Opinion
No. 79CA0313
Decided September 6, 1979. Rehearing denied October 4, 1979. Certiorari granted December 17, 1979.
Former city employee brought action seeking review of the City Career Services Board's decision dismissing him from his employment. District court affirmed the dismissal, and employee appealed.
Affirmed in Part, Reversed in Part.
1. CIVIL SERVICE — City Career Services Board — Required — Consider — Private Sector Standards — Dismissed — Record — Not Indicate Otherwise — Dismissal of Employee — Proper. Where city's career service rules required only that, relative to dismissal of city employee, it consider the standards existing for dismissal in the private sector, and where there is nothing in the record indicating that the board did not consider these standards, the board did not act beyond its authority in dismissing the employee for reporting to work intoxicated, for failing to perform his assigned duties, and for striking his supervisor.
2. Cross-Examination — Witness — Dismissal Proceeding — Within Discretion. In a proceeding concerning dismissal of city employee, the scope of cross-examination of a witness before the City Career Services Board is a matter within the discretion of the board.
3. COSTS — Action to Review — Dismissal of City Employee — Under C.R.C.P. 106(a)(4) — Not Dismissed — Under C.R.C.P. 41 — Recovery of Costs — Not Permitted. Where action to review dismissal of city employee was brought under C.R.C.P. 106(a)(4) and was not dismissed under C.R.C.P. 41, the city career services board was not entitled to recover its costs from the dismissed employee.
Appeal from the District Court of the City and County of Denver, Honorable Robert P. Fullerton, Judge.
Willard B. Rogers, Jr., for plaintiff-appellant.
Max P. Zall, City Attorney, Brian H. Goral, Assistant City Attorney, David L. Dickinson, Assistant City Attorney, for defendants-appellees.
Plaintiff brought this C.R.C.P. 106(a)(4) action in the district court, seeking review of the Denver Career Service Board's decision dismissing him from his employment with the City and County of Denver. The district court affirmed the Board's decision, and also assessed costs against plaintiff. We affirm the district court with respect to plaintiff's dismissal, but reverse its assessment of costs.
There was ample evidence supporting the Board's finding that on May 27, 1977, plaintiff reported to work intoxicated, failed to perform his assigned duties, and struck his supervisor when confronted about his behavior. Nevertheless, citing Denver Career Service Rules § 10-73(a), plaintiff argues that the Board acted beyond its authority in dismissing him without first considering standards for dismissal used in the private sector. Specifically, plaintiff sought to introduce various labor law decisions indicating that intoxication alone might not be a sufficient ground for discharge.
[1,2] Section 10-73(a) of the Career Service Rules does not require a hiring authority to make findings as to dismissal standards in the private sector. It only requires that it consider such standards. There is nothing in the record indicating that the Board, in the exercise of its administrative expertise, did not consider these standards. See Edwards v. Department of Revenue, 42 Colo. App. 52, 592 P.2d 1345 (1978). And, in any event, plaintiff's discharge was not premised solely on intoxication.
We also reject plaintiff's argument that the Board erred in limiting the cross-examination of plaintiff's supervisor. The scope of such examination is a matter for the Board, and we cannot say it exceeded its authority or abused its discretion in this regard. See Carsell v. Edwards, 165 Colo. 335, 439 P.2d 33 (1968).
The balance of plaintiff's arguments with respect to the Board's order of dismissal are also without merit. However, we agree with plaintiff that the district court erred in granting the Board's motion for costs.
[3] Contrary to the Board's contention, § 13-16-105, C.R.S. 1973, which in general allows costs to be recovered by a defendant, is not applicable here. Rather, § 13-16-111, C.R.S. 1973, is specifically applicable to this type of action and is thus controlling. See Air Pollution Control Commission v. District Court, 193 Colo. 146, 563 P.2d 351 (1977). It reads as follows:
"A plaintiff who obtains judgment or an award of execution in an action brought under subsection (4) or (5) of rule 106(a), C.R.C.P., shall recover his costs of suit. The defendant shall recover his costs if the action brought under subsection (4) or (5) of rule 106(a), C.R.C.P., is dismissed pursuant to Rule 41, C.R.C.P." (emphasis added)
Since this action was brought under C.R.C.P. 106(a)(4), and was not dismissed under C.R.C.P. 41, the Board was not entitled to recover costs.
That portion of the judgment assessing costs against plaintiff is therefore reversed. The balance of the judgment is affirmed.
JUDGE RULAND and JUDGE BERMAN concur.