Dolan v. Fire and Police Pension Ass'n

COLORADO COURT OF APPEALS 2017COA55

Court of Appeals No. 16CA0598
Arapahoe County District Court No. 12CV1559
Honorable Elizabeth A. Weishaupl, Judge

William P. Dolan,

Plaintiff-Appellant,

v.

Fire and Police Pension Association,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE GRAHAM
Taubman and Navarro, JJ., concur

Announced April 20, 2017

Brosseau Bartlett Seserman, LLC, David B. Seserman, Michael Y. Ley,
Greenwood Village, Colorado, for Plaintiff-Appellant

Hoffman Parker Wilson & Carberry, P.C., M. Patrick Wilson, Denver, Colorado,
for Defendant-Appellee
¶1 In this suit over firefighter occupational disability benefits, we

are asked to determine whether full-time employment as a fire chief

precludes a firefighter from collecting occupational disability

benefits because the position of fire chief directly involves “the

provision of . . . fire protection” under the Policemen’s and

Firemen’s Pension Reform Act (the Act), sections 31-31-101 to -

1203, C.R.S. 2016. We conclude that it does and, therefore, affirm.

I. Background

¶2 Plaintiff, William P. Dolan, appeals the district court’s

judgment upholding the discontinuation of his occupational

disability benefits by the Fire and Police Pension Association (FPPA),

as affirmed by its Board of Directors (Board).

¶3 Dolan is a career firefighter. He joined North Metro Fire

Rescue in 1986, and in 2007, he sustained a right elbow injury that

prevented him from passing the physical tests for firefighting

duties. After approximately two years of attempted rehabilitation,

North Metro terminated Dolan. He promptly filed for occupational

disability benefits with the FPPA.

¶4 While working for North Metro, Dolan also worked for the Elk

Creek Fire Protection District in both paid and unpaid capacities.

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 From 1998 to 2003, Dolan was the paid fire chief of Elk Creek. He

returned to volunteer service at Elk Creek during 2008, while

rehabilitating his elbow. In May 2010, Elk Creek again hired Dolan

as its paid fire chief.

¶5 In July 2010, Dolan appeared at a hearing to determine

whether he was entitled to occupational disability benefits. In

pertinent part, Dolan testified he was the “administrative chief” for

Elk Creek. The hearing officer determined Dolan was eligible for

permanent occupational disability benefits based on his injury. The

Death and Disability Review Committee of the FPPA adopted the

hearing officer’s findings and awarded Dolan permanent

occupational disability benefits pending “a certification from the

[Elk Creek] Board [of Directors] that this position at Elk Creek Fire

is strictly administrative in nature and that your job duties are not

directly involved with the provisions of fire protection.”

¶6 The Elk Creek Board sent a copy of its contract with Dolan to

the FPPA. While the Elk Creek Board informed the FPPA that Dolan

was “Administrative Fire Chief” and was “hired to manage the

finances and the department and does not respond as part of our

fire protection activities,” the contract signed by Dolan assigned him

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 the title of “Fire Chief” and required that he “carry[] out all statutory

duties imposed upon the Fire Chief by the Special District Act or

any other Federal, State or local law or ordinance.” The contract

also stated “[t]he Fire Chief is not required to perform firefighting or

emergency medical duties, but shall, at his discretion, act in a

command position at emergency incidents as needed and as

determined by the Fire Chief.”

¶7 After reviewing the contract, the FPPA met with Dolan. The

FPPA was concerned that the terms of the contract required Dolan

to execute “duties . . . directly involved with the provision of . . . fire

protection” under section 31-31-806, C.R.S. 2016, making him

ineligible for disability benefits. While the substance of that

meeting is a matter of dispute, it is undisputed that following that

meeting Dolan immediately resigned from his position at Elk Creek.

¶8 The FPPA then began paying Dolan disability benefits,

including back pay to his last day on payroll at North Metro.

¶9 In early 2011, an Elk Creek Board member reached out to the

FPPA regarding Dolan’s appearance at fire and emergency scenes.

Based on this information, the FPPA subpoenaed Elk Creek’s

records pertaining to Dolan. Elk Creek produced National Fire

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 Incident Reporting System (NFIRS) reports showing Dolan had

responded to 72 incidents in 2010 and had participated in another

170 incidents.

¶ 10 The FPPA issued a notice of determination suspending Dolan’s

disability benefits in May 2011. Because the FPPA accused Dolan

of fraudulently obtaining his benefits, it held a hearing. The

hearing officer ultimately determined that Dolan had not

fraudulently obtained benefits, but because his position at Elk

Creek had involved fire protection, he was ineligible for benefits

under section 31-31-806 of the Act. The officer recommended

Dolan repay the benefits he received after May 10, 2010, the date

he signed his employment contract with Elk Creek.

¶ 11 The Board met in July 2012 and affirmed the hearing officer’s

recommendation. Dolan filed for C.R.C.P. 106 review of the Board’s

decision in district court. He also asserted several common law

claims against the FPPA.

¶ 12 The district court affirmed the decision of the Board. Dolan

then filed a motion to amend his complaint, which the court denied

as untimely. A trial to the court was held on Dolan’s remaining

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 common law claims. The court found for the FPPA and entered

final judgment against Dolan in February 2016.

¶ 13 On appeal, Dolan presents two arguments. First, he argues

the Board and the district court misapplied the law in discontinuing

his disability benefits because, since his termination from North

Metro, he has never been re-employed in a position directly involved

with the provision of fire protection under section 31-31-806.

Second, he contends the district court erred in denying his motion

to amend his complaint when it determined his claim was untimely.

We address and reject each contention in turn.

II. Occupational Disability Benefits and Disqualification on Re-
employment

A. Principles of Statutory Interpretation

¶ 14 The primary goal of statutory interpretation is to ascertain and

give effect to the legislature’s intent. Lewis v. Taylor, 2016 CO 48,

¶ 20. To do so, we look to the plain meaning of the statutory

language and consider it within the context of the statute as a

whole. Id. “[I]f the statutory language has more than one

reasonable meaning, and is therefore ambiguous, we may look to

interpretive aids to construction to resolve the ambiguity and

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 determine which of the reasonable interpretations is appropriate.”

Id. Tools of statutory interpretation “include legislative history and

how the law has been construed in similar circumstances.” Id. at

¶ 27.

¶ 15 Courts traditionally defer to an agency’s interpretation of a

statute it is entrusted to administer, Red Flower, Inc. v. McKown,

2016 COA 160, ¶ 19, provided the interpretation has a reasonable

basis in law and is supported by the record, Marshall v. Civil Serv.

Comm’n, 2016 COA 156, ¶ 9.

B. Standard of Review

¶ 16 We review questions of statutory interpretation de novo. Pulte

Home Corp. v. Countryside Cmty. Ass’n, 2016 CO 64, ¶ 24.

¶ 17 Under C.R.C.P. 106(a)(4)(I), judicial review is strictly “limited to

a determination of whether the body or officer has exceeded its

jurisdiction or abused its discretion, based on the evidence in the

record before the defendant body or officer.” “A governmental body

abuses its discretion if its decision is not reasonably supported by

any competent evidence in the record or if the governmental body

has misconstrued or misapplied applicable law.” Friends of the

Black Forest Pres. Plan, Inc. v. Bd. of Cty. Comm’rs, 2016 COA 54,

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 ¶ 12; see Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309

(Colo. 1986) (“‘No competent evidence’ means that the ultimate

decision of the administrative body is so devoid of evidentiary

support that it can only be explained as an arbitrary and capricious

exercise of authority.”).

¶ 18 We review whether an administrative body misconstrued or

misapplied the law de novo. Friends of Black Forest, ¶ 15.

C. The Act

¶ 19 The Act ensures proper funding for police and firefighter

pensions. § 31-31-101. It also guarantees that members will

receive certain retirement plans. See § 31-31-102(4), C.R.S. 2016

(defining member); § 31-31-301, C.R.S. 2016 (creation of fire and

police members’ benefit fund).

¶ 20 Under Part 8, “Disability and Survivor Benefits,” the General

Assembly created a comprehensive benefits system for police and

firefighters injured or killed while working. See generally

§§ 31-31-801 to -815, C.R.S. 2016. Section 31-31-803, C.R.S.

2016, designates three types of disabilities warranting benefits:

“total disability,” “permanent occupational disability,” and

“temporary occupational disability.” See § 31-31-801 (defining

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 those terms). The Board determines whether a member is disabled.

§ 31-31-803(4)(a)(I); see § 31-31-202(2)(a), C.R.S. 2016 (“The board

has the sole power to determine eligibility for retirement for

disability, whether total or occupational . . . .”). “The board shall

not make a determination of disability unless two of the three

physicians examining the applicant agree that a disability exists,

but the board shall not be bound by the physicians’ determination

that a disability exists.” § 31-31-803(4)(a)(I).

¶ 21 If the Board determines a member is disabled and eligible for

benefits, the member will receive benefits unless there is a change

in disability status or the member is re-employed. § 31-31-805,

C.R.S. 2016 (change in disability status); § 31-31-806 (re-

employment).

¶ 22 Under section 31-31-806:

If, subsequent to disability benefits being
awarded to a member . . . a member is
employed or reemployed in this state or any
other jurisdiction . . . in a full-timed salaried
position that normally involves working at
least one thousand six hundred hours in any
given calendar year and the duties of which are
directly involved with the provision of . . . fire
protection as determined by the board, the
benefits provided pursuant to section 31-31-
803 shall be discontinued.

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 (Emphasis added.)

1. Was Dolan Directly Involved with the Provision of Fire
Protection While Employed as Elk Creek Fire Chief?

¶ 23 Dolan contends that his position as Elk Creek fire chief did

not “directly involve[] . . . the provision of . . . fire protection”

requiring the FPPA to discontinue his disability benefits. He relies

on Kilbourn v. Fire & Police Pension Ass’n, 971 P.2d 284 (Colo. App.

1998), and Agee v. Trustees of the Pension Board of the Cunningham

Fire Protection District, 33 Colo. App. 268, 518 P.2d 310 (1974), to

support his contention that the Board must find that a firefighter

has undertaken “physical involvement with firefighting” to conclude

he or she is directly involved with the provision of fire protection.

We are not persuaded.

¶ 24 The Act defines the term “member” as “an active employee who

is a full-time salaried employee of a . . . fire protection district . . .

and whose duties are directly involved with the provision of . . . fire

protection.” § 31-31-102(4). The Act does not define the phrase

“directly involved with the provision of . . . fire protection.” See

§ 31-31-102 (definitions); § 31-31-801 (same). However, that

phrase appears in several other sections of the Act. See § 31-31-

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 704, C.R.S. 2016 (allowing employers who cover members directly

involved with the provision of such services under Social Security to

affiliate with the FPPA); § 31-31-704.5, C.R.S. 2016 (same as

section 31-31-704 except with respect to a social security

supplemental plan as described in section 31-31-704.6, C.R.S.

2016); § 31-31-708, C.R.S. 2016 (same as sections 31-31-704 and

31-31-704.5 except it allows affiliation by county sheriffs). In each

occurrence, the member’s duties in directly providing fire protection

services must be “certified.”

¶ 25 Section 31-31-806 warns that a member is disqualified from

receiving disability benefits when he or she is re-employed in a full-

time salaried position, “the duties of which are directly involved

with the provision of . . . fire protection as determined by the board.”

(Emphasis added.) The Act clearly requires that in each instance

where a member is purportedly directly involved with providing fire

protection services, whether he or she is directly involved with

providing those services is a fact that must be certified or

determined by the Board. In other words, it is a question reserved

to third-party evaluation.

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¶ 26 Here, the Board adopted the hearing officer’s conclusions of

fact and law that Dolan’s duties as Elk Creek fire chief directly

involved fire protection. The employment contract between Dolan

and Elk Creek required him to “be responsible for . . . directing the

operation and maintenance of all aspects of the Emergency Services

provided by the District; [and] carrying out all statutory duties

imposed upon the Fire Chief by the Special District Act or any other

Federal, State or local law or ordinance.” It also stated he “is not

required to perform firefighting or emergency medical duties, but

shall, at his discretion, act in a command position at emergency

incidents as needed and as determined by [him].” Because Dolan

acted in a command capacity at the scenes of fires and accidents,

the hearing officer concluded it was not necessary to find that he

was involved in “hands on” firefighting or medical care to conclude

that his position was directly involved with the provision of fire

protection. We conclude this interpretation is reasonable.

¶ 27 Nothing in the Act suggests the phrase “directly involved with

the provision of . . . fire protection” is restricted to physically

fighting fires, as Dolan advocates. In fact, the General Assembly

has excluded firefighters who can physically fight fires from

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 disability benefits. § 31-31-805 (change in disability status). Were

we to accept Dolan’s interpretation of section 31-31-806, section

31-31-805 would be duplicative. We avoid construing a statute in a

way that would render any of its words superfluous. Sooper Credit

Union v. Sholar Grp. Architects, P.C., 113 P.3d 768, 771 (Colo.

2005).1

¶ 28 Dolan’s reliance on Kilbourn and Agee is misplaced. Kilbourn

addressed the retroactivity of section 31-31-806. 971 P.2d at 286-

87. Section 31-31-806 was added to the Act after the plaintiff (a

police officer) was awarded an occupational disability pension. Id.

at 286. The Kilbourn division concluded that section 31-31-806

1 We also note that Dolan’s position as fire chief was full-time and
that it entitled him to enroll in the FPPA’s death and disability
benefits plan. A review of the legislative history of section 31-31-
806, C.R.S. 2016, reveals that the pertinent language was added to
the statute in 1993. Prior to that time, the statute disqualified a
member from disability benefits when that member was re-
employed “in a position which qualifies the person as a member.”
§ 31-30-1007(3.5), C.R.S. 1992. Thus, it appears to us that the
General Assembly intended to exclude a member from receiving
disability benefits when that member was re-employed in a position
that qualified him or her for death and disability benefits under the
Act. Here, the record establishes that the person employed in the
fire chief position Dolan accepted was eligible for death and
disability benefits and that either Dolan or Elk Creek, or both,
intentionally did not enroll Dolan in that program.

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 was retroactive and, therefore, applied to the plaintiff who had

returned to work as a deputy sheriff — the essential nature of that

job “involv[ing] the provision of police protection.” Id. at 287.

Nothing in Kilbourn suggests, as Dolan argues, that the goal of

section 31-31-806 is to determine whether a member is able to “be

restored to active service.” Indeed, that language comes directly

from section 31-31-805(2)(a) and is not applicable to section 31-31-

806.

¶ 29 Nor is Agee helpful to Dolan’s position. Agee interprets the

term “active service” as it was used in a prior version of the Act. 33

Colo. App. at 271, 518 P.2d at 303. The division concluded that

membership on the board of directors of a fire protection district did

not constitute “active service” entitling the directors to a pension.

Id. at 272, 518 P.2d at 304. The division held that the official

duties of the board were solely administrative and that the

pension’s “active service” requirement “appl[ied] only to those

actively involved in firefighting.” Id. at 271, 518 P.2d at 303. Agee

does not address whether the duties of a fire chief are considered

duties directly involved with the provision of fire protection.

However, the opinion does support an argument that “attend[ing] a

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 fire []or participat[ing] in training sessions” constitutes active

service. Id. at 272, 518 P.2d at 303. The duties Dolan undertook

as Elk Creek fire chief included both attending fires and

participating in training sessions. As a result, in our view, any

conclusion to be drawn from Agee does not support Dolan.

¶ 30 Because nothing in the Act suggests that re-employment at a

position “directly involved with the provision of . . . fire protection”

must be limited to “physically fighting fires,” we conclude the

district court and the Board did not misapply the law in

determining Dolan was no longer eligible for disability benefits after

re-employment at Elk Creek.

2. Did the Board Rely Upon Competent Evidence to Determine
Dolan Was Directly Involved With the Provision of Fire
Protection?

¶ 31 In a related argument, Dolan contends that the Board did not

consider competent evidence in determining his position as fire

chief directly involved the provision of fire protection. We reject this

contention.

¶ 32 We note that “[e]valuating witness credibility and the probative

value and weight of the evidence are solely within the fact-finding

province of the agency.” Colo. Dep’t of Revenue v. Astro Imports,

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 Inc., 2016 COA 25, ¶ 8. Thus, Dolan’s argument that the NFIRS

reports are incompetent evidence because they are inaccurate

presents a question of probative value and weight left to the

discretion of the Board.

¶ 33 Dolan argues that the FPPA did not present any witness who

had first-hand knowledge of what actions he took at fire and

emergency scenes. However, Dolan introduced nine witnesses who

testified they had been with Dolan at emergency scenes, and several

testified that Dolan acted in command at those scenes. And

Dolan’s employment contract with Elk Creek established his duties

as fire chief and included the ability, at his discretion, to take

command of emergency incidents.

¶ 34 We conclude sufficient record evidence exists to support the

Board’s determination that Dolan’s employment as Elk Creek fire

chief was employment “the duties of which are directly involved

with the provision of . . . fire protection.” And because competent

evidence supports the Board’s decision, we are compelled to affirm

it. C.R.C.P. 106(a)(4); Ross, 713 P.2d at 1309.

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 III. Motion to Amend Complaint

¶ 35 Dolan asserts the district court erred in denying his motion to

amend his complaint to add a 42 U.S.C. § 1983 (2012) claim for

violation of his right to procedural due process. We disagree.

¶ 36 Dolan sought leave to amend his complaint on August 30,

2013, approximately one year after he filed his initial complaint,

seven months after the district court initially found in favor of the

FPPA, and four months after the district court finalized its C.R.C.P.

106 order. Dolan argued the amendment was appropriate because

no substantial discovery had taken place and no trial date had been

set. In the proposed amended complaint, Dolan alleged a “violation

of [his] procedural due process rights” based on the FPPA’s failure

to give him “any opportunity to respond or raise affirmative

defenses to the [Chief Benefit Officer’s] Notice of Determination prior

to the close of evidence at the administrative hearing.” Thus, Dolan

contended “the FPPA Rules deprived [him] of a meaningful hearing

regarding the termination of his disability benefits in violation of the

Fourteenth Amendment to the United States Constitution and

Article II, Section 25 of the Constitution of the State of Colorado.”

¶ 37 The district court denied Dolan’s request, concluding:

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 The Court does not hold that [Dolan] may not
have a viable due process claim regarding the
Rules governing the FPPA’s hearing process
and/or the Board’s discretion in exercising
those Rules, but does hold that any such claim
should have been raised in a timely manner
under Rule 106[a](4). The Court provided
[Dolan] with ample opportunity to raise and
address all issues regarding the process
provided to [him] during the hearings on his
disability claim before the Board, and only
now, almost four (4) months after the Court’s
final Order regarding these Rules 106 issues,
does [Dolan] raise this claim for the first time.

Based on this analysis, the Court DENIES
[Dolan’s] Motion to add his Sixth Claim for
Relief regarding due process deficiencies
during the FPPA Board hearings as untimely.

¶ 38 “Under well-established law, leave to amend is a discretionary

matter which is left to the trial court to determine.” Polk v. Denver

Dist. Court, 849 P.2d 23, 25 (Colo. 1993). Thus, we will only reverse

a court’s decision to deny a motion to amend for an abuse of that

discretion. Id. Under C.R.C.P. 15, “[a] trial court may properly

deny leave to amend a complaint late in litigation if the proponent

fails to show that the delay is justified.” Krupp v. Breckenridge

Sanitation Dist., 1 P.3d 178, 184 (Colo. App. 1999), aff’d, 19 P.3d

687 (Colo. 2001).

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¶ 39 A facial challenge to the constitutionality of a regulation is a

matter for declaratory judgment and is subject to review under

C.R.C.P. 57. Tri-State Generation & Transmission Co. v. City of

Thornton, 647 P.2d 670, 676 n.7 (Colo. 1982); accord Kruse v. Town

of Castle Rock, 192 P.3d 591, 598 (Colo. App. 2008).

¶ 40 An as-applied challenge to the constitutionality of a regulation

is cognizable under C.R.C.P. 106(a)(4) and must be brought within

the time limits of C.R.C.P. 106(b). Tri-State, 647 P.2d at 676 n.7;

see Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541, 543 (Colo.

1990).

¶ 41 “It is generally presumed that administrative rules and

regulations comport with constitutional standards and the burden

is upon the party attacking such provisions to establish their

invalidity beyond a reasonable doubt.” Sears v. Romer, 928 P.2d

745, 751 (Colo. App. 1996).

¶ 42 On appeal, Dolan argues his amended complaint presented a

facial challenge to the FPPA regulations. However, his complaint

and attached motion do not clearly express a facial challenge.

Dolan sought “an order determining the FPPA violated [his]

procedural due process rights,” and his complaint and motion

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 repeatedly refer to actions taken by the FPPA against him. “A

constitutional challenge to an ordinance as applied is concerned

with the application of a general rule or policy ‘to specific

individuals, interests, or situations’ and is generally a quasi-judicial

act subject only to C.R.C.P. 106(a)(4) review.” Tri-State, 647 P.2d at

676 n.7 (quoting Snyder v. City of Lakewood, 189 Colo. 421, 427,

542 P.2d 371, 376 (1975)). Because Dolan presented the district

court with an as-applied challenge to the FPPA regulations, the

court correctly determined that claim was time barred by C.R.C.P.

106(b).

¶ 43 Even if we were to accept Dolan’s position that his claim

presented a facial challenge to the FPPA regulations, the court’s

denial of his claim was not error because Dolan failed to show that

his delay in bringing the claim was justified. As noted by the court,

Dolan had ample opportunity to raise this claim during earlier

proceedings, and he presented the argument for the first time

months after the court denied his request for relief from the Board’s

determination. Dolan offers no reason for his substantial delay in

amending the complaint since the information giving rise to his

claim was evident to him prior to the Board issuing its final

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 decision. See Krupp, 1 P.3d at 185. Accordingly, we conclude the

district court did not abuse its discretion in denying Dolan’s request

as untimely.

IV. Conclusion

¶ 44 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE NAVARRO concur.

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