Opinion
No. 76-439
Decided June 16, 1977. Rehearing denied June 30, 1977. Certiorari denied September 26, 1977.
In action by policeman suspended but later reinstated to recover back pay and fringe benefits, trial court awarded difference between amount policeman would have earned as policeman and amount he did earn at other work during the suspension, and denied award of other benefits. Policeman appealed.
Affirmed as Modified
1. CIVIL SERVICE — Policemen — Denver Police Department — "Employees" — Not "Officers." Since policemen in the classified service of the Denver Police Department have their salaries established by ordinance, they are "employees" of the city rather than "officers."
2. Denver Policeman — Suspended — Reinstated — Charter Provisions — Purpose — Protection — Financial Loss — Not Permit — Unjust Enrichment. Provisions of the Denver City Charter providing that policeman who is restored to active service after a period of suspension shall receive full pay for the entire period of such suspension is a provision intended to do no more than protect such a policeman from financial loss of salary should he later be restored to active duty, that is, the policeman is to be protected from a financial loss and made whole, but is not to be unjustly enriched.
3. Denver Policeman — Suspended — Restored — Active Duty — Entitled — Monetary Award — Hospital and Medical Benefits. Where Denver policeman after a period of suspension was restored to active duty, he was entitled to receive monetary award for the hospital and medical benefits he had lost during the period of suspension.
4. Denver Policeman — Suspended — Restored — Active Duty — Not Entitled — Holiday Compensation. Since Denver policeman who was suspended and later restored to active duty did not work on the various holidays during his period of suspension, he is not entitled to receive additional compensation for those days.
5. Denver Policeman — Period of Suspension — Not Entitled — Firearms and Uniform Expense. Since Denver policeman during period of suspension incurred no expenses for firearms and uniforms, he was not entitled to receive the equipment allowance benefits for those items for that period of suspension.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
A. A. Lee Hegner, for plaintiff-appellant.
Max P. Zall, City Attorney, Robert D. Dowler, Assistant City Attorney, for defendants and third-party plaintiffs-appellees.
Geer Goodwin, P.C., Edward O. Geer, Robert E. Goodwin, for Denver Police Union Local 109, amicus curiae.
Plaintiff, Ted Michael Smith, brought this action to recover salary and benefits allegedly due him for the period he was suspended from active service as a Denver policeman. Following a trial to the court, the court entered judgment for Smith for the amount of salary he would have received if not suspended, less the amount earned by Smith from other sources during his suspension. Smith appeals, alleging that the trial court failed to award him certain benefits, and that the court erred in allowing the setoff.
The facts are not disputed. On January 19, 1972, Smith was suspended, without pay, from active service as a Denver policeman. The suspension was instituted under the provisions of the Denver City Charter, Sec. C5.73-5 (City Charter), pending the outcome of a criminal case in which Smith was charged with a felony. The charge was subsequently dismissed, and on January 16, 1975, Smith was reinstated to the Classified Service of the Denver Police Department.
Thereafter, pursuant to Sec. C5.73-5 of the City Charter, Smith instituted this suit to recover the salary and benefits he would have received but for his suspension. In its judgment, the trial court held that although plaintiff was entitled to gross pay (less applicable deductions) for the period of his suspension, the City was entitled to deduct therefrom an amount equal to all earnings from the outside sources paid to Smith during the period.
The following specific findings were made by the trial court: That pursuant to Sec. C5.46 et seq. and Sec. C5.17 of the City Charter, Smith was an "employee" rather than an "officer" of the City of Denver at the time of his suspension and at the time of his reinstatement; that Smith had a duty during his indefinite suspension to seek other employment and mitigate his loss of salary; and that the City had a right to set off all earnings Smith received or should have received from other employment during his suspension. Further, interpreting Sec. C5.73-5 of the City Charter, which provides that suspended policemen who are restored to service "shall receive full pay for the entire period of such suspension and [the policeman's] eligibility for other benefits of the service shall not be deemed to have been interrupted by such suspension . . . ," the trial court ruled that reinstated policemen were to be protected from financial loss, i.e., full pay less setoff, and that the section was not intented to allow reinstated policemen to receive benefits such as equipment allowance, holiday pay, and hospital-medical benefits, for to do so would constitute unjust enrichment.
On this appeal, Smith asserts that under the City Charter he is an "officer" rather than an "employee." He argues that as such, he is entitled to the emoluments of his office, including full back pay and benefits, and that the City is not entitled to set off the outside compensation he received during the period of his suspension.
The initial question presented is whether policemen in Denver are "officers" or "employees" of the City, and that question must be resolved by consulting Colo. Const. Art. XX, and the City Charter. McNichols v. People, 95 Colo. 235, 35 P.2d 863 (1934). Article XX, Sec. 2, of the Colorado Constitution provides, in part, that "if any officer of said city and county of Denver shall receive any compensation whatever, he or she shall receive the same as a stated salary, the amount of which shall be fixed by the charter, or, in the case of officers not in the classified civil service, by ordinance within limits fixed by the charter . . . ." Section C5.17 of the City Charter provides that: "All persons in the employ of the City and County of Denver . . . whose salaries or compensation are not fixed in this Charter are hereby declared to be employees . . . ." Accordingly, the determination of whether policemen in the Classified Service of the Denver Police Department are "officers" or "employees" is dependent upon whether their compensation is fixed by charter or by ordinance.
On October 26, 1971, the City Charter was amended by adopting, among other sections, Secs. C5.46 through C5.46-2(1) and C5.47-2. Section C5.46-2 provides that the Classified Service of the Police Department is to consist of various classifications of policemen and policewomen, and that those personnel are to receive the salary listed therein "except as hereinafter provided . . . ." The following section, C5.46-2(1) states: "After January 1, 1972, and within sixty (60) days thereafter, salaries and fringe benefits for the Policemen and Policewomen in the Classified Service shall be established by ordinance." Further, the procedure to be followed by the City Council in adopting such ordinances is set forth in Sec. C5.46 and C5.46-1 of the City Charter. The Council's authority is, however, limited by C5.47-2, which provides that no ordinance shall be passed which reduces the salaries of policemen below the salaries set forth in C5.46-2.
[1] Taken in conjunction, the above-outlined Charter sections provide that the salaries of policemen are to be established by ordinance, but that such salaries cannot be reduced below a certain level. Though C5.46-2 sets forth the minimum annual salaries which policemen will receive, that section does not "fix" the salaries of policemen, but merely establishes a minimum level of compensation. See Stohl v. Horstmann, 64 Cal. App. 2d 316, 148 P.2d 697 (1944). Accordingly, since policemen in the Classified Service of the Denver Police Department have their salaries established by ordinance, they are "employees" of the City rather than "officers." Section C5.17 of City Charter; McNichols v. People, supra.
Plaintiff and amicus curiae, Denver Police Union Local 109, argue that reasoning as we do would lead to the absurd conclusion that the mayor and other elected and appointed "officials" likewise must be deemed "employees," since their compensation also is now set by ordinance. See Sec. C5.19 through Sec. C5.19-2(1), City Charter. However, this argument fails to consider Colo. Const. Art. XX, Sec. 2, which specifically authorizes the people of Denver to set by ordinance the salaries of "officials" who are not in the classified service, so long as the procedure for doing so is outlined in the City Charter. Since the constitutional requirements regarding the procedure for establishing the compensation for such nonclassified officers as the mayor are met by the City Charter, see Sec. C5.19-1 through Sec. C5.19-2(1), plaintiff's argument is without merit. The other theories as to the "official" status of policemen are equally unconvincing, and we need not discuss them.
The conclusion that Smith is an "employee" necessarily validates the setoff designated by the trial court. See Corfman v. McDevitt, 111 Colo. 437, 142 P.2d 383 (1943); See also Thompson v. Denver, 61 Colo. 470, 158 P. 309 (1916); City of Denver v. Burnett, 9 Colo. App. 531, 49 P. 378 (1897).
However, while agreeing that ordinarily "employees" are required to mitigate their damages, thus permitting the state or municipality to set off wages earned from other sources, Smith points to Sec. C5.73-5 of the City Charter, which provides that upon restoration to active service policemen "shall receive full pay for the entire period of such suspension . . . ," and argues that "full pay" means just that — "the entirety of wages accruing . . . during . . . suspension." This position is not well taken.
[2] We agree with the trial court that Charter Sec. C5.73-5 was intended to do no more than protect policemen from financial loss of salary should they later be restored to active duty. Following reinstatement, the policeman is to be protected from financial loss and thus made "whole," but is not to be unjustly enriched. In construing a similar provision, the Supreme Court of Pennsylvania stated in Vega v. Borough of Burgettstown, 394 Pa. 406, 147 A.2d 620 (1958):
"The general design and purpose of the law is to be kept in view, and the statute should be construed with reference to the object it seeks to attain . . . . The Act . . . was intended to provide security to an employee who had achieved civil service status, in the tenure of his service and to prevent loss in income when . . . discharged. That is all that is implied in the provision for reinstatement 'with full pay.' "
See also Police Commissioner v. Ciccolo, 254 N.E.2d 429 (S. Ct. Mass. 1969); State ex rel. Klinger v. Baird, 56 Wis.2d 460, 202 N.W.2d 31 (1972); Kelly v. Chicago Park District, 409 Ill. 91, 98 N.E.2d 738 (1951). Accordingly, we hold that the trial court correctly permitted the City to set off Smith's outside earnings during the period of his suspension.
Plaintiff's final contention is that the court erred in not awarding him certain benefits. Specifically, Smith argues that by virtue of his reinstatement he was entitled to receive a monetary award of hospital-medical benefits, holiday pay, and equipment allowances, for the period of time that he was suspended. His argument is premised on that portion of Charter Sec. C5.73-5 which provides that upon reinstatement to active duty a policeman's "eligibility for other benefits of the service shall not be deemed to have been interrupted by such suspension."
We agree with Smith that the purpose of this provision is place those who have been suspended, and later restored to service, in the same position they would have occupied but for the suspension. Upon reinstatement, they are eligible for all benefits afforded those who were in active duty during the period of their suspension. Thus, if the particular benefits which Smith now seeks were conditioned solely upon being an active member of the police force, Smith was entitled to a like award by virtue of his reinstatement.
[3] Hospital and medical benefits for Denver policemen in the Classified Service are provided for in Sec. C5.41-4 of the City Charter. By its terms, the City is required to "contribute to each member . . . and [sic] amount equal to the amount contributed for other City and County of Denver employees toward the cost of City and County of Denver sponsored hospital-medical benefits." To receive this benefit, all that is required is membership in the Classified Service of the Police Department, and thus, by being reinstated, Smith is entitled to an award of hospital-medical benefits for the period of his suspension. The parties have stipulated that Smith would have received $499 in hospital-medical benefits for the period of his suspension, and accordingly the judgment entered in Smith's favor by the trial court should be modified to reflect this amount.
This holding is in accord with the basic concept of hospital and medical benefits accorded other City employees. The City by ordinance maintains a medical health care insurance program for all employees except, among others, "members of the classified service of the police and fire departments." The money for this program is appropriated by the City and requires no contribution by the employee and is not limited to health care for duty-related disability. Denver Revised Municipal Code Art. 142B. Policemen, on the other hand, "who shall become injured in line of duty shall be provided when necessary with hospitalization, doctors, surgeons, nurses, and medical care." Sec. C5.41, City Charter. No similar provision for policemen exists for non-duty related sickness or injury, and it appears logical to us that Sec. C5.41-4 providing for the City to contribute to each member of the Police Department the same amount the City contributes to other City employees for hospital-medical benefits is designed to equalize these benefits between policemen and other City employees.
Next, Smith contends that he was entitled to holiday pay as provided for in Sec. C5.41-5 of the City Charter. This section, after listing nine "holidays," provides that: "Each member of the Police Department in the Classified Service, employed at the time of each of the above holidays, shall be paid, in addition to regular compensation, an additional day's compensation at his straight time rate." To be eligible for this benefit, Smith must be deemed to have been "employed" on the dates specified, and the question therefore is whether this reinstatement to active duty brings him within the meaning of the term "employed" as used in this section.
The word "employed" is capable of many interpretations, and thus is subject to the limitations and restrictions "arising from its use in connection with other words or from the context . . . in which it appears." Daub v. Maryland Casualty Co., 148 S.W.2d 58 (Mo.App. 1941), writ dismissed as improvidently granted sub. nom. State ex rel. Maryland Casualty Co. v. Hughes, 349 Mo. 1142, 164 S.W.2d 274 (1942); see also Merrill v. United States, 338 F.2d 372 (Ct.Cl. 1964). As used in the above section, the word "employed" may mean either the rendition of actual services on the various days therein specified, or it may mean simply membership on the police force. If given the former construction, Smith, not having worked on the days in question, would not be entitled to receive the benefit. However, if the latter construction is adopted, Smith, being deemed to have been in active service for the period of his suspension by virtue of his reinstatement, would be entitled to receive the benefit.
[4] The section begins by speaking of "each member of the Police Department . . . ," and since to be a member of the Police Department one must necessarily be employed by the City, it follows that the use of the word "employed" in the second clause of the sentence, contemplates the actual rendition of services rather than merely being on the payroll. Compare King v. United States, 32 Ct. Cl. 234 (1897) with United States v. Hoyt, 158 F. 162 (Cir. Ct. E.D. Wash. 1907). Accordingly, we hold that since Smith did not work on the various "holidays" enumerated in Sec. C5.41-5 of the City Charter, he is not entitled to receive additional compensation for those days.
[5] The final benefit claimed by Smith is the equipment allowance provided for in Sec. 5.41-6 of the City Charter. Under this section, all members of the Classified Service of the Police Department required to wear firearms, are given an annual allowance for equipment at the end of each calendar year. As pertinent here, the allowance goes to "each qualified member who has served during the year." To be entitled to receive the benefit one must have served "during the year," i.e., throughout the course of the year. See Ellis v. Fraternal Aid Union, 108 Kan. 819, 197 P. 189 (1921); Richardson v. City of Seattle, 97 Wash. 521, 166 P. 1131 (1917). Smith, not having served during the time of his suspension, and having incurred no expenses for firearms or uniforms, is thus not entitled to receive the equipment allowance benefits. See also Denver Revised Municipal Code, Art. 201.1 and 201.2.
Judgment modified to include hospital-medical benefits and, as modified, affirmed, and cause remanded for further proceedings consonant herewith.
JUDGE PIERCE and JUDGE STERNBERG concur.