attorney

Dlefiling.litigation@denvergov.org
John.Sauer@denvergov.org

Kristen A. Merrick
Assistant City Attorney

Kristen.Merrick@denvergov.org

Donald C. Sisson, Esq.

dsisson@elkusandsisson.com

Scott D. McLeod, Esq.

smcleod@elkusandsisson.com

Cc: Lucas Lorenz

llorenz@elkusandsisson.com

Cc: Terry Tomsick, Hearing Officer

CIVIL SERVICE COMMISSION

/s/

Jeannette Madrid

By: Jeannette Madrid

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