The Colorado Court of Appeals issued its opinion in Berumen v. Dep’t of Human Services, Wheat Ridge Regional Center on April 26, 2012.

Termination—Notice—Pre-Disciplinary Meeting—Hearsay—Persons Making Decision to Discharge.

The Department of Human Services, Wheat Ridge Regional Center (WRRC) appealed the State Personnel Board’s (Board) award of back pay and benefits to complainants Maria Berumen and Dawn Adams, employees whom WRRC discharged. Complainants cross-appealed the Board’s determinations upholding their terminations and denying their request for attorney fees. The order was affirmed in part and reversed in part.

WRRC operated a house for developmentally disabled residents, including Client 1 and Client 2. Berumen was a certified Health Care Technician I, and Adams was a certified Client Care Aide II for those residents. After a hearing, the administrative law judge (ALJ) issued an order denying all of complainants’ requests for relief. Complainants then appealed the ALJ’s ruling to the Board. The Board ultimately adopted all of the ALJ’s findings of fact and conclusions of law, except for her conclusion that WRRC gave complainants adequate notice of the pre-disciplinary meeting. The Board thus awarded complainants back pay and benefits from their respective dates of termination up to the first day of the hearing. The Board denied their remaining requests for relief.

On appeal, WRRC contended that the Board abused its discretion in holding that complainants did not receive adequate notice of their pre-disciplinary meetings and in awarding back pay and benefits to them for this alleged violation. The Board’s determination that a public employer must provide a certified public employee advance notice of all of the rights that he or she has at a pre-disciplinary meeting was contrary to the plain language of the applicable Board rule and was not required by due process. Board Rule 6-10 requires that the appointing authority provide notice at the meeting of “the reason for potential discipline” and “the source of that information,” unless disclosure of the source of the information is prohibited by law. The record here reveals that the notices that were given to complainants pursuant to Rule 6-10 comported with the requirements of due process. Because the Board erred in concluding that the complainants’ due process rights were violated, the award of back pay and benefits to complainants was reversed.

Complainants contended that they were denied an opportunity to be heard at their pre-disciplinary meetings because the decision to discharge them was made not by the appointing authority after the pre-disciplinary meetings, but by his supervisor and by WRRC’s investigator before the meetings took place. The ALJ’s finding that the appointing authority made the decision to terminate complainants was supported by the record.

Complainants also contended that the ALJ erred when, over their objection, she allowed WRRC to admit hearsay evidence of statements made by Client 1 and Client 2. Administrative hearings need not comply with the strict rules of evidence. Here, the ALJ found that the clients were not known to have made false statements in the past, would probably refuse to testify, and would likely become physically aggressive toward themselves and others if pushed to answer questions. Therefore, the ALJ did not abuse its discretion in admitting the hearsay statements of Client 1 and Client 2.

Summary and full case available here.

The Tenth Circuit Court of Appeals published its opinion in Newton v. Lee on Tuesday, April 24, 2012.

The Tenth Circuit affirmed in part and declined to exercise jurisdiction in an interlocutory appeal. Petitioner alleges that two officers of the Utah Air National Guard violated his due process rights when they suspended and subsequently withdrew his Air Traffic Control Specialist (ATCS) certificate, and when they suspended his employment as an Air Traffic Control Supervisor at Hill Air Force Base in Utah. The district court granted summary judgment to Respondents on Petitioner’s due process claim regarding the suspension of his employment. However, it denied summary judgment on his due process claim regarding the withdrawal of his ATCS certificate, holding this claim is not barred by qualified immunity or by intramilitary immunity under the Feres doctrine.

In this interlocutory appeal, Respondents challenge the denial of qualified immunity and intramilitary immunity on Petitioner’s ATCS certificate claim. Petitioner cross-appeals the grant of summary judgment on his employment claim. The Court held that Petitioner’s ATCS certificate is not barred by the Feres doctrine, and that it had no jurisdiction over the interlocutory appeal from the denial of qualified immunity to Respondents. The Court also declined to exercise pendent jurisdiction over Petitioner’s cross-appeal.

On April 4, 2012, Rep. Claire Levy and Sen. Mary Hodge introduced HB 12-1342 – Concerning a Work Therapy Program in the Department of Human Services, and, In Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee Budget Package Bill.

The bill creates the work therapy program to provide training and employment opportunities for persons at certain facilities operated by the department of human services. The bill establishes a fund to receive payments under the program. The bill passed 2nd Reading on April 12 and is now scheduled for 3rd Reading on Monday, April 16.

Since this summary, the bill passed a Third Reading in the House, went to the Senate Appropriations Committee, where it was not amended, then passed three readings in the Senate. It is now ready to be sent to the Governor’s desk for signature.

Summaries of other featured bills can be found here.

On March 29, 2012, Rep. Jon Becker introduced HB 12-1333 – Concerning Public School Employees’ Participation in Labor Organizations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows a public school employee to request that his or her employer deduct dues for the benefit of a labor organization from the employee’s wages. An employer is required to commence or cease making the deductions within 30 days after receiving a written request from an employee. A labor organization that receives dues from an employee’s wages is required to make an annual financial disclosure to the employee. An employee may join or terminate membership with a labor organization at any time. The bill is assigned to the Education Committee; the bill is scheduled for committee review on Monday, April 23 at 1:30 p.m.

Summaries of other featured bills can be found here.

Colorado’s state-licensed medical marijuana businesses have recently come under attack by U.S. Attorney John Walsh for locating in areas he deems problematic—specifically being within 1,000 feet of universities and other schools. In the past three months, Walsh has issued 50 letters to targeted medical marijuana shops asking them to close or face federal criminal and civil sanctions. Not surprisingly, all of these state-licensed stores have chosen to move their locations or close their doors entirely.

Instead of lamenting this negative turn of events, Colorado’s various medical marijuana advocacy and industry groups—including the United Food and Commercial Worker’s Union—recently decided to publish a letter highlighting the positive things these businesses bring to communities in Colorado. This attempt to shift focus to the positive contributions of Colorado’s emerging medical marijuana community is re-printed in its entirety below.

A LETTER TO US ATTORNEY JOHN WALSH: “We Care about our Community, too”

Dear Mr. Walsh,

As parents, patients, business owners, and Colorado citizens, we are concerned by the recent letters sent by your office demanding certain state-approved medical marijuana businesses cease operations.

Since the dawn of this new health care field, we have worked closely with Colorado state and local governments to safely regulate medical marijuana sales and production, and have made great efforts – and gone to great expense — to establish a thorough and safe regulatory structure. Because of this collaboration between stakeholders and state and local officials, Colorado has emerged as the model among states that legally recognize the medicinal value of marijuana.

We stand in unison with patients and governing bodies across Colorado in our active commitment to continue the careful implementation of a secure and community-minded system of regulation. Here is a partial list of our contributions to the Colorado community:

• We have provided vital medicine to 164,000+ sick and disabled Colorado citizens whose doctors have recommended medical marijuana to them.
• We helped author and endorse SB 12-154– to establish a responsible vendor program similar to what many Colorado jurisdictions currently require for alcohol sales.
• We are working with the Denver City Council to foster sensible regulations, including currently working on language to limit inappropriate advertisements, specifically public advertisements near schools and other sensitive areas.
• We worked with local papers, like the Colorado Springs Gazette, to establish community-conscious advertising with a proper healthcare focus.
• We employ over 5,000 Coloradans and provide them with a living wage so they can support their families. We also provide substantial support for ancillary businesses like electricians, carpenters, and engineers.
• Our businesses produce tens of millions of dollars in tax revenue with the first $2 million earmarked annually for programs critical to helping Colorado fight addiction and accompanying mental health issues. The Circle Program at Pueblo’s Colorado Mental Health Institute was on its last legs before this new tax supported it.
• We help create safer neighborhoods through the extensive use of security cameras and guards, by increased lighting in commercial areas, and by occupying otherwise vacant retail or warehouse space.

As committed members of the communities we live in, we believe in responsible regulation of this important, and growing, health care field. We also share your concern about teens accessing medical marijuana and have taken serious steps to reduce any redistribution. We welcome a thoughtful discussion about the potential areas for improvement in the current regulatory structure.

Sincerely,

Association of Cannabis Trades for Colorado (ACT4CO)

Cannabis Business Alliance (CBA)

Coloradans 4 Cannabis Patients Rights (C4CPR)

Colorado Springs Medical Cannabis Council (CSMCC)

Green Faith Ministry

In Harmony Wellness Services

Medical Marijuana Assistance Program of America (MMAPA)

Medical Marijuana Business Alliance (MMBA)

Sensible Colorado

Women’s Marijuana Movement

United Food and Commercial Workers Union:  Local 7

On February 20, 2012, Rep. Spencer Swalm and Sen. Keith King introduced HB 12-1309 – Concerning the Requirement that All Employers in the State Verify the Work Eligibility Status of New Employees Through the Federal Electronic Verification Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, employers are required to examine, and retain records of examining, the legal work status of new employees. The bill enacts the “Colorado Mandatory E-verify Act”, which requires all employers in the state, by January 1, 2013, to instead participate in the federal electronic verification program (e-verify program) for purposes of verifying the work eligibility status of all new employees hired by an employer. Employers are subject to fines of up to $5,000 for a first offense and up to $25,000 for a second offense for failing to participate in the e-verify program. For subsequent offenses, an employer is subject to a fine of up to $25,000 and a six month suspension of the employer’s business licenses.

The department of labor and employment must notify employers via quarterly electronic publications and post a notice on its web site explaining the requirements of the act to employers. Additionally, the bill requires the Secretary of State, in consultation with the department, to include information about the requirements of the act on its web site. On March 22, the Economic and Business Development Committee amended the bill and referred it to the Committee on Agriculture, Livestock, and Natural Resources.

Summaries of other featured bills can be found here.

The Tenth Circuit Court of Appeals published its opinion in Sabourin v. University of Utah on Friday, April 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner sued the University of Utah, “claiming that it had violated the Family and Medical Leave Act by deciding to eliminate his position and then firing him for cause while he was on leave for childcare in June 2006. The district court granted the University summary judgment” and Petitioner appealed.

The Court determined that all of Petitioner’s claims must fail “because the undisputed facts show that the University’s adverse decisions were not based on [Petitioner]‘s taking FMLA leave. The decision to eliminate his position was made before he sought FMLA leave; and he was fired for engaging in a course of insubordination.”

On February 7, 2012, Rep. Claire Levy and Sen. Pat Steadman introduced HB 12-1263 – Concerning Reducing Barriers to Employment by State of Colorado Agencies by People with Criminal Records. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

If an agency requires an applicant’s criminal history in the hiring process, the agency may not:

• Unless a statute prohibits a person convicted of a specific crime from serving in that position, indicate that a person with a criminal record may not apply; and
• Inquire or determine the applicant’s criminal history until the agency makes a conditional offer of employment.

If the applicant has a criminal conviction, the agency must consider the following factors when deciding whether the conviction disqualifies the applicant from the position:

• The nature of the conviction;
• The relationship between the conviction and the specific position for hire and the bearing, if any, the conviction will have on his or her fitness or ability to perform the duties and responsibilities including, but not limited to, whether the conviction was for unlawful sexual behavior and whether the employment would place the applicant in contact with vulnerable persons;
• Any information produced by the applicant or produced on his or her behalf regarding his or her rehabilitation and good conduct; and
• The time that has elapsed since the applicant’s conviction.

The bill specifies that a regulatory authority cannot consider an individual’s criminal history when granting a state license unless certain conditions are met:

• The offense is specifically related to the profession being licensed and was committed within ten years of the application for licensure;
• The offense is a sex offense and licensure would permit the person to be employed in a position that has contact with vulnerable persons; or
• There is a specific statutory requirement to the contrary.

The amended bill passed out of the House on March 20 and has been assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

The Colorado Court of Appeals issued its opinion in People v. Welliver on March 15, 2012.

Restitution—Unemployment—Penalty—Colorado Employment Security Act—Colorado Department of Labor and Employment—Due Process.

Defendant appealed the order for restitution, including a penalty imposed by the Colorado Employment Security Act (CESA). The order was affirmed in part and reversed in part, and the case was remanded with directions.

Defendant provided false information to the Colorado Department of Labor and Employment (CDLE) when he represented that he was unemployed and earned no income. Based on this conduct, defendant was charged with one count of felony theft, one count of computer crime, and one count of forgery. He was not criminally charged under the provisions of the CESA. Defendant entered into a plea agreement, and the trial court sentenced him to seven years’ probation and ordered him to pay $11,905 in restitution, including the CESA penalty.

Defendant contended that the restitution order violated his right to due process because the prosecution did not prove the amount of the alleged victim’s actual pecuniary loss by a preponderance of the evidence. Other than an objection to the penalty, defendant did not object to the amount of the CDLE’s pecuniary loss as documented in the attachments to the presentence report, which included the overpayments that were paid by the CDLE to defendant in the total amount of $7,830 and a 50% percent statutory penalty of $3,915. Accordingly, the court was justified in relying on the report to determine the amount of restitution.

Defendant also contended that the trial court erred when it included a 50% statutory penalty as restitution. The penalty authorized in CRS § 8-81-101(4)(a)(II) is to be paid into the unemployment revenue fund, which is a general fund used for such enforcement purposes, and the amount cannot be specifically attributed to defendant’s conduct. Thus, there is no evidence in the record that the amount of the penalty ($3,915) correlates in any way to the cost that the CDLE incurred to investigate and enforce the provisions of the CESA against defendant. Without such a correlation, there is no loss suffered by the CDLE that can be “reasonably calculated” under the restitution act. Accordingly, the 50% penalty was not properly included as restitution because it is not a “pecuniary loss that was suffered by” the CDLE as a “natural and probable sequence produced” by defendant’s conduct. Therefore, the trial court abused its discretion when it included the penalty as restitution.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

It’s official.  Coloradoans will be voting this November on Amendment 64, the Regulate Marijuana Like Alcohol Act.  This landmark legislation raises many issues which will be widely debated (and discussed in this column) in upcoming months as Colorado considers becoming the first state in the nation—and the first geographic area in the world—to make the possession, use, and regulated production and distribution of marijuana legal for adults 21 and older.

How will this Constitutional amendment affect current medical marijuana users, medical marijuana businesses, and the lawyers that advise them?  Here are some quick bullet points which provide an overview of Amendment 64 and explore its relationship to Colorado’s existing medical marijuana laws.

Amendment 64 DOES:

• Create legal marijuana retail stores that are authorized to sell to adults 21 and older.
• License cultivation facilities, product manufacturing facilities, and testing facilities for this adult market with licenses expected to be issued in 2014.
• Direct the Colorado Department of Revenue to regulate the cultivation, production (including infused products), and distribution of marijuana.
• Allow local municipalities to ban or restrict these new business licenses at any time through a local governing body, but citizen-initiated bans can only go in front of voters in “even year” general elections.
• Require the general assembly to enact an excise tax of up to 15 percent on the wholesale sale of non-medical marijuana applied at the point of transfer from the cultivation facility to a retail store or product manufacturer, with the first $40 million of revenue raised annually directed to the Public School Capital Construction Assistance Fund.
• Allow for the cultivation, processing, and sale of industrial hemp.

Amendment 64 DOES NOT:

• Change existing medical marijuana laws for patients, caregivers, and medical marijuana businesses.
• Subject medical marijuana sales to the excise tax discussed above.
• Change existing laws regarding driving under the influence of marijuana, or the ability of employers to maintain their current employment policies.

In summary, all medical marijuana laws—both statutory and Constitutional—will remain 100% intact if Amendment 64 passes.  Of course, the initiative does not change federal law, which has categorized marijuana—whether for medical use or not—as firmly illegal for decades.  Given this federal stance, combined with the fact that the federal government has allowed several hundred medical marijuana stores to thrive in Colorado, it is difficult to say how the federal government may react to Amendment 64’s passage.  Regardless, marijuana advocates have included a generous timeline in Amendment 64—no marijuana retail business licenses are required to be issued until 2014—which leaves ample time to “take the temperature” of the state and federal governments before anyone applies for these new licenses.

To read the full initiative see:  http://www.regulatemarijuana.org/about#Initiative