Colorado § 30-10-506 - Deputies.

§ 30-10-506. Deputies.

Each sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will; except that a sheriff shall adopt personnel policies, including policies for the review of revocation of appointments. Before revoking an appointment of a deputy, the sheriff shall notify the deputy of the reason for the proposed revocation and shall give the deputy an opportunity to be heard by the sheriff. Persons may also be deputized by the sheriff or undersheriff in writing to do particular acts.

Source: G.L. § 493. G.S. § 597. R.S. 08: § 1277. C.L. § 8752. CSA: C. 45, § 99. CRS 53: § 35-5-5. C.R.S. 1963: § 35-5-5. L. 2006: Entire section amended, p. 133, § 1, effective August 7.

ANNOTATION

I. General Consideration.

II. Appointment of Deputies.

III. Liability of Sheriff.

I. GENERAL CONSIDERATION.

Law reviews. For article, "One Year Review of Torts", see 40 Den. L. Ctr. J. 160 (1963).

This section's notice and hearing requirements are procedural details that do not create a protected property interest for the purposes of the fourteenth amendment. Coates v. Adams County Sheriff's Office, 631 F. Supp. 3d 976 (D. Colo. 2022).

Sheriff's authority over deputies. This section and § 30-2-106 indicate that the general assembly intended to grant the sheriff exclusive power to appoint deputies and to fix their salaries, subject to the board of county commissioners' approval. Tihonovich v. Williams, 191 Colo. 144, 582 P.2d 1051 (1978).

The sheriff, not the county or the board of county commissioners, has the right of control with respect to deputies. Tunget v. Bd. of County Comm'rs, 992 P.2d 650 (Colo. App. 2000); Bristol v. Bd. of County Comm'rs of Clear Creek, 312 F.3d 1213 (10th Cir. 2002).

Statute supersedes manual. An employee may not insist upon adherence to county or departmental policies and procedures regarding termination when this section specifically provides that the employee serves only at the will of an elected official. Therefore, a policy manual did not preclude a sheriff from exercising his statutory prerogative to terminate an employee. Seeley v. Bd. of County Comm'rs, 771 P.2d 21 (Colo. App. 1989), aff'd, 791 P.2d 696 (Colo. 1990) (decided under law in effect prior to 2006 amendment) (but see Cummings v. Arapahoe County Sheriff's Dept., 2018 COA 136, 440 P.3d 1166, annotated below); Jackson v. Johns, 714 F. Supp. 1126 (D. Colo. 1989).

Responsibility of sheriffs. Because this section makes sheriffs responsible for the official acts of their deputies and undersheriffs, it is consistent that it grants authority to the sheriffs to dismiss deputy sheriffs at their pleasure. Therefore, a sheriff cannot limit his power to terminate deputy sheriffs because that would forbid something the state expressly authorized. Seeley v. Bd. of County Comm'rs, 791 P.2d 696 (Colo. 1990) (decided under law in effect prior to 2006 amendment) (but see Cummings v. Arapahoe County Sheriff's Dept., 2018 COA 136, 440 P.3d 1166, annotated below).

Applied in Bailey v. Clausen, 192 Colo. 297, 557 P.2d 1207 (1976).

II. APPOINTMENT OF DEPUTIES.

This section provides that sheriffs may appoint deputies and revoke the appointment at their pleasure. City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961).

But it is not an unrestricted right. The fact that this section makes the sheriff liable for the acts of his deputies does not guarantee the unrestricted right to hire or discharge his employees without regard to the merit system of the city and county of Denver. City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961).

Before terminating a deputy, the sheriff must "notify the deputy of the reason for the proposed revocation" and "give the deputy an opportunity to be heard by the sheriff". Cummings v. Arapahoe County Sheriff's Dept., 2018 COA 136, 440 P.3d 1166.

The sheriff must also adopt policies "for the review of revocation of appointments". These policies may grant rights to deputies beyond those specified in statute, but these policies need not be binding. Cummings v. Arapahoe County Sheriff's Dept., 2018 COA 136, 440 P.3d 1166.

This section contains no restrictions on a new sheriff's ability to issue new employment policies so long as deputies are given notice and an opportunity to be heard. Coates v. Adams County Sheriff's Office, 631 F. Supp. 3d 976 (D. Colo. 2022).

A personnel policy requiring notice of an investigation did not effectuate the specific notice right granted by this section and was not binding. Therefore, a violation of the policy could not form the basis of a breach of implied contract claim under this section. Cummings v. Arapahoe County Sheriff's Office, 2021 COA 122, 500 P.3d 1140.

Sheriff acts under color of state law when he suspends deputy in reliance upon this section. Lontine v. VanCleave, 483 F.2d 966 (10th Cir. 1973).

Methods of concern to people. Because the office of sheriff is a county office and not a state office, the method of selection and tenure of the officer designated to carry out the duties of the position became the concern of the people of Denver by authority expressly granted to them by all of the people of the state under art. XX, Colo. Const., and this is true even though those officers might be required to perform duties which were of statewide concern such as the duties imposed by constitution upon the county clerk and recorder, county sheriff, treasurer or assessor. City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961).

Appointment and removal upon merit and fitness in Denver. The people of Denver, acting under the powers given them by art. XX, Colo. Const., have so changed the method of appointment and removal of deputies by sheriffs so that in Denver the appointment and removal of such deputies is upon merit and fitness to perform the work. City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961).

The career service amendment to the charter of the city and county of Denver encompasses within its scope the positions of deputy sheriffs and jailers. City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961).

Sheriffs and jailers employees in Denver. Since in the city and county of Denver, the salaries of deputy sheriffs and jailers are not set by the charter they are therefore, by charter definition, employees. City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961).

Sheriff must comply with home rule charter of Weld County in appointing and dismissing deputies where deputy sheriffs are subject to county personnel system as set forth in county policy manual. Bd. of County Comm'rs v. Andrews, 687 P.2d 457 (Colo. App. 1984).

Deputy could not be suspended for joining police union. Although a deputy sheriff may not have had a right, per se, to continued public employment under applicable Colorado law as a sheriff's deputy, and may not have been entitled to any form of notice or hearing either under the State Administrative Procedure Act, or under constitutional principles, he could not be suspended or dismissed for joining a police officers' union. Lontine v. VanCleave, 483 F.2d 966 (10th Cir. 1973).

III. LIABILITY OF SHERIFF.

Under this section a sheriff is liable only for the official acts of his deputies. McCartney v. Forster, 150 Colo. 537, 374 P.2d 704 (1962).

Also, by this section sheriffs are made liable for the torts of their deputies. City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961); Seeley v. Bd. of County Comm'rs, 791 P.2d 696 (Colo. 1990); Tunget v. Bd. of County Comm'rs, 992 P.2d 650 (Colo. App. 1999); Peterson v. Arapahoe County Sheriff, 72 P.3d 440 (Colo. App. 2003).

Board of county commissioners cannot be held liable for actions of a sheriff's deputy under the doctrine of respondeat superior. Tunget v. Bd. of County Comm'rs, 992 P.2d 650 (Colo. App. 1999).

This section does not afford a basis for holding a sheriff liable, on a respondeat superior theory, for the willful and wanton conduct of a deputy in circumstances in which sovereign immunity has not been waived. Carothers v. Archuleta County Sheriff, 159 P.3d 647 (Colo. App. 2006).

If the arrest of the prisoner was not a lawful one, if made under a void warrant, or without a warrant in a case where a warrant is required, or if not made in such circumstances as justify the arrest without warrant, the officer was not acting in his official capacity, either by virtue of, or under color of, office. Johnson v. Enlow, 132 Colo. 101, 286 P.2d 630 (1955).

Where the acts of a public officer are done without any legal process, or authority of law, they are not his official acts, but merely his private or personal acts, for which his sureties are not liable. Johnson v. Enlow, 132 Colo. 101, 286 P.2d 630 (1955).

Where an alleged wrongful taking of property by a deputy was not in performance of any official duty as deputy sheriff, the sheriff was not liable. McCartney v. Foster, 150 Colo. 537, 374 P.2d 704 (1962).

In an action for damages for death of realtor's son while confined in jail, and caused, as alleged, by conduct of the officials in charge thereof, complaint was considered and held not vulnerable to a general demurrer, and the trial court's ruling in sustaining the demurrer and dismissing the case was reversed. People ex rel. Coover v. Gunther, 105 Colo. 37, 94 P.2d 699 (1939).