495 P.2d 1146
No. 71-007Colorado Court of Appeals.
Decided April 4, 1972.
Temporary suspension of Wildlife Conservation Officer by his superior was upheld by Civil Service Commission. District court affirmed the order of the Commission and officer appealed.
Affirmed
1. CIVIL SERVICE — Letter from Supervisor — Disapproving Conduct — Not Preclude — Further Disciplinary Action — Same Offense. Letter to Wildlife Officer from his supervisor informing him of the possibility of future disciplinary action and disapproving his conduct did not constitute disciplinary action by the appointing authority such as would, by the rules of the Civil Service Commission, preclude further disciplinary action against the officer for the same offense.
2. Evidence Supported — Commission Findings — Poor Judgment — Caused — Adverse Publicity — Suspension — Not Violation — Rules. Civil Service Commission’s findings, supported by the evidence, show that Wildlife Officer’s poor judgment in pursuing wounded goose into closed area and in
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discharging gun in that area caused well-publicized incident that subjected state agency to adverse publicity detrimental to public interest; thus, suspension of officer who had not previously been administered corrective action was not a violation of Civil Service Commission Rules and Regulations.
Appeal from the District Court of Pueblo County, Honorable Matt J. Kikel, Judge.
Kettlekamp Vento, Donald G. Drummond, for plaintiff-appellant.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Gerald W. Wischmeyer, Assistant, for defendants-appellees.
Division I.
Opinion by JUDGE SMITH.
John Hatfield was suspended for 8 days by his superior, the Director of Game, Fish and Parks, for conduct unbecoming a Wildlife Conservation Officer. He appealed to the Civil Service Commission which, after hearing, affirmed that action. Hatfield then filed a complaint in district court, in accordance with C.R.C.P. 106(a)(4), for review of the Commission’s actions. The court found that the Commission had not abused its discretion and affirmed the order of the Commission upholding Hatfield’s suspension. Hatfield now appeals to this court urging that the district court erred in upholding the Commission’s order. We affirm.
The Commission’s findings were supported by uncontroverted evidence that Hatfield, while hunting on his own time, had wounded a goose outside an area closed to hunting. The wounded bird flew into the restricted area,
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and Hatfield entered the area to retrieve the goose. Hatfield took his firearm with him into the restricted area and discharged it in an effort to retrieve the goose. Plaintiff argues that the Commission upheld his suspension based upon the erroneous conclusion that he violated state law by hunting in the closed area. However, the findings of the Commission make it clear that the plaintiff was not disciplined for violating the law, but for conduct unbecoming a Wildlife Conservation Officer. The Commission concluded that by carrying a firearm into the restricted area, discharging it, and then exiting the area with geese, the plaintiff created the impression with onlookers that he had violated the very restrictions he was responsible for enforcing. This was found by the Commission to be an example of extremely poor judgment which reflected public discredit and censure upon the plaintiff, the Division of Game, Fish and Parks, and the State of Colorado, all of which justified the suspension imposed.
[1] Plaintiff urges that since he had previously been issued a letter of reprimand for the incident, he could not be suspended for the same offense. He relies on Article XI, Section E(1) of the Colorado State Civil Service Commission Rules and Regulations, in effect at the time of the controversy, to wit:“An employee shall not be corrected or disciplined more than once for a single specific act or violation. However, he may be corrected or disciplined for each additional act or violation of the same or similar nature.”
Section B(2) of the same article provided that suspension is a disciplinary action, and Section A(2) provided that a written reprimand is a corrective
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action. Plaintiff argues that this section prevented the application of a disciplinary action, such as suspension, where a corrective action, such as a written reprimand, had been administered for the same specific act. However, Article XI, Section C(1) of the Colorado State Civil Service Commission Rules and Regulations directed that corrective and disciplinary power is the responsibility of the appointing authority who is defined in Article I Section A(3) as the head of a department or division. Assuming plaintiff’s interpretation of the law is correct, the letter plaintiff received was not from his appointing authority, but from his immediate supervisor informing the plaintiff of the possibility of future disciplinary action and disapproving of his conduct. It was not a reprimand under the terms of the Rules and Regulations of the Commission.
[2] Plaintiff’s other argument is based on the language of Section E(3) of Article XI of the Colorado State Civil Service Commission Rules and Regulations as follows:“Disciplinary action shall not be imposed on an employee unless he has been administered a corrective action within the previous six-month period, or the offensive act is so flagrant or serious that immediate disciplinary action is essential for the public interest, or for the good of the service.”
Since he had not received a corrective action in the previous six months before the incident in question, plaintiff contends that there was no evidence in the record to establish that his actions were so serious that disciplinary action was essential for the public interest or for the good of the service. However, the Commission’s findings, supported by the
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evidence, show that the plaintiff’s poor judgment caused the incident which was well publicized and subjected the Division of Game, Fish and Parks to adverse publicity detrimental to the public interest. There was justification for significant disciplinary action against the plaintiff.
We affirm.
CHIEF JUDGE SILVERSTEIN and JUDGE DWYER concur.
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