SUMMARY 

September 6, 2018 

2018COA136

No. 18CA0499 Arapahoe Cty Sheriff v Cummings — 

Government — County Officers — Sheriff — Deputies 

The division holds that a 2006 amendment to section 30-10-

506, C.R.S. 2017, preserves, to a large extent, the doctrine of at-will 

employment for deputy sheriffs, but also grants certain due process 

rights to those deputies. 

The division further holds that the statute authorizes sheriffs 

to grant other rights to sheriffs’ deputies, but they are not required 

to do so. 

Finally, the division holds that clear and conspicuous 

disclaimers preclude, as a matter of law, those portions of plaintiff’s 

implied contract claim that are not based on the due process rights 

granted by section 30-10-506. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
COLORADO COURT OF APPEALS 2018COA136

Court of Appeals No. 18CA0499 

Arapahoe County District Court No. 16CV32444 

Honorable Kenneth M. Plotz, Judge 

Michael Cummings, 

Plaintiff-Appellee, 

v. 

Arapahoe County Sheriff’s Department and David C. Walcher, individually and 

in his capacity as Arapahoe County Sheriff, 

Defendants-Appellants. 

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, 

AND CASE REMANDED WITH DIRECTIONS 

Division A 

Opinion by JUDGE BERGER 

Freyre, J., concurs 

Bernard, J., specially concurs 

Announced September 6, 2018 

Mark S. Bove P.C., Mark S. Bove, Denver, Colorado, for Plaintiff-Appellee 

Ronald A. Carl, Arapahoe County Attorney, Daniel C. Perkins, Senior Assistant 

County Attorney, Erin L. Powers, Senior Assistant County Attorney, Littleton, 

Colorado, for Defendants-Appellants 

Hall & Evans, L.L.C., Mark S. Ratner, Denver, Colorado, for Amicus Curiae 

Colorado Counties, Inc. 
1 

I. Introduction and Summary 

¶ 1 This lawsuit pits the Arapahoe County Sheriff (the Sheriff) 

against one of his former deputies, Michael Cummings, whose 

employment was terminated by the Sheriff. Cummings contends 

that the written employment policies promulgated by the Sheriff 

contained in the Sheriff’s employee manual (the Manual) constitute 

an implied contract of employment that the Sheriff breached when 

he fired Cummings. In denying the Sheriff’s summary judgment 

motion, the district court agreed with Cummings. The Sheriff 

brings this interlocutory appeal under C.A.R. 4.2, challenging the 

district court’s denial of summary judgment. 

¶ 2 Resolution of this appeal requires us to construe section 30-10-

506, C.R.S. 2017, which governs the employment relationship 

between Colorado’s elected sheriffs and the deputies they appoint. 

It provides in relevant part as follows: 

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 
2 

proposed revocation and shall give the deputy 

an opportunity to be heard by the sheriff. 

§ 30-10-506. 

¶ 3 In Seeley v. Board of County Commissioners, the Colorado 

Supreme Court authoritatively construed a prior version of this 

statute, holding that sheriffs’ deputies were employees at will and 

that a sheriff “did not possess the statutory authority to limit his 

power to discharge [his deputies] ‘at his pleasure.’” 791 P.2d 696, 

700 (Colo. 1990). 

¶ 4 As was its right, the General Assembly legislatively overruled the 

supreme court’s decision by amending the statute in 2006. 

Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen. 

Assemb., 1st Sess. (Feb. 7, 2006); cf. Gallegos v. Phipps, 779 P.2d 

856, 861 (Colo. 1989) (noting General Assembly’s enactment of 

another statute “for the explicit purpose of” overruling the 

particular case). 

¶ 5 We conclude that the General Assembly legislatively partly 

overruled Seeley because, contrary to Seeley, the General Assembly 

decided to grant certain employment rights to the deputies that are, 

at least in part, inconsistent with the concept of at-will employment 
3 

as it is known in Colorado law.1 Hearings on H.B. 1181 before the 

H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006). 

But we also know from the plain language of the amended statute 

that in other respects, the General Assembly intended to preserve 

the doctrine of at-will employment. 

¶ 6 Considering the plain language of the 2006 amendments, the 

legislative history, and commonly recognized rules of statutory 

construction, we conclude that section 30-10-506 does the 

following: 

 It grants two unwaivable rights to the deputies: the right of 

notification “of the reason for the proposed revocation” of 

their employment, and “an opportunity to be heard by the 

sheriff” before their employment is terminated. 

 It requires each sheriff to “adopt personnel policies, 

including policies for the review of revocation of 

appointments,” but except for the two statutory rights noted 

 

1 Under Colorado law, an “at will employee” is one whose 

“employment may be terminated by either party without cause and 

without notice, and whose termination does not give rise to a cause 

of action.” Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 

1987). 
4 

above, these policies need not be binding and sheriffs may 

reserve their right to depart from such policies in any 

particular case or matter. To that extent, the doctrine of atwill employment is preserved. 

 It permits a sheriff to promulgate binding employment 

policies, and if the sheriff elects to do so, those policies are 

enforceable in accordance with their terms. 

¶ 7 Applying this construction of section 30-10-506 to the facts 

presented in the Sheriff’s summary judgment motion, but also 

considering the dispositive legal effect of clear and conspicuous 

disclaimers of any contractual relationship, we affirm the district 

court’s denial of summary judgment with respect to the specific 

rights granted by section 30-10-506, but otherwise reverse the 

court’s denial of summary judgment on Cummings’ implied contract 

claim. 

II. Relevant Facts and Procedural History 

¶ 8 Cummings was a deputy sheriff in Arapahoe County. The Sheriff 

terminated Cummings’ employment, asserting that he violated 
5 

several of the Manual’s policies and was dishonest in the course of 

the investigation of the original charges against him. 

¶ 9 After exhausting his remedies within the Sheriff’s department, 

Cummings sued, asserting two claims for relief: wrongful discharge 

in violation of public policy and breach of an implied contract of 

employment based on the employment policies contained in the 

Manual. 

¶ 10 Cummings contends that while the Sheriff informed him of the 

reasons for the initial investigation into his conduct, the Sheriff did 

not provide him with notice of the charges that eventually led to his 

termination. He also contends that the Sheriff denied him an 

adequate opportunity to defend himself by not following the 

procedural policies of the Manual during the disciplinary process. 

¶ 11 The Sheriff moved to dismiss the wrongful termination claim 

under C.R.C.P. 12(b)(1) based on governmental immunity. The 

district court held a Trinity hearing on the wrongful discharge in 

violation of public policy claim and dismissed that claim with 
6 

prejudice.2 See Trinity Broad. of Denver v. City of Westminster, 848 

P.2d 916 (Colo. 1993). 

¶ 12 After the district court denied the Sheriff’s motion to dismiss the 

implied contract claim for failure to state a claim, the Sheriff moved 

for summary judgment. He contended that the at-will language in 

section 30-10-506 prevented him from promulgating binding 

personnel policies; that the disclaimers contained both in the 

Manual itself and in separate, yearly disclaimers signed by 

Cummings precluded as a matter of law any implied contract claim; 

and that, in any event, he had not violated any of the Manual’s 

policies. 

¶ 13 The district court denied the Sheriff’s motion, holding that there 

was an implied contract of employment. The district court reasoned 

that it was illogical to conclude that the General Assembly would at 

once require sheriffs to promulgate employment policies, but then 

authorize sheriffs to wholly ignore them. Thus, the court held that 

all provisions in an employment manual promulgated by a sheriff 

pursuant to section 30-10-506 were binding and formed an implied 

 

2 That claim is not before us on this interlocutory appeal. 
7 

employment contract. As to the disclaimers, the court ruled that 

they were ineffective because they could not countermand the 

statutory requirement that the policies be binding. And, as to the 

Sheriff’s argument that he did not violate any of the policies, the 

court concluded that disputed issues of material fact precluded 

summary judgment. 

¶ 14 Although ordinarily an order denying summary judgment is not a 

final appealable order, the Sheriff petitioned for an interlocutory 

review of the order. Recognizing the internal conflicts within the 

statute, the district court certified its summary judgment order for 

interlocutory appeal under C.A.R. 4.2. Agreeing with the district 

court that the Sheriff met the requirements for an interlocutory 

appeal, and that this is a matter of substantial public concern, we 

granted the petition. 

III. The District Court Correctly Denied The Sheriff’s Motion for 

Summary Judgment With Respect To The Specific Rights 

Granted by Section 30-10-506 

¶ 15 For the same three reasons that he sought summary judgment in 

the district court, the Sheriff contends that the court erred in 

denying his motion for summary judgment. 
8 

A. Standard of Review 

¶ 16 We review a grant (or, when authorized by law, a denial) of 

summary judgment de novo. Geiger v. Am. Standard Ins. Co. of 

Wisc., 192 P.3d 480, 482 (Colo. App. 2008) (holding that we review 

a denial of summary judgment de novo). “Under C.R.C.P. 56(c), 

summary judgment may be granted if there is no genuine contested 

issue of material fact and the moving party is entitled to judgment 

as a matter of law.” Georg v. Metro Fixtures Contractors, Inc., 178 

P.3d 1209, 1212 (Colo. 2008). We grant the nonmoving party the 

benefit of all favorable inferences that may reasonably be drawn 

from the undisputed facts and resolve all doubts against the moving 

party. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 83 

(Colo. 1999). 

B. Rules of Statutory Interpretation 

¶ 17 Resolution of this appeal requires us to determine the meaning of 

section 30-10-506, which is a question of law that we review de 

novo. Wolf Ranch, LLC v. City of Colorado Springs, 220 P.3d 559, 

563 (Colo. 2009). 

¶ 18 In interpreting a statute, we first give the words and phrases of 

the statute their plain and ordinary meanings according to the rules 
9 

of grammar and common usage. § 2-4-101, C.R.S. 2017; Jefferson 

Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 

2010). We consider the words and phrases of the statute both in 

the context of the statute itself and in the context of any 

comprehensive statutory scheme of which the statute is a part. 

Jefferson Cty. Bd. of Equalization, 241 P.3d at 935. By applying 

these principles, we attempt to determine the General Assembly’s 

intended meaning of the words and phrases, and harmonize that 

meaning with the comprehensive statutory scheme. Id. 

¶ 19 If the statutory language is susceptible to only one reasonable 

meaning, we enforce it as written and do not resort to other rules of 

statutory construction. Vaughan v. McMinn, 945 P.2d 404, 408 

(Colo. 1997). However, if a statute is susceptible to more than one 

reasonable meaning, we employ other tools of statutory 

interpretation, including legislative history, to ascertain the General 

Assembly’s intent. People v. Luther, 58 P.3d 1013,1015 (Colo. 

2002). 

C. The Implied Contract Exception to At-Will Employment 

¶ 20 In Colorado, an employee who is hired for an indefinite period is 

presumed to be an at-will employee, but this presumption may be 
10 

rebutted. Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711-12 

(Colo. 1987). 

¶ 21 Policies contained in an employee manual addressing discipline 

or the termination of employment may, under some circumstances, 

serve as the basis for claims of either a breach of implied contract 

or promissory estoppel. Id. These claims may be asserted by both 

private and public employees. Adams Cty. Sch. Dist. No. 50 v. 

Dickey, 791 P.2d 688, 694 (Colo. 1990). 

¶ 22 Employees claiming a breach of an implied contract of 

employment based on an employee manual bear the burden of 

rebutting the presumption of at-will employment. Keenan, 731 

P.2d at 711. To do so, they must demonstrate: 

first, that in promulgating the termination 

procedures the employer was making an offer 

to the employee — that is, the employer 

manifested his willingness to enter into a 

bargain in such a way as to justify the 

employee in understanding that his assent to 

the bargain was invited by the employer and 

that the employee’s assent would conclude the 

bargain, Restatement (Second) of Contracts 

§ 24 (1981) — and second, that his initial or 

continued employment constituted acceptance 

of and consideration for those procedures. 

Id. 
11 

D. Analysis 

1. Binding Personnel Policies May Be Promulgated by the Sheriff 

Under Section 30-10-506 

¶ 23 Relying on Seeley, the Sheriff contends (and the special 

concurrence apparently agrees) that the retention of the at-will 

employment concept in the statute requires us to hold that all

policies promulgated by a sheriff relating to the termination of 

deputy sheriffs’ employment are only precatory. To conclude 

otherwise, according to the Sheriff, would write out of the statute 

the Sheriff’s statutory power to terminate at will the employment of 

a deputy. 

¶ 24 For two reasons, we reject the Sheriff’s interpretation of section 

30-10-506. First, it is inconsistent with the statute’s conferral on 

the deputies of at least two due process rights. Second, based on 

the amended statutory language, we have no doubt that the 

General Assembly legislatively partly overruled Seeley. See 

Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen. 

Assemb., 1st Sess. (Feb. 7, 2006). 

¶ 25 When it amended section 30-10-506, the General Assembly 

combined two contradictory concepts — at-will employment for 
12 

deputies, on the one hand, and the requirement that sheriffs 

provide at least some binding employment rights to their deputies, 

on the other. These inherent contradictions render the statute 

susceptible to at least two reasonable understandings; thus, it is 

ambiguous. People v. Jones, 2015 CO 20, ¶ 10. 

¶ 26 Our job is to rationally construe the statute to give effect to all, 

not just some, of the words of the statute and to recognize the 

legislative intent to overrule Seeley in part. Luther, 58 P.3d at 

1015. 

¶ 27 The statute unambiguously confers two due process rights on the 

deputies: “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.” 

§ 30-10-506. 

¶ 28 But the statute does more. It also requires sheriffs to “adopt 

personnel policies, including policies for the review of revocation of 

appointments.” Id. The statute says nothing about whether any 

employment policies promulgated by sheriffs, beyond notice and a 

right to be heard, must be binding on the sheriff. We agree with the 

Sheriff that a construction of the statute that all such policies are 
13 

binding ignores and essentially writes out the at-will employment 

language. This is what the district court’s construction of the 

statute did, but neither the district court nor this court has that 

authority. Jefferson Cty. Bd. of Equalization, 241 P.3d at 935. 

¶ 29 But, if all of the policies, save the two due process rights 

identified above, were precatory, then the at-will employment 

relationship, though modified somewhat, would be preserved. 

¶ 30 In Seeley, the supreme court held that the prior version of the 

statute simply did not authorize a sheriff to limit his right to fire his 

deputies at will. 791 P.2d at 700. But the amendments to the 

statute overruled that holding, at least in part. Hearings on H.B. 

1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. 

(Feb. 7, 2006). While the statute does confer on the deputies two 

binding due process rights, nothing in the statute expressly 

requires that all policies adopted by the sheriff are binding. 

¶ 31 We reject the district court’s reasoning that it is illogical for the 

General Assembly to require the promulgation of employment 

policies and then permit the sheriff to ignore at least some of those 

policies. As a division of this court observed in Jaynes v. Centura 

Health Corp., precatory employment policies are not useless; they 
14 

may serve as “guidelines” for the employer, managers, and his 

employees. 148 P.3d 241, 249 (Colo. App. 2006). We thus reject 

the district court’s conclusion that only binding employment 

policies are meaningful and that all employment policies 

promulgated by the Sheriff must be binding. 

¶ 32 But that does not mean that the Sheriff is prohibited by section 

30-10-506 from promulgating binding employment policies. 

¶ 33 To summarize, the amended statute requires a sheriff to 

promulgate written employment policies. The sheriff must give his 

deputies the rights of notice and opportunity to be heard. Other 

employment policies promulgated by the sheriff may be, but are not 

required to be, binding. And if the sheriff elects to confer binding 

employment rights on his deputies, those rights are enforceable in 

accordance with their terms. 

¶ 34 In this way, “we give effect to every word and render none 

superfluous because we ‘do not presume that the legislature used 

language idly and with no intent that meaning should be given to 

its language.’” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 

565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v. 
15 

Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597 

(Colo. 2005)). 

¶ 35 Our construction of section 30-10-506 finds support in the 

United States District Court for the District of Colorado’s decision in 

Tonjes v. Park County Sheriff’s Office, the only published case that 

has addressed the 2006 version of section 30-10-506. 300 F. Supp. 

3d 1308 (D. Colo. 2018). 

¶ 36 In Tonjes, as here, a sheriff’s deputy contended that the sheriff 

was bound by the employee manual’s policies, while the sheriff 

argued that section 30-10-506 and the manual’s disclaimer 

precluded the formation of an implied contract of employment. Id. 

at 1319-20. Consistent with our holding, the federal court held 

that because of the 2006 amendments to section 30-10-506, 

sheriffs have “the ability to adopt policies that limit [their] power to 

terminate (demote, discipline, etc.) employees at will.” Id. at 1319. 

2. The Written Disclaimers Preclude an Implied Contract Claim 

as a Matter of Law, Except as to the Due Process Rights 

Conferred by Statute and by Those Terms in the Manual 

¶ 37 The Sheriff next argues that, even if section 30-10-506 permits 

sheriffs to promulgate binding personnel policies, the disclaimers in 

both the Manual and the separate yearly disclaimers signed by 
16 

Cummings preclude, as a matter of law, the formation of an implied 

contract of employment. 

¶ 38 The Manual included the following disclaimer: 

These guidelines do not alter the at-will status 

of employees of the Sheriff. The Sheriff may 

terminate members or revoke deputy 

appointments at will, with or without cause. 

No portion of these guidelines or policies shall 

constitute a contract of employment, either 

express or implied, between the Sheriff and the 

member, or the County and the member, nor 

is it a guarantee of employment for a specific 

term or duration. 

Additionally, once a year, Cummings signed a form that reiterated 

the terms of this disclaimer and stated: 

THE SHERIFF’S OFFICE DETENTION 

DIVISION MANUAL IS NOT INTENDED TO 

BE, NOR DOES IT CONSTITUTE A 

CONTRACT BETWEEN THE ARAPAHOE 

COUNTY SHERIFF AND ANY OF HIS 

EMPLOYEES. ALL ARAPAHOE SHERIFF 

EMPLOYEES ARE AT-WILL EMPLOYEES. All 

Arapahoe County Sheriff employees have the 

right to end their work relationship with 

organization with or without advance notice or 

cause. The Arapahoe County Sheriff has the 

same right to end the relationship.

¶ 39 Whether a contract disclaimer is clear and conspicuous is a 

question of law for the court. Jaynes, 148 P.3d at 248. The 

disclaimers in most of the yearly forms signed by Cummings were 
17 

written in capitalized letters, bolded, and underlined. We need not 

determine whether the disclaimer in the Manual is clear and 

conspicuous, because the disclaimers in the yearly forms 

undoubtedly are clear and conspicuous under Colorado law. Id. 

¶ 40 We next must determine whether these clear and conspicuous 

disclaimers preclude, as a matter of law, Cummings’ implied 

contract claims. Except with respect to the rights expressly granted 

to the deputy sheriffs by statute, we hold that they do. 

a. The Manual’s Notice of Charges and Opportunity to be Heard 

Employment Policies 

¶ 41 In his response to the Sheriff’s summary judgment motion, 

Cummings specifically contended that the Sheriff violated the 

Manual’s policy (and the statutory mandate) requiring that deputies 

receive timely notice of the reason for their proposed termination. 

While Cummings appears to concede that he received timely notice 

of the initial charges against him, he contends that he did not

receive proper, timely notice of the additional charges that actually 

led to his termination. 

¶ 42 As we held above, a deputy’s right to notice and an opportunity 

to be heard are explicitly protected by section 30-10-506. To the 
18 

extent the Manual enforces these statutory rights, the Manual may 

form the basis of an implied contract claim. 

¶ 43 Parties may not contract to abrogate statutory requirements and 

thereby contravene the public policy of this state. Peterman v. State 

Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo. 1998). “A 

contract provision that violates public policy by diluting, 

conditioning or unduly limiting statutory coverage may be declared 

void and unenforceable.” Id. Thus, to the extent the disclaimers 

purport to waive, as a condition of public employment, the deputies’ 

rights to notice and the opportunity to be heard, they contravene 

the express terms of section 30-10-506 and are void as against 

public policy. See id.

¶ 44 Cummings claims that he did not receive the required notice of 

the charges that led to his dismissal, and the Sheriff disputes that 

interpretation of the record. Because the material facts on this 

question are disputed, a trier of fact (in this case a jury) must 

determine whether the Sheriff violated the Manual’s policies 

regarding notice of the charges against Cummings. 
19 

b. Other Policies in the Manual and the Disclaimers 

¶ 45 Many of the policies contained in the Manual are worded in 

mandatory terms. We now address the purported conflict between 

the disclaimers and the mandatory language used in some of the 

policies, other than those that effectuate the due process rights 

conferred by section 30-10-506. 

¶ 46 Several reported Colorado Court of Appeals cases have addressed 

this conflict, but the Colorado Supreme Court has not. 

¶ 47 In Allabashi v. Lincoln National Sales Corp. of Colorado-Wyoming, 

824 P.2d 1, 3 (Colo. App. 1991), although the employee handbook 

contained a disclaimer of any contractual rights, other documents 

provided to Allabashi contained termination procedures and policies 

requiring just cause for termination. Allabashi testified that she 

relied on those policies and procedures. Id. Relying on Cronk v. 

Intermountain Rural Electric Ass’n, 765 P.2d 619 (Colo. App. 1988), 

and distinguishing Ferrera v. Nielsen, 799 P.2d 458 (Colo. App. 

1990), the division held that the trial court did not err in submitting 

the implied contract claim to the jury. Allabashi, 824 P.2d at 3. 

¶ 48 In Cronk, the manual set “forth certain express events which 

might cause the employee to be terminated. In addition, the 
20 

manual state[d] that other reasons, not so expressed, could be 

grounds for termination, ‘as long as such legitimate reasons 

constitute just cause.’” 765 P.2d at 623. Noting that “[t]he 

disclaimer upon which the trial court relied was added after the 

plaintiffs commenced their employment with IREA,” and that in 

their summary judgment affidavits, the “plaintiffs asserted that they 

had relied on the employee manual provisions concerning 

termination,” the division held that the trial court erred in granting 

summary judgment to the employer. Id. 

¶ 49 In Ferrera, 799 P.2d at 461, the division appears to have reached 

a conclusion contrary to that reached in Allabashi. Ferrera brought 

an action alleging wrongful discharge and both implied contract and 

promissory estoppel claims based on the employee handbook. Id. at 

459. The district court granted summary judgment to the employer 

on the implied contract claim, based on a disclaimer contained in 

the handbook. 

¶ 50 The division affirmed on two bases. Id. at 459-61. First, the 

division concluded that the handbook did not either expressly 

require just cause for dismissal or prescribe a progressive discipline 

process. Id. at 461. Rather, the handbook expressly reserved the 
21 

right to discharge an employee whose conduct “in the opinion of the 

Company” warrants it. Id. 

¶ 51 Second, the division held that “[s]ummary judgment denying 

claims based on a handbook is appropriate if the employer has 

clearly and conspicuously disclaimed intent to enter a contract 

limiting the right to discharge employees.” Id. Concluding that the 

disclaimer was both “sufficiently clear” and “sufficiently 

conspicuous,” the division affirmed the summary judgment. Id. 

¶ 52 More recently, a division addressed this question in Evenson v. 

Colorado Farm Bureau Mutual Insurance Co., 879 P.2d 402 (Colo. 

App. 1993). Citing Ferrera, the division stated “[s]uch a 

manifestation of willingness to be bound can be inferred if there is 

no disclaimer in the manual stating that it does not constitute a 

contract or if such disclaimer, though present, is not clear and 

conspicuous.” Id. at 409. But then, the division proceeded to say 

that “[f]urthermore, even if there is a disclaimer in the manual, an 

employer may nevertheless be found to have manifested an intent to 

be bound by its terms if the manual contains mandatory 
22 

termination procedures or requires ‘just cause’ for termination.”3 

Id. 

¶ 53 If employees could not reasonably construe anything in the 

manual as a promise of either procedural or substantive 

employment rights, an implied contract claim fails irrespective of 

whether there was a clear and conspicuous disclaimer. Jaynes, 

148 P.3d at 248; George v. Ute Water Conservancy Dist., 950 P.2d 

1195, 1198 (Colo. App. 1997).4 This is so because a fundamental 

requirement of all contracts is that the terms of a contract “must be 

sufficiently definite to enable the court to determine whether the 

contract has been performed or not.” Stice v. Peterson, 144 Colo. 

 

3 Later in the opinion, the division suggests another basis for its 

decision: “[W]hile the disclaimer provisions[] are clear, they were not 

emphasized. Indeed, they contain nothing to make them 

conspicuous.” Evenson v. Colo. Farm Bureau Mut. Ins. Co., 879 P.2d 

402, 409 (Colo. App. 1993). 

4 In both Jaynes v. Centura Health Corp., 148 P.3d 241, 248 (Colo. 

App. 2006), and George v. Ute Water Conservancy Dist., 950 P.2d 

1195, 1198 (Colo. App. 1997), divisions of this court were able to 

avoid either reconciling or disagreeing with the cases cited above. 

In both of those cases, the divisions concluded that the plaintiffs 

failed to cite policies in the employers’ manuals that could be 

construed as a promise of either procedural or substantive rights 

and thus failed to show that the manuals created an implied 

contract or were binding on promissory estoppel principles. 

Jaynes, 148 P.3d at 248; George, 950 P.2d at 1198. 
23 

219, 224, 355 P.2d 948, 952 (1960) (quoting Newton Oil Co. v. 

Bockhold, 115 Colo. 510, 518, 176 P.2d 904, 908 (1946)); see also 

Sheridan Redevelopment Agency v. Knightsbridge Land Co., 166 

P.3d 259, 262 (Colo. App. 2007). If the disclaimer is not clear and 

conspicuous, it is wholly ineffective to displace promises contained 

in the handbook that are relied on by the employees. See Ferrera, 

799 P.2d at 461. 

¶ 54 To the extent that some divisions of this court have held that 

even when the disclaimer is clear and conspicuous, the case 

nevertheless goes to the jury, we cannot subscribe to that result 

because it gives insufficient weight to a clear and conspicuous 

disclaimer.5 See People v. Smoots, 2013 COA 152, ¶ 20 (holding 

 

5 We do not eliminate the possibility that evidence other than the 

employee manual and the disclaimer could result in a factual 

question of whether an implied contract has been formed. Indeed, 

these facts seem to be in play in Evenson, 879 P.2d at 409, where 

the division referred to testimony by the company’s managers to the 

effect that they regarded the disciplinary procedures as mandatory 

and treated them as mandatory. Whether viewed as an amendment 

to or an implied revocation of the disclaimer, facts such as those 

may well preclude summary judgment and require the fact finder to 

ultimately determine whether an implied contract was created. See 

I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 887 

(Colo. 1986) (“[I]t is for the jury to determine whether the parties 

have entered into a contract.”). But Cummings neither pleaded 
24 

that we are not bound by the decisions of other divisions of this 

court). That result also is not faithful to supreme court cases that 

have repeatedly reaffirmed the doctrine of at-will employment in 

Colorado (subject to several enumerated exceptions). See, e.g., 

Keenan, 731 P.2d 708. 

¶ 55 The purpose of a disclaimer is to inform the employee that the 

employer is not making contractual promises and that the employee 

remains an employee at will. It is difficult to understand how a 

reasonable employee could believe that the employer has made 

contractual promises in the face of a clear and conspicuous 

disclaimer that says exactly the opposite. 

¶ 56 Thus, we hold that when a clear and conspicuous disclaimer 

informs an employee that he or she cannot reasonably rely on 

termination procedures or substantive restrictions on termination 

contained in an employee manual, a claim based on an implied 

contract claim ordinarily fails as a matter of law.6

 

such circumstances nor supported his summary judgment 

opposition with such evidence. 

6 Because no promissory estoppel claim was pleaded in this case, 

we do not address the legal effects of clear and conspicuous 

disclaimers on such claims. 
25 

¶ 57 We acknowledge that courts in other states have reached widely 

varying results on this question. See Stephen F. Befort, Employee 

Handbooks and the Legal Effect of Disclaimers, 13 Indus. Rel. L.J. 

326 (1991-92) (collecting cases). 

¶ 58 We perceive that the rule we apply here is the majority rule. See 

Fed. Exp. Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993) (“A 

disclaimer in an employee handbook, such as the one included by 

Federal Express, negates any implication that a personnel 

procedures manual places a restriction on the employment at will 

relationship.”); see also Davis v. Liberty Mut. Ins. Co., 218 F. Supp. 

2d 256 (D. Conn. 2002); Anderson v. Douglas & Lomason Co., 540 

N.W.2d 277 (Iowa 1995); Byrd v. Imperial Palace of Miss., 807 So. 

2d 433 (Miss. 2001); Woolley v. Hoffmann-La Roche, Inc., 491 A.2d 

1257 (N.J. 1985), modified, 499 A.2d 515 (N.J. 1985); Ruzicki v. 

Catholic Cemeteries Ass’n of Diocese of Pittsburgh, 610 A.2d 495 (Pa. 

Super. Ct. 1992); Bine v. Owens, 542 S.E.2d 842 (W. Va. 2000); 

Bear v. Volunteers of Am., Wyo., Inc., 964 P.2d 1245 (Wyo. 1998). 

¶ 59 Other states hold that the existence of a disclaimer, even one 

that is clear and conspicuous, is but one factor in determining 

whether an employee manual forms an implied contract. See, e.g., 
26 

Brace v. Int’l Bus. Machs. Corp., 953 F. Supp. 561, 567 (D. Vt. 

1997); Gonsalves v. Nissan Motor Corp. in Haw., Ltd., 58 P.3d 1196 

(Haw. 2002); Lee v. Canuteson, 573 N.E.2d 318 (Ill. App. Ct. 1991); 

Hunt v. Banner Health Sys., 720 N.W.2d 49 (N.D. 2006); Hodgson v. 

Bunzl Utah, Inc., 844 P.2d 331 (Utah 1992). 

¶ 60 In view of the indisputable presence of clear and conspicuous 

disclaimers, we need not determine whether the Manual, in fact, 

creates sufficiently definite promises or rights capable of 

enforcement under contract law. As a matter of law, these 

disclaimers preclude a successful implied contract claim based on 

any rights other than those that effectuate the specific due process 

rights granted by section 30-10-506. 

IV. Conclusion 

¶ 61 That part of the district court’s summary judgment order 

permitting Cummings to pursue an implied contract claim based on 

rights conferred in the Manual that effectuate the due process 

rights granted by section 30-10-506 is affirmed. In all other 

respects, the district court’s summary judgment order is reversed, 

and on remand the court is directed to grant the Sheriff’s motion for 

summary judgment to that extent. 
27 

JUDGE FREYRE concurs. 

JUDGE BERNARD specially concurs. 
28 

JUDGE BERNARD, specially concurring. 

¶ 62 I agree with the result that the majority reaches: although the 

district court properly denied the sheriff’s motion for summary 

judgment concerning two statutory rights created by section 30-10-

506, C.R.S. 2017, it erred when it denied the rest of the sheriff’s 

motion. But, as I explain below, I employ a different rationale to 

reach the same result. 

I. Introduction 

¶ 63 When interpreting a statute, a court focuses on its plain 

language, “construing words and phrases according to the rules of 

grammar and common use.” Roberts v. Bruce, 2018 CO 58, ¶ 8. 

The court’s “central task is to give effect to the General Assembly’s 

intent.” Id. “To this end, [the court will] read the statute as a whole 

and seek to give consistent, harmonious, and sensible effect to all 

its parts.” Id. “The plain language of the statute is the best 

indication of legislative intent, and clear and unambiguous 

language eliminates the need to resort to other principles of 

statutory construction such as legislative history . . . .” People v. 

J.J.H., 17 P.3d 159, 162 (Colo. 2001). 
29 

¶ 64 “If a statute is clear and unambiguous on its face, then [the 

court] need not look beyond the plain language and must apply the 

statute as written.” McIntire v. Trammell Crow, Inc., 172 P.3d 977, 

979 (Colo. App. 2007). To put it another way, if a court can give 

effect to the ordinary meaning of the words adopted by a legislative 

body, the statute should be construed as written “since it may be 

presumed that the General Assembly meant what it clearly said.” 

Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo. 1989). If a 

statute is unambiguous, a court does not “resort to legislative 

history or further rules of statutory construction.” Smith v. Exec. 

Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo. 2010). 

¶ 65 My analysis in this case would begin and end with the language 

of section 30-10-506, which I will refer to as “section 506.” As I 

explain below, I think that this language clearly and unambiguously 

describes a legislatively mandated rule that has been in effect in 

Colorado since 1877: sheriffs have the authority to fire their 

deputies at will. 

¶ 66 Although the legislature amended section 506 in 2006, I do not 

believe that the amendments altered this rule. I recognize that the 

legislature may have intended to eliminate the rule and to 
30 

completely overrule Seeley v. Board of County Commissioners, 791 

P.2d 696, 699 (Colo. 1990). But it is my respectful view that the 

plain language that the legislature employed in section 506 

achieved those purposes only to the extent that section 506 created 

two specific statutory rights, while it otherwise preserved the 

authority of sheriffs to fire deputies at will. For the purposes of this 

case, this means that the rules in the sheriff’s personnel manual 

did not, and could not, override the sheriff’s explicit statutory 

authority to fire the former deputy. 

II. Comparison of the 1877 Statute and Section 506 

¶ 67 As is pertinent to my analysis, the 1877 statute stated: “Each 

sheriff may appoint such and so many deputies as he may think 

proper . . . and may revoke such appointments at his pleasure.” 

G.L. 1877, § 493. 

¶ 68 The language that the legislature adopted in 1877, with a few 

minor changes, remained in effect for 129 years. See Ch. 43, sec. 1, 

§ 30-10-506, 2006 Colo. Sess. Laws 133 (showing that, before the 

2006 amendment, the statute read, “Each sheriff may appoint as 

many deputies as he may think proper . . . and may revoke such 

appointments at his pleasure.”). 
31 

¶ 69 As a result of the legislature’s 2006 amendments, section 506 

now says: 

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. 

¶ 70 Comparing judicial descriptions of employees who serve at the 

pleasure of an employer and of at-will employees, I conclude that 

there is no significant difference between them. “An employee who 

serves ‘at the pleasure’ of his employer generally may be discharged 

at any time without cause or formal procedure.” Johnson v. 

Jefferson Cty. Bd. of Health, 662 P.2d 463, 471 (Colo. 1983). An atwill employee “may be terminated by either [the employee or the 

employer] without cause and without notice.” Crawford Rehab. 

Servs., Inc. v. Weissman, 938 P.2d 540, 546 (Colo. 1997)(quoting 

Cont’l Airlines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987)). 

¶ 71 Our supreme court has carefully analyzed the language of the 

1877 statute in a series of cases. I explain those opinions next. 
32 

III. Cases Analyzing the 1877 Statute 

¶ 72 Because counties are political subdivisions of the State of 

Colorado, they only have “such powers as are expressly conferred 

. . . by the constitution and statutes, and such incidental implied 

powers as are reasonably necessary to carry out such express 

powers.” Bd. of Cty. Comm’rs v. Love, 172 Colo. 121, 125, 470 P.2d 

861, 862 (1970), superseded by statute on other grounds, Ch. 213, 

1979 Colo. Sess. Laws 843. In other words, a county department, 

“as a political subdivision of the state, may not by rule or regulation 

abdicate the authority and responsibility delegated to it by the 

legislature.” Johnson, 662 P.2d at 471. 

¶ 73 As a result, “a local government may not forbid that which the 

state has explicitly authorized.” Id. This means that, if the 

legislature has given a county official the authority to terminate 

employees at will, then a county’s personnel rules “do not override 

the explicit statutory authority of the [official] to discharge [an 

employee].” Id. 

¶ 74 Seeley, 791 P.2d at 699, applied these principles when 

considering the language of the 1877 statute. The supreme court 

concluded that this plain language meant that a sheriff could not, 
33 

via the sheriff’s personnel policies collected in a personnel manual, 

“limit his power to terminate deputy sheriffs.” Id. at 700. Those 

policies, the supreme court thought, contravened the 1877 statute, 

and, by doing so, the policies sought to “forbid that which the state 

has explicitly authorized.” Id. (quoting Adams Cty. Sch. Dist. No. 50 

v. Dickey, 791 P.2d 688, 690 (Colo. 1990)). To put it another way, 

the 1877 statute “did not authorize [the sheriff] to limit his 

statutory power to discharge deputy sheriffs at his pleasure.” Id. 

¶ 75 Seeley held that a local government entity, such as a sheriff’s 

office, “may limit its power to terminate employees if it possesses 

the requisite statutory authority to do so.” Id. at 699. Only the 

legislature can provide the “requisite statutory authority.” 

¶ 76 So what does such “statutory authority” look like? Dickey

provides one example. In that case, a statute “authorize[d] school 

boards to adopt written policies, rules and regulations.” Dickey, 

791 P.2d at 692. The subjects of the rules and regulations were 

“inherently related to practices affecting the employment, 

promotion, and dismissal of personnel.” Id. The statute did not 

require school boards “to adopt employment termination 

procedures,” but “if they cho[]se to do so the promulgation of such 
34 

procedures constitute[d] an authorized exercise of the powers 

granted to school boards” by the statute. Id.

¶ 77 The supreme court was careful to point out that the statutory 

language in Dickey “differ[ed] significantly from statutory provisions 

which have been held to override employment termination 

procedures established by local governments.” Id. The court listed 

three cases to support this distinction. 

¶ 78 In Johnson, the statute stated that a county public health officer 

“shall be appointed by the board [of health] to serve at the pleasure 

of the board.” 662 P.2d at 471 (quoting § 25-1-505(1), C.R.S. 

1973). The supreme court thought that this language “expressed 

the legislature’s judgment that county boards of health should have 

the authority to discharge county public health officers ‘at any time 

without cause or formal procedure.’” Dickey, 791 P.2d at 692 

(quoting Johnson, 662 P.2d at 471). 

¶ 79 In Kennedy v. Board of County Commissioners, 776 P.2d 1159, 

1160 (Colo. App. 1989), a statute read that “[a]ny persons 

appointed to such offices shall serve at the pleasure of the board of 

county commissioners.” A division of the court of appeals noted 
35 

that this language “define[d] the employee as terminable at will and 

[it] supersede[d] any county declaration to the contrary.” Id. 

¶ 80 And, in Seeley, the supreme court considered the language in the 

predecessor statute to section 506 that we have quoted above: 

“Each sheriff may appoint as many deputies as he may think proper 

. . . and may revoke such appointments at his pleasure.” 791 P.2d 

at 699 (quoting § 30-10-506, C.R.S. 1986). The court in Dickey

decided that this language made “deputy sheriffs employees at will,” 

and, as a result, sheriffs had “no power to alter the employment 

status of deputy sheriffs through the promulgation of employee 

manuals.” 791 P.2d 692. 

IV. Interpretation of Section 506 

¶ 81 Applying the principles of statutory construction that I described 

in the Introduction, I conclude that the language in section 506 is 

plain and clear. I think that it continues the legislatively mandated 

rule that appeared in the 1877 statute: a sheriff may terminate a 

deputy’s appointment “at will.” This means that a sheriff may fire a 

deputy “without cause and without notice,” Crawford Rehab. Servs., 

Inc., 938 P.2d at 546, and that such a decision “does not give rise to 

a cause of action,” Dickey, 791 P.2d at 691. 
36 

¶ 82 Next, the legislature also has the authority to “create[] exceptions 

to the employer’s general right to terminate an employee at-will.” 

Crawford Rehab. Servs., Inc, 938 P.2d at 546. I find two of those 

exceptions in section 506: a sheriff must give a deputy (1) notice of 

the reason why he or she is firing the deputy; and (2) an 

opportunity “to be heard by the sheriff.” In other words, section 

506 limits a sheriff’s at-will authority to fire a deputy in these two 

ways. See Crawford Rehab. Servs., Inc., 938 P.2d at 546. 

¶ 83 But what is the effect of the language in section 506 that requires 

sheriffs to adopt policies “for the review of revocation of 

appointments”? Does it set out additional exceptions to “the 

employer’s general right to terminate an employee at-will”? 

Crawford Rehab. Servs., Inc., 938 P.2d at 546. I would answer the 

second question “no.” 

¶ 84 The requirement that a sheriff must adopt policies for reviewing 

the decision to fire a deputy is not accompanied by language stating 

that a sheriff is bound by those policies, or that the sheriff must 

“follow” or “comply with” them, or that they “control,” “modify,” or 

“limit” the sheriff’s discretion to fire deputies at will. And I cannot 

add such language to section 506 in the course of interpreting it. 
37 

Williams v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 85 (“[W]hen 

interpreting a statute, ‘we must accept the General Assembly’s 

choice of language and not add or imply words that simply are not 

there.’” (quoting People v. Benavidez, 222 P.3d 391, 393-94 (Colo. 

App. 2009))); Carruthers v. Carrier Access Corp., 251 P.3d 1199, 

1204 (Colo. App. 2010)(“[W]e will not interpret a statute to mean 

that which it does not express.”). 

¶ 85 So what purpose does the requirement in section 506 that 

sheriffs adopt policies “for the review of revocation of appointments” 

serve? I conclude that the policies are “discretionary rather than 

mandatory termination procedures,” Jaynes v. Centura Health 

Corp., 148 P.3d 241, 249 (Colo. App. 2006), because the 

requirement is not accompanied by statutory language requiring 

sheriffs to follow the policies. Cf. Kreimeyer v. Hercules, Inc., 892 F. 

Supp. 1374, 1378 (D.C. Utah 1994) (discretionary personnel 

policies were guidelines or a management tool and did not create an 

implied employment contract). 

¶ 86 Because I conclude that the legislatively mandated at-will 

employment rule survived the 2006 amendments, I think the 

supreme court cases that interpreted the 1877 statute still apply to 
38 

this case. I would therefore additionally conclude that, although 

the legislature amended the 1877 statute in 2006, the continued 

presence of the legislatively mandated at-will employment rule in 

section 506 means that the resolution of this case is controlled by 

Seeley instead of Dickey. As the supreme court pointed out in 

Seeley, the 1877 statute “explicitly authorize[d] . . . sheriffs to 

discharge deput[ies] . . . at their pleasure.” 791 P.2d at 699. 

Section 506 does the same thing. So section 506 “did not authorize 

[the sheriff] to limit his statutory power to discharge deput[ies] . . . 

at his pleasure.” Seeley, 791 P.2d at 699-700; see Johnson, 662 

P.2d at 471 (“We conclude . . . that the . . . personnel rules, even 

though adopted by the board of health, do not override the explicit 

statutory authority of the board to discharge a public health officer 

appointed by the board.”).

¶ 87 Turning to the statute in Dickey, it did not make an explicit 

reference to school boards having the power to terminate 

employment at will, and it did not state that employees served at 

the pleasure of the school boards. Rather, it gave the school boards 

discretionary powers “[t]o discharge or otherwise terminate the 

employment of any personnel.” Dickey, 791 P.2d at 691. Section 
39 

506 is different: it expressly gives sheriffs the authority to terminate 

deputies’ employment at will by clearly stating that sheriffs “may 

revoke” the appointments of deputies “at will.” 

¶ 88 The supreme court observed in Kennedy, 776 P.2d at 1160, that 

statutory provisions such as section 506 “have been construed to 

bar claims for breach of contract based on assurances in an 

employee handbook under the rationale that such a statute defines 

the employee as terminable at will and the statute supersedes any 

county declaration to the contrary.” Accord Johnson, 662 P.2d at 

471 (A county’s personnel rules “do not override the explicit 

statutory authority of the [official] to discharge [an employee].”). 

Relying on Seeley, Kennedy, and Johnson, I would therefore 

conclude that section 506 bars the deputy’s claim in this case that 

the sheriff’s employment policies, as embodied in the policy manual, 

created an implied employment contract that the Sheriff breached 

when he fired the deputy. 

¶ 89 To summarize, reading the three components of section 506 

together leads me to conclude that (1) the legislature preserved the 

rule that it first adopted in 1877 that sheriffs have the authority to 

terminate deputies’ appointments at will; (2) this authority is now 
40 

subject to two exceptions and to two exceptions only; and, 

therefore, (3) the legislature made clear that sheriffs have “no 

[additional] power to alter the employment status of deputy sheriffs 

through the promulgation of employee manuals.” Dickey, 791 P.2d 

at 692. 

¶ 90 I would therefore, like the majority, (1) affirm the district court’s 

order denying the sheriff’s motion for summary judgment with 

respect to two specific statutory rights created by section 506; but 

(2) otherwise reverse the court’s order denying the motion.