Court Opinions: 10th Circuit Court of Appeals for the Week of Jan. 10

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Jackson, et al. v. City and County of Denver

Denver’s mayor appoints the Denver sheriff. The Fraternal Order of Police Lodge 27 wanted to change that. 

In the spring of 2018, it started supporting a grassroots campaign to amend the Denver City Charter to make the sheriff an elected position. The FOP wanted to raise money to fund the campaign, so it decided to increase the amount of funds automatically deducted from its members’ paychecks by $50 for three months. The FOP told its members that this three-month increase was a “special assessment” to finance the campaign. 

The Denver City Charter establishes all of the major executive departments that help to govern the city. The department of safety has “control of the departments of sheriff, fire and police.” The department is led by a manager of safety who reports to the mayor. The Denver City Charter vests certain authority in the sheriff. The department of safety has a human resources office that handles certain personnel matters for the sheriff’s department, as well as for the police and fire departments. Denver also has a separate department of finance. It exercises “powers and duties related to the financial operations and interests of the City and County.” The finance department is led by a manager of finance, who is “the chief financial officer of the City and County.” 

Also within the department’s controller’s office is a payroll division. That division is responsible for managing the payroll of all Denver employees, including those in the sheriff’s department. Municipal employees’ unions work with the payroll division to deduct and collect their members’ dues.

When the FOP decided to impose the new special assessment, it notified the payroll division and requested the three-month increase in the payroll deduction. The FOP and Denver have a collective bargaining agreement that obligates Denver “to deduct FOP dues . . . from the pay of such employees who individually request in writing that such deductions shall be made on a form agreeable to the City.” The FOP must “certify to the City the amounts to be deducted.” Once certified, Denver officials cannot refuse to deduct dues and to transmit them to the FOP. 

Upon receiving notification from the FOP, the payroll division deducted an additional $50 from FOP members’ next paychecks. Municipal officials later insisted that this initial decision was based on an incorrect assumption that the additional amount was simply an increase in ordinary dues and not a special assessment.

Eventually, Denver reversed course and refused to deduct the $50 for the next two months. Jennifer Cockrum, human resources director for the department of public safety, sent a letter to the FOP explaining why. Cockrum said that the “additional assessment is not a regular dues payment.” Instead, as the letter explained, municipal officials concluded that the additional $50 monthly charge was a non-dues special assessment that Denver was not obligated to collect and transmit to the FOP. Cockrum said the “additional dues assessment” would not be deducted “without express consent from the employee.” Cockrum further indicated that her office had received numerous complaints from deputies seeking to avoid the increased deduction.

In response to Cockrum’s letter, sheriff’s deputy Michael Jackson — an appellant in this case and the FOP’s president — filed a formal grievance under the CBA’s grievance process. That process has three steps. First, a grievant must present a written grievance to the applicable division chief who must provide a written response within 15 calendar days. If the grievance is not resolved, then at the next step, the grievant must raise the issue with the sheriff who must hold a meeting with the grievant and issue a written response. The final step in the process — if the grievance is not resolved at step two — is for the grievant to demand binding arbitration by a three-member arbitration board. 

In his written grievance, Jackson asserted that Denver officials violated the CBA by refusing to process the increased payroll deduction. At step one, the chief of operations in the sheriff’s department declined to render a formal decision. Instead, after concluding that the matter “affects all FOP members,” she forwarded the grievance along to the sheriff. 

At step two, the sheriff met with Jackson and later sent him a written response explaining that after “looking at complaints from members and a copy of the letter sent to [FOP] membership regarding the additional deductions, it was determined that this was a special assessment, and not dues.” The sheriff denied Jackson’s grievance. More specifically, the sheriff purported to “den[y] [the FOP’s] request for the City to take deductions for a temporary special assessment outside of membership dues.” 

The sheriff also said that the CBA didn’t require it. And the sheriff further concluded that because the effort to collect a special assessment to fund the campaign was “a matter between the FOP and its members, the City will not assist in those efforts.” 

Instead of moving to step three of the grievance process, the appellants filed a 42 U.S.C. § 1983 action against Denver in October 2018. They claimed the sheriff violated their First Amendment freedoms of speech and association by declining to deduct the additional $50 per month, and that Denver was liable for this constitutional violation. 

At the end of discovery, the district court granted Denver’s motion for summary judgment. The court found that the deputies failed to establish municipal liability for the alleged First Amendment violation. It noted that “to prove a § 1983 claim against a municipality, ‘a plaintiff must show the existence of a municipal policy or custom which directly caused the alleged injury.’” 

The court then explained that Denver could be held liable for the alleged constitutional violation only if the deputies first showed that a municipal employee “with final policymaking authority” either made the decision not to deduct the additional fees or ratified the decision after a subordinate made it. And the court found that the sheriff did not have final policymaking authority over “payroll deductions from employee paychecks.” 

The deputies appealed to the 10th Circuit Court of Appeals, and exercising jurisdiction, the 10th Circuit affirmed the district court’s grant of summary judgment to Denver.

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